Delhi District Court
Complainant vs Suresh Kumar (User) on 3 October, 2011
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 15.09.2006
Judgment reserved on : 23.09.2011
Judgment pronounced on : 03.10.2011
Complaint Case No. 212/07
PS Vasant Kunj, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, N.D 49
Acting through Mr. Binay Kumar
(Authorized Representative)
...Complainant
Versus
1 Suresh Kumar (user)
2 Dhoop Singh (RC)
Both at H.No.E33, Mahipalpur, New Delhi
...Accused
Present : Sh. S.K.Alok, Adv. for complainant
Sh. A.K.Tiwari & Sh.R.K.Kaushik, Advs
for accused persons
JUDGMENT
1 Accused Suresh Kumar and Bhoop Singh were summoned to face the present trial on a complaint u/sec. 135, 138 r/w/sec.151 (herein after called 'the Act') filed against them by the complainant company. 2 It is the case of the complainant that Suresh Kumar is the user and Bhoop Singh is the registered consumer of a connection provided at premises bearing No.E33, Mahipal Pur, New Delhi.
Page 1 of 9 3 On 18.01.2005, an inspection was carried out, when the accused persons were observed to be using the total connected load of 8.260 KW for nondomestic use. During the inspection, it was also observed that both half seals of the meter were tampered with, terminal cover was found open and the accused were thus, causing dishonest abstraction of electricity. A notice was served by pasting upon the wall of the premises, as accused Rajesh had refused to sign and accept the notice. Videography of the inspection was carried out and CD thereof was prepared. In terms of DERC (Metering and Billing Regulation, 2002), accused persons were served a show cause notice. On appearance, accused No.1, during the hearing, was unable to explain the circumstances of absence of half seals and terminal cover. After affording him the hearing, a speaking order was passed on 20.01.2005. A theft bill for the amount of Rs.2,08,841/ was raised. On the bill being unpaid, present complaint was filed seeking to try and convict the accused persons for the offences punishable u/sec.135 &138 of the Act. It has also been prayed in the complaint that Civil Liability of the accused persons be determined. 4 The predecessor of this court took cognizance of the complaint and recorded the presummoning evidence. On the basis of presummoning evidence, the accused persons were summons to face the trial. The presence of the accused persons could be procured only through the issuance of NBWs vide order dated 19.07.2008. Subsequently, on 05.10.2008, notice of accusation was framed upon the accused persons. They pleaded not guilty and claimed trial.
Page 2 of 9 5.1 Complainant in support of its case examined four witnesses and the accused persons in their defence examined only one witness namely Sh. Ravi Kumar, an officer of the complainant company.
5.2 Sh. Ishfaq Ahmed Beigh (PW1), member of the raiding team has deposed that he inspected the premises in question on 18.01.2005 and found one electromechanical single phase meter installed at the site. Both half sealed of the meter were tampered with. While at the spot, they confirmed the consumption pattern through Electricity Bill System (EBS) and came to know that billing pattern was low in consumption, when compared with the connected load. The team calculated the connected load on the basis of equipments connected to load, prepared the inspection report Ex.CW2/1, load report Ex.CW2/2 and also took photograph Ex.CW2/3. They served a show cause notice upon the persons present and on their refusal, pasted the same at the site. The terminal cover of the meter was missing. Sh. Jitender Raghav (PW3), another member of the raiding team has also deposed on the same terms as Sh. Ishfaq Ahmed Beigh. On being crossexamined by the Ld. Defence counsel, the witnesses deposed that one Rajesh who was representative of the accused persons was present at the spot during the raid. It was not necessary to send the meter to the lab. PW3 also admitted that over a period from 45 years, the seal might have broken or damaged. He further admitted that the seal on the meter was having certain marks but the same was not clear and there was no other defect in the seal. They were not carrying with them the original seal at the time of inspection, so as to compare it with the seal at the site. He further deposed that there may or may not be chances of defect but the cover of the terminal of the meter was missing. Page 3 of 9 5.3 Sh. H.S.Semwal - Assessing officer of the complainant company (PW4) has proved the speaking order dated 25.01.2005 passed by him. He had analyzed the recorded consumption pattern prior to one year from date of inspection and it was found to be 9.10 % of the assessed consumption. On being crossexamined, he deposed that if the half seals are broken, it may or may not be the case of DAE. If the consumption pattern is low, it may be a case of the DAE.
6 The incriminating evidence was put to the accused persons and their statements recorded u/sec. 313 Cr.P.C. Their supplementary statements were recorded on 03.10.2011. The accused persons denied their involvement in DAE case. They also denied having tampered with the meter. They, further, stated that the speaking order dated 25.01.2010 was passsed without any application of mind.
7 The sole defence witness Ravi Kumar (DW1), is an employee of the complainant company, who produced the summoned record and proved the same as Ex.DW1/A and Ex.DW1/B. He further deposed that as per the record the bills were regularly paid by the consumer.
8.1 Sh. S.K.Alok, proxy counsel for the complainant has argued that the inspection team found both half seals of the meter to be tampered with. The terminal cover was missing. The consumption pattern was found to be 9.1 % of the connected load. Thus, a case of DAE was made out.
Page 4 of 9 8.2 Sh. R.K.Kaushik and Sh. A.K.Tiwari, Ld. Defence Counsels have argued that the notification of the members of the inspection team, to be authorised to conduct inspection, has not been proved. Further, out of four seals, only two were allegedly tampered with and the other two were intact. There can be no DAE without disturbing all the four seals. Moreover, the speaking order dated 25.01.2005 is bad in law, as consumption pattern of the preceeding year was to be studied, whereas the assessing officer has studied the consumption patter from 18.11.2003 to 19.11.2004.
8.3 Sh. A.K.Tiwari, Ld. Counsel for the accused No.2 has argued that the complainant company failed to follow the prescribed procedure provided U/sec. 25 & 26 of DERC Regulations. Inspection team was not carrying written authority. Regulation 25 (IV) provides that DAE could not be made out, only on account of one seal missing or tempered with or for breakage of glass window. In case of suspected DAE, the inspection team is not required to remove the tempered meter, but only the meter is to be disconnected and connection restored through a new meter. It is also argued that it was incumbent on the complainant company to show tempering or access by petitioner to internal mechanism of meter for slowing down the consumption. In the absence of any report that any device or film or shunt was used to slow down the meter, no case of DAE is made out. Sh.Tiwari has relied upon the law laid down in J.K.Stellomelt (P) Ltd. Versus BSES Rajdhani Power Ltd. reported as 140 (2007) DLT 563; Indian Oil Corporation Versus Union of India 140 (2007) DLT 571; Ram Chandra Prasad Sharma & Ors. Versus State of Bihar & Anr. 1967 Crl. L.J 409; Harvinder Motors Versus BSES Rajdhani Power Ltd 135 (2006) DLT 198; Riaz Fatima & Anr. Versus Mohd. Sharif 135 Page 5 of 9 (2006) DLT 205 & Jagdish Narayan Versus North Delhi Power Limited & Anr. 140 (2007) DLT 307.
9.1 I have heard the Ld. Counsels and with their assistance studied the evidence on record and the judgments relied upon.
9.2 The complainant's case rests heavily on two prepositions. The first preposition is factual, viz missing of the two half seals and missing terminal cover. The second facet of complainant's case is low consumption pattern viz aviz the connected load.
9.3 While being cross examined the star complainant witnesses, fizzeled out on the first facet of the evidence. Sh.Jitender Raghav (PW3) on being cross examined by Sh.A.K.Tiwari, counsel for the accused no.2 admitted that seals could have broken or damaged over a period of 45 years on their own. On being cross examined by Sh.R.K.Kaushik, this very witness has deposed that the mark and monogram on the seals were not clear and that there was no other defect in the seal. At the time of inspection, they did not possess the monogram or mark of the original seal. He has, further, deposed that there may or may not be the chances of theft of electricity, if the terminal cover is found missing. No extra wire was connected with the meter terminal on the day of inspection.
9.4 On the evidence as noticed above, the main plank of the prosecution case that the seals were missing or that terminal was open has suffered a major set back. As noticed above, Sh.Jitender Raghav (PW3) has deposed that Page 6 of 9 the seals could have withered away over a period of time. Moreover, it was only that the monogram or mark was not legible; it was not the case where the seals were broken or missing. Merely for the reason that monogram on the seal of an old meter was not legible, it cannot be said that the seals had been tempered with. Especially in the circumstances, when the inspection team did not possess the monogram of original seal to compare with the seal in existence. This witness has further deposed that open terminal does not necessarily mean dishonest abstraction.
9.5 The evidence as discussed above coupled with the fact that meter was not sent to any laboratory to determine, if it was tempered or not, gives a major set back to the complainant's case that meter was tempered with. There is also no evidence on record that any film or shunt was used to slow down the meter. The Hon'ble High Court in Jagdish Narayan's case (Supra) in similar circumstances granted relief to the consumer as there was no indication on the inspection report that any device or film or shunt was used to slow down the meter.
10.1 The second limb of complainant's case is only to support the first limb, of the meter being tempered with. The second aspect is only an inference to be drawn by comparison of consumption patterns. The consumption pattern of the meter in question for the period w.e.f. September, 2004 to February, 2006 has been placed on record as Ex.DW1/A. The average consumption during this period has been in the range of 200 units, but for the bills dt. 27.10.2005 and 29.12.2005 when the consumption was close to about 400 units. Speaking order Ex.CW2/6 has been passed by examining the Page 7 of 9 consumption pattern for the period 19.11.2004 to 18.11.2003. The complainant has deemed it appropriate not to place this consumption pattern before the court. It is submitted that the inspection team had found the connected load as 8.260 KW, which is recorded in the load report Ex.CW2/2; compared with this connected load, the consumption has been low and therefore, it was a case of dishonest abstraction of energy (DAE). 10.2 I find no force in this argument of the Ld. Counsel for the complainant. The complainant has, of course, not proved that the industry was in use or the various gadgets were functional. The consumption pattern, which the Assessing Officer relied upon for passing the speaking order has also not been proved before the court. I am of the opinion that speaking order Ex.CW2/6 does not carry any weight. The evidence proved by the complainant only indicates, it to be a case of suspected dishonest abstraction of energy. For recording a definite finding of a case of DAE, it was mandatory to establish the case by conclusive evidence. There is no tangible evidence to show tempering with the internal mechanism of the meter. The consumption pattern, which was allegedly low, has also not been proved by the complainant. I thus find absolutely no sufficient material to hold that the complainant's case is proved beyond reasonable doubt. I find support to my findings, in the law laid down by the Hon'ble High Court in J.K.Steelomelt (P) Ltd. (Supra), Harvinder Motors (supra) and Jagdish Narayan (Supra). For ready reference relevant portion from the judgment in Jagdish Narayan's case is reproduced herein below.
''While on the aspect of external evidence of 'tampering' in the form of broken seals or tampered seals, this court would like to observe that an inference of DAE should not be permitted to be drawn on the mere fact Page 8 of 9 that a meter had been found with borken seals. It would be impermissible for the respondent to treat all categories of consumers on the same footing when it proceeds to take action on a suspicion of DAE. Right now there is no secure measure to ensure that the electricity meters installed either in the basement of the building or on the ground floor near the satircase, are tamperproof and outside the reach of any mischievous third party. It is one thing to require the consumer to ensure that the meter is safe and secure. It is perhaps also necessary to ask if the supplier of electricity draws the attention of the consumer to such responsibility and insists that the consumer secures the meter with a lock with one duplicate key being handed over to the supplier. In an environment where it is not possible for a domestic consumer living in an appartment where the meter is installed in the basement or ground floor to constantly keep a watch on his meter, it would not be reasonable to draw inference of DAE merely on the discovery of some signs of 'tampering'. Regulation 25 (iv) only goes a part of the way but does not fully appreciate the predicament of the consumer in such situations. Hopefully, the DERC and the supplier companies will work at improving the requirements for the consumers in this direction.'' 11 For the aforesaid reasons, I am of the considered opinion that the complainant has failed to prove its case beyond reasonable doubt. The accused persons are, therefore, entitled to acquittal and are accordingly acquitted. Bail bonds are cancelled. Surety discharged. The amount of Rs.80,000/ deposited by the accused persons as a condition to grant of bail is directed to be refunded within a period of one month, after expiry of the period of limitation.
Announced in the open ( NAROTTAM KAUSHAL)
court on 03.10.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
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