Delhi District Court
Brpl vs Sakti Kumar & Anr Cis No.2133/16 Page No. ... on 27 November, 2018
1
IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 732/16
Police Station : Kalkaji, New Delhi
U/sec : 135 of Electricity Act, 2003
CIS No. : 2133/16
BSES Rajdhani Power Ltd.
A company duly incorporated under the
Companies Act, 1956 having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement
Cell at Andrews Ganj,
Near Andrews Ganj Market,
New Delhi110049.
...Complainant
Versus
1.SAKTI KUMAR (USER)
2.ARIT GOSAMI (RC) Both At:
H. No. RZ460/13 F/F, Tughlakabad Extn, New Delhi110019 ...Accused Complaint instituted on : 30.05.2016 Judgment reserved on : 26.11.2018 Judgment pronounced on : 27.11.2018 BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 1 of 25 2 JUDGMENT
1. Complaint u/sec.151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company against accused Sakti Kumar and Arit Gosami, for the offence punishable U/sec. 135, 138 r/w Section 150 of the Act. Determination of civil liability has also been prayed for.
2. Brief facts of the case as per complaint filed on behalf of complainant company are that on 25.03.2015, the officials of the MMG (Meter Management Group) department of the complainant replaced a meter bearing no. 22083738 (hereinafter referred as meter in question) from the premises of accused suspecting that the same was tampered. The removed meter was seized at site vide bag no.714070 with bag seal no.596813 and sent to the meter testing laboratory for further testing of meter with an intimation letter dated 25.03.2015 to the accused that he may witness the testing/analysis of meter in laboratory. The removed meter was tested in laboratory on 06.05.2015 and as per meter testing/analysis report no. BR150501265 dated 06.05.2015, the plastic seals were not found, hologram seals found burnt, meter body and terminal body found abnormal burnt, meter LCD and LED were found not Ok, meter data could not be downloaded, output terminal BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 2 of 25 3 block found missing, accuracy could not be done, E.L. and Phase LED found cut hence, it was concluded that meter was tampered. The photograph of meter was also taken during its testing in the laboratory.
3. It is the case of the complainant company that on the basis of said lab report, an inspection team consisting of officials of complainant company inspected the premises of accused on 08.06.2015 at 12.00 p.m. During inspection, it was found that accused no.1 was user and accused no.2 was the registered consumer/owner of said premises. The inspection team prepared the inspection report, load report, seizure memo as per lab report at site. Videography was also conducted during inspection. At the time of inspection, total connected load was found to be 3.360 KW for nondomestic purpose. A showcause notice dated 06.07.2015 was issued to the accused to file reply by 17.07.2015 and to attend the personal hearing on 20.07.2015 before the Assessing officer of the complainant company. No reply filed by the accused to the show cause notice dated 06.07.2015 hence final notice dated 21.07.2015 was issued to attend the personal hearing on 31.07.2015. Despite that accused did not attend the personal hearing and hence after taking into consideration all the facts and circumstances, the Speaking Order was passed on 05.08.2015 by Assessing Officer recording the findings of a conclusive evidence of DAE.
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4. On the basis of connected load & applicable tariff, theft bill of Rs.1,26,013/ was raised. On failure of accused to pay the same, present complaint was filed.
5. Cognizance of the offence punishable u/sec. 135, 138 and 150 of the Electricity Act was taken by Ld. Predecessor of this Court on 30.05.2016. The complainant examined two witnesses in presummoning evidence. Accused were summoned for the offence U/s 135, 138 & 150 of the Electricity Act (hereinafter referred to as Act). Accused Shakti Kumar entered his appearance through his counsel and was admitted to bail vide order dated 05.07.2018. It was submitted by accused Shakti Kumar that earlier Arit Goswami was the owner of the premises in question however same was purchased by him and now he is the owner of the premises in question and accordingly, it was submitted by the AR of the complainant company that they have no objection if name of accused Arit Gosami be deleted from the array of the parties on the submission of accused Sakti Kumar.
6. Notice of accusation u/sec. 251 Cr.P.C. for the offence punishable u/s 135 & 138 of the Electricity Act was put to accused Shakti Kumar to which he pleaded not guilty and claimed trial on the ground that he had not tampered BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 4 of 25 5 with the meter and false & fabricated case has been made out against him by the complainant company.
7. In order to prove the case of the complainant, seven (07) witnesses were examined by the complainant company.
8. Incriminating evidence was put to the accused Sakti Kumar and his statement U/sec. 313 Cr.P.C. was recorded separately. He denied the evidence as false and answered that there was no tampering in the meter in question. He further answered that no documents were prepared in his presence. He further answered that no show cause notice was ever issued to him to attend personal hearing. He further opted to lead defence evidence and has examined one Sh.Nimesh from complaint centre as DW1 and also examined himself as DW2 (under the provision of Section 315 Cr.P.C.) which have been discussed below.
9. PW1 Sh.Mahesh Kumar is the videographer who conducted the videography of the connected load during inspection as per the instructions of team leader. In his crossexamination on behalf of accused, PW1 replied that workers were present at the premises during inspection and the machines for colouring were there at site. PW1 further replied that no report was prepared BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 5 of 25 6 at site by the officials of the complainant company. PW1 further replied that they stayed at the premises for about 15 minutes. PW1 further replied that no machine were seized from the premises.
10. PW2 Sh.Pervender KumarSenior Manager in the complainant company, who deposed that on 08.06.2015 at about 12.00 p.m., he alongwith Sh.Gaurav SharmaDET, Sh.Sunil KumarLineman and Sh.MaheshVideographer visited and inspected the premises bearing no. RZ460/13, Tugalkabad Extension, New Delhi. PW2 further deposed that they visited the premises in question on the basis of lab report in order to assess the connected load of the premises in question. PW2 further deposed that on reaching the site, the total connected load of the meter was assessed as 3.360 KW for nondomestic use. PW2 further deposed that reports were prepared i.e. inspection report and load report and proved the same as Ex.PW2/A and Ex.PW2/B. PW2 identified the accused Shakti Kumar, present in the Court, on the day of his deposition. PW2 further deposed that videography of the inspection was also conducted at his instruction during inspection. In his crossexamination on behalf of accused, PW2 replied that 23 persons were found at the premises in question at the time of inspection. PW2 further replied that he did not check the sanctioned load of the premises. PW2 further replied that the drill machine and iron press were not switched on at the time of BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 6 of 25 7 inspection. PW2 further replied that no machinery/documents were seized from the site.
11. PW3 Sh.Ritu Raj SinhaDGM in the complainant company, had proved the Speaking Order Ex.PW3/A passed by him on the basis of lab report, inspection report, load report and post & pre consumption pattern of meter in question. In his cross examination on behalf of the accused, PW3 admitted the fact that connected load found at the time of inspection was less than the sanctioned load. PW3 further replied that show cause notice was sent through speed post, however, no postal receipt has been placed on record. PW3 further denied the suggestion that the laboratory where the meter was tested is not the NABL accredited laboratory. PW3 further denied the suggestion that pre and post consumption has not been assessed properly before passing the speaking order.
12. PW4 Sh.Yogesh RayGET from the laboratory, who deposed that on 06.05.2015, he received a bag bearing no.714070 with seal no.596813 containing an electronic meter bearing no. 22083738. PW4 further deposed that he desealed the bag and tested the meter. PW4 further deposed that during testing/analysis, plastic seals of the said meter were not found and the hologram seals were not visible. PW4 further deposed that the meter body BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 7 of 25 8 and terminal block were found abnormally burnt and the output terminal block found missing. PW4 further deposed that the data of said meter could not be downloaded, the LCD of meter found broken, the accuracy of said meter could not be done, EL and Phase LED were found cut and hence upon said observation meter was declared as tampered. PW4 further deposed that after testing the said meter, he prepared the lab report which he proved as Ex.PW4/A. PW4 identified the meter Ex.P1 as the same tested by him in the laboratory.
13. In his crossexamination on behalf of accused, PW4 admitted that consumer was not present in the laboratory at time of testing of meter. PW4 further deposed that laboratory of the complainant company is NABL accredited laboratory. PW4 denied the suggestion that meter was broken at the time of its removal by the official of BSES. PW4 admitted that terminal cover of meter was not there at the time of checking meter. PW4 admitted that a black colour wire shown in photograph MarkX is connected and attached in the meter Ex.P1. PW4 further denied the suggestion that there was no tampering in the meter in question or that lab report is false and fabricated. PW4 further denied that laboratory where the meter is question was tested is not NABL accredited laboratory. PW4 further denied the suggestion that meter itself got burnt and there was no tampering in the same.
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14. PW5 Sh.Binay Kumar, A.R. of the complainant company proved his General Power of Attorney and filing of present complaint by him. In his cross examination on behalf of the accused, PW5 replied that he did not place on record any Board Resolution in favour of Mr.Arvinder Singh Gujral to execute the G.P.A. in his favour. PW5 further replied that he did not visit the site and that he has no personal knowledge of the present case.
15. PW6 Shri G. B. Barapatre identified the signature of Sh.N.K.Srivastava at point A on the theft bill Ex.PW6/A. In his crossexamination on behalf of accused, PW6 replied that Ex.PW6/A was not prepared in his presence. PW6 admitted that he has no personal knowledge of the present case.
16. PW7 Sh.Mukesh Kumar who deposed that on 25.03.2015 he visited the inspected premises and changed the meter bearing no. 22083738. PW7 further deposed that the LCD of the meter was broken and terminal was burnt. PW7 further deposed that he sealed the meter in a bag and also sealed the bag. PW7 further deposed that he met a person by the name of Deepak at site who disclosed that he is a relative of registered consumer Sh.Arit Goswami. PW7 further deposed that he told the representative of the consumer to visit the lab on 08.04.2015 and witness the testing of the meter.
BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 9 of 25 10 PW7 further deposed that he prepared the investigation/testing of removed meter and proved the same as Ex.PW7/A. PW7 identified the meter as the same tested by him and proved the same as Ex.P1. In his crossexamination on behalf of accused, PW7 replied that he received a complaint for burnt meter and also received the order for changing the meter on 25.03.2015. PW 7 denied the suggestion that complaint was received by him on 19.03.2015 vide complaint no.11. PW7 replied that premises in question is upto 45 floors. PW7 denied the suggestion that he never visited the premises in question and that one Maan Singh visited the premises for removing the meter in question however volunteered that Maan Singh was the driver with team. PW7 further denied the suggestion that Maan Singh was a lineman and not a driver. PW7 further replied that he met with Deepak only and accordingly he gave the notice to him. PW7 further replied that team was comprising 34 members alongwith driver Maan Singh. PW7 further replied that photographer was not with them. PW7 further replied that videography was not conducted while removing the meter.
17. Accused in support of his defence examined DW1 Sh.Nimesh (Sub Division Incharge) from complaint Centre, BRPl, Kalkaji who brought the summoned record i.e. complaint lodged by accused on 19.03.2015 and proved the same as Ex.DW1/A. BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 10 of 25 11
18. Accused examined himself as DW2 (under Section 315 Cr.P.C.). He deposed that meter in question was installed in the year 2003 in the name of his elder brother namely Arit Goswami at the premises in question on the ground floor and the supply was at first floor for nondomestic purpose. He further deposed that meter in question was around 1012 years old and he was making payment for the consumption of electricity through the said meter regularly. He further deposed that on 19.03.2015 the meter in question was got burnt from the bottom and he lodged a complaint with BSES and thereafter one Lineman namely Maan Singh came to the premises and he connected the supply directly and electricity supply was restored and took away the meter with him. DW2 further deposed that there was only wires that got burnt and not the meter. The wires were burnt for about 23 inches at the bottom and all the seals of the meter were intact. He further deposed that the meter was working perfectly and the LCD of the meter was not broken. He further deposed that on 08.06.2015 enforcement team of BSES raided his premises and made some reports. He further deposed that his sanctioned load was 4 KW and connected load was found to be 3.63 KW. He further deposed that there was no machinery in the inspected premises and the raiding team members did not given him any notice for testing of meter though he was present at site. He further deposed that he is shown in the videography BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 11 of 25 12 conducted at site by raiding team. He further deposed that upon receiving a bill of theft of electricity to the tune of Rs.1,26,000/ approximately he filed two replies in the year 2016 to the BSES. He produced on record seven electricity bills for the year 2015 and proved the same as Ex.DW2/C(colly). He further deposed that he is residing at the ground floor of the property in question alongwith his family.
19. In his crossexamination on behalf of complainant company, DW2 replied that he has been residing at the premises in question since year 1994. He further replied that there are five floors in the property in question and unit/factory was running at the first floor of the premises since 2008 till today. He further replied that four electricity meters were installed at the premises. He further replied that meter at first floor wherein inspection was conducted by BSES team is in the name of his real brother Arit Goswami, who was residing there at the time of inspection and after that shifted to Faridabad in the year 2010. He further replied that his brother Arit Goswami did not sell the first floor of the premises to him or to anyone. He could not remember the time when meter was burnt. He replied that he did not lodge any complaint with the fire department. He admitted that show cause notice was issued to Deepak on 25.03.2015 in his presence. He further replied that there was no written complaint from his side for burning of meter and BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 12 of 25 13 volunteered that the same was a telephonic complaint. He denied the suggestion that meter in question was deliberately burnt by him. He admitted that he was present at the premises in question when the meter was removed and volunteered that after removal of old meter new meter was not installed. DW2 further stated that new meter was installed after 1015 days of removal of old meter. He admitted that he was using electricity directly for 1015 days after removal of meter in question on 25.03.2015. He further submitted that in the year 2015 when inspection was conducted by BSES there were 12 tubelights, 78 fans, one exhaust fan, one drill machine for printing purpose.
20. During arguments, it is submitted by ld. Counsel for the complainant company Sh.Pankaj Tandon that a single phase electronic meter bearing no.22083738 installed against the CA. No.101768401 was replaced by MMG with new electronic meter bearing no.26186273 and it was sent to the laboratory where the laboratory vide its report no.BR150501265 dated 06.05.2015 declared the meter as tampered one. Thereafter, a team was constituted and on 08.06.2015, load of the premises in question was taken as 3.630 KW for nondomestic use against the sanctioned load of 4 KW under nondomestic category. It is submitted that a show cause notice was issued on nonappearance on behalf of consumer to attend the personal hearing and on the basis of consumption report it has been found to be only 45% of the BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 13 of 25 14 assessed consumption, theft bill was raised for Rs.1,26,013/ but accused never paid the said amount and accordingly, the present complaint was filed.
21. It is further submitted by ld. Counsel for the complainant company that there is no dispute as regards removal of meter is concerned and as regards identification of premises is concerned. It is further submitted that vide order dated 05.07.2018 it has been recorded by this Court that it is stated by accused earlier that Arit Goswami was the owner of the premises in question but he (Shakti Kumar) has purchased the same and he is the owner of the premises in question and accordingly, Court proceeded only against accused Shakti Kumar and not against the registered consumer Arit Goswami. It is further submitted that it is an admitted fact on behalf of accused that the registered consumer Arit Goswami and the User/Shakti Kumar are the real brothers and accused Shakti Kumar is the beneficiary of the meter in question. It is further submitted by ld. Counsel for the complainant company that it is the defence of accused that he has lodged a complaint with the complainant company for burnt meter and thereafter the meter was replaced by the Lineman and his electricity supply was restored directly from the connection. Ld. Counsel for the complainant company further submitted that complainant company has examined seven witnesses in this case in order to establish the fact that the meter in question was deliberately tampered by the BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 14 of 25 15 accused and for that reason he is liable to pay the theft bill raised by the complainant company. It is further submitted that PW1 Sh.Mahesh Kumar who is the videographer in the present case has duly identified the premises in question and otherwise also the premises in question is not disputed by the accused. It is further submitted that PW2 Sh.Pervender KumarTeam Leader has duly verified the inspection carried out on 08.06.2015 when the team visited to assess the connected load of the premises in question. It is further submitted that even otherwise the load of the premises in question is not disputed. It is further submitted that PW3 Sh.Ritu Raj Sinha who is the assessing officer in the present case has passed the speaking order Ex.PW 3/C and finally declared the meter in question as tampered one. PW4 Sh.Yogesh Ray from the laboratory was examined who has proved that he has received the meter in question on 06.05.2015 and after analysis/testing the meter in the laboratory he found the same to be tampered one. PW5 Sh.Binay Kumar is the AR of the complainant company who has proved the filing of the present complaint. PW6 Sh.G.B.Barapatre has proved the theft bill in question. It is further submitted that PW7 Sh.Mukesh Kumar has been examined who has proved that on 25.03.2015 he visited the premises in question and has changed the meter in question. Ld. Counsel for the complainant company further submitted that complainant has proved all the documents placed on record and on the basis of deposition of the witnesses BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 15 of 25 16 before this Court, whose testimony has not been shattered in their cross examination in any manner, complainant company has discharged its primary onus and the burden shifts upon the accused to deny the allegations. Ld. Counsel for the complainant company has further invited my attention to the deposition of DW2 (accused Shakti Kumar who was examined under Section 315 Cr.P.C. on 25.10.2018), the relevant extract of the examination of DW2 is as under: "The meter in question was installed in the year 2003 in the name of my elder brother namely Arit Goswami at the premises in question on the ground floor and the supply was at first floor for nondomestic purpose. The meter in question was around 1012 years old and I was making payment for the consumption of electricity through the said meter regularly.
On 19.03.2015, the meter in question was got burnt from the bottom and I lodged a complaint with BSES. Thereafter one lineman namely Maan Singh came to the premises and he connected the supply directly and electricity supply was restored. He took away the meter with him. There was only wires that got burnt and not the meter. The wires were burnt for about 23 inches at the bottom. All the seals of the meter were intact. The meter was working perfectly and the LCD of the meter was not broken. The said fact was recorded by Lineman in his diary. Thereafter, the enforcement team of BSES raided my premises on 08.06.2015 and made some reports. I have a sanctioned load of 4 KW and connected load was found to be 3.63 KW. I have no machinery in the inspected premises and the raiding team members did not give me any notice for testing of meter though I was present at site and I am shown in the videography conducted at site by raiding team of BSES. Thereafter, I received a bill of theft of electricity to the tune of Rs.1,26,000/ approximately and I filed two replies in the year 2016 to the BSES Enforcement and the same are now Ex.DW2/A and Ex.DW2/B respectively. The copy of seven bills for electricity consumption for the year 2015 are Ex.DW2/C (Colly)"
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22. It is further submitted by ld. Counsel for the complainant company that accused has admitted the removal of meter from his premises and also the inspection carried out on 08.06.2015 when the team visited to take load of the premises in question. Ld. Counsel for the complainant company submitted that though the accused has been examined in detail but his testimony cannot be relied upon as there is a huge variation/contradiction in the stand taken by the accused. It is further submitted that accused entered his appearance before this court and he himself admitted that his brother has sold the premises in question to him but in crossexamination he has submitted that the premises in question has not been sold by accused Arit Goswami either to him or to anyone. ld. Counsel for complainant company further submitted that it is the intention of the accused to make these two statements with the motive first to save his brother when he entered his appearance and thereafter as the case progresses to save himself on the ground that there is no privity of contract between him and the complainant company and thereby showing the presumption to the court that he is not responsible on the ground that there is no privity of contract between him and the complainant company. It is further submitted that accused must not be allowed to take dual stands. It is further submitted by ld. Counsel for the complainant company that on one hand it is the case of the accused that he has never received any show cause BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 17 of 25 18 notice but on the other hand he has admitted in his crossexamination that the show cause notices was issued to Deepak on 25.03.2015 in his presence. It is also submitted that it is the stand taken by the accused that he does not know Deepak in person however in his crossexamination he has admitted that Deepak was present at the time of inspection. It is further submitted that even the accused has admitted in his crossexamination that he was present at site when the meter was removed. It is further submitted that accused has categorically admitted the connected load of the premises in question in his crossexamination. ld. Counsel for the complainant company has further taken me to the document Ex.DW2/A which is a copy of complaint made by the accused in the office of the complainant company and submitted that though this document has not been duly proved as per law but if the contents of this document are to be taken into consideration it will show that on the date of making the complaint i.e. on 21/11/2015 accused was fully aware about the lab report and he has mentioned the findings of the lab report in this complaint and accordingly, he cannot deny that he was not aware of any lab report. Ld. Counsel has further invited my attention to the second page of Ex.DW2/A and further submitted that since there was an enhancement of load with the new meter and the accused has given the explanation that the load has been enhanced as there was a marriage of his younger brother but this stand of accused is wholly untenable as the unit in question/premises in BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 18 of 25 19 question is not a dwelling house but a factory unit where the electricity is being used for nondomestic use.
23. On the other hand, ld. Counsel for the accused has seriously argued his case and submitted that the complainant company has falsely implicated the accused and deliberately declared the meter as tampered one. It is submitted that PW1 Sh.Mukesh Kumar Videographer has been examined by the complainant company who has submitted that no reports were prepared at site by the officials of the complainant company and he stayed at the premises in question only for about 15 minutes and further argued that the lengthy proceedings of inspection cannot be concluded in 15 minutes and these are suggestive of the fact that no inspection was carried out by the complainant company. Ld .counsel for accused has further taken me to the deposition of PW2 and submitted that this witness has admitted the fact that they remained at site for about 1520 minutes and further argued that inspection cannot be concluded in just 1520 minutes. It is submitted that even the witness has admitted that no machine/documents were seized by the team on 08.06.2015. It is further argued that signature of videographer has not been taken on the inspection report and the inspection report, load report placed on record by the complainant company are forged and fabricated documents. Ld. Counsel BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 19 of 25 20 for accused has taken me to the inspection report and submitted that there is a tampering in the inspection report as there is a rewrite on the date of inspection and submitted that it appears that initially it was recorded as 08.05.2015 and later on it was done as 08.06.2015. It is further submitted that on page no.3 of the inspection report, it is mentioned that meter body and terminal block found burnt and EL & LED found cut. IT is further argued that how the inspection team can mention these facts on the inspection report when there was no such fact occurred at premises in question on the date of inspection i.e. on 08.06.2015.
24. Ld. counsel for accused has further submitted that load has been taken on exaggerated basis and does not sustain in the eyes of law. It is further argued that no showcause notice has ever been issued to the accused either to appear before the laboratory or to attend the personal hearing before the assessing officer.
25. It is further argued that Assessing Officer has erred hugely in passing the speaking order as he has not seen the meter physically. He has also not placed on record any document showing the fact that notice for attending the personal hearing was issued upon the consumer. It is further submitted that when the Assessing officer has not seen the burnt meter and also not analyzed BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 20 of 25 21 the documents placed on record then how can he pass the speaking order declaring the meter in question as tampered one.
26. It is argued by ld. Counsel for accused that consumption pattern shows that complainant company has considered 368 days for one year which is factually incorrect as there cannot be 368 days in a year. It is further argued that meter has been tested in the laboratory by BSES which is not a NABL accredited laboratory and hence the findings of lab report cannot be considered by this Court. It is further submitted that when the meter in question was seized from the premises in question it was packed in green colour gunny bag but when the same was produced in the Court it was in a white colour plastic bag which is suggestive of the fact that it is not the same meter that was seized from the site. It is further submitted that as per provision of Section 126 of Electricity Act, 2003 accused is not liable to pay in any manner for the theft as mentioned in Section 135 of the Electricity Act, 2003. It is further submitted that there is a circular of Ministry of Power dated 12.01.2017 wherein direction has been given to the Electricity Department/companies to the fact that all the matters pertaining to the theft of electricity under Section 135 of the Electricity Act must be investigated by the police officials and further submitted that the present case is a false and BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 21 of 25 22 fabricated case and accused is not liable in any manner to pay the theft bill in question.
27. In rebuttal, ld. Counsel for the complainant company has briefly submitted that it may be the case that signature of videographer were not obtained on documents but the videographer has been assigned the duty of conducting videography at site and it is on the team leader to prove the inspection conducted at the premises in question and further submitted that the arguments rendered by accused is wholly irrelevant in the light of the fact that inspection conducted on 08.06.2015 is not disputed by accused in any manner. It is further submitted that load has not been taken on exaggerated side as in the crossexamination, connected load has been duly admitted by accused and further submitted that it otherwise depends upon the Court to assess the load while determining the civil liability of theft bill in question. It is further submitted that contention of accused that he has not received any show cause notice or any notice for attending personal hearing are untenable as he has himself admitted in his crossexamination that the notice were received in his presence by one Deepak on the date of inspection. It is further submitted that the Assessing Officer has duly discharged his duty by passing the speaking order and it is immaterial fact whether he has seen the meter in question physically or not. It is further submitted that after inspection of BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 22 of 25 23 meter it is duly seized in the laboratory and thereafter it is only opened before the Court and that is why assessing officer has not seen the meter in question. It is further submitted that the lab report by the complainant company is duly NABL accredited laboratory and the document in this regard is a public document and court may at any time take judicial notice of the same and the complainant is not required to separately prove the said document. It is further submitted that the team of MMG has seized the meter in question in a gunny bag but when the same was produced before the Court then the meter was packed in a white plastic bag and accordingly, the same was produced before the Court. Ld. Counsel for the complainant company has further argued that on the basis of documents placed on record complainant company has been successful in proving the guilt of accused.
28. On the basis of above arguments rendered by both the parties and the documents placed on record by both parties I am of this considered opinion that the removal of meter in question by the complainant company is not disputed in any manner, the connection of the accused that the premises in question or the meter in question is also not in dispute in any manner. The inspection conducted at the premises in question on 08.06.2015 is also not in dispute in any manner as the same have been duly admitted by the accused. The main question of consideration before this Court is that meter in question BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 23 of 25 24 has been declared as tampered by the laboratory so whether the tampering in the meter in question as declared by laboratory is valid and justified. It has been held by Hon'ble Apex court as well as Hon'ble High Court of Delhi in catena of cases that once a meter is installed at the premises of accused then the consumer is responsible for its upkeep. There is a difference between the burning of meter and abnormal burning of meter as the formal may occur due to accident but in the later an active involvement of accused/user is required. The finding of laboratory that the meter in question is tampered one is on the basis of observation which has been recorded:
(i) Meter body and terminal block found abnormal burnt.
(ii)Data could not be downloaded.
(iii)Output terminal block found missing.
(iv)Accuracy could not be done.
(v) E.L and Ph. LED found cut.
29. I find merits in the argument of ld. Counsel for complainant company that normally the LED of the meter cannot be cut and once the same found cut is suggestive of the fact that if the LED is cut then there will be no measuring of the electricity current in the meter and once the meter is exposed to higher load or with some physical force it may result in abnormal burning.
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30. I have gone through the consumption pattern and the recorded consumption found to be on lower side. The consumption recorded for the period 22.03.2014 to 25.03.2015 shows an average recorded consumption of 257 units per month which has been found to be only 45% of the assessed consumption.
31. Thus, in view of the testimony of complainant's witnesses, detailed arguments rendered by both the counsels and documents placed on record, I am of the considered opinion that accused Sakti Kumar has miserably failed to show a reasonable probability of his defence that the meter in question was not tampered and that he is not liable for any alleged theft since he has miserably failed to uproot or shake the testimony of PW4 (Sh. Yogesh Ray) in his respective crossexamination qua the tampering of meter. Accordingly, he is held guilty for the offence under section 135 & 138 of the Electricity Act, 2003. Now, to come up for consideration on sentence and civil liability on 28.11.2018.
Announced in the Open Court ( NEELAM SINGH)
on 27.11.2018 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BRPL VS SAKTI KUMAR & ANR CIS No.2133/16 Page no. 25 of 25