Delhi High Court
Bses Rajdhani Power Limited vs Usha Shoken & Anr. on 7 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 7th August, 2018
+ CRL.L.P. 514/2018
BSES RAJSHANI POWER LIMITED ..... Petitioner
Represented by: Mr. Rishab Raj Jain, Advocate
alongwith Ms. Jaya Verma
(Office of BSES Rajdhani
Power Limited)
versus
USHA SHOKEN & ANR. ..... Respondents
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl. M.A. No.29447-448/2018 (Exemption)
Allowed, subject to all just exceptions.
CRL.L.P. 514/2018
1. Aggrieved by the judgment dated 9th May, 2018 whereby the learned
Additional Sessions Judge, acquitted the respondent No.1 for the offence
punishable under Section 135/138 read with Section 150 Electricity Act,
2003, and respondent No.2 for the offence punishable under Section
135/138 Electricity Act, 2003, the petitioner/complainant has preferred the
present leave petition.
2. The facts leading to the present case are that on 22nd January 2009 at
2:10 P.M., an inspection was carried out by the inspection team of the
complainant company which consisted of Surender Chauhan, Manager,
Dhiraj Kumar, GET and Raju Pandey, DET for meter bearing No. 27110110
installed at House No. 7, Office at No. B-22., KH No. 8/2, Tek Chand
Colony, Near BSES Pole No. NGLG262, Nilothi Ext., Nangloi, New Delhi.
The inspection report noted that wrong date and time was found in the meter
display. It showed date as 3rd January 1988 and time as 5:45 P.M. while
actual date and time was 22nd January 2009, 2:10 P.M. The joint team
downloaded the CMRI data analysis for further detailed analysis and also
checked accuracy of meter with standard accuracy check instrument and
found that the meter ran within limit. The inspection team found all seals of
the meter box intact and opened the meter box. Joint team called division
staff for maintaining user supply through new meter and old meter was
seized by them. The respondents were found to be using connected load of
110.776 KW/IX/DAE. The meter was duly sealed and sent for
testing/analysis to meter testing lab. Upon investigation of the removed
meter, abnormal power down count was found to be 102256 and abnormal
power down duration was found to be 908 days 20 hours and 37 minutes.
NVM found failed and in currency history KVah was less than KWh. The
testing lab declared that the meter was tampered. A show cause notice dated
2nd April 2009 was issued to the respondents requesting them to file reply by
9th April 2009. They attended personal hearing on 15th April 2009 in the
office of the petitioner. On 15th April 2009, personal hearing was attended
by respondent No.2 and Deepak Kumar who stated that the factory was
being run for the last one year and he had applied for enhancement of load
from 12 KW to 35 KW and paid the demand note on 12th June 2008 and was
not aware of the meter tampering. The Assessing Officer of the petitioner
passed a speaking order consequent to which an amount of ₹53,33,989/- was
to be paid by the respondent No. 2 for wrongful abstraction, consumption or
use of electricity. Hence, the complaint.
3. Notice under Section 251 Cr.P.C. was served upon the respondents on
29th April, 2013 to which they pleaded not guilty and claimed trial.
4. Surender Chauhan (PW-1), Manager of the petitioner in his testimony
proved the inspection report (Ex.CW-2/1), meter report, load report
(Ex.CW-2/2), seizure memo (Ex.CW-2/6). He stated that he offered copies
of the said reports to respondent No.2 and also requested him to sign on the
said reports but respondent No. 2 neither signed on the said reports nor
accepted them.
5. Saurabh Vashist, Training Engineer was examined as PW-2, Ritu Raj
Sinha, Assessing Officer as PW-3, Jai Prakash, videographer as PW-4 and
Pankaj Bhatty, Authorized Representative as PW-5.
6. Respondent No. 1 in her statement recorded under Section 313
Cr.P.C. stated that she did not know whether any inspection had been carried
out on 22nd January 2009 as she was not present at the premises on the said
date. Respondent No. 2 was the tenant and user of the premises. She stated
that neither was the meter tested in her presence nor has she received a copy
of the speaking order. No videography was carried out in her presence.
7. Respondent No. 2 in his statement recorded under Section 313 Cr.P.C.
stated that inspection team inspected the premises, however, he reached at
the site after about 20 minutes of the starting of the inspection. No reports
were prepared nor was any videography conducted in his presence. He was
told by his laborers that videography was conducted at the site by the
inspection team. He stated that neither was the meter tested in his presence
nor has he received a copy of the speaking order.
8. Learned Additional Sessions Judge acquitted the respondent on the
basis that inspection report (Ex.CW-2/1), has not been proved on record and
there was no evidence to show that the same was served on the respondents
through registered post.
9. He further relied on the testimony of Jai Prakash (PW-4),
Videographer who stated that the alleged CD containing the videography
was prepared by one Vicky Arora who has not been examined by the
petitioner company. The petitioner company has also not filed the requisite
certificate under Section 65B of the Indian Evidence Act, so as to prove the
alleged videography. Furthermore, Ritu Raj Sinha (PW-3), Assessing
Officer, BRPL, during his cross-examination stated that he did not issue
Ex.CW-2/3 to the respondents which makes it quite clear that the
respondents were not aware of the alleged testing of the alleged meter on
11th February 2009. Saurabh Vashist (PW-2) in his testimony stated that
there was no document on record which authorized him to do the testing of
meter and there was also no such document on record which showed that the
petitioner had authorized to get the meter tested and testing was supervised
by Rajiv Ranjan, Assistant Manager. In the absence of any alleged ESD/HF
or any other material, it cannot be said that the respondent had intentionally
shut down the meter abnormally for the purpose of manipulating the
consumption. The petitioner company had failed to show any tangible
evidence of dishonest abstraction of energy against the respondents. There
was nothing in the inspection report (Ex.CW-2/1) to show that any efforts
were made by the team to join the public persons in the inspection in spite of
there being evidence on record to suggest that 4-5 public persons had
assembled at the time of inspection. Testimony of Surender Chauhan (PW-
1) shows that there were three members of the inspection team but the
petitioner company has only examined one member of the inspecting team.
10. In view of the officer not being duly authorized to test the meter, the
videography having not been proved by examining the person who did the
videography, absence of certificate under Section 65B of the Indian
Evidence Act, this Court concurs with the view expressed by the learned
Additional Sessions Judge that the petitioner has not been able to prove
dishonest abstraction of electricity by the respondents beyond reasonable
doubt. Hence, the impugned judgment acquitting the respondents cannot be
said to be perverse warranting interference of this Court.
11. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
AUGUST 07, 2018
'vn'
