Delhi District Court
Cc No. 114/08 (Ndpl vs Sandeep ) Page No .............1/16 on 8 February, 2013
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
ASJ (ELECTRICITY) : NORTHWEST DISTRICT:
ROHINI COURTS:DELHI
CC no.114/08
Unique ID no. 02404R0061902008
North Delhi Power Limited
office at Grid Sub Station Building
Hudson Lines, Kingsway Camp, Delhi110009
Also At:
North Delhi Power Limited
Enforcement Assessment Cell,
Opposite C2 Block, Keshavpuram,
Lawrence Road, Delhi35.
Through Shri A.K. Gupta,
Technical Manager of the company.
.....Complainant Company
V E R S U S
Shri Sandeep S/o Shri Ved Prakash Tyagi,
House no. 27, First Floor, Barola Village, Delhi.
...........Accused
Date of institution: 13/04/2007
Date of hearing arguments: 30/01/2013
Date of decision:08/02/2013
JUDGMENT
1) The complainant company has instituted the present complaint against accused Sandeep interaila alleging that accused no.1 is a registered consumer vide K no. 45100136037 and the user of the site i.e House no. 27, Barola Village, Delhi (hereinafter referred as "the premises" ). It is further alleged that CC no. 114/08 (NDPL VS Sandeep ) Page no .............1/16 on 02/11/2006 a raid was conducted by the joint inspection team of the complainant company in the premises of the accused. During the course of inspection of the premises the inspection team has observed the following irregularities: "Both half seal of the meter found missing. Meter body found tampered. Accucheck result = 58.19% (slow). There are other meter (Meter no. 9912683, K no.
45100593610. Load of this meter (9912683) can be transfero through change over switch to the meter no. 154533. there are a changeover switch paper seal no.
59646 dated 02/11/2006 pasted on meter body. Total load of premises is connected to this meter through change over switch."
2) The inspection team found a connected total load of 11.27KW against a sanctioned load of 2KW.
3) The members of the inspection team prepared an inspection report and copy of the said inspection was delivered to the father of the accused Shri Ved Prakash Tyagi who signed and accepted the same at the site.
4) Accused submitted two written representations wherein he has admitted that raid was conducted by the officer of the complainant. As per consumption pattern analysis dt. 06/11/2006 average recorded consumption was found 104.92 units per month whereas computed consumption was found 600.09 units per CC no. 114/08 (NDPL VS Sandeep ) Page no .............2/16 month.
5) The raiding team served a show cause notice dt. 02/11/06 upon the father of accused Shri Ved Prakash Tyagi calling upon the accused as to why the case of dishonest abstraction of energy (DAE) should not be registered against him. The accused was granted opportunity to file his reply to the show cause notice and to attend the personal hearing on 09/11/2006. On 09/11/2006 father of accused has filed the written representation and on 19/12/2006 accused has submitted his separate written representation and thereafter on 21/11/2006, a speaking order was passed against the accused.
6) On the basis of inspection dt. 02/11/2006 the complainant company has raised a final assessment bill dt. 22/11/2006 for a sum of Rs. 98,224/ against the accused. The accused failed to pay the bill in question hence present complaint was instituted for the offence u/s 135 of the Electricity Act, 2003.
7) Complainant has examined two witnesses i.e CW1 Shri Ashok Kumar Gupta and CW2 Shri Vidhya Dhar Singh for its presummoning evidence.
8) Vide order dt. 25/05/2007 accused was summoned. He appeared and contested the case.
9) On 08/08/2007 after hearing Ld counsel of accused as well as Ld counsel for the complainant, a charge u/s 135 of the CC no. 114/08 (NDPL VS Sandeep ) Page no .............3/16 Electricity Act, 2003 has been framed against the accused to which he pleaded not guilty and claimed trial.
10) In support of its case complainant company has examined three witnesses in after charge evidence.
11) The brief summary of the deposition of witnesses is as under:
12) PW1 Ram Prashad is one of the member of raiding party who on 02/11/06 at about 1pm he alongwith Vidhyadhar Singh, Nand Kishore Nagar went to house no. 27, Village Bharola, Near Azadpur, Delhi on the direction of Shri H.C. Sharma, manager, Corporate Enforcement Group; they checked the meter installed in the premises which was running slow; an accucheck test was conducted and meter body was found tampered; the entire load of premises was running on the said meter; father of Sandeep was present at the time of inspection. PW1 prepared the report Ex. PW1/1 and handed over the copy of the same to father of Sandeep; inspection team gave the show cause notice Ex. PW1/2 to father of Sandeep and action report also prepared Ex. PW1/3. He has also proved the seizure memo dt. 13/08/07 Ex. PW1/4 and the photographs taken at the time of inspection Ex. P1 to Ex. P14 and the negatives Ex.P15 (collectively). The case property was produced in the court i.e meter Ex. P16.
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13) PW2 Vidhya Dhar Singh is also one of the member of raiding party who has deposed almost same facts as deposed by PW1.
14) PW3 Shri Ashok Kumar Gupta is the attorney holder of the complainant who on the basis of Power of Attorney dt. 20/09/04 Ex. CW1/1 filed the complaint case. He has proved the personal hearing sheet Ex. CW1/2, consumption pattern analysis sheet was proved Ex. CW1/3, speaking order Ex. CW1/4, settlement sheet Ex. CW1/5, written representation Ex. CW1/6 and the final assessment bill dt. 22/11/06 Ex. CW1/7. In his crossexamination he has admitted that he was not the member of raiding party and never inspected the site in question.
15) Statement of accused u/s 313 CrPC recorded in which he has denied the allegations stating that he is innocent and falsely implicated in this case. He has examined himself as DW3, DW1 Sh. Prem Kumar Rai, DW2 Shri Dharmender Kumar in support of his defence.
16) I have heard Ld counsel Shri K. B. Chaudhary on behalf of NDPL who argued that father of accused was found present at the site at the time of inspection and the meter was found tampered as both the half seals of the meter were missing. In these circumstances, presumption is to be raised regarding tampering of the meter. It is further argued that as per CC no. 114/08 (NDPL VS Sandeep ) Page no .............5/16 consumption pattern analysis placed on record there was less consumption then the assessed consumption and a case of dishonest abstraction of energy has been established against the accused. It is further argued that all the witnesses are consistent in their deposition and that no explanation has been given by the consumer for tampering of the seals of the meter and complainant has successfully proved it case of dishonest abstraction of energy against the accused and the complainant has proved its case against the accused beyond reasonable doubts and accused is liable to be convicted.
17) Ld counsel for the complainant has referred and relied upon following citation in support of his arguments: i. In Mukesh Rastogi Vs North Delhi Power Ltd in criminal appeal no. 531/07 decided on 23/10/2007 ii. In Sushil Sharma VS BSES Rajdhani Power, 2011 [1] JCC 665.
iii. In NDPL Vs Bhasin Motors Pvt Ltd, LPA no.
1082/2007 & CM 9601/2007.
18) Ld counsel for the complainant has highly relied upon para no. 9 of the judgment of NDPL Vs Bhasin Motors Pvt Ltd (Supra) wherein it was held that the tampering of the seals and/or the meter by itself would be conclusive evidence CC no. 114/08 (NDPL VS Sandeep ) Page no .............6/16 substantiating unlawful abstraction of energy in a case where no acceptable explanation is given by the consumer for the seals and/ or the meter having been found tampered with.
19) I have heard Ld counsel Shri P.K. Gupta on behalf of accused who argued that the complainant has miserably failed to prove its case of dishonest abstraction of energy against the accused because of the following reasons: i. There was no tampering of the meter as alleged because both the meters were recording correct consumption of electricity which stands established from the record of consumption placed on record by accused as Ex. DW3/4.
ii. The accucheck of the meter in question has not been established because complainant has failed to place on record the evidence of carrying out of the said test as no document as required for testing of the meter by accucheck has been filled and no meter testing report as per annexure7 of the Delhi Electricity Reforms Act, 2000 has been filed.
iii. The consumption pattern analysis Ex.CW1/3 is not proved as per the Indian Evidence Act because it is not clear who has prepared same CC no. 114/08 (NDPL VS Sandeep ) Page no .............7/16 and CW1 who has proved it is not the competent witness to prove it because he has simply instituted the present complaint as attorney of the complainant and had not participated in any manner in preparation of consumption pattern analysis Ex. CW1/3.
iv. Even the consumption pattern analysis is not correct as connected load of both the meters not considered as computed load whereas both the meters were running separately having separate service lines and reliance by the complainant on switch over plug for converting load of meter of the father of accused to the meter of the accused is not established because changeover switch board has not been placed on record.
v. There was no changeover switch as inspecting officer has misunderstood the MC board as changeover switch and the witness has admitted in his crossexamination that changeover switch is generally installed to change the mode of supply of electricity either from the electric line to the Gen Set and vice versa.
vi. Witness PW1 member of raiding party has CC no. 114/08 (NDPL VS Sandeep ) Page no .............8/16 admitted that seals were OK and intact. Further, he admitted that the disc of the meter was running in the right directions and further admitted that consumer was using the electricity through electric meter.
20) Ld counsel further argued that as per provisions of Regulation 25 (1) Sub section 3&4, no case of dishonest abstraction of energy can be booked unless corroborated by the consumption pattern as per regulation 26 (ii). Since the consumption pattern was reasonable and uniform and is not less than 75% of the accessed consumption, therefore no case of dishonest abstraction of energy was made out.
21) I have considered the rival submissions made at bar and perused the case file carefully.
22) The first two cases relied upon by the Ld counsel for the complainant related to the direct theft of electricity and none of the case is having facts regarding dishonest abstraction of energy as is the case in hand. The said judgments are therefore not relevant for the facts in this case. The third case i.e NDPL Vs Bhasin Motors referred (Supra) is held to be applicable only in the civil cases and not in criminal cases as it is evident in the observation of the para no. 10 wherein it was held as under: CC no. 114/08 (NDPL VS Sandeep ) Page no .............9/16 "Para.10 Reliance by learned Single Judge on the decision of the Supreme Court in Jagannath Singh @ Jainath Singh Vs B.S. Ramswamy & Anr.
[(1966) 1 SCR 885), is misplaced since that was a case of prosecution under section 39 and 44 of Indian Electricity Act, 1910 whereas the case before us is a civil case, challenging the demand raised by the licensee on account of dishonest abstraction of energy. The standard of proof required in a criminal trial is proof beyond reasonable doubt, whereas the standard of proof required in a civil action is preponderance of probabilities. "
23) I have scrutinized the evidence of the witnesses examined by the complainant to find out if they are consistent in their deposition as is being claimed by the Ld counsel for the NDPL?
24) PW1 in his examination in chief stated that they checked the electric meter installed in the premises which was running slow and accucheck test was conducted and the meter body was found tampered. In his crossexamination by Ld counsel for the accused he has stated that he had seen the meter Ex. P16 and the seals are OK and intact. He further stated in his crossexamination that while going for raids, they were carrying with them blank proformas for making reports and accucheck tester. He further stated that he did not know whether they carried out an accucheck testing in this case. He further admitted that at the time of the raid the disc of meter in question was moving in CC no. 114/08 (NDPL VS Sandeep ) Page no .............10/16 the right direction. He further admitted that consumer was found using electricity through the electric meter. Regarding his deposition about the changeover switch allegedly used for putting the load of both the meters, he has replied to a question put by Ld counsel for accused that a changeover switch is used to change the mode of supply of electricity either from the electric line to the Gen Set and vice versa. In a further question as to how they concluded that the meter was running slow he has replied that the had conducted accucheck testing. This deposition is contrary to the earlier crossexamination where he stated that he did not remember whether accucheck was carried out in this case or not. He further admitted that he cannot say whether any manipulation or interference has been done with the internal mechanism of meter Ex. P16 and they did not send the meter for any laboratory test.
25) Similarly, PW2 in his crossexamination admitted that they did not know whether the internal mechanism of meter Ex.
P16 was properly working as they did not open the meter. He categorically stated that they did not find any appliance in the premises with the help of which DAE could be committed. He further stated that there were two electricity meters and one was in respect of ground floor and the another for the first floor and they took the total load of both the meters and mentioned in the CC no. 114/08 (NDPL VS Sandeep ) Page no .............11/16 inspection report as 11.27KW. He further stated that it is correct that they have not mentioned the separate loads of two meters and voluntarily stated that consumer had been using the changeover switch to use the electricity from this meter or from that meter and the load was running on the meter in question.
26) In J.K. Steelomelt (P) Ltd Vs BSES Rajdhani Power Ltd, 140 (2007) DLT 563, Hon'ble High Court of Delhi, wherein it was held that in order to establish dishonest abstraction of energy through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a manner that would slow down the consumption.
27) It was further held in para no. 26 that:
26...........It is one thing to plead that the connected load is more than the sanctioned load but is another to say that in fact the connected load has been used throughout by the petitioner. This could be only verified by the actual consumption recorded in the meter. If, as is indicated in the inspection report, the meter wiring is OK and the disc is moving in the right direction then the actual units recorded will reflect how much of the connected CC no. 114/08 (NDPL VS Sandeep ) Page no .............12/16 load is in fact being used. Therefore, merely because the connected load is more than the sanctioned load, cannot lead to an automatic presumption that the entire connected load is being used by the consumer throughout the period."
28) Similarly, in Jagdish Narayan VS North Delhi Power Ltd & Anr , 140 (2007) DLT 307 it was held that : ......the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering.
25. Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh Vs BSES Rajdhani Power Ltd, 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of CC no. 114/08 (NDPL VS Sandeep ) Page no .............13/16 Regulation 25 (iv) read with Regulation 26
(ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft. "
29) The analysis of the evidence as discussed by me shows that the disc was moving in the right direction and no artificial means found employed for abstraction of energy and consumer was found using electricity through electric meter. The cross examination of witness shows that they could not establish that accucheck was done to ascertain that the meter was slow as is alleged in the complaint. The consumption pattern which is being used an evidence against the accused in this case has not been established as per the Evidence Act. The witnesses have failed to show that the load of both the meters was being run through one meter and that they have illegally considered the total connected load of the whole premises of both the meters against the single meter for which case has been booked. The changeover switch has not been produced in evidence. Moreover, witnesses has admitted that changeover switch is used to change the mode of supply of electricity either from the electric line to the Gen Set and vice versa. It has been admitted that there were two meters having separate service lines for both the meters. CC no. 114/08 (NDPL VS Sandeep ) Page no .............14/16
30) Moreover, with regard to the consumption pattern, DW2 Dharmender Kumar has placed on record summery of consumption pattern of the second meter in the name of Shri Ved Prakash Tyagi, father of accused bearing K no. 45100593610 and the consumption pattern from 04/03/2003 to 25/09/2012 has been placed on record as Ex. DW2/C. The total consumption unit from 05/04/06 to 04/11/06 were 3257 against the K no.
45100593610 registered in the name of Sh. Ved Prakash Tyagi. The total consumption of unit against K no. 45100136037 which is in the name of accused Sandeep has been placed on record Ex. DW2/D from 05/04/06 to 04/11/06 and were 752 units.
31) It was argued on behalf of accused that he was residing on the first floor whereas his parents alongwith his brother were residing on the ground floor during the day and the first floor is being used by his family in the night only.
32) In order to establish that the consumption pattern prepared by the complainant is not correct accused while examined himself as DW3 and has placed on record consumption pattern prepared by him on the basis of norms laid down in the regulations. He has deposed that computed consumption alleged to be 600.09 unit per month is wrong because computation for six months comes to 2989.128 units and for one months the average comes to 498.118 unit per month. He further deposed that CC no. 114/08 (NDPL VS Sandeep ) Page no .............15/16 consumption of both the meter from 03/12/2005 to 04/11/2006 of both the meters is 5200 units for 11 months. The average monthly recorded consumption comes to 472.72 unit per month which is greater than 75% of computed consumption. He has proved the worksheet to this effect as Ex. DW3/4. During his cross examination no mistake has been pointed out on behalf of complainant in the consumption pattern Ex. DW3/4 placed on record by this witness. In his crossexamination he has asserted that said document Ex. DW3/4 has been got prepared as per the norms of the NDPL.
33) On the basis of the above discussion, it becomes crystal clear that complainant has failed to prove its case of dishonest abstraction of energy against the accused. Complainant has failed to prove its case against the accused beyond reasonable doubt. Accused is accordingly acquitted for the offence punishable U/s 135 of the Electricity Act, 2003. Bail bonds cancelled and Surety bonds of the accused discharged.
34) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 8
February, 2013
th
.
(RAJ KUMAR CHAUHAN)
ASJ(ELECTRICITY)
(NORTH WEST DISTRICT)
ROHINI COURT:DELHI
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