Delhi District Court
Bses vs . Mubin Khan & Anr, Cc No. 225/12 Page 1 Of ... on 1 October, 2014
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IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. : 225/12
Police Station : Vasant Kunj, New Delhi
U/s : 135 & 138 r/w/sec. 150 of Electricity Act, 2003
Unique ID No. : 02406 RO179202012
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Mubin Khan (User)
2. Nawab (Registered Consumer and User)
Both at: Shop in House No. 156,
Ground Floor, Chandan Hulla,
New Delhi - 110 070.
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant.
Accused on bail with Shri N.K. Naagar, Advocate.
Complaint instituted on : 23.07.2012
Judgment reserved on : 17.09.2014
Judgment pronounced on : 01.10.2014
BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 1 of page 13
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JUDGMENT
1. The case of the complainant in brief is that on 15.12.2011 officials of the complainant company namely Shri Ravindhra Kumar - Senior Manager and Shri Alok Kumar - Diploma Engineer inspected the premises i.e. the shop in House No. 156, Ground Floor (near pole no. SKT A 105), Chandan Hulla, New Delhi and CRN No. 2520170134 installed therein and that at the time of inspection RTC of one single phase electronic meter bearing no. 23810941 was found failed and same was showing current date 02.01.2000 and time as 03.10.05 hours instead of actual date as 15.12.2011 and 01.08 hours. It is further mentioned in the said complaint that total load of 2.653 KWs for non domestic purpose was found connected against the sanctioned load of 5.00 KWs. It is further mentioned in the said complaint that energy supply was restored through new electronic meter bearing no. 24412998 and meter bearing no. 23810941 was seized and sent to the Meter Testing Laboratory for further testing / analysis. It is further mentioned in the said complaint the inspection team prepared the inspection report, load report and seizure memo.
2. It is also mentioned in the complaint that meter was tested in the laboratory on 11.04.2011 (it should have been 29.12.2011 as is mentioned in the lab report Ex. CW2/4 and even otherwise when the inspection was conducted on 15.12.2011, how the meter could have BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 2 of page 13 3 been sent for testing on 11.04.2011 and this seems to be some inadvertent mistake in the complaint and the correct dates have been mentioned for the purpose of narrating the facts of the case) and as per Energy Meter Test Report No. BRPL/11/22051 dated 29.12.2011, black push button found missing, current date was shown by the meter as 02.01.2000 as on actual date as 29.12.2011, meter MD history date to have occurred more than once in a month, scratch mark found on PCB under black push button and the laboratory declared that the meter got disturbed and same happened if meter is subjected to frequent abnormal external disturbances through switches.
3. It is further alleged in the complaint that a showcause notice dated 12.01.2012 for suspected theft of electricity (meter tampering) was issued and consumer was requested to file reply by 13.02.2012 and to attend personal hearing on 21.02.2012 and that there was no response from the consumer and final notice dated 22.02.2012 was issued again, but also there was no response from the consumer. It is further mentioned in the complaint that necessary photography/ videography was got conducted by the inspection team. It is further mentioned in the complaint that as per consumption records for the period from 07.12.2010 to 25.11.2011, meter showed an average recorded consumption of 29 units per month, which has been found to be only 7% if the assessed consumption indicating suppression of the BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 3 of page 13 4 recording of the consumption by the meter and corroborating the fact that theft of electricity had taken place. It is further mentioned in the said complaint that the Assessing Officer after considering all the relevant aspects of the matter passed Speaking Order and thus, accused were causing wrongful loss to the complainant and wrongful gain to them and were thus acting dishonestly.
4. It is further mentioned in the complaint that accused were using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.1,20,179/ was payable to the complainant by the accused and same was computed as per DERC Regulations and as per applicable tariff and that the due date of the said theft bill was given as 01.05.2012 and same was served upon the accused but they failed to pay the said theft bill.
5. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my ld. predecessor vide his order dated 03.09.2012 and the accused appeared and my ld. predecessor vide his order dated 04.12.2012 framed notice u/s. 251 Cr.P.C. for the offence u/s. 135 & 138 of the Electricity Act, 2003, against the accused Mubin Khan and accused pleaded not guilty and claimed trial on the ground that he had not tamper the meter nor he was committing any theft of electricity and that he was running the flour BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 4 of page 13 5 mill with the help of his father Nawab Khan, for personal use only and that false and fabricated case has been made out against him. Notice u/s. 251 Cr.P.C. for the offence u/s. 135 & 138 r/w/section 150 of the Electricity Act, 2003, was framed against the accused Nawab Khan and accused pleaded not guilty and claimed trial on the same ground as taken by accused Mubin Khan. Accused Nawab Khan further answered that he was not committing any theft of electricity nor he was abetting any person for commission of theft of electricity. Both the accused further answered that they are not liable to pay any damages or loss to the complainant company as alleged.
6. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
7. The statements of both the accused namely Mubin Khan and Nawab Khan were recorded U/sec. 313 Cr.P.C. separately, wherein they pleaded their innocence and denied the evidence as false and they answered that only one bag of the whole grain was lying at the time of inspection and that no report was ever served upon them at the said premises and that said reports were false and that no show cause notice was ever served upon them. Both the accused further answered that they are innocent and all the seals of the meter were intact and same may be due to internal fault of the weak battery and backup of BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 5 of page 13 6 the meter and that the life of the meter had expired. Both the accused further answered that they were regularly paying the electricity charges raised by the complainant company and that they were not committing any theft of electricity at the premises in question. However, none of the accused opted to lead defence evidence.
8. I have heard the counsel for the complainant and counsel for the accused Shri N.K. Naagar, advocate, and perused the record including the videography/photography displayed on the computer screen of the court.
9. PW1 Shri Ravindhra Kumar was the Senior Manager of the complainant company, who deposed that on 15.12.2011 at about 1.00 p.m., he along with Shri Alok Kumar, Shri Manoj Kumar and Shri Vinay visited and inspected the premises i.e. shop in house no. 156, Ground Floor, Chandan Hulla, New Delhi and that on reaching the said premises, they found that there was a single phase electronic meter installed and that the date and time of the said meter was disturbed i.e. meter display showed the date as 02.01.2000 and time as 3.10 p.m. instead of the actual date as 15.12.2011 and time as 01.08 p.m. PW1 further deposed that the black push button of the meter was found missing and that they assessed the total connected load of the said premises which was running through the said meter and same was BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 6 of page 13 7 found to be 2.653 KWs for nondomestic purpose. PW1 further deposed that they replaced the said mete with a new meter and the supply was restored with the new meter and that the meter in question was seized and sealed at the spot and was sent to the laboratory for further testing and analysis. PW1 further deposed that the said premises was being used by accused Mubib Khan as stated at the spot and that meter in question was in the name of accused Nawab. PW1 also proved the inspection report, load report and seizure memo as Ex. CW2/1, Ex. CW2/2 and Ex, CW2/C, respectively. PW1 further deposed that after preparing the said documents, they offered the same to the accused, but he refused to receive and sign the same. PW1 also identified the videography contained in the compact disc Ex. CW2/10. PW1 also identified the electronic meter bearing no. 23810941 as Ex. P1.
10. In his cross examination on behalf of the accused, PW1 replied that he did not remember as to whether the flour mill was working at the time of inspection. PW1 answered that the connected load assessed by the team was of the shop where flour mill was running and that no external device was seized from the site, which could have been used for Electro Static Discharge (ESD). PW1 further answered that the whole grain of wheat was lying at the spot to indicate that the flour mill was in working condition.
BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 7 of page 13 8
11. PW2 Shri Vijay Kumar, the videographer had proved the CD of videography as Ex.CW2/10 and he also identified the videography contained therein. In his cross examination on behalf of the accused, PW2 replied that the point from where the tampering was being done, was focused by him in the videography and that there was no resistance offered at the site. PW2 did not know as to what papers were prepared or that the same were prepared in his presence or not. PW2 could not say as to whether any paper was prepared at the office of the complainant company. PW2 also could not recollect as to whether the accused present in the court, had been covered in the videography by him.
12. PW3 Sh. Sukhpreet Singh Pannu was the Assessing Officer of the complainant company, who proved the Speaking Order as Ex. CW2/7 and he deposed that after considering inspection report, load report, lab report and consumption pattern and after giving all reasonable opportunities to the accused for personal hearing and when the accused did not appear in personal hearing, he passed the said Speaking Order.
13. In his cross examination on behalf of the accused, PW3 admitted it as correct that he did not visit the site before or after passing the BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 8 of page 13 9 Speaking Order and that he had not checked the meter in question physically and that there was no postal receipt on court record to show that the show cause notice dated 12.01.2012 and 22.02.2012 were served upon the consumer. PW3 answered that he had not checked the consumption pattern after the date of inspection.
14. PW4 Ms. Vaishali Bansal deposed that she was working with the complainant company since 2010 as Graduate Engineer Trainee and the meter bearing No.23810941 was tested by her on 29.12.2011 in the absence of the consumer and the same was approved by Shri Bimal Mondal - Manager, BRPL Laboratory and she proved the lab report as Ex.CW2/4 (colly.). She further deposed that the case property i.e. meter bearing No.23810941 was produced in sealed condition and she had broken the seal bearing No.113636 for further testing of the said meter and after opening the sealed bag, she had taken the photographs and downloaded the data of the said meter. She further deposed that on the visual observation of the meter, she found that the black push button was missing at the time of testing of the meter. PW4 correctly identified the electronic meter bearing No.23810941 as Ex.P2 and two broken seals as Ex.P1 & Ex.P3 and she further deposed that the seal Ex.P3 was broken by her in the lab while testing the meter in question and the seal already exhibited as Ex.P1 was the seal which was used for resealing the case property after testing of the meter. PW4 further BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 9 of page 13 10 deposed that on the analysis of the meter data, she found that the RTC (Real Time Clock) of the meter was found failed and current date of the meter was 02.01.2000, whereas, actual date was 29.12.2011, MD history date found occurred more than once in a month. PW4 further deposed that she also found that there were scratch marks on the PCB (Printed Circuit Board) under black push button and that she came to conclusion that meter got disturbed frequently by abnormal external disturbances through switch.
15. In her cross examination on behalf of the accused, PW4 admitted it as correct that date and time of the meter in question was found to be disturbed and due to the disturbance in the date and time of meter, the same became defective. PW4 also admitted that the hologram and plastic seals of the meter in question were intact and that pulse of the meter in question was correct and no foreign element was found inside the meter at the time of the testing and there was scratch marks found on the PCB under black push button of the meter and the CMRI data of the meter in question was downloaded. PW4 further deposed that the billing of the meter was found repeating itself, which was also downloaded and included in the CMRI data and same was on the record which was at page no.3 of Ex.CW2/4 (colly.) and was bracketed in red and that the MDI of the meter was at same page in the same data which was already bracketed as red. PW4 answered that the BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 10 of page 13 11 overall suppression period had been shown in the said downloaded data of previous six months. PW4 further answered that the after the failure of RTC, the meter recorded the consumption units for some period and thereafter it stopped recording the same. PW4 also admitted it as correct that RTC could be disturbed due to the weak battery or failure of backup but the meter could not go to "2000" in default, but it merely got delayed by 1 or 2 days. PW4 further answered that the warranty period of the meter was not properly visible in the photograph attached with Ex.CW2/4. After going through the meter in question as Ex. P2, PW4 answered that the warranty period of the meter in question was upto November, 2011 and the meter was tested in December, 2011.
16. PW5 Shri G.B. Barapatre, the Deputy Finance Officer, proved the theft bill Ex. CW2/9 and he deposed that he prepared the said theft bill on the basis of formula given under the Electricity Act. In his cross examination on behalf of the accused, he replied that he was not the member of the inspection team and that he had no personal knowledge of the present case.
17. PW6 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. CW1/2 and he proved the complaint as Ex. CW1/1. In his cross examination on behalf of the BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 11 of page 13 12 accused, he replied that he did not visit the site and that he had no personal knowledge of the case.
18. From the cross examination of PW4, who tested the meter in question, it has come on the record that due to disturbance in the date and time of the meter, the same becomes defective. It is admitted case of PW4 that hologram and plastic seals of the meter in question were intact and the pulse of the meter was correct. It is further admitted by PW4 that no foreign element was found inside the meter at the time of testing. PW4 further admitted that RTC may be disturbed due to weak batter or failure back up, but it merely get delayed by one or two days and it cannot go to "2000" in default. The said witness has further admitted that warranty period of the meter in question was upto November, 2011 and the meter was tested in December, 2011.
19. Since PW4 was the star witness, who could have proved the case against the accused beyond reasonable doubt, but the said cross examination go to establish that at many points a reasonable doubt has been created as to whether the meter was defective or tampered. From the said answers given by PW4, it cannot be inferred that presumption has arisen in the case against the accused as envisaged in 3 rd proviso to section 135 and section 138 of the Electricity Act, 2003. BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 12 of page 13 13
20. The case is further demolished by the answer given in the cross examination by PW1 that at the time of inspection on 15.12.2011, no external device, which could have been used for electro static discharge, was seized from the site and at the time of inspection there was no lab report available with the PW1 to conduct the said inspection and the meter in question was removed on alleged disturbance in the Real Time Clock of the meter and missing of the black push button.
21. In the circumstances, benefit of doubt is extended to both the accused and hence, they are acquitted of the offence alleged against them u/s. 135 & 138 r/w/section 150 of the Electricity Act, 2003. Their PB and SB are cancelled and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 01.10.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Mubin Khan & Anr, CC No. 225/12 Page 13 of page 13