Delhi District Court
Tata Power Delhi Distribution Ltd vs Kusum on 21 March, 2025
IN THE COURT OF SH. PRASHANT KUMAR, ADDITIONAL
SESSIONS JUDGE, ELECTRICITY COURT, DISTT. NORTH
WEST, ROHINI COURTS, DELHI
CNR No. DLNW01-003659-2022
CC No. 55/2022
P.S. Bhalswa Dairy
U/S. 135 & 138 OF THE ELECTRICITY ACT, 2003
Tata Power Delhi Distribution Limited
Erstwhile (North Delhi Power Limited)
Regd. Office at:
Grid Sub Station Building
Hudson Lines, Kingsway Camp
Delhi-110009.
Also At:
EAC, Sector-3, Rohini,
Delhi-110085. ........Complainant
Vs.
Kusum W/o Sh. Ramesh Sharma
House No. PVT-2, Khasra No. 307/202,
Ground Floor, Mukanpur Extn. Street No. 2,
Village Mukandpur, Phase- 2, Delhi.
........ Accused
Date of Institution 30.04.2022
Date of Reserving judgment 20.03.2025
Date of Judgment 21.03.2025
CC No. 55/2022, TPDDL Vs. Kusum
1 of 35
JUDGMENT
BRIEF FACTS OF THE CASE:-
1. Briefly stated, the facts of the present case are that on 08.04.2021 at about 03:15 PM a team of TATA Power Delhi Distribution Limited (hereinafter referred to as 'Complainant Company') comprising of K.K.Sharma, Rohit Kumar Pandey, Sanjay and one technician inspected the premises of the accused i.e. House Pvt No. 2, Khasra No. 307/202, Mukandpur Ext. Street No.2, Village Mukandpur, Phase-2, Delhi (hereinafter referred to as 'premises').
Inspecting team found meter bearing CA No. 60021023086 and meter No. 11030917 installed at site in the name of accused. The said meter was found to be in completely burnt. The inspecting team made following observations:-
"...meter box seal no. found completely burnt. Meter found in completely burnt position and only some residuals (burnt ashes) of the said burnt meter found. No any major fire marks found nearby the meter position and no any major loss found in the said premises. From the site condition it is observed that meter is unusual burnt for illegal gains. Not any burnt found on meter box cover and same has been seized".
2. The total connected load was found to be 35.736 KW for non-domestic purpose. The photographer Sanjay took 47 photographs of the site in question and conducted the videography as well. After signing the inspection report, which is Ex.PW1/1, the CC No. 55/2022, TPDDL Vs. Kusum 2 of 35 same was signed by the son of accused at point P. Inspection team seized polyphase burnt meter residue along with the meter box with piece of incoming burnt cable inside the gunny bag and affixed seal over it vide seizure memo Ex.PW3/B bearing No. 74078. The same was served upon the son of accused and photograph thereof was taken.
3. Thereafter, the meter was sent to Truth Lab for testing on 13.12.2021. A notice was served upon the son of accused for testing of meter, which is Ex. PW1/3. The meter was offered to Electronics And Quality Development Centre (hereinafter referred to as 'EQDC') for testing and in its report it was observed that " as per the photographs of site inspection dated 08.04.2021, energy meter found completely burnt. As no electrical testing can be carried out on this completely burnt energy meter, TPDDL is requested to forward this burnt energy meter to the competent laboratory like Forensic Lab for further testing and validation". The said report is Ex. PW2/A. PRE-SUMMONING EVIDENCE:-
4. The complainant examined two witnesses during pre summoning evidence. They exhibited the inspection report, seizure memo, photographs, notices for testing of the meter, action report and certificate U/s 65-B of the Indian Evidence Act. On the basis of the complainant documents, the accused Kusum was summoned U/s CC No. 55/2022, TPDDL Vs. Kusum 3 of 35 135 and 138 read with Section 151 of the Electricity Act, 2003.
NOTICE:-
5. The accused was heard on the point of notice. A prima facie case was made out U/s. 135 and 138 read with Section 151 of the Electricity Act, 2003 against the accused Kusum and accordingly, notice was framed, wherein he pleaded not guilty and claimed trial.
COMPLAINANT'S EVIDENCE:-
6. PW-1 Vikram deposed that on 08.04.2021, he alongwith Sh. K.K. Sharma (AGM), Sh. Rohit Kr. Pandey (Manager), Sh.
Sanjay (Photographer) and one Technician visited at House PVT No. 2, Khasra no. 307/202, Mukandpur Ext. Street No. 2, Village Mukandpur, Phase-2, Delhi, where one meter was installed at site vide CA No. 60021023068 and meter no. 11030917 in the name of Kusum. He deposed that meter at the time of inspection was found completely burnt and only some residual (burnt ashes) of the said burnt meter were found. He deposed that neither any major fire marks nearby the meter location nor any major loss was found in the above said premises. He deposed that from the site condition, it was observed that meter unusually burnt for illegal gain as no burnt marks found on meter box cover and the same was seized. PW-1 deposed that inspection was carried in the presence of son of the accused, who received the inspection report by signing the same.
CC No. 55/2022, TPDDL Vs. Kusum 4 of 35 PW-1 deposed that total connected load found to be 35.736 KW for non domestic purpose and inspection report Ex. PW1/1 was prepared bearing signature of PW-1 at point A and signature of the son of the accused at point P. He further deposed that all illegal materials were seized under seizure memo exhibited as Ex.PW1/2, bearing his signatures at point A and signature of son of the accused at point P. PW-1 further deposed that notice for testing of meter was served to the accused exhibited as Ex.PW1/3 dated 08.04.2021 and 26.11.2021. The witness correctly identified case property i.e. one transparent meter box cover having description number, CA Number, meter number and the name as well as some part of incoming burnt cable and some residuals of the meter and ashes as Ex. P-1.
During cross-examination of PW-1, he deposed that he seized the ashes of burnt meter. The meter was found completely burnt. PW-1 has further stated that he collected only meter box cover and some part of burnt cable and ashes. It is stated by PW-1 that when he checked the load at that time, power was not supplied at that floor. PW-1 has not checked the load. It is further stated that the wall where the meter was installed was fully black due to burning of meter. It is further stated by PW-1 that accused has used the electricity from the meter which was installed on the upper floor. Seized meter ashes were sent to laboratory on same day. It is further CC No. 55/2022, TPDDL Vs. Kusum 5 of 35 stated that notice of meter testing was served on 08.04.2021. However, there is no notice dated 26.11.2021.
One relevant suggestion has been given during cross- examination of PW-1, which is answered in affirmative hence relevant to mention here:
"It is correct that I have not found the accused who was indulging in theft of electricity from the burnt meter. PW-1 has further stated that he has not checked previous consumption of the accused. Inspection report is stated to have been prepared at the spot."
7. PW-2 Ms. Vani Sachdev is the witness who has given the expert report of meter testing. She is stated to be from Truth Lab situated at Safdarjung Enclave, New Delhi. PW-2 Ms. Vani Sachdev deposed that one parcel in sealed condition along with case file documents was received by Truth Lab on 13.12.2021 from TPDDL. The case was registered at Truth Lab and assigned by the Chairman to her for examination and reporting. The parcel was opened after checking the seals which were intact and the burnt meter was examined by her and report dated 18.01.2022 was furnished. The remnants of the burnt meter in sealed condition along with report Ex.PW2/A bearing her signature on forwarding letter, 11 pages and one sample seal of Truth Lab was returned to complainant company on 24.01.2022.
During her cross-examination, it is stated by PW-2 that CC No. 55/2022, TPDDL Vs. Kusum 6 of 35 at the time of examination of burnt meter the accused was not present there and they had not given any notice to the accused for his appearance, as it is not part of their procedure. Complainant company was also not called to be present there for examination as the same is also not part of their procedure. It is stated by PW-2 categorically that they examined the burnt meter in the absence of complainant company and accused and their presence at that time is not required. PW-2 has stated that she used to undertake visual examination, physical examination, chemical examination, stereo microscopic examination of the burnt meter, however, in this case stereo microscopic examination could not be conducted due to unavailability of suitable wires. It is stated that at the time of chemical examination, debris were found containing remnants of flammable substance. However, such flammable substance has not been mentioned. PW-2, however, has stated that she has concluded the report on the basis of chemical examination result indicating presence of ignitable and flammable substance in debris. One question was put to the witness during her cross-examination which has not been properly answered in detail except stating that clause 8 of the report contain the observation. The question is :
"Question : How did you conclude that burning in electric meter was deliberate and by someone who has the means, motive and opportunity to indulge in such activity?"
CC No. 55/2022, TPDDL Vs. Kusum 7 of 35 By answering this question, PW-2 seems to have been suggesting that she has given her opinion that burning was deliberate. At the outset, it is important to mention here that an expert has to give opinion on the basis of facts of the case and material placed before them which is under examination by them. Giving any opinion regarding any deliberate act or omission for a fact, on the part of any person, in my considered opinion is beyond the scope and purview of expert. In other words, expert can opined that some external material may or may not have been used. However, they are not supposed to comment or give their opinion that the act or omission was deliberate. This aspect will be dealt with in the subsequent paras along with other observations.
8. PW-3 Rohit Kumar Pandey deposed that on 08.04.2021 at about 3:15PM, he as a supervisor along with Team Leader Sh.K.K. Sharma and Sh. Vikram and photographer Sh. Sanjay from Prakash Photo Studio inspected the premises of the accused at KH. NO.307/202, H.No.2, Mukandpur Ext. Phase-II, Gali No.2, Mukandpur Ext. Delhi-42 wherein poly phase meter no.11030917, as per bill, was found completely burnt and few residue in the form of ashes inside the premises were lying near meter location. PW-3 further deposed that at the time of inspection, it was observed that as per site inspection meter was unusually burnt for illegal gains. No any major loss was found inside the premises in question and no CC No. 55/2022, TPDDL Vs. Kusum 8 of 35 major fire marks were found near the meter location. He further deposed that there was no fire marks on the meter box cover which was found lying on the floor inside the premises and residue of said meter service cable were found burnt inside the meter box and entire material was seized at that time and the same was apprised to the consumer representative Mr. Rahul Sharma. He further deposed that entire inspection was conducted in the presence of Mr. Rahul Sharma s/o Mr. Ramesh Sharma (husband of the consumer). Connected load was found to be 35.7 KW apprx in total for non-domestic purpose. He further deposed that at the time of inspection, the supply of the electricity was found to be disconnected. User/Representative Mr.Rahul Sharma was present at the time of inspection. He deposed that inspection report is Ex.PW1/1 which has also been exhibited as Ex.PW3/A bearing signature of Rahul, son of accused is at point P. He deposed that the inspecting team seized poly phase burnt meter residue along with meter box with piece of incoming burnt cable and put the same inside the gunny bag and affixed seal over it vide seizure memo Ex.PW1/2 which is also Ex.PW3/B bearing of PW-3 at point R and signatures of K. K. Sharma at point Q and signatures of Vikram A. He deposed that he had given the copy of the seizure memo to the son of the accused i.e. Rahul. Necessary photographs were taken by photographer Sh. Sanjay. PW-3 further deposed that he had given a Notice for testing of the meter to the son of the accused Mr. Rahul at the time of inspection exhibited as Ex.PW1/5 CC No. 55/2022, TPDDL Vs. Kusum 9 of 35 and also as Ex.PW3/C. PW-3 deposed that he had given another notice to the son of the accused on 26.11.2021 on the instructions of the HOD, CEG. He further deposed that notice Ex.PW3/D was acknowledged by the son of the accused Mr. Rahul bearing his signature at point X. PW-3 identified the case property correctly as Ex.P-1.
During his cross-examination, PW-3 has stated that they received information about burnt meter and inspected the premises on 08.04.2021. PW-3 has stated that he cannot say how many power plugs and socket were fixed at the premises. PW-3 has categorically stated that no machine was found to be running at that time as supply was disconnected.
During cross examination, one suggestion has been given with regard to meter box cover relevant to mention here. It is correct that there is no burnt mark found in the meter box cover. PW-3 has stated that he has not given any show cause notice to accused or her representative.
9. PW-4 Sanjay deposed that on 08.04.2021 he along with K. K. Sharma, Rohit Kumar Pandey and Vikram had gone to Mukandpur, Delhi and on the instructions of raiding team member he had taken approximately 47 photographs which are Ex.PW4/A-1 to Ex. PW4/A-47 (colly.). He further deposed that he had conducted the videography and the CD of the photographs and videography are Ex.
CC No. 55/2022, TPDDL Vs. Kusum 10 of 35 PW4/B. He had also given the certificate u/s. 65-B of the Indian Evidence Act, which is Ex. PW4/C. During his cross examination, PW-4 has stated that he cannot say whether machine was installed at the ground floor or outside of the premises or he cannot say whether machine was in running condition or not. PW-4 has further stated that he cannot say as how many machines/load were installed at the inspection site.
10. PW-5 Pawan Kumar deposed that he was the substituted AR of the complainant company and have been authorized vide power of attorney dated 08.02.2024 exhibited as Ex.PW5/A (OSR). He further deposed that the present complaint was filed by previous AR V. S. Verma and he can identify his signatures as he had worked with him.
During his cross examination, no material contraction.
STATEMENT OF THE ACCUSED:-
11. Statement under Section 313 Cr.P.C. of the accused has been recorded. All incriminating evidence was put to the accused. she stated that she is innocent and she has been falsely implicated in this case by the complainant company. She further deposed that she had filed a civil suit for permanent injunction and declaration against the inspection and theft bill, which is pending before Ld. ADJ. Accused opted to lead evidence in her defence.
CC No. 55/2022, TPDDL Vs. Kusum 11 of 35 DEFENCE EVIDENCE:-
12. There is only one witness in defence of accused who is her son, who was stated to be present at the time of burning of meter and inspection.
13. DW-1 Rahul Sharma deposed that on 06.04.2021, he was sleeping in his room and woke up by hearing a blast sound at 02:00 PM. He visited the site of the meter and he saw that meter was completely burned and he called the electricity department. The electricity department disconnected the supply from the office and a complaint was made by Rahul Sharma for change of meter. DW-1 deposed that he asked the electricity department personnel to collect the ashes of the burnt meter but they did not collected the same. DW-1 deposed that after two days on 08.04.2021 at around 01:00 PM electricity department team visited the site and saw the burnt meter but they did not find the ashes and DW-1 helped them to collect the ashes of the meter. DW-1 deposed that the electricity department people took his signatures on certain documents and issue a notice in the month April for meter testing but they did not send notice for testing the meter in December. After one year, electricity bill was served upon him. The consumption pattern was same as before. Copy of electricity bill is Ex.DW1/1 (colly). The consumption of electricity was very low due to delay in installation CC No. 55/2022, TPDDL Vs. Kusum 12 of 35 of meter during April to June 2021.
During his cross-examination, DW-1 was shown one document Ex.PW3/D which is meter testing notice wherein date of testing of meter is mentioned as 10.12.2021. DW-1 identified his signature. DW-1 has stated that the new meter was installed after two three weeks. During cross-examination, one suggestion that external ignitable flammable and combustible material was used to burn the meter in order to remove evidence of any tampering done in the meter has been denied. Another suggestion that consumption prior to inspection and thereafter, is different is also denied.
THE POSITION OF LAW:-
14. Before dealing with the factual aspect of the present case, it is deemed appropriate to specify the relevant provision of the Act which are required to be gone into for appropriate disposal of the cases pertaining to section 135/138 of 2003, Act. The provisions are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, 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 a. 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 CC No. 55/2022, TPDDL Vs. Kusum
13 of 35 whereby electricity is stolen or wasted; or b. 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 c. uses electricity through a tampered meter; or d. 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 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 CC No. 55/2022, TPDDL Vs. Kusum
14 of 35 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 138 Interference with meters or works of licensee-(1) Whoever-
(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering.
15. As per the complaint, accused was found indulged in dishonest abstraction of energy. Thus, the onus was on the CC No. 55/2022, TPDDL Vs. Kusum 15 of 35 complainant company to prove on the scale of beyond reasonable doubt:-
(i) That the accused Kusum was found indulged in dishonest abstraction of energy by tampering the meter and then burning the meter to destroy material evidence.
(ii) That the connected load was found to be 35.736 KW as against the sanctioned load of 11.00 KW for non domestic purpose.
In the light of this background and position of law, the evidence available on record is analysed in following paras :
RELEVANCY, ADMISSIBILITY AND EVIDENTIARY VALUE OF SCIENTIFIC EVIDENCE:-
16. Opinion of an expert is relevant under Section 45 of The Indian Evidence Act, 1872. For bringing the evidence of a witness as an expert, it has to be established that expert has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The requirements for the admissibility of the expert evidence are:
(i) that the expert must be qualified in that discipline.
(ii)that the expert must be within a recognized field of expertise and
(iii) that the evidence must be based on reliable principles.
17. It is the duty of the expert to put before the Court all the CC No. 55/2022, TPDDL Vs. Kusum 16 of 35 materials and mention the scientific criteria which induced the expert for arriving to the said opinion. The opinion of an expert cannot be relied unless the expert is examined as a witness. An expert is not a witness of fact, therefore, the credibility of such witness depends on the reasons stated in support of his conclusion and the data and the material furnished, which form the basis of such conclusion. The Court has to check the validity of the process by which the conclusion is arrived. The Court has to form his independent judgment by the application of scientific criteria to the material and data which was the basis for an expert to reach to the said opinion. Mere assertions without mentioning the data or basis is no evidence in the eyes of law, even if, it comes from an expert. In case the opinion is intelligible, convincing and tested becomes a factor often an important factor for consideration alongwith other evidence of the case. Reliance is placed upon the judgment titled as Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709. The relevant extract of the said judgment is reproduced below for ready reference:-
"....Expert opinion
16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layperson. Thus, there is a need to hear an expert CC No. 55/2022, TPDDL Vs. Kusum 17 of 35 opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
(i) that the expert must be within a recognised field of expertise,
(ii) that the evidence must be based on reliable principles, and
(iii) that the expert must be qualified in that discipline.
(See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn., Cambridge University Press, p. 178.)
17. Section 45 of the Evidence Act, 1872 speaks of expert evidence. It reads as under:
"45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
CC No. 55/2022, TPDDL Vs. Kusum 18 of 35
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
(b) The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
18. The importance of the provision has been explained in State of H.P. v. Jai Lal [(1999) 7 SCC 280 : 1999 SCC (Cri) 1184] . It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
CC No. 55/2022, TPDDL Vs. Kusum 19 of 35
19. It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Alfred Robert Jones [AIR 1934 All 273] that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee [(2009) 9 SCC 221 : (2009) 10 Scale 675] , SCC p. 249, para 34.)
21. In State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : AIR 2000 SC 1691] , it has been laid down that without examining the expert as a witness in court, no reliance can be placed on an opinion alone. In this regard, it has been observed in State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him".
CC No. 55/2022, TPDDL Vs. Kusum 20 of 35
22. In the article "Relevancy of Expert's Opinion"
it has been opined that the value of expert opinion rests on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the data on the basis of which opinion is formed. The same is clear from the following inference:
"Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value...".
APPRECIATION OF EVIDENCE:-
18. The allegations against the accused is that she was the registered consumer of the meter in question, which was found burnt at the time of inspection. It was for the expert to establish and find out by conducting scientific experiment to find out the cause of burning of the meter or was there any tampering done.
19. Before proceeding further, it is important to mention here that complainant and prosecution has levelled allegation against the accused that she along with her family members had deliberately CC No. 55/2022, TPDDL Vs. Kusum 21 of 35 burnt the meter by external flammable material and this act was done in order to destroy the evidence of tampering done with the meter in question. Thus, prosecution and complainant has to establish following points in order to establish the liability of the accused:-
(a) meter in question was tampered with,
(b) inflammable external chemical/material was used to burn the meter, thus, burning of meter was not accidental but deliberate.
(c) connected load at the time of inspection was found much in excess than the permissible.
First two points are to be analysed in the light of Expert Report.
20. It has already been mentioned above that prosecution has examined 5 witnesses in support of their contention whereas there is only one evidence in defence of accused. It has been argued by the accused that burning of meter was accidental and not deliberate. Their connected load was not beyond permissible limit. They have been paying the bills regularly without default and after the incident on 06.04.2021, when new meter was installed. It has given the same reading or the bill which is not in much in variance to the earlier bills issued by TPDDL. It is argued that calculation of connected shown in the inspection report is manipulated, fabricated and without any basis. No meter tampering has been done by the accused. It is argued CC No. 55/2022, TPDDL Vs. Kusum 22 of 35 that in such cases meter has to be sent to the lab for which prior notice for testing has to be given. The testing of the meter has been done in some other lab than the authorized lab and no notice for the second lab has been given by the concerned lab. It is stated that the report given by expert cannot be relied upon as it is without any basis and no opinion and reason as to what was the cause of burning the meter and which material resulted the burning, has been given. It is further stated that not giving any notice before testing is against the DERC Regulations, 2017. Ld. Counsel for accused has relied upon Rules 32(8), 62, 63 and 64(3). It is further argued that case of DEA and deliberate burning of meter has been framed against the accused, however, there is no material available on record which show that there was any tampering in the meter or there was deliberate burning of the meter in question. It is further argued that calculation of connected load i.e, 35.763 KW is without any basis.
21. Arguments heard at length. Record perused thoroughly.
22. All the evidence and the material available on record, more particularly, meter testing report are perused thoroughly. Following are the observations:-
The allegations against the accused is that she has not only tampered with the meter but in order to cover up the tampering and destroying the evidence the meter was deliberately burnt by CC No. 55/2022, TPDDL Vs. Kusum
23 of 35 external inflammable material/substance. In this regard, so far as allegations of tampering of meter are concerned, meter is stated to have been burnt completely and in the report of Truth Lab no such observation in this regard has been given. Thus, in the absence of any evidence to the contrary such allegations are nothing but bald allegations. Besides this, as per record, no wire or device is stated to have been found or connected or any direct hooking of wire to electric appliances, has been found at the spot. Thus, allegation of tampering of meter cannot be considered as correct as it is not supported with any evidence.
23. Now, coming to the allegations of burning of meter deliberately the report of expert i.e., Truth Lab is perused thoroughly. In this regard, it is important to make observation upon the collection of material which was sent to the Lab for testing. As per record, inspection team lifted some part of burn meter and send them to "Meter Testing Laboratory", which were further send to "Truth Lab"
as per record. It is alleged that when the meter was burn, the adjoining wall also turned black. No effort as per record has been made by the TPDDL officials to collect the sample of such blacken material by which the adjoining wall also turned black. As per allegation, some external flammable material was stated to have been used in burning the meter and if, presuming for the sake of arguments, such material was applied then, the fire which errupted CC No. 55/2022, TPDDL Vs. Kusum
24 of 35 due to such external material then, traces of it should also be there on the wall which was stated to have been turned black from the burning of meter. There is no collection of any such substance. Thus, in my considered opinion, it reflects that collection of evidence by the TPDDL officials is very poor and not proper in the present case. Now, the only material available for testing as per record is the burn ashes of the meter in question.
Now, proceeding further, the report Ex.PW2/A is perused. From the careful perusal of the report exhibited as Ex.PW2/A, it is reflected that at internal page no. 3 of the report at point No. 4., the purpose of examination is mentioned i.e., to determine the actual cause of burning of the meter and circumstances thereof. At page no. 4, at point No. 6, nature of examination has been mentioned and from point No. 7 of the report observations and findings starts. As per report, the plastic frame/lid of the meter box was examined but extent of damage on it was found to be minimal. It was found to be broken from a few places. It has been observed that the box might have been broken before the fire incident.
24. Proceeding further, at page No. 9, at its point No. 7.1.10. it is mentioned that the burning could be for the reason that fire was initiated externally using some ignitable material to light fire on the meter. It has been further observed at page No. 11 at point No. 7.3.1 which reads as under : "the chemical analysis of trace evidences CC No. 55/2022, TPDDL Vs. Kusum 25 of 35 collected from the external surface of the burnt meter indicated the presence of ignitable, flammable and combustible materials, suggestive of fire cause by extraneous fire accelerants. (GC-MS analysis reports enclosed.)"
25. Similar observations have been repeated in point No. 8, page No. 11 of the report that burning is not due to electric short circuit or any other natural calamities but subjecting it to flammable and combustible materials used igniting fire from outside and root cause of burning of electric meter is due to deliberate exposure to external sources by someone who has the means,motive and opportunity to indulge in such act.
26. The foremost objection to the report taken by accused is analyzed in the light of DERC Regulations, 2017 after reading rules 32 (8), 62, 63, 64 (3), it is reflected that a prior notice is required to be given before testing of meter is done. The purpose of giving of such notice is that there should not be any scope of unfair testing of the meter and it should be not only with the prior intimation but if the consumer appears, in his presence, as per rules.
27. It is needless to say that such rule is part and parcel of principles of natural justice which are incorporated to rule out any scope of biasness and is meant to establish the fair proceedings. It is CC No. 55/2022, TPDDL Vs. Kusum
26 of 35 a matter of record that initially the meter was sent to meter testing laboratory, however, as per Ex.CW1/3 it has been observed that no electric testing of burnt meter can be carried out, therefore, it should be referred to competent forensic lab. Truth lab is stated to be such second laboratory to which this burnt meter was sent further for expert opinion. It is stated by the accused that no notice from Truth Lab has been given so that accused could represent herself at the time of testing. No such notice has been given, as per record, for which complainant has stated that once notice, initially has been given, it is not required to be given subsequently. In my considered opinion when the meter was not tested or could not be tested by meter testing laboratory and when it was sent to some other lab i.e. Truth Lab then the compliance of Rule 32 (8) of Regulation of 2017, has to be done mandatorily. This is a serious lapse which has not been followed and taken care of by the complainant.
28. Now, coming to the findings given vide report Ex.PW2/A. It is reflected that though examination seems to have been done with some details, however, there is no observation as to what was the external material which was used to burn the meter and how such burning was deliberate and whether expert PW-2 was competent enough to give further opinion that such burning was deliberate. In my considered opinion, such opinion that burning is deliberate has to be decided by the court only.
CC No. 55/2022, TPDDL Vs. Kusum 27 of 35
29. In the entire report there is no opinion regarding derivative of such material/substance by which it could be ascertained that it was outcome of some external flammable material. It is needless to say that forensic lab is competent to give opinion regarding derivative or by product of burning from the ashes, traces of which would definitely be mixed with the carbon. No such opinion on this aspect have been given. Therefore, in my considered opinion, it is reflected that the report given by PW-2 is not proper and as the procedure laid down under DERC Regulation 2017 as laid down in Rules 32 (8) 62 63 64 (3) have not been followed, therefore, such report cannot be considered as free from doubts. More so, only burnt ashes of meter were sent for testing, but no sample of burn marks on wall near meter, has been taken and sent. Thus, not all the material which ought to have been collected and sent to the expert has been lifted from the spot and thus, not sent to the expert for their opinion.
30. Now, coming to the mentioning of connected load of 35.736KW found at the time of inspection. In this regard, accused has not only placed on record, three bills dated 18.10.2021, 17.11.2021 and 16.12.2021 showing her consumption pattern of electricity but has also filed certain bills during final arguments which reflects that consumption pattern has remain almost same, not CC No. 55/2022, TPDDL Vs. Kusum 28 of 35 only prior to burning of meter on 06.04.2021, but subsequent thereto when new meter was installed in place thereof. In this regard, the payment of the previous bill and the consumption pattern which is mentioned in these bills are perused. Accused has also placed on record the photocopies of certain bills which reflect the due date as 20.01.2021, 20.02.2021, 24.03.2021, 20.04.2021, 22.05.2021, 19.06.2021, 20.07.2021, 18.08.2021 & 17.09.2021. In all such bills, in the column current meter details, the unit consumption i.e. MDI KVA is shown somewhere in between 5 to 6.5. all these bills further lay down the current demand details explaining the Unit Consumption multiply by Rates. None of these bills have been disputed by the complainant during arguments nor the fact that all these bills have been paid within time has been disputed or controverted. In these circumstances, it is therefore reflected that accused has been paying all the regular bills raised by TPDDL not only prior to the inspection i.e. 08.04.2021 but even subsequent thereto. It is further reflected from the record from the paid bills, that after installation of new meter after burning of earlier meter, there has been no question raised by the TPDDL pertaining to sanction load and actual unit consumption i.e. MDI KVA. In these circumstances therefore, it is now for the complainant to explain as to how this connected load has been calculated by them as 35.736KW as shown in the inspection report and other relevant documents which have been prepared after 08.04.2021. If, the actual CC No. 55/2022, TPDDL Vs. Kusum 29 of 35 consumption as reflected in the various bills filed on record during trial as well as during final arguments, is considered then there seems to be no rational behind arriving at connected load as 35.736KW as reflected in inspection report. Thus, in my considered opinion, such assessment of reflecting of connected load as 35.736KW seems to be having no rational and basis when bills have been raised on the basis of actual consumption by TPDDL itself and have been regularly paid by the accused. In these circumstances, therefore, in my considered opinion, complainant has been failed to discharge the burden of proving this fact at that the time inspection, a number of discrepancies and anomaly were pointed out by the TPDDL officials during inspection conducted on 08.04.2021.
31. In these circumstances, in the light of the above discussion, I am of the opinion that none of the prosecution witness called and examined by the complainant seems to inspire their confidence and though, it has been mentioned in the inspection report that connected load of 35.736KW was found against connected load of 11.00KW, however, neither any device is found or stated to have been mentioned as existing in the burnt meter nor there is any observation in the expert report filed by Truth Lab which is Ex.PW2/A nor this report has made any observation that any inflammable material was used to burn the meter nor there is any report with findings by which it could be concluded that such CC No. 55/2022, TPDDL Vs. Kusum 30 of 35 external inflammable material was used to burn the meter. The report Ex.PW2/A, as already stated above is silent on these aspect. Hence, this report can not be said to be read against the accused as it is incomplete. More so, it has been reflected and rightly pointed out by the accused that the procedure as laid down under DERC regulations, 2017 vide its rules 32(8), 62,63 & 64(3) has not been followed which is mandatorily to be followed by the complainant. It is needless to say that if such procedure as laid down under DERC rules, 2017 are not followed then they are to be considered as serious lapses on the part of the complainant and would be considered as grave violation of principal of natural justice that right to be heard has not been given and provided to the other party, in order to ensure the free and fair trial.
32. Ld. Counsel for the accused has relied upon certain judgments in support of their contention which are as under :-
a) Bhasin Motors (I) P. Ltd. vs. NDPL, (2007) 05 DEL CK 0005, D.O.D. 21.05.2007 In this case, it has been held that :
" 18. In the instant case the inspection report could at best have only led to an suspicion of DAE which was thereafter required to be established through "conclusive evidence". However, apart from the computed assessment determined by using the LDHF formula, there is no material to establish DAE. In the circumstances, this Court holds that the impugned Speaking Order has clearly erred inn declining the request of the Petition for ascertaining the consumption pattern of the meter by installing a parallel meter. DAE has, Therefore, not been established in this case."
CC No. 55/2022, TPDDL Vs. Kusum 31 of 35
b) BSES Yamun Power Ltd. vs. Ashok Kumar, RFA 1/2011, D.O.D.24.07.2019.
In this case, it has been held that :
" 17. Thus what emerges from the record is that the respondent had submitted a detailed reply to the show cause notice, but the appellant, while issuing the speaking order based on which the bill was raised, has not dealt with any of the grounds raised by him. In my view, once an opportunity to show cause is given, it is expected that the competent authority would at least deal with the grounds raised therein, howsoever briefly, before passing any final order conclusively determining the liability of the consider. In the present case, as would be evident from a perusal of the respondent's reply and the impugned speaking order, the appellant has not even referred to any of the contentions in the respondent's reply and, therefore, evidently there has been a blatant violation of the principles of natural justice. In my view, on this ground alone, the speaking order and the consequential bill are not sustainable and have been rightly declared to be inoperative by the learned trial court."
c) Sohan Lal vs. North Delhi Power Ltd. and Others, (2004) 05 DeL CK 0055, D.O.D. 31.05.2004.
In this case, it has been held that :
" 46. The provisional bills have been sent, however, on a different basis, apparently applying the Tariff of 2001-2002, which could not have been so applied. It is the basis of 6X5 which would, thus, be applicable. The concession has, however, already been recorded on the part of the respondents that since they had already raised the bill on 6X3 and 4 X 3 basis, provisional as it may be, in case a consumer has paid on 4 X 3 basis, the said issue would not be re-agitated, as there was specific stipulation in the provisional bill that on payment of 4 X 3 basis, the demand would stand satisfied."
All the judgments relied upon by the accused are equally applicable in present facts and circumstances.
CONCLUSION & FINDINGS :
33. From the above discussion and considering the material CC No. 55/2022, TPDDL Vs. Kusum
32 of 35 available on record, it is reflected that none of the prosecution witness has been able to substantiate any of the allegation claimed and levelled against the accused in their inspection report and complaint for the following reasons :
i) It is the case of the complainant that an incident of burning of meter took place on 06.04.2021 and inspection was conducted at premises on 08.04.2021 during which various discrepancies and manipulations were found by the TPDDL officials that burning of meter is deliberate due to external inflammable material applied by the accused. The expert report in this regard Ex.PW2/A has not been able to point out any observation about presence of any such external inflammable material used in burning of the meter. The collection of sample required to be sent to the Laboratory for testing is not proper as per the record. Only, some of the pieces of burn material were lifted from the spot. No collection of any blacken material due to which the adjoining wall turned black due to burning has been taken.
Such material could also reflect some traces of any such external inflammable material used as its by product.
ii) It is the case of the complainant that burning of meter done deliberately by the accused in order to erase the evidence of tampering done in the meter however, neither there is any tangible evidence on record except the oral averments nor the meter testing report Ex.PW2/A has made any observation that any such device was used to tamper the meter. The meter in question is stated to have CC No. 55/2022, TPDDL Vs. Kusum 33 of 35 been burnt completely. The report Ex.PW2/A has not pointed out presence of ashes of any such external device.
iii) DERC Rules, 2017 which are mandatorily to be followed by the complainant at the time of sending the meter for testing, has not been followed in its true letter and spirits. Such submissions made on behalf of the complainant that at the time of referring the case to second lab which private and not registered as well, there is no requirement of giving any notice to the accused, can not be considered as correct. Rule 32(8) and 64(3) of DERC Rules, 2017 speaks to the contrary. Thus, non-following of these rules can not be considered as mere irregularities but are serious lapses on the part of the TPDDL/ complainant. Such report Ex.PW2/A therefore, can not be considered.
iv) There is no other evidence available except oral averments in the complaint against the accused that there was tampering of the meter by using external device and in order to erase the evidence of tampering the meter was burnt. Testimonies of none of the PWs have inspired their confidence. Hence, in the absence of any material piece of evidence, complainant can not be said to be discharge their proof of burden upon them.
v) As per inspection report, complainant TPDDL has alleged that connected load found at the time of inspection was 35.736KW. However, the three bills which are filed by accused on record as well as other bills which have been filed during the final arguments by the CC No. 55/2022, TPDDL Vs. Kusum 34 of 35 accused reflects that all such bills prior to and after burning of meter have been paid regularly and they have been showing the actual consumption in between to 5 to 6.5 MDI KVA. From perusal of all these bills, which have not been disputed and denied by TPDDL, it is reflected that nowhere at the time of raising of such bills any such observation of different consumption pattern has been alleged. Thus, these bills which are not disputed, can not be ignored. Thus, the consumption pattern shown by TPDDL as 35.736KW in the inspection report at the time of inspection is not correct in my considered opinion hence, seems to be without any basis.
34. In the light of all the observations, I am of the considered opinion that the complainant has not been able to establish the liability of accused Kusum beyond reasonable doubt. Therefore, accused Kusum stands acquitted.
35. Surety stands discharged. Documents if any be returned. Endorsement, if any be cancelled.
36. File be consigned to record room after due compliance.
Digitally signed by PRASHANT PRASHANT KUMAR KUMAR Date: 2025.03.29 04:25:44 +0530 Announced in the open court (PRASHANT KUMAR) today i.e. on 21.03.2025 ASJ (Electricity)/ Distt. N/W Rohini Courts, Delhi CC No. 55/2022, TPDDL Vs. Kusum 35 of 35