Delhi District Court
State vs 1)Satnarayan Goyal on 27 September, 2022
IN THE COURT OF SH. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.192/2022
FIR No.26/2020
U/s 135/138/150 of Electricity Act
PS Seelampur
State versus 1)Satnarayan Goyal
S/o Moj Ram
R/o D-58 Preet Vihar, Delhi
2) Sushil Kumar @ Vikky Bansal
S/o Prem Prakash
R/o J-9, 2nd Floor,
Dilshad Garden, Delhi.
Date of institution 17.02.2022
Arguments heard 26.09.2022
Date of judgment 27.09.2022
JUDGMENT
1. The BSES Yamuna Power Limited (hereinafter called as complainant company) through its Authorised Officer/Assistant Manager Sh. Ajit Singh, lodged a complaint U/s 135/138/150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') with the SHO, PS Seelampur for registration of FIR against the accused Satnarayan Goyal (Registered Consumer), Vicky Bansal (User) and Imran (User) U/s 135/138 of the Act.
2. Succinctly the facts of the case are that on 07.10.2019, the meter bearing No.70124055 was replaced by Meter Management Group (MMG) as the said meter was suspected to be tampered. The removed meter was FIR No.26/2020 State vs Satnarayan Goyal etc 1 of 21 seized, sealed and sent to Lab for testing. Accused was advised to appear in lab on 22.10.2019 to witness meter testing. The removed meter was tested in lab vide lab report No.YMPL/EM/TAR/BYPL/0026 dated 13.11.2019, and as per this report, the removed meter was found abnormally burnt and meter data could not be downloaded.
3. Thereafter, complainant company, on the basis of lab report, carried out an inspection on 14.11.2019, at 12.25 hours, at the premises of accused i.e. G-141, Nai Basti Seelampur, Shahdar, Delhi-110053. The inspection team was comprised of Sh. Ajit Singh (Assistant Manager), Sh. Devender Kumar (DET) and Sh. Ram Sant (Lineman). The inspection team was being headed by Sh. Ajit Singh, the Assistant Manager of the complainant company. At the time of inspection, total connected load was found to the tune of 19.836 KW/NX/DAE which was being used for non- domestic purposes (Sheet cutting work at ground floor and sewing work at second and third floor). The supply was being used for non-domestic purposes against the non-domestic sanction load of 4.00 KW. Inspection Report, Load Report and Seizure Memo were prepared at the site in presence of accused and meter no.70124055 was seized during inspection. Necessary videography of the inspection proceedings was done by videographer Sh. Sunil in presence of accused. Thereafter, on 29.11.2019, on the basis of Inspection Report and Lab Report, a Speaking Order was passed by Sh. Ravinder Yadav, Assessing Officer (Enforcement Department) who gave finding that it was a case of Dishonest Abstraction of Energy (DAE).
4. On the basis of connected load and applicable tariff and FIR No.26/2020 State vs Satnarayan Goyal etc 2 of 21 following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.10,66,303/- with due date of 17.12.2019. Accordingly theft bill was raised and sent to the accused but accused did not deposit the said amount. On failure to pay the bill amount, present complaint was filed. Accused Satnarayan Goyal was found to be Registered Consumer whereas accused Vishal @ Vicky Bansal is stated to be User. It was alleged that accused Satnarayan Goyal being the Registered Consumer abetted accused Vishal @ Vicky Bansal and accused Imran (since not traced) to commit dishonest abstraction of energy. Thus, a prayer was made to the SHO for registration of FIR against these three accused persons U/s 135/138/150 of the Act.
5. The SHO handed over the said complaint to Duty Officer with the direction to register an FIR and marked the investigation of the case to HC Kuldeep. Accordingly, the Duty Officer registered FIR No.26/2020 and marked the investigation of the case to HC Kuldeep, the IO of the case. Thereafter, on 27.08.2020, IO served the accused persons with the notices U/s 41(A) Cr.P.C. Accused persons joined the investigation and IO interrogated the accused persons and prepared interrogation reports. During interrogation, accused Satnarayan Goyal produced copy of Voter I- Card as well as copies of documents pertaining to inspected premises and accused Sushil Kumar produced copy of Driving Licence. During investigation, it was revealed that accused Imran (since not traced) was residing as a tenant in the inspected premises and vacated the inspected premises after inspection was conducted to save his skin and to evade the process of law. After completion of investigation, charge-sheet was filed FIR No.26/2020 State vs Satnarayan Goyal etc 3 of 21 against the accused Satnarayan Goyal U/s 135/138/150 of the Act and U/s 135/138 of the Act against the accused Sushil Kumar @ Vicky Bansal.
6. Notice for the commission of offence U/s 150 r/w section 135 of the Act was served upon accused Satnaryan Goyal. A separate notice for the commission of offence U/s 135 of the Act was given to the accused Sushil Kumar @ Vicky Bansal. Both accused persons pleaded not guilty and claimed trial.
7. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first.
8. PW2 Sh. Ajit Kumar is the Assistant Manager of the complainant company. This witness deposed that on 07.10.2019, meter no.70124055 installed in the name of accused Satyanarayan Goyal against CA No.101224383 at G-141, Nai Basti, New Seelampur, Shahdara, Delhi- 11053, was removed and new meter was installed against the old meter. The removed meter No.70124055 was sent to laboratory for testing and intimation letter to join the testing was given to the accused vide meter removal letter dated 07.10.2019 which is Ex.PW2/1. On 13.11.2019, the removed meter was tested in the lab M/s Yadav Measurements Pvt. Ltd. and as per lab report, the meter was found abnormally burnt. The copy of lab report alongwith photographs of the meter is Ex.PW2/2 (colly). PW2 further deposed that on the basis of lab report, on 14.11.2019 at about 12.25 p.m. an, inspection was conducted by the enforcement team of FIR No.26/2020 State vs Satnarayan Goyal etc 4 of 21 BSES comprising of himself, PW3 Sh. Devender Kukmar (DET), Sh. Ram Sant (lineman) and PW4 Sh. Sunil (Videographer) to assess the load at the premises of accused persons i.e. G-141, Naib Basti, New Seelampur, Shahdara, Delhi. At the time of inspection, new meter no.55225501 with reading 1252 KWH units was found installed against the burnt/removed meter No.70124055 and the electricity supply was being used at ground floor, second floor and third floor of the premises. At the time of inspection, total connected load was found to the tune of 19.836 KW which was being used for commercial purposes i.e. sheet cutting and sewing work (making shirts) at ground floor, second floor and third floor of the inspected premises. At the time of inspection, accused Vicky Bansal @ Sushil and Imran were present at the spot and necessary videography of inspection proceedings were conducted by Sh. Sunil (Videographer). The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/3. During evidence, the CD was played on the laptop and PW2 and PW3 identified the video which was recorded by the videographer during inspection. PW2 and PW3 also identified the accused Sushil Kumar @ Vicky Bansal in the said video. The inspection report Ex.PW2/4 and the load report Ex.PW2/5 were prepared at the spot. The burnt meter No.70124055 which was received from the lab was seized by the lineman Sh. Sant Ram at the spot vide seizure memo Ex.PW2/6. During inspection, PW2 also issued an advisory notice (Ex.PW2/7) to the accused. PW2 further deposed that entire set of documents prepared at the site was tendered to the accused for signature but he refused to sign and accept the same. Thereafter, on 14.01.2020, he lodged a complaint FIR No.26/2020 State vs Satnarayan Goyal etc 5 of 21 (Ex.PW2/8) with the SHO, PS Seelampur for registration of an FIR against the accused persons.
9. PW3 Sh. Devender Kumar is Diploma Trainee Engineer (DET) who was one of the member of the inspection team and he corroborated the testimony of PW2 and deposed on the similar lines as testified by PW2.
10. PW4 Sh. Sunil is the Videographer. This witness deposed that on 14.11.2019, at about 12.25 pm, an inspection was conducted at the premises of accused and during inspection, on the instruction of team leader Sh. Ajit Kumar (Assistant Manager), he did videography of inspection proceedings. During evidence, the CD was played and after seeing the video, he identified the video which was recorded by him at the time of inspection.
11. PW5 Sh. Ravinder Yadav being Assessing Officer of Enforcement Department of BSES YPL at relevant time, deposed that in the month of November, 2021, he received a file pertaining to accused comprising of meter removal letter Ex.PW2/1, inspection report Ex.PW2/4, load report Ex.PW2/5, seizure memo Ex.PW2/6, lab report alongwith photographs of the meter Ex.PW2/2, consumption pattern and videography of the inspection proceedings contained in the CD already Ex.PW2/3, for passing Speaking Order. After analyzing all the documents, he reached at the conclusion that the meter was intentionally burnt. The consumption pattern of electricity being used from the meter in question was worked out to 12.52% which is less than the prescribed limit of FIR No.26/2020 State vs Satnarayan Goyal etc 6 of 21 DERC and also corroborate the finding of lab report. The consumption recorded prior to meter replacement was inconsistent Maximum Demand and reading corresponding to the Maximum Demand recorded was not in consonance and consumption recorded after meter change has increased substantially with respect to the corresponding period which confirm that low recording of reading prior to the meter change was due to the reason of tampering of meter by the accused and the load was not reflected in Maximum Demand Indicator. PW5 has also proved on record the consumption pattern and reading chart as Ex.PW5/1 (colly). Accordingly, on 29.11.2019, he passed the Speaking Order Ex.PW5/2 against the accused persons. On the basis of Speaking Order, a theft bill of Rs.10,66,303/- (Ex.PW5/3) was raised and sent to the accused.
12. PW1 HC Kuldeep Singh is the IO of the case. This witness deposed that 16.01.2020, on the direction of SHO, the complaint (Ex.PW2/8) lodged by Sh. Ajit Singh, Assistant Manager of BSES YPL was handed over to Duty Officer for registration of FIR. Accordingly, the Duty Officer registered FIR No.26/2020 and the investigation of the case was marked to him. The copy of FIR has been brought on record as Ex.PW1/1. PW1 further deposed that on 27.08.2020, he served the accused persons with the notices u/s 41.1(A) of the Cr.P.C (Ex.PW1/2 and Ex.PW1/3). On the same day, accused persons joined the investigation and he interrogated the accused persons and prepared interrogation reports Ex.PW1/4 and Ex.PW1/5. During interrogation, accused Satnarayan Goyal produced copy of his Voter I-Card as well as copies of ownership documents of the inspected premises. Accused Sushil Kumar produced FIR No.26/2020 State vs Satnarayan Goyal etc 7 of 21 copy of his Driving Licence. These documents have been brought on record as Mark A (colly). PW1 further deposed that during investigation, it was revealed that accused Satnarayan Goyal was the owner of the inspected premises and accused Sushil Kumar was the user of the electricity at the inspected premises at the relevant time. IO bound sown both the accused persons down vide Pabandinamas Ex.PW1/6 and Ex.PW1/7. After completion of investigation, charge-sheet was filed.
13. Statement of accused persons were recorded U/s 313 Cr.P.C. Accused persons did not deny that meter no.70124055 installed at the inspected premises in the name of accused Satnarayan Goyal, was removed by MMG Department of BSES on 07.10.2019. Accused persons also admitted that at the time of removal of the said meter, they were intimated through the letter Ex.PW2/1 to remain present 22.10.2019 to witness the testing of meter in lab. Accused persons also admitted that on the basis of lab report, on 14.11.2019, at about 12.25 am, an inspection was carried out at their premises. It is also admitted that at the time of inspection, accused Sushil Kumar @ Vicky Bansal and accused Imran (since not traced) were present at the spot and necessary videography of the inspection proceedings was done by the videographer/PW4 Sh. Sunil. Accused Satnarayan Goyal admitted that the inspected premises belongs to him and accused Sushil Kumar @ Vicky Bansal was the user of the electricity in the inspected premises at the relevant time. Accused persons also stated that they have settled the dispute and an NOC has been issued. Accused persons opted not to lead any evidence to their defence. Accordingly, opportunity to lead defence evidence was closed and matter FIR No.26/2020 State vs Satnarayan Goyal etc 8 of 21 was posted for final arguments.
14. Final arguments were advanced by the Ld. Addl. PP for the State as well as Ld. Counsel for accused persons.
15. Ld. Addl. PP for the State with the assistance of AR the complainant company argued that accused persons were involved in dishonest abstraction of energy by tampering the meter installed at the inspected premises. It is further submitted that meter No.70124055 was replaced by Meter Management Group (MMG) and the same was sent to Lab for its testing. The removed meter was tested in lab vide report dated 13.11.2019 (Ex.PW2/2), and as per this report, meter was found abnormally burnt. It is further submitted that in order to conceal the tampering, the said meter was intentionally and abnormally burnt by the accused persons. It is further argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses.
16. On the other hand, Ld. Counsel for accused persons argued that accused persons have neither committed any tampering of meter nor they have committed dishonest abstraction of energy. The meter in question was burnt due to technical fault and accused persons have no concern with burning of the said meter. Accused persons are innocent and they have been falsely implicated in this case and that accused persons not committed any dishonest abstraction of energy.
17. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and FIR No.26/2020 State vs Satnarayan Goyal etc 9 of 21 discuss the relevant provision of the Act which is required to be gone into for appropriate disposal of the case. The present case pertain to Sections 135/150 of the Act. The provisions of Sections 135 as well as Section 150 of the Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine FIR No.26/2020 State vs Satnarayan Goyal etc 10 of 21 not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence.
(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both. (3) Notwithstanding anything contained in sub-section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub-section (1) of section 135, sub-
section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
FIR No.26/2020 State vs Satnarayan Goyal etc 11 of 21 Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
18. There is a presumption under Proviso III of Section 135 (1) of the Electricity Act, 2003 which is reproduced for ready reference :-
"Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
19. As per prosecution case, the accused persons were indulged in dishonest abstraction of electricity by tampering the meter no.70124055 (meter in question) installed in the name of accused Satnarayan Goyal at the inspected premises. As per lab report, the meter in question was found abnormally burnt including meter Hologram seals and meter LCD whereby even meter ID and serial number could not be identified. On the basis of lab report, an inspection was carried out on the aforesaid date and time at the inspected premises and the connected load in the replaced meter i.e. meter no.70269610 was found to be 19.836 KW whereas average consumption pattern was found to be 12.52% which is less than the prescribed limit of DERC. Thus, the onus is on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
20. PW2 Sh. Ajit Kumar (Assistant Manager), PW3 Sh. Devender Kumar (DET), PW4 Sh. Sunil (Videographer) and PW5 Sh. Ravinder Yadav (Assessing Officer) are the material witnesses in this case. PW2 and PW3 were member of the inspection team which was being headed by Sh.
FIR No.26/2020 State vs Satnarayan Goyal etc 12 of 21 Ajit Kumar (Assistant Manager). PW2 corroborated the allegations made in the complaint Ex.PW2/8 on the basis of which present FIR was registered against the accused persons. The testimony of PW2 is in conformity with the documents i.e. letter Ex.PW2/1 through which, accused persons were intimated to remain present in lab to witness the testing of the removed meter, lab report alongwith photographs of the burnt meter Ex.PW2/2, CD containing video of inspection proceedings Ex.PW2/3, inspection report Ex.PW2/4, load report Ex.PW2/5, seizure memo Ex.PW/6 and advisory notice Ex.PW2/7.
21. PW3 Sh. Devender Kumar (DET) corroborated the testimony of PW2. PW4 Sh. Sunil is the Videographer who made video recording of the inspection proceedings and identified the video contained in the CD Ex.PW2/3.
22. PW5 Sh. Ravinder Yadav is the Assessing Officer. On the basis of lab report, data of the removed meter, inspection report, connected load report and consumption pattern of the said meter, PW5 passed the Speaking Order Ex.PW5/2 and accused persons have not specifically disputed the correctness of the Speaking Order.
23. The inspection team carried out the inspection on the basis of lab report Ex.PW2/2. In his deposition, PW2 deposed that on receipt of lab report Ex.PW2/2, on 14.11.2019, at about 12.25 pm, an inspection was carried out at the premises of accused persons and at that time replaced meter i.e. meter no.55225501 was found installed at the premises of accused and connected load was found to the tune of 19.836 KW. PW2 FIR No.26/2020 State vs Satnarayan Goyal etc 13 of 21 also deposed that as per lab report Ex.PW2/2, the meter was found abnormally burnt. The entire inspection proceedings were recorded by videographer and CD of the said inspection proceedings was brought on record as Ex.PW2/3. PW2 also proved on record the relevant documents i.e. lab report as Ex.PW2/2, inspection report as Ex.PW2/4, load report as Ex.PW2/5, seizure memo of meter in question as Ex.PW2/6 and advisory notice Ex.PW2/7. PW5 proved on record consumption pattern alongwith reading chart Ex.PW5/1 and the Speaking Order Ex.PW5/2. As per Speaking Order, it was revealed that the average consumption pattern as per computer module work is 12.52% and same is less than the prescribed limit of DERC. It is further noted that the consumption recorded prior to meter replacement was inconsistent Maximum Demand (MD) and reading corresponding to the Maximum Demand recorded not in consonance with the reading and consumption recorded after meter change has increased substantially with respect to the corresponding period which confirm that low recording of reading prior to the meter change was due to the reason of tampering of meter by the accused and the load was not reflected in Maximum Demand Indicator. In the cross-examination of PW5, the accused persons have simply denied the Speaking Order and they have not disputed the contents and correctness of the Speaking Order.
24. The only question which is to be decided here is that whether the meter in question was intentionally and abnormally burnt by the accused persons in order to conceal the factum of dishonest abstraction of energy and in this regard the complainant company has duly proved on record by placing on record the lab report and consumption pattern of tampered FIR No.26/2020 State vs Satnarayan Goyal etc 14 of 21 meter that the consumer had physically tampered the meter for gainful purpose and in order to conceal the dishonest abstraction of energy, the meter was burnt abnormally. During the course of arguments, Ld. Addl. PP for the State and AR of the complainant company has drawn the attention of this court to the Speaking Order as per which the analysis of Electronic Bill Data reflects that meter is downloaded with Inconsistent & erratic consumption (from 18.04.2019 to 18.09.2019 - 497, 274, 307, 347, 308,
307) and same is not in consonance with maximum demand recorded by the meter. Analysis of inspection report/lab report reveals that Meter Hologram seals were found burnt. Meter LCD was found not OK. Meter was found abnormally burnt and meter ID and serial number could not be identified. The consumption pattern as per computer module worked out to 12.52% which is less than the prescribed limit of DERC and also corroborates the finding of lab report. The consumption recorded prior to meter replacement was inconsistent Maximum Demand and Readings corresponding to the Maximum Demand recorded were not in consonance and consumption recorded after meter change increased substantially with respect to the corresponding period which confirm that low recording of reading prior to the meter change was due to the reason of tampering of meter by the accused and the load was not reflected in Maximum Demand Indicator. PW5 Sh. Ravinder Yadav the then Assessing Officer who passed the Speaking Order was cross-examined on behalf of the accused but nothing material surfaced in his cross-examination. Accused persons have not specifically disputed the correctness of the Speaking Order.
PW2 has proved the lab report Ex.PW2/2 as per which the meter FIR No.26/2020 State vs Satnarayan Goyal etc 15 of 21 in question was abnormally burnt. Accused persons have neither disputed the lab report nor the contents and correctness of the same in the cross- examination of PW2. Nothing has been placed on record by the accused persons in order to show that the meter in question was not burnt abnormally in order to conceal the factum of dishonest abstraction of energy. It is not the case of the accused that meter in question was faulty one and despite making complaint with respect to the same, the needful was not done by the complainant company which resulted into burning of the said meter. During the course of arguments, it was submitted by Ld. Addl. PP that once the burden is discharged by the prosecution that meter in question was tampered by the accused persons and electricity was dishonestly consumed by the accused persons then the onus gets shifted upon the accused persons to show that the meter in question was not tampered.
25. On the other hand, Ld. Counsel for accused persons argued that the lab report is not reliable as the meter in question was removed on 07.10.2019 and it was sent to lab on 11.11.2019 and it was tested on the 13.11.2019. It is further argued that there is a delay of more than one month in testing the removed meter. It is further submitted that the testing of the meter was not done in presence of the accused persons and thus, lab report is not reliable.
26. In rebuttal, AR of the complainant company submitted that the delay in sending the removed meter to lab occurred due to huge pendency. With regard to testing of removed meter in absence of accused persons, Ld. Counsel for complainant submitted that accused persons were FIR No.26/2020 State vs Satnarayan Goyal etc 16 of 21 intimated through the letter Ex.PW2/1 to remain present on 22.10.2019 in the lab to witness the testing of the said meter but they did not visit the concerned office. Perusal of letter Ex.PW2/1 shows that testing date has been mentioned as 22.10.2019 and accused persons have not disputed this letter. Thus, accused persons ought to have remained present in lab on the date on which meter was tested. It is not the case of the accused persons that on 22.10.2019, they visited the concerned office for meter testing but they were not updated about the change of date of meter testing. The accused persons have not disputed all these facts. It is also submitted that the lab report Ex.PW2/2 remained unchallenged and correctness of the lab report has not been disputed by the accused persons. During evidence before the court, PW2 has proved the lab report as Ex.PW2/2 and accused persons have not specifically disputed the lab report. The correctness of the lab report has not been disputed at all during entire evidence of PW2, PW3 and PW5. Thus, lab report Ex.PW2/2 stands proved.
27. In the case of Kanta Sharma Vs. BSES Rajdhani Power Ltd., in W.P. (c) 17121/2011, decided on 16.03.2011, it has been held by the Hon'ble Delhi High Court that once the consumer has been given an opportunity to appear at the time of testing of meter and if he fails to attend on the scheduled date then testing can be carried out to avoid delay. The relevant para of this case is reproduced as under:
"......Once the Regulations are not found to impose any obligation on the respondent to test the meter in the presence of the consumer and the consumer fails to avail the opportunity on the date given for testing, the process cannot be made cumbersome and the condition that no testing can be carried out without the presence of the petitioner and which may lead to delays cannot be imposed......."
FIR No.26/2020 State vs Satnarayan Goyal etc 17 of 21
28. In view of the aforesaid discussed facts and circumstances, now the onus stood shifted upon the accused to prove his innocence in view of the presumption mentioned in the third proviso of the section 135 of the Act.
29. The Hon'be Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of presumption. Relevant portion of the para no.16 is reproduced as under:-
"... Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
30. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid case, now it is to be seen if the accused persons have taken any defence. Accused persons have simply stated in their statements recorded U/s 313 Cr.P.C that they have already settled the dispute and settlement amount has been paid by them and as of now no dues are pending. Accused persons did not lead any defence evidence to rebut the statutory presumption.
31. It is clear from the record that the meter No.70124055 was replaced by Meter Management Group (MMG) and the same was seized. The said meter was sent for testing to the Meter Testing Lab and after testing, Lab concerned has given its report. The Energy Meter Test Analysis Report has been brought on record by PW2 as Ex.PW2/2. The finding given by the Lab Report is reproduced as under:-
FIR No.26/2020 State vs Satnarayan Goyal etc 18 of 21 (B) Visual Observations:-
* Meter found abnormally burnt (G) Special Observation *Meter ID and serial no. could not be identified.
*Meter data could not be downloaded.
*Meter found abnormally burnt.
(h) Conclusion:-
* Meter found abnormally burnt.
32. It is clear from the record that the accused persons simply denied the lab report and claimed that they did not do any tampering and the meter had got burnt of its own, however, they failed to lead any evidence in their defence. It is not disputed by the accused persons that the meter number No.70124055 was removed. Accused persons have not disputed that new meter no.55225501 was installed after removing meter no.70124055. It is clear from the lab report as well as Speaking Order duly proved by prosecution witnesses that meter no.70124055 was abnormally burnt for the purposes of concealing the factum of Dishonest Abstraction of Energy. Thus, in view of these discussions, it is clear that the accused persons have failed to rebut the statutory presumption.
33. As per lab report Ex.PW2/2, the meter was abnormally burnt. From the photograph of the burnt meter itself shows that the meter is badly burnt. Accused persons have not explained throughout the case as to how the meter got burnt and this act of the accused persons speak for itself that the meter was burnt abnormally in order to conceal the factum of dishonest abstraction of energy. The consumption pattern Ex.PW5/1 further shows FIR No.26/2020 State vs Satnarayan Goyal etc 19 of 21 variations in consumption of energy. The consumption pattern of electricity being used from the meter in question was worked out to 12.52% which is less than the prescribed limit of DERC and the consumption recorded prior to meter replacement was inconsistent Maximum Demand and reading corresponding to the Maximum Demand recorded were not in consonance. The reading and consumption recorded after meter change increased substantially with respect to the corresponding period which confirm the low recording of reading prior to the meter change was due to the reason of tampering of meter by the accused and the load was not reflected in Maximum Demand Indicator. Thus, in view of the aforesaid discussions, it is held that the user/accused Sushil Kumar @ Vicky Bansal indulged in Dishonest Abstraction of Energy.
34. In his statement, PW1/IO has clearly deposed that during investigation, it revealed that inspected premises belongs to accused Satnarayan Goyal and meter in question was found installed his name and accused Sushil Kumar was the user of the electricity in the inspected premises at the relevant time and this fact has not been disputed by the accused persons at all in their statements recorded U/s 313 Cr.P.C. In case, accused Satnarayan Goyal was unaware that user/accused Sushil Kumar @ Vicky Bansal has committed dishonest abstraction of energy, he ought to have brought this fact to the notice of the complainant company and he ought to have disassociated himself from the said illegal activity of the user/accused Sushil Kumar. However, it is clear that accused Satnarayan Goyal did not take any action in this regard against the user/accused Sushil FIR No.26/2020 State vs Satnarayan Goyal etc 20 of 21 Kumar and his aforesaid conduct speaks for itself that Satnarayan Goyal was well aware of the illegal act of the user/accused Sushil Kumar. Thus, under these facts and circumstances, it can be very well said that once the accused Satnarayan Goyal had come to know about the said illegal activity on the part of the user/accused Sushil Kumar, he ought to have taken appropriate action against the user and he was also duty bound to inform the complainant company about the same, however, accused Satnarayan Goyal did not do the needful which shows that accused Satnarayan Goyal was fully aware of the said illegal activity being committed by the user/accused Sushil Kumar. Thus, under these circumstances, it can be very well said that accused Satnarayan Goyal had abetted the offence of dishonest abstraction of energy. Thus, in view of settled provision of Section 150 of the Act, the accused Satnarayan Goyal being the Registered Consumer/owner of the inspected premises is liable for the offence of abetment as he knowingly let the user/Sushil Kumar commit dishonest abstraction of energy.
35. Accordingly accused Satnarayan Goyal is convicted for the offence punishable U/s 150 r/w section 135 of the Electricity Act 2003 and user/accused Sushil Kumar @ Vicky Bansal is convicted for the offence punishable U/s 135 of the Electricity Act 2003. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2022.09.27 17:17:56 -0400
(Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 27.09.2022 FIR No.26/2020 State vs Satnarayan Goyal etc 21 of 21