Delhi District Court
Complainant vs Subhash Chand on 1 October, 2013
Page 1 of 12
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 710/10/08
ID No. 02405R0649192008
Section 135 of The Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
Subhash Chand
Plot No. 123, Khasra No. 665,
Villagae Nawada,
Uttam Nagar, New Delhi.
..................... Accused
Date of institution: ........................ 30.1.2008
Arguments heard on: ........................ 16.09.2013
Judgment passed on : ........................ 1.10.2013
Final Order: ........................ Acquitted
CC No. 710/10/08
Page 2 of 12
JUDGMENT:
1. The brief facts of the case are like this. Accused is user and registered consumer of electricity meter number 17033762 with K umber 26500D010032 installed at plot no. 123, Khasra no.665, Village Nawada, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). On 11.07.2007 the officials of the complainant company replaced the burnt meter no. 17033762 with new electronic meter no.27099130. The meter was sealed in the presence of the consumer. The investigation/testing of removed meter was prepared under intimation to the accused to witness the testing of meter in the laboratory. Meter change report was also prepared. The meter was sent to meter testing laboratory, Pushp Vihar, New Delhi for testing. On 03.08.2007 the meter was tested in the laboratory which was found tampered.
2. On 10.09.2007 a joint inspection team headed by Sh.Amit GargAsstt Manager (Enforcement) of the complainant company inspected the inspected premises on basis of laboratory report. The accused is user of the inspected premises. A connected load of 29.584 KW was found running for non domestic purposes. The photographs of the premises were taken by them. The compac disc pertaining to inspection was prepared. Inspection report, meter details report, load CC No. 710/10/08 Page 3 of 12 report and show cause notice were prepared and offered to the accused. On 27.09.2007 Sh S S Goel attended the personal hearing for the accused which was adjourned for 04.10.2007 at his request. On 04.10.2007 no one attended the personal hearing. A speaking order dated 28.11.2007 was passed by Assessing Officer by taking into consideration the documents on record coupled with the consumption record of the meter from 01.05.2006 till 07.05.2007. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. The accused was summoned for the offence U/s 135/138 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to him. NOA U/s 251 Cr.P.C was put to him to which he pleaded not guilty and claimed trial.
4. The complainant examined four witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. His defence is that on 01.08.2007 he went to the testing of meter but he was directed to come on 02.08.07. On 02.08.07 he again went to the laboratory but it was reported that meter is not received. He did not go to laboratory thereafter. He was not running the garment factory in the CC No. 710/10/08 Page 4 of 12 premises which was under the use of tenants. However, he has examined three witnesses in defence evidence.
5. PW1 Mohd Amin stated that on 10.09.2007 he along with other officials of complainant company and photographer from M/s Arora Photo studio has inspected the inspected premises on the basis of laboratory report where a meter number 27099130 was installed. Accused and two other persons were present at the site. Accused is identified by him. A garment factory was found running in the premises. Accused told that he is owner and user of the factory. There was a total connected load of 29.5 KW for non domestic purposes. The meter details report, load report and show cause notice Ex.CW2/DF were prepared and reports were offered to the accused who refused to receive and sign the same. The video of the inspected premises was taken. CD Ex.CW2/G was prepared. The contents of CD are duly identified by him as same were recorded at the time of inspection.
6. During cross examination, he stated that new meter was found running on the day of inspection. He admitted that they did not collect the ownership documents of the factory. There are many reasons like loose terminal, application of external source and CC No. 710/10/08 Page 5 of 12 tampering of wire and meter for the burning of meter. The suggestion is denied that load is not correctly recorded.
7. PW2 Sudip Bhattcharya is Assessing Officer. He stated that a show cause notice was served upon the accused to attend personal hearing on 24.09.2007. On 27.09.07 S S Geol was authorized by the accused to attend the personal hearing and hearing was adjourned for 04.10.2007 on his request. ON 04.10.2007 no one attended the personal hearing. He has considered the record of the case including laboratory report and consumption pattern from 01.05.06 till 07.05.07 and passed the speaking order Ex.CW2/H which bears his signature at point A.
8. During crossexamination, he stated that he cannot say whether consumer has lodged a complaint regarding burnt meter and its replacement on 11.06.07. The submissions of Sh S S Goel were recorded by him on 27.09.07 but same are not placed on record.
9. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
10. PW4 Saurav Vashishth stated that he has been working CC No. 710/10/08 Page 6 of 12 with the complainant company since 2006. He cannot tell the name of registered consumer due to lapse of time. The meter was tested by him but he does not recollect the exact date due to lapse of time. The meter was found in a totally burnt condition. The internal parts were missing. He has declared the meter as tampered and issued the report Ex.CW2/C.
11. During cross examination, he stated that he does not remember the meter number or K number. The meter was referred by MMG department for testing. The suggestion is denied that there was no tampering in the meter or meter was not tested by him or meter was burnt due to some technical fault. He does not know who has signed at point B on meter test report.
12. The accused has led defence evidence. DW1 Krishan Kumar is LDC from office of Sub Registrat II, Janak Puri, New Delhi. He has brought the office copies of the lease agreements dated 21.06.07 Ex. DW1/A and B with respect to the ground and first floor of property number 123, Village Nawada, Uttam Nagar, New Delhi.
13. DW2 Lt. Colonol (Retired) A K Sharma is circle coordinator of the complainant. He has produced one sealed green colour clothe bag no. 207186 sealed with seal R0023778. The burnt CC No. 710/10/08 Page 7 of 12 meter terminals connected with burnt wires and iron clamp with ashes is produced and the same is Ex.DW2/A.
14. DW3 Rajesh Joshi is Business Manager of the complainant. He stated that he has brought the computer generated data Ex.DW3/A of the complaints pertaining to burnt meters. He has not brought the complaint made by the accused as company does not keep written complaints after two years. He does not know that accused has given the complaint that meter has been burnt due to short circuit. The meter was sent to laboratory for analysis.
15. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for tampering in the meter and consumption of electricity through tampered meter.
16. Regulation 2 (m) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 says that dishonest abstraction of energy shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that meter has been CC No. 710/10/08 Page 8 of 12 caused to record less energy than actually passing through it. It shall also include any other means adopted by the consumer to cause the meter to stop or to run slow.
17. To prove the factum of dishonest abstraction of energy, the complainant has examined four witnesses. The accused has examined three witnesses in defence evidence in order to advance his defence. I have perused the record of the case. It is admitted fact that accused is the registered consumer of the electricity meter no. 17033762 which was installed in the inspected premises. On 11.07.2007 the said meter was removed from the inspected premises. The removal of meter is even admitted by the accused in his statement u/s 313 Cr.PC.
18. The complainant has to show who was the user of the inspected premises on the date of removal of meter. The defence of the accused is that he was not the user of the inspected premises on the date of removal of meter and thereafter as he has already leased out the inspected premises. The accused has proved the lease agreements Ex.DW1/A and B. The said lease agreements are with respect to ground and first floor of the inspected premises. The ground and first floor of the inspected premises has been leased out to CC No. 710/10/08 Page 9 of 12 Kuldeep Sharma and Bhushan Sachdeva. The lease agreement of ground floor is effective from 10.06.07 and that of first floor is effective from 08.06.07. Both these documents are not controverted by the complainant. The meter change report and investigation/testing of removed meter report do not show that who was the user at the time of removal of the meter from the inspected premises. It is clear that accused was not the user of the inspected premises on the date of removal of the meter. There is no documentary evidence on record from the complainant that accused was the user of the inspected premises even on the date of recording of the load in the inspected premises as inspection report, meter details report and load report are silent about the name of the user of the inspected premises. The entire evidence shows that accused is only registered consumer.
19. The meter was removed by some official on behalf of the complainant. The investigation/testing of removed meter and meter change report were prepared by that officer. The complainant has not examined the concerned official. His examination was essential to bring on record that meter in burnt condition and without internal parts was replaced on 11.07.07. His examination was also essential to show that why he went to replace the meter i.e whether there was any complaint with respect to the meter from the accused with the CC No. 710/10/08 Page 10 of 12 complainant or not. His examination was essential to unfold the base of the case of the complainant. His non examination calls for an adverse inference against the complainant.
20. The meter in the laboratory was tested by PW4. He has issued the laboratory report Ex.CW2/C. I have perused his testimony. The report shows that internal parts like PCB and CT are missing from the meter. The meter change report and investigation/testing of removed meter are not proved by the complainant but it can definitely be read against the complainant. There is nothing in these reports that internal parts of the meter were found missing. The seals were found intact. The complainant has failed to explain how the internal parts were missing when seals were intact. The observations that internal parts were found missing are not relied upon when such observations are not reflected in meter change report and investigation/testing of removed meter report.
21. The defence of the accused that he has given the complaint regarding burnt meter to the complainant does not inspire confidence as data of complaint regarding burnt meter Ex.DW3/A does not show that any complaint was made by the accused. The accused has also not placed any copy of the complaint. The accused has also not disclosed CC No. 710/10/08 Page 11 of 12 the date and month in which complaint was made.
22. Further, there was no analysis of the meter though PW4 has stated that he has tested the meter. The reasons for burning of meter are not given by PW4 in his report. There should have been the reasons for the burning of meter in the laboratory report. Mere burning of the meter is not enough to conclude that it was deliberately burnt by the accused. In the absence of the reasons, it cannot be said that meter was burnt by the accused or it was deliberately burnt.
23. PW2 is Assessing Officer. He has considered the consumption pattern of the meter while passing the speaking order Ex. CW2/H. The consumption pattern is not placed on record. No reason is assigned by the complainant why the consumption pattern is not placed on record. The possible evidence has been withheld by the complainant which calls for an adverse inference against the complainant. The burnt meter was replaced with new meter. The consumption pattern of new meter was not taken into consideration to ascertain whether it is inconsonance with the consumption pattern of the burnt meter. There is no explanation to this effect. The speaking order was not passed by taking into consideration all these facts for the reasons best known to Assessing Officer. In view of these fact, CC No. 710/10/08 Page 12 of 12 the speaking order does not inspire confidence.
24. There is no convincing evidence on record that meter in question was deliberately burnt by the accused or internal parts from the meter were removed by the accused. There is no evidence that any tampering in the meter was done by the accused. The evidence on the file is not enough to prove the allegations as set out in the complaint.
25. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. The amount, if any, deposited by accused be returned back to him with an interest at the rate of 6 % per annum from the date of deposit of the amount till its return after the expiry of the period meant for appeal. File on completion be consigned to record room.
Announced in the open Court on dated 01.10.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 710/10/08