Delhi District Court
Tata Power - Ddl vs . on 29 January, 2020
1
IN THE COURT OF SH. RAJESH MALIK : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTT.
NORTH WEST, ROHINI COURTS, DELHI
CC No. 515741/16
P.S. S.P. Badli
U/S 135 OF THE ELECTRICITY ACT, 2003
TATA POWER - DDL
Erstwhile (North Delhi Power Limited)
Through
Sh. B.B. Gogia
Authorized Representative
of the Complainant Company
Company ....Complainant
VS.
1. Maya Devi
W/O Balwant Singh
2. Raj Kumar
S/o Balwant Singh
Both R/o H.No.26, Samaipur Badli
Delhi110 042 ..... Accused
DATE OF INSTITUTION OF THE CASE : 29.03.2016
DATE ON WHICH JUDGMENT WAS
RESERVED : 27.01.2020
DATE OF PASSING OF JUDGMENT : 29.01.2020
JUDGMENT
INSPECTION OF THE PREMISES OF THE ACCUSED
1. On 04.08.2015, a team of Tata Power Delhi Distribution CC No. 515741/16 Page 1 of 12 2 Limited (hereinafter mentioned as TPDDL) inspected the premises of the accused and found that the display of Meter K.No. 60004264630 was showing the word "TAMPER". They checked the meter box seal, which was found O.K. Since, they had suspected dishonest abstraction of energy, they checked the connected load on the accused premises, which was found to be 1.470 KW against the sanctioned load of 4 KW. Accordingly, they prepared the inspection report i.e. Ex.PW2/1. The impugned electricity meter was seized on 06.08.15 vide Ex.PW2/2. The notice of testing of the electricity meter was given to the registered consumer and the user on 06.08.15 vide Ex. PW2/3. The meter was examined in the third party laboratory. The meter testing report is Ex.PW4/A. METER TESTING REPORT:
In order to test the meter, the data of the meter was extracted and analyzed. The laboratory Analysis of Downloaded Data is as follows:
a) Billing Parameters: Data Downloading:
. Meter reading: 10274.50 kWh MRI & Dump Date
20/08/2015
. MD Details:3.640 kW
. Meter Date & Time: 01/01/1900 [Corrupt]
b) Events Recorded in Meter Data:
. High Voltage (35 kV)/ESD:13 and cumulative Duration is:000 days:00: 00 hours: 01 Minutes
c) Under What Conditions (mentioned herein below), events CC No. 515741/16 Page 2 of 12 3 get recorded in Meter data:
. High Voltage (35 kV)/ESD: It may be due to external influence of high voltage/high frequency device or transient.
d) In case condition at (c) as stated above is satisfied, complete technical elaboration for development/creation of the events is specified.
. High Voltage (35 kV)/ESD - Meter senses the influence of high voltage / high frequency signal & record "High Voltage (35 kV)/ESD" event, whenever the influence exceeds designed value.
e) Effects of events recorded in Meter data on actual recording of energy:
. Could not be quantified.
Conclusion: On the basis of Analysis of Downloaded Data it was concluded that meter was tampered.
CHARGE
2. Both the accused persons have faced the charge that at the time of inspection on 04.08.15, the accused Maya Devi was found to be the registered consumer and the coaccused Raj Kumar was found to be the user of the meter. During inspection and testing, the meter was found tampered and after analysis of the consumption pattern, average recorded consumption was found to be 7.18% to the average computed consumption. The connected load was found to be 1.470 KW used for commercial purposes.CC No. 515741/16 Page 3 of 12 4
COMPLAINANT'S EVIDENCE
3. PW1 Mr. Rakesh was the photographer. He exhibited the photographs i.e. Ex.PW1/A1 to Ex.PW1/A7.
4. PW2 Shri Akshay Yadav was the member of the inspecting team. He deposed that on 04.08.2015, he along with Shri Susheel Gupta and other staff inspected the premises of the accused at Village Samay Pur Badli. They inspected the meter and found the display of the meter "hanged". The display of the meter was showing " TAMPER". They checked the meter box seals, which were found O.K. They also checked the load which was found to be 1.47 KW for commercial purpose. The meter was inspected in the presence of the accused Raj Kumar and the inspection report was prepared at site. He exhibited the inspection report as Ex.PW2/1. He further deposed that at the time of inspection, the accused Maya Devi was found to be the registered consumer of the electricity connection. He further deposed that at the time of inspection, some photographs were taken by photographer which are exhibited as Ex.PW1/A1 to Ex.PW1/A7.
He further deposed that on 06.08.2015 the meter in question was seized by them in the presence of the accused Raj Kumar vide seizure memo Ex.PW2/2. He deposed that after seizing the meter, the accused Raj Kumar was served with the notice for meter testing in the Lab which was exhibited as Ex.PW2/3. He exhibited the case property as Ex.P1.
In his cross examination he stated that meter box seal, terminal seals and half seals were found O.K, and the same were CC No. 515741/16 Page 4 of 12 5 not tampered. The physical condition of the meter was O.K. and no appliance/instrument to obstruct electricity illegally was found at the spot. He deposed that manufacturing date of meter was May 2009 and guarantee period was 5 years.
5. PW3 Shri Sushil Kumar proved the CD of the photographs i.e. Ex.PW3/A and the certificate under Section 65B of Indian Evidence Act i.e. Ex.PW3/B.
6. PW4 is Shri Anil Dange, Marketing Engineer from third party i.e. Electronic & Quality Development Centre (EQDC) which tested the meter in question. He deposed that on 20.08.2015 at the lab of TPDDL, he tested the meter and gave observations in his final test report i.e. Ex.PW4/A. As per the report, he opined that the meter as offered to EQDC was tampered. At the time of testing the meter, he prepared the energy meter observation report Ex.PW4/B. At the time of testing the meter, the photographs were taken by the photographer. The witness filed the copy of certificate of manufactured Ex.PW4/C (Objected to). He exhibited the case property i.e. meter Ex.P1.
In his cross examination, he reiterated the fact that the physical condition of meter and seals were found O.K. He stated that the copy of certificate provided by meter manufacturer i.e. M/s Genus was available with him prior to testing the meter as it was received in the year 2014. He stated that high voltage was found in the present case and it could only be due to external means/gadget like Electrostatic discharge. He had not received any such gadget. He denied the suggestion that there is no such gadget or device CC No. 515741/16 Page 5 of 12 6 through which meter can be tampered without tampering with its seals.
7. PW5 passed the speaking order against the accused persons. He deposed that on 08.09.2015 he issued showcause notice against the accused Maya Devi and the accused Raj Kumar vide Ex.PW5/A. The reply i.e. Ex.PW5/B was received from the accused Raj Kumar. The accused Raj Kumar also attended the personal hearing on 28.09.2015 and after analyzing the consumption pattern of the accused and the sanctioned load, he passed the speaking order i.e. Ex.PW5/F.
8. PW6 Shri B.B. Gogia proved the power of attorney i.e. Ex.PW6/A and the final report as Ex.PW6/B. STATEMENT UNDER SECTION 313 Cr.P.C
9. Both the accused stated that they did not tamper the meter, and they consumed the electricity through electricity meter.
10. Both the accused persons led the defence evidence. One of the accused namely Raj Kumar examined himself as DW1. He deposed that the meter in question was installed at his shop at H.No.26, Gali No.13, Samay Pur, Delhi110 042. The meter was in the name of his mother Smt. Maya Devi i.e. coaccused. He deposed that they used the meter in question and paid the bill regularly. The meter was working properly. When the employee of the complainant company inspected the premises, no tampering was found. He exhibited the copy of bills paid between January 2013 to April 2019. The copy of load violation details, online payment receipts and consumption history are Ex.DW1/2 collectively. The certificate under CC No. 515741/16 Page 6 of 12 7 Section 65B of Indian Evidence Act is Ex.DW1/3.
STATUTORY PROVISIONS
1. Section 135 of Electricity Act provides penalties and punishment for theft of electricity, which is reproduced hereunder: {(1) Whoever, dishonestly,
a) 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 maybe; or
b) 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 whereby electricity is stolen or wasted; or,
c) 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
d) uses electricity through a tampered meter; or
e) uses electricity for the purpose other than for which the usage of electricity was authorised.
DERC REGULATIONS 2007 ChapterVII of DERC Regulations 2007 deals with the Theft and Unauthorized Use of Electricity.
The Clause 52 (viii) provides that in case of suspected theft, the authorized officer shall remove the old meter under a seizure memo CC No. 515741/16 Page 7 of 12 8 and seal in the presence of consumer/his representative. The Clause 52 (ix) provides that in case of suspected theft, if the consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall communicated to the consumer under proper receipt within three days and connection shall be restored through original meter.
The Annexure XIII of DERC Regulations 2007 provides the formula for assessment of Energy in case of theft / pilferage as under: Unit assessed = L x D x H x F where L is the load (connected/sanctioned load whichever is higher) in KW where KWh rate is application in KVA where KVAh rate is applicable. D is the number of days per month, during which theft/ pilferage is suspected.
H is user of supply hours per day, which shall be taken for different categories.
COURT'S OBSERVATIONS The two accused persons namely Maya Devi and Raj Kumar have faced trial. The accused Maya Devi is the registered consumer and his son Raj Kumar is the user of the electricity. As per the definition of consumer under Section 2(15) of Electricity Act, the consumer means any person who is supplied with electricity for his own use by a licensee and includes any person whose premises are for the time being connected for the purpose of receiving electricity. Further, Section 150 of the Electricity Act provides that whoever CC No. 515741/16 Page 8 of 12 9 abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence. In the present case, the accused Raj Kumar was at the helm of affairs as he was found present in the shop at the time of inspection by the complainant team. He participated in the personal hearing and witnessed the meter testing. The other accused Maya Devi was the registered consumer and falls within the definition of the Consumer under Section 2(15) of The Electricity Act. So, the culpability lies on both the accused persons if the offence of theft of electricity is proved.
The complainant's case hinges upon the fact that high voltage (35 kV) was given to the meter in order to tamper it and the third party meter report Ex. PW 4/A concludes that the meter was tampered. The third party report suggests that the high voltage may be due to external influence or due to high frequency device. It contains the Tamper Summary Report, Tamper Data Report, Billing Data Report, Daily Energies Report, Alerts Report and Instant Data Report. The PW4 deposed that he had tested the meter, having kept in mind the copy of certificate of manufacturer which is Ex.PW4/C. The certificate of manufacture shows that the meter records the logging of ESD/High Voltage/Frequency events in Genus make meters. The Ld. defence counsel had objected to giving exhibit mark to the certificate of the manufacturer of the meter. As per the certificate of the manufacturer of the electricity meter, the logging of high voltage (35 kV) event is an evidence of theft by using ESD/High Voltage/Frequency/Jammer Device, if it is accompanied by any of CC No. 515741/16 Page 9 of 12 10 following conditions mentioned below:
1) Physical evidence on meter display like Burnt marks/Black spot/Burning of display film.
2) Meter RTC (Date & Time) found corrupt.
3) Meter reading date found corrupt.
11. In scientific language, the Electrostatic discharge (ESD) is the sudden flow of electricity between two electrically charged objects caused by contact, an electrical short, or dielectric breakdown. The ESD occurs when differentlycharged objects are brought close together or when the dielectric between them breaks down, often creating a visible spark. ESD can create less dramatic forms which may be neither seen nor heard, yet still be large enough to cause damage to sensitive electronic devices. Electric sparks require a field strength above approximately 40 kV/cm in air, as notably occurs in lightning strikes. Other forms of ESD include corona discharge from sharp electrodes and brush discharge from blunt electrodes.
In the present case, the meter inspection report contains the Instant Data Report, which shows that meter date and time as 01/01/1900 and 23:59:59 respectively. The Instant Data Report founds corroboration from the Tampering Summary Report which shows that total 13 cumulative count of high voltage (35 kV) were given for cumulative duration 000:00:01. Further, The Tamper Data Report also specified the occurrence of High Voltage (35 kV). This report reveals that the high voltage from the external source was given on 23.08.2014. The submissions of Ld. defence CC No. 515741/16 Page 10 of 12 11 counsel that the certificate of the manufacture is not valid, and that the recording of high voltage in the TAMPER DATA REPORT may be for the reason of fluctuations have no force inasmuch as the meter analysis report Ex.PW4/A is based upon the data analysis such as Tamper Summary Report, Tamper Data Report, Billing Data Report, Daily Energies Report, Alerts Report, Instant Data Report which clearly reflect that the tampering was done by high voltage of 35 kV. The report of manufacturer i.e. Ex.PW4/C is not the sole basis to reach to the conclusion that tampering was done by HIGH VOLTAGE of 35 KV, but this observation is based upon the TAMPER DATA REPORT which was downloaded from the data of the meter. The manufacturer report only corroborates the test report that in case of logging of high voltage, the meter date and time are found corrupt. Here, the meter date has been shown as 1.1.1900. The downloaded data of the impugned meter was the basis of the conclusion of the meter testing report. In the absence of any counter evidence on this point, the data downloaded from the meter cannot be brushed aside by saying that the high voltage tampering attempt shown in the report was the result of high voltage of the electric current.
12. CONSUMPTION PATTERN ANALYSIS Since, it was the case of suspected theft, therefore, the complainant also proceeded to examine the consumption pattern of the impugned meter in view of the DRC Regulations, which provides that in case of suspected theft, the consumption pattern for the last one year needs to be seen, and if it is found reasonably uniform and CC No. 515741/16 Page 11 of 12 12 is not less than 75% of the assessed consumption, no further proceedings shall be taken. In the present case, the consumption pattern analysis shows that the recorded consumption was 7.8% of the assessed consumption. It is far below from the standard 75%. This consumption pattern analysis further corroborates that the meter was tampered. Further, the Billing Data Report shows the maximum MDI as 3.640 KW, whereas the connected load was found to be 1.470 KW. It also suggests that the meter had recorded maximum MDI in contradiction of the connected load. The accused has failed to show how the mater recorded maximum MDI and his consumption pattern was far below the MDI recorded on his meter.
13. In view of above discussions, the complainant has been able to prove its case beyond reasonable doubt that the accused Maya Devi and Raj Kumar committed the offence punishable under Section 135 of the Electricity Act, 2003.
Announced in open court ( Rajesh Malik )
29.01.2020 ASJ (Electricity), Distt.N/W
Rohini Courts, Delhi
CC No. 515741/16 Page 12 of 12