Delhi District Court
Complainant vs Niranjan Kumar ... on 24 January, 2014
Page 1 of 13
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 36/11
ID No. 02405R0151742011
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Niranjan Kumar ....................... Accused
2. Bhoop Singh ....................... Proceedings abated
Khasra No. 189, Ground Floor,
Near Pole No. 80,
Village Kakrola, Uttam Nagar,
Opposite MCD Primary Girls School,
New Delhi110043
Date of institution: ........................ 15.4.2011
Arguments heard on: ........................ 17.1.2014
Judgment passed on : ........................ 21.01.2014
Final Order: ........................ Convicted
CC No. 36/11
Page 2 of 13
JUDGMENT:
1. The brief facts of the case are like this. On 22.10.2009 at 4.00 pm a joint inspection team headed by Sh. Mukesh Chandra Sr. Manager (Enforcement) of the complainant company inspected the premises bearing Khasra No.189, Ground Floor, Near Pole No.80, Opposite MCD Primaly Girls School, Village Kakrola, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). The accused no.1 is user of the inspected premises. Accused No.2 is the registered consumer of the electricity meter no.27122439 (as per EBS record) installed in the inspected premises. No electricity meter was found at site. The meter was burnt as per consumer but no burn marks were found on the wall. The service line was found in intact condition. The machines were in working condition. A small quantity of ash was found at site. The smell of kerosene oil was found on the cable and it was also coming from ashes. It was a case of meter tampering. Operation and Maintenance Division was directed to replace the meter. A connected load of 39.854 KW was found for industrial purposes. The video of the inspected premises was taken and CD was prepared. Small quantity of ashes of burnt meter was taken into possession and sent to the laboratory for analysis. Inspection report, meter details report, load report, seizure memo and CC No. 36/11 Page 3 of 13 show cause notice were prepared and offered to the consumer who refused to receive and sign the same. The accused neither filed the reply to show cause notice nor attended the personal hearing despite the receipt of second show cause notice dated 07.08.2010. The Assessing Officer passed the speaking order dated 26.10.2010. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused were summoned for the offence U/s 135/138 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which they pleaded not guilty and claimed trial. Accused no.2 has expired during the course of trial as a result proceedings against him stand abated on 09.09.2011.
3. The complainant examined five witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that meter got burnt of its own regarding which a complaint was given to the complainant. The machines were not working at that time. No notice was received by him so he does not know about the speaking order. However, no defence evidence CC No. 36/11 Page 4 of 13 has been led.
4. PW2 Mukesh ChandraSr Manager is a member of joint inspection team. He stated that on 22.10.2009 at 4.00 pm he along with other officials of the complainant company inspected the inspected premises. The accused Niranjan is user of the inspected premises who is duly identified by him. The electricity meter was installed in the premises in the name of accused no.2. No electricity meter was found at site. Some ashes of burnt meter were found at site. The smell of kerosene oil was coming from ashes. There were no burn marks on the wall. A connected load of 40 KW was found for industrial purposes. O & M staff was called to replace the meter. The video of the inspected premises was taken and CD Ex. CW2/E was prepared. He has identified the video in the CD as it was taken at the time of inspection. The ashes of burnt meter were taken into possession. Inspection report, meter details report, load report, seizure memo and show cause notice Ex CW2/AD were prepared and offered to the accused Niranjan who refused to receive and sign the same. The ashes of the meter Ex.P1 are produced in the court and duly identified by him as seized from the spot. Likewise, is the testimony of PW1 in his examination in chief.
5. During cross examination PW2 admitted that case property CC No. 36/11 Page 5 of 13 i.e ashes of burnt meter were sent to laboratory for analysis. He admitted that service cable, as focused in video, was not connected with the load of the premises. He admitted that load was not running as there was no supply and there was no theft of electricity.
6. During crossexamination PW1 admitted that machines/electrical appliances were not functioning at the time of inspection. The incoming wire was live and outgoing wire was not coming to incoming wire. He admitted that there was no theft of electricity. The ashes of the burnt meter were sent to the laboratory for analysis. He admitted that there is no laboratory report on the record.
7. PW3 Jai Prakash, Photographer, stated that on 22.10.2009 he has accompanied the officials of the complainant company to the inspected premises where he conducted the video of the inspected premises. He has handed over the camera to Sh Vicky Arora after conducting the video. Sh Vicky Arora has downloaded the data from the camera into the computer and thereafter prepared the CD in his presence. He has identified the video in the CD Ex. CW2/E as it was recorded at site.
8. During crossexamination, he stated that he has not brought CC No. 36/11 Page 6 of 13 the cassette from which data was downloaded in the computer but he can produce the same.
9. PW4 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
10. PW5 Mustafa Barbhaiwala stated that no one appeared from the side of accused on the basis of first show cause notice and thereafter a final show cause notice was issued to the accused to attend the personal hearing. The consumer did not appear after the service of second notice. He analyzed the inspection report and videography and passed the speaking order Ex. CW2/G which bears his signature at point A.
11. During crossexamination, he stated that he has analyzed the consumption pattern of the meter prior to the date of inspection. The copy of CMRI data is not annexed with the speaking order. The postal receipt of second notice is not placed on record. He has reflected about smell of kerosene oil and meter was deliberately burnt in speaking order on the basis of inspection report and video.
12. I have heard ld counsel for complainant, ld counsel for CC No. 36/11 Page 7 of 13 accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for consumption of electricity through burnt meter.
13. In order to prove its case, the complainant has examined five witnesses. The testimony of PW1, 2,3 & 5 is material in nature. PW1 & 2 are the members of joint inspection team. PW3 is a photographer who has accompanied the members of joint inspection team. PW5 is an Assessing Officer who has passed the speaking order on the basis of record. I have perused the entire evidence on record. Certain facts are admitted by the accused. It is admitted that accused Niranjan is the user of the inspected premises. It is admitted that meter in question was installed in the inspected premises in the name of accused Bhoop Singh (since expired). It is admitted by the accused in his statement u/s 313 Cr.P.C that on 22.10.2009 at 4.00 p.m an inspection was carried out in the inspected premises by the officials of the complainant company.
14. The fact that needs consideration is whether the meter in question was deliberately burnt by the accused or not and whether the accused used to draw the electricity from burnt meter in question. CC No. 36/11 Page 8 of 13 PW1 and 2 have categorically stated that no electricity meter was found at site. Some ashes of the burnt meter were lying at site. There were no burn marks on the wall. The smell of kerosene was coming from the ashes. The accused has taken the defence in his statement u/s 313 Cr.P.C that meter got burnt of its own regarding which complaint was given to the complainant.
15. Regulation 35 (iii) of Delhi Electricity Supply Code and Performance Standard Regulations, 2007 says that it is the responsibility of the consumer to keep the meter under safe custody. Regulation 40 (c) says that in case the meter is found burnt and there is no reason to believe that an official of the licensee gave a direct connection, pending replacement of meter, a case of theft of energy shall not be booked. Consumer's complaint for replacement of burnt meter or complaint regarding disruption in supply of energy shall be considered sufficient for this purpose. In case a consumer hinders replacement of burnt meter or does not intimate the licensee's, the drawl of energy under such circumstances shall be dealt as per part of XIV of the Act.
16. In the instant case, the meter in question was installed in the inspected premises on 18.03.2009. The installation of meter is CC No. 36/11 Page 9 of 13 nowhere in dispute. The meter was not found at site at the time of inspection by a team comprising of PW1, 2 and other officials of the complainant company. The accused Niranjan Kumar is user of the inspected premises where meter in question was installed. It is the duty of the consumer to keep the meter in safe custody. The consumer has failed to keep the meter in safe custody. The ashes of the meter were found at site from which smell of kerosene was coming. There were no burn marks on the wall. The accused has failed to explain why there were no burn marks on the wall in case meter caught fire of its own. The incoming wire was found intact. The wire was live. The accused has failed to explain why the incoming wire did not burn in case the meter got burnt of its own. There is nothing on record when the meter allegedly got burnt of its own. The accused did not inform the complainant about the burning of the meter. The accused did not disclose the date when the complainant was allegedly informed about the burning of meter. No complaint is placed on record by the accused. It shows that accused did not inform the complainant about the burnt meter. The manner in which the meter got burnt is in the knowledge of the accused but he has withhold those facts for the reasons best known to him. No plausible explanation is given by the CC No. 36/11 Page 10 of 13 accused about the burning of the meter. The existence of ashes itself is sufficient to conclude that the meter was deliberately burnt by the accused after drawing electricity through the meter which was allegedly tampered by him. The accused has failed to further his defence.
17. It is correct that PW1 and 2 have admitted that machines were not functioning at the time of inspection and there was no theft of electricity. The accused cannot draw any capital out of it because accused has failed to explain when the meter got burnt. The speaking order Ex. CW2/G shows that consumer has consumed zero units per month since the date of installation of meter which is not possible for a industrial unit. It is not the case of the accused that he has not operated his machines, installed in the inspected premises, since the day of installation of meter. The accused has not taken defence that he has stopped running his industry from a particular date, month and year. The accused has not placed any paid electricity bill to show the consumption since the day of installation of the meter which again is a pointer to the fact that accused has deliberately burnt the meter in order to conceal the actual consumption of units as recorded by the meter.
CC No. 36/11 Page 11 of 13
18. The ashes of the burnt meter were taken into possession vide seizure memo Ex. CW2/C and this fact stands admitted by the accused in his statement U/s 313 Cr.P.C. There is nothing on the record from the side of accused to show that ashes do not pertain to meter in question. The ashes were not sent to the laboratory for analysis. To my mind, this does not put any dent in the case of the complainant as accused has failed to give any plausible explanation how the meter got burnt.
19. The show cause notice dated 07.08.2010 was given to the accused to attend the personal hearing. The notice was served. The personal hearing was not attended by the accused as a result speaking order Ex. CW2/G was passed by PW5 on the basis of the record.
20. The complainant has placed CD Ex. CW2/E on record in order to show that it pertains to inspected premises. PW3 has taken the video but he has not prepared the CD. The person who has downloaded the data in the computer and thereafter prepared the CD is not examined by the complainant. There is no evidence on record that the data was correctly downloaded by that person. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The original CC No. 36/11 Page 12 of 13 cassette is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it.
21. The entire evidence on the record shows that meter did not burn of its own. The accused has failed to keep the meter in safe custody. The accused has failed to give any plausible explanation how the meter got burnt. The accused has deliberately burnt the meter as there is no explanation from the accused. He is the sole beneficiary of the burnt meter. There was dishonest abstraction of energy through burnt meter by the accused.
22. The testimony of PW1, 2 & 5 is consistent. The accused has failed to shatter them during the course of cross examination. There is no evidence of enmity on record. PWs have no axe to grind against the accused. In these circumstances, the testimony of PWs is relied upon.
23. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held CC No. 36/11 Page 13 of 13 guilty U/s 135 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 24.01.2014.
Announced in the open Court on dated 21.01.2014 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 36/11 Page 1 of 4 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI.
CC No. 36/11 ID No. 02405R0151742011 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Niranjan Kumar ......................... Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict has been indiscriminately using the electricity on a massive scale for industrial purposes and thereafter burnt the meter in order to suppress the exact consumption of units so he is not entitled for any kind of leniency from the court.
2. Ld. Counsel for the convict submitted that convict is 40 years old. He further submitted that he has three children. He further submitted that convict is a first offender who is sole bread earner of his family. He further submitted that any substantive sentence will CC No. 36/11 Page 2 of 4 affect his family so a lenient view be taken in his favour.
3. Heard and perused the record. The convict was using the electricity in the inspected premises for industrial purposes. The convict has deliberately burnt the meter in order to suppress the exact consumption of electricity. There was a connected load of approx. 40 KW for industrial purposes. Electricity, being the national asset, should be used with care and caution. The power theft is pervasive in India which results into electricity outrages. Power shortage is also owing to large scale power theft leaving the people to sweat in peak summer. The tariff is increased at regular intervals. The honest consumer is the ultimate victim of power theft. The power theft also results into loss to the State Exchequer. The electricity theft is not only an economic issue but it is also a safety issue. The offenders are putting themselves as well as lives of innocent persons at risk by connecting naked wires with LV Mains or power connections.
4. There was an indiscriminate use of electricity by the convict because he was aware that he has not to pay the consumption charges. Such kind of convict should bear in mind that they will have to face serious consequences including conviction and imprisonment.
The deterrent punishment should be imposed to make the theft of CC No. 36/11 Page 3 of 4 electricity as zero tolerance zone. To my mind, convict is not entitled for any lenient view.
5. The load is more than 10 KW and fine imposed should not be less than three times of the financial gain on account of theft of electricity. The bill is raised for a sum of Rs. 8,75,612/ Hence, convict is sentenced to undergo SI for six months with a fine of Rs. 13,15,000/ (Thirteen lacs fifteen thousand only) and in default of payment of fine to undergo SI for five months U/s 135 Electricity Act, 2003. The civil liability should be paid to the complainant out of the fine, if realized.
ORDER ON CIVIL LIABILITY:
6. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
7. The convict has been held guilty U/s 135 of the Act. The connected load was approx 40 KW for industrial purposes. The bill was raised for a sum of Rs 8,75,612/. The bill is raised on the basis of consumption for a period of 12 months multiplied by two times by CC No. 36/11 Page 4 of 4 way of penalty. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 8,75,612/ which is payable with simple interest at the rate of 6% per annum from the due date of bill till its payment. The amount already paid, if any, by the convict shall be adjusted towards civil liability. Copy of the order be given to the convict free of cost.
File on completion be consigned to record room. Announced in the open Court on dated 24.01.2014 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 36/11