Delhi District Court
Bses vs . Ram Chander & Anr., Cc No. 178/12 Page ... on 29 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. : 178/12
Police Division : Khanpur, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02406 RO135422012
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. Ram Chander (Registered Consumer)
(deceased)
2. Kailash Chander (User)
S/o Late Shri Ram Chander
Both at: Shop No. 20/08,
Village Khanpur, New Delhi.
...Accused
Appearances : A.R. with Shri S.K. Alok, counsel for the
complainant.
Accused Kailash Chander is present on bail along
with counsel Shri N.K. Naagar, Advocate.
Complaint instituted on : 01.06.2012
Judgment reserved on : 17.10.2014
Judgment pronounced on : 29.10.2014
BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 1 of 14
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JUDGMENT
1. The case of the complainant in brief is that on 14.11.2011 at 12.51 p.m., an inspection was carried out by the officers of the complainant company namely, Shri Himanahu Aggarwal- Assistant Manager, Shri Ravi Tiwari - Graduate Engineer Trainee, Shri Praveen Kumar - Lineman and shri Juben Videographer at the premises i.e. Shop No. 20/08, Village Khanpur, New Delhi and accused Ram Chander (now deceased) found to be the registered consumer and accused Kailash Chander was found to be the user of electricity in the said premises. It is further mentioned in the complaint that inspection team further observed that at the time of inspection one single phase meter bearing no. 23901884 C/R 12546 Kwh was found installed at the site, date and time of the meter found disturbed and meter was showing date as 04.01.2000 and time as 02.15 whereas the actual date was 14.11.2011 and time 12.51. It is further mentioned in the complaint that one old meter was seized in a bag for further analysis and supply of electricity was restored through a new meter no. 24405061 by Meter Management Group, which was called at the spot by the inspection team. It is further mentioned in the complainant that accused were indulging in theft of electricity and inspection team assessed the total connected load, which was found to be 2.545 KWs for domestic purpose by dishonest abstraction of energy. It is further mentioned in the BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 2 of 14 3 complaint that inspection report, load report and seizure memo were prepared at the site and same were offered to the accused, but accused had refused to accept the same. It is further mentioned in the complaint that necessary videography was also done at the spot.
2. It is further mentioned in the complaint that upon investigation of the meter, following observations were made:
a. current date as shown by the meter was 16.01.2000 on actual date as 25.11.2011, thus, the meter was showing failure of Real Time Clock (RTC) b. Maximum Demand history date found to have been occurred more than once in a month.
3. It was further concluded by the testing lab that meter was found tampered and that meter test/analysis report no. BRPL/11/19380 dated 25.11.2011 was also prepared and photograph of the meter was also taken. It is further mentioned in the complaint that on the basis of finding of the testing lab, a show cause notice dated 16.12.2011 was issued to the accused to show cause as to why the action against them should not be initiated for dishonest abstraction of energy and to file reply of the same by 28.12.2011 and to attend the personal hearing on 04.01.2012. It is further mentioned in the complaint that there was no response received from the accused and that further a final notice dated 05.01.2012 was issued to the accused to attend personal hearing BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 3 of 14 4 on 06.02.2012, but again there was no response received from the accused and that after examining and considering all the facts and records, Shri Sukhpreet Singh Pannu, Assessing Officer, passed the Speaking Order dated 08.02.2012, wherein interalia it was held that the meter no. 23901884 was installed on 14.11.2011 and that it was evident from the laboratory report that illegal tampering elements were deliberately installed inside the meter to suppress the recording of consumption by the meter and that it was concluded that evidence (artificial means) of theft of electricity were detected.
4. It is further mentioned in the complaint that it was a case of dishonest abstraction of energy and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.78,073/ with due date as 27.02.2012 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 summons were issued to accused Ram Chander and Kailash Chander. As accused Ram Chander had expired, the proceedings were abated against him vide order dated 15.07.2013.
6. Vide order dated 15.07.2013, notice u/s. 251 Cr.P.C. was framed against accused Kailash Chander for the offence punishable u/s. 135 & BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 4 of 14 5 138 of the Electricity Act, 2003, to which he pleaded not guilty and claimed trial on the ground that he had not tampered with the meter and was not committing any theft of electricity and that he was regularly paying the consumption charges as and when demanded by the BSES. Accused further answered that the meter was running fast and that he had applied for the testing of the meter on 19.01.2010 and officials of the BSES visited the premises in question and they told that said meter needed to be to replaced. Accused further answered that false and fabricated case has been made out against him and thus, he is not liable to pay any amount as claimed by the complainant company.
7. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
8. The statement of the accused Kailash Chander was recorded u/s.
313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that no report was ever served to him at the said premises and that the same were not prepared at the spot and that no notice was served upon him. Accused further answered that before the inspection of the meter, he had applied for the testing of the meter. Accused produced the said application and same is Ex. D1 and against the said application, meter was tested vide report Ex. BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 5 of 14 6 D2. Accused further produced one electricity bill, which is Ex. D3. However, accused did not opt to lead defence evidence.
9. I have heard the counsel for the complainant and counsel for the accused, Shri N.K. Naagar, Advocate. I have also perused the record including the CD of videograpy displayed on the computer screen of the court.
10. PW1 Shri Himanshu Aggarwal was the Assistant Manager i the complainant company, who deposed that on 14.11.2011 at about 12.51 p.m., he along with Shri Ravi Tiwari, Shri Parveen Kumar and Shri Juben, visited and inspected the premises i.e. Shop no. 20/8, Village Khanpur, New Delhi62 and that the same was chemist shop and the said shop was being used by Kailash Chander. PW1 further deposed that there was a meter installed in the said shop in the name of Shri Ram Chander. PW1 further deposed that they checked the meter in question and found that the Real Time Clock (RTC) of the said meter was failed and that they apprised Shri Kailash Chander about the defects in the meter and also stated to him that said meter was being sent to the laboratory for further analysis of the meter. PW1 further deposed that thereafter, they called MMG for replacement of the old meter and the same was replaced with the new meter and that the old meter was seized and sealed in a bag in the presence of Kailash BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 6 of 14 7 Chander and same was sent to the laboratory for further analysis of the meter vide seizure memo Ex. CW2/5. PW1 further deposed that they assessed the total connected load of the premises, which was found to be 2.545 KWs for nondomestic use. PW1 further proved the inspection report collectively as Ex. CW2/1 and load report collectively as CW2/2. PW1 further deposed that Shri Juben, videographer had conducted the videography at site and proved the CD of videography as Ex. CW2/4 and he further identified the videography contained therein. PW1 also identified accused Kailash Chander, who was present in the court on the day of his deposition. PW1 further deposed that the documents were offered to accused Kailash Chander at the time of inspection, however, he refused to receive and sign the same.
11. In his cross examination on behalf of the accused, PW1 answered that "Analytic leads" means the department assess the meter randomly. PW1 further answered that he had checked the record of the meter with respect to consumer's name and meter number. PW1 admitted it as correct that the sanctioned load of the meter was more than the connected load. PW1 replied that the sanctioned load of the meter was 4 KWs and that he had checked the meter physically. PW1 further answered that he did not have any concern with the theft bill. PW1 further replied that in load report the "DX" was mentioned BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 7 of 14 8 inadvertently and that he had mentioned on the inspection report in column 3.1 as trade description as chemist shop and the same falls under nondomestic category i.e. NX. PW1 further answered that he was not aware as to whether any complaint was made by the accused to the complainant company. PW1 answered that he had not issued any show cause notice to the consumer. PW1 replied that the case was booked by the inspection team subject to the confirmation of the laboratory and that the laboratory confirmed the case as of DAE. PW1 could not say anything about internal defect occurred in the meter in question and that on physical verification, he found that there was a discrepancy in the actual date and the date shown by the meter. PW1 answered that he had no idea as to whether after failure of RTC, the meter was showing any recording of consumption or not.
12. PW2 Sh.Nikhil Kumar was the Diploma Engineer, who deposed that on 25.11.2011, he tested the meter bearing No.23901884 in the lab and that after testing the meter, it was observed that ''current date 16.01.2000 was shown on the actual date 25.11.2011, Maximum Demand History found occurred more than once in a month''. PW2 further deposed that on the basis of the above said observation, they had concluded that the said evidence proved that meter got disturbed and it happened when meter was subjected frequently by abnormal external injection such as Electrical Static Discharge (ESD), Extra High BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 8 of 14 9 Voltage (EHV) and High Frequency (HF). PW2 further proved the lab report as Ex.CW2/3.
13. In his cross examination on behalf of the accused, PW2 admitted it as correct that the meter seals (plastic and hologram) found intact and that no foreign material found inside the meter. PW2 answered that he had downloaded the said meter data containing MRD, CMRI data & MDI and that he also attached downloaded data of the meter with the lab report. PW2 further answered that he observed the feature of the MD repetition in the downloaded data and that two times repetition found in the downloaded data. PW2 admitted it as correct that meter had not been tested in the presence of the consumer. PW2 replied that after failure of RTC, the data of the meter can be downloaded and that when the meter was tested by him, the RTC was fail, however, he downloaded and recorded the data. PW2 replied that there was battery backup in the meter. PW2 admitted it as correct that when the backup of the battery becomes old and weak, the same can result into the failure of RTC and that RTC cannot fail due to fluctuation of electric current. PW2 answered that during the time when RTC had failed, it had not affected the recording of consumption of the energy and that every meter mentions a warranty period on its name plate, which is generally 10 years. PW2 replied that the pulse of the meter was 1600 impulses per KWh at the time of testing of the BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 9 of 14 10 meter and that there was no magnetic field generated in the electronic meter and that the brand of the meter was "Kaiffa". PW2 answered that he had not prepared any CD during the testing process of the meter.
14. PW3 Sukhpreet Singh Pannu was the Assessing Officer of the complainant company, who passed the Speaking Order after considering the relevant reports and documents and he proved the same as Ex. CW2/8. In his cross examination on behalf of the accused, he admitted it as correct that no bill amount was mentioned in the speaking order passed by him. PW3 volunteered that the theft bill was prepared after passing the speaking order. PW3 admitted it as correct that he had not visited the premises in question before passing the speaking order and that the reading of the meter in question was not written in the speaking order. PW3 further admitted it as correct that the reading of the new meter installed, was not mentioned in the speaking order and that the sanction load of the meter was 4 KWs used for non domestic purpose and that the MDI did not cross 3 KWs at any point of time as per consumption pattern. PW3 volunteered that Maximum Demand (MD) found more than the connected load assessed at the time of inspection. PW3 answered that he had not checked the post consumption pattern after installation of the new meter and that postal receipts through which the show cause notices BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 10 of 14 11 were sent, had not placed on the judicial record. PW3 further volunteered that the postal receipts were available in the office of the complainant company. PW3 answered that as per lab report, there was no external device found inside the meter. PW3 replied that he had not considered the consumption pattern. PW3 volunteered that the MD recorded by meter found more than the connected load assessed at the time of inspection.
15. PW4 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 had no personal knowledge of the case and that he prepared the theft bill at his office on the basis of documents provided to him by the complainant company.
16. PW5 Shri Juben Massey was the videographer, who deposed that on the direction of Shri Himanshu Aggarwal, he conducted videography at the premises i.e. Shop no. 20/08, Village Khanpur, New Delhi and he identified the said videography and proved the same. In his cross examination on behalf of the accused, he answered that the inspection report was prepared by Shri Himanshu Aggarwal and Shri Ravi Tiwari, whereas the load report and other ancillary documents BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 11 of 14 12 were prepared by Shri Ravi Tiwari. PW5 further answered that they remained at the spot for about 1015 minutes and that the said reports were prepared at the office of the complainant.
17. PW6 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. CW2/1 and present complaint as Ex. CW1/1. In his cross examination on behalf of the accused, he replied that he did not visit the site and that he had no personal knowledge of the case.
18. In this case, there are two star witnesses. First is PW2, who tested the meter in the laboratory and he admitted in his cross examination that the meter seals, both plastic and holograms, were found intact and that no foreign material was found inside the meter. He further admitted that the meter was not tested in the presence of the consumer and that even after failure of the RTC the data of the meter can be downloaded. He further admitted that if the back up of the battery becomes old and weak, the same came result into failure of RTC and that RTC cannot fail due to fluctuation of electric current. He further replied that during the time when RTC is failed, it does not affect the recording of consumption of energy and that every meter mentions a warranty period on its name plate, which is generally 10 years.
BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 12 of 14 13
19. The other star witness PW3, who passed the Speaking Order admitted in his cross examination that reading of the new meter installed was not mentioned by him in the Speaking Order nor he wrote the reading of the meter in the Speaking Order, which was removed from the spot. He further answered that maximum demand shown by the meter was more than the connected load assessed at the time of inspection. He has further admitted that he has not checked the post consumption pattern after installation of the new meter. He himself replied that consumption pattern was not considered by him because maximum demand recorded by the meter was found more than the connected load assessed at the time of inspection.
20. In view of the said admissions of the PW2 and PW3, mere failure of RTC, even if it is to be assumed for the sake of argument as correct, does not establish that accused was responsible for the same or the abstraction of energy has been proved beyond reasonable doubt by mere failure of RTC. Although it is mentioned by PW2 that maximum demand history found occurred more than once in a month at the time of testing of the meter, but in view of the fact coming on the record that maximum demand was found more than the connected load, I am of considered opinion that it does not establish the case of the dishonest abstraction of energy.
BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 13 of 14 14
21. In view of my said discussion, the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Thus, I extend benefit of doubt to the accused Kailash Chander and he is acquitted of the offence punishable u/s. 135 & 138 of the Electricity Act, 2003. His PB & SB are hereby cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 29.10.2014 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Ram Chander & Anr., CC No. 178/12 Page no. 14 of 14