Delhi District Court
Support From Bansilal vs Bses Rpl, 169 (2010) Dlt 678. There Is on 30 July, 2013
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IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 817/10
ID No. 02405R0195352010
Section 135 of The 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. Vipin Mittal S/o Jai Bhagwan
2. Nandini Saree ..................... Accused
Shop at House No. WZ202,
Ground Floor, Gali No. 3,
Ram Chowk, Sadh Nagar,
New Delhi 110045
Date of institution: ........................ 27.08.2010
Arguments heard on: ........................ 24.07.2013
Judgment passed on : ........................ 30.07.2013
Final Order: ........................ Acquitted
CC No. 817/10
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JUDGMENT:
1. The brief facts of the case are like this. One single phase electronic meter No. 13050698 with K No. 26600B022493 was installed at Shop No. WZ202, Ground floor, Gali No. 3, Ram Chowk, Sadh Nagar, New Delhi (hereinafter referred to as inspected premises. On 15.5.2009, the officials of MMG department of the complainant company replaced the said meter with new electronic meter No. 27124266. The meter No. 13050698 was sealed in a bag and sent to the laboratory with intimation to the consumer vide letter dated 15.5.09 that meter will be tested in the laboratory and he can witness the testing of meter. The meter was sent to meter testing laboratory, Pushp Vihar, New Delhi for testing. On 29.8.09 the meter was tested in the laboratory which was found tampered with a view of manipulate the consumption of electricity.
2. On 7.4.2010 a joint inspection team headed by Sh. Surender Chauhan, AM; (Enforcement) of the complainant company inspected the inspected premises on basis of laboratory report. The accused No. 1 is user of the inspected premises. Accused No. 2 is the registered consumer of the electricity connection. The supply to the inspected premises was running through new electronic meter No. 27124266. A connected load of 18.09 KW was found running for CC No. 817/10 .. Page 3 of 19 ..
nondomestic purposes. The video of inspected premises showing irregularities was taken by Sh. Rahul. Inspection report (meter details report), load report, seizure memo and show cause notice were prepared and offered to the accused. The accused attended the personal hearing through Sh. Ramesh Chand Sharma and Sh. Manoj who disclosed that Sh Jai Bhagwan (father of Vipin Mittal) and Manoj have purchased the premises around two years ago. The said premises has been used for running a shop of saree for the last 1 ½ years. They are not aware about the tampering in the meter. A request was made to test the meter outside the laboratory of BSES. A notesheet dated 23.4.2010 was prepared. The assessing officer considered the facts of the case, laboratory report, submissions of the consumer, consumption pattern and passed a detailed speaking order. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. The accused were summoned for the offence U/s 135/138 of Electricity Act (hereinafter referred to as Act) on the basis of pre summoning evidence. Accused No. 1 is proprietor of accused No. 2. Copy of complaint and documents were supplied to him. NOA U/s 251 Cr.P.C was put to him to which he pleaded not guilty and claimed CC No. 817/10 .. Page 4 of 19 ..
trial.
4. The complainant has examined seven witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. He has examined two witnesses in defence evidence including himself as DW1.
5. The complainant has examined seven witnesses. PW4 Surender Chauhan is one of the members of the joint inspection team. He stated that on 7.4.2010 at 1:50 pm he along with other officials of complainant company and videographer from M/s Arora Photo Studio inspected the inspected premises. There was one showroom in the name and style of Nandini Sarees in the inspected premises. Accused Vipin Mittal is user of the premises. The connection was given in the name of Nandini Sarees. A connected load of 18 KW was found for commercial purposes. The video of the premises was taken. CD Ex. CW2/D was prepared. The contents of the CD are duly identified by him as same were recorded at site. Inspection report, meter report, load report, seizure memo and show cause notice Ex CW2/2,4,5,6 and 7 were prepared and offered to accused Vipin who refused to receive and sign the same. Likewise, is the testimony of PW1 Mahavir Lineman in his examinationinchief.
CC No. 817/10
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6. During crossexamination, PW4 stated that load was assessed through multi meter. The suggestion is denied that there was no multimeter with them and load has been wrongly assessed or load was less than 10 KW. He has not seen the old alleged tampered meter.
7. During crossexamination, PW1 stated that the alleged load was connected with the replaced meter. He does not know if air conditioners were purchased after the replacement of the meter or load was enhanced after the replacement of meter or any artificial thing was found in the meter at the time of replacement of meter. The suggestion is denied that video was not taken or actual connected load was less than sanctioned load.
8. PW2 Nikhil stated that he has been working with the complainant since 2007. Rajeev Ranjan and Manish Rai have worked with him in the laboratory. He has seen them while writing and signing so he can identify their handwriting and signatures. Both of them have left the services of the company and their whereabouts are not known. On 29.8.2009 the meter was tested by Manish Rai and approved by Rajeev Ranjan. The laboratory report is Ex. CW2/2 which bears their signatures at point A and B. CC No. 817/10 .. Page 6 of 19 ..
9. During crossexamination, he stated that he has not tested the meter.
10. PW3 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.
11. PW5 Ritu Raj Sinha is assessing officer. He stated that Ramesh Chand and Manoj Kumar have attended the personal hearing. He has noted down their submissions on the note sheet Ex. PW5/A. He has considered the facts of the case, laboratory report, inspection report, consumption pattern and submissions of the consumer and passed the speaking order Ex. CW2/9.
12. During crossexamination, he admitted that he has not seen the meter in question and accuracy was not checked due to burnt terminals. It is admitted that accused told him that meter be got checked through independent laboratory. He has no reason to say that load was same on the date of replacement as well as on the date of inspection. He did not check the sanctioned load before and after the replacement of meter. He has checked the consumption pattern of old meter with the new meter but this fact is not reflected in the speaking CC No. 817/10 .. Page 7 of 19 ..
order.
13. PW6 Ram is a videographer. He stated that on 7.4.2010 at 2:00 p.m. He along with officials of the complainant visited the inspected premises i.e a Saree Showroom and conducted the videography. He has handed over the camera to Sh. Vicky Arora in the studio who has downloaded the data in the office computer and prepared the CD. CD Ex. CW2/8 is the same which was recorded at site.
14. PW7 Amit Kumar (inadvertently recorded again as PW6) stated that on 15.5.09 he has visited the premises situated at Sadh Nagar, Palam, New Delhi and replaced one electricity meter installed in the name of Nandini Sarees with three phase electricity meter. The removed meter was sealed in a bag and sent to the laboratory for testing. He has prepared letter Ex. CW2/1 at site.
15. During crossexamination, he stated that he has not seen the condition of old replaced meter so he cannot say whether meter was tampered or not. He cannot say to whom the letter Ex. CW2/1 was handed over. He has signed the letter as Amit Kumar with single pen. His signature is with two different ink as Amit and Kumar . He has also issued one meter change report Ex. PW6/DA which does not CC No. 817/10 .. Page 8 of 19 ..
bear his signature and that of lineman. The meter was replaced by lineman under his supervision. It is admitted that Ex. PW6/DA does not show whether meter is faulty of not. It is admitted that word 'Amita' and Kumar are written with two different pens. He has not written word "Amita" in Ex. CW2/1. He put his signatures as Amit Kumar and not as "Kumar".
16. The accused has led defence evidence. DW1 Trilochan Singh stated that he is owner of Kalsi Cool Care. On 14.08.2009 and 16.08.2009 he has sold 4 air conditioners to Nandini Sarees vide bills No. 323, 324, 326 and 327. The receipts are Ex. DW1/AD.
17. During crossexamination, he stated that the original of Ex. DW1/A was handed over to Jai Bhagwan. It is admitted that CST number or sales tax number or tin number is not printed on the bill book. The payment was made in cash. It is admitted that original original bill No. 324, yellow in colour, is blank. There are three sheets to one bill number. It is admitted that bill No. 312 was issued on 18.11.2009, bill No. 308 was issued on 5.10.09, bill No. 329 was issued on 13.08.2010 and bill No. 331 was issued on 6.8.2010. It is admitted that none of the bills in the bill book bear any stamp. He is proprietor of Kalsi Cool Care. It is admitted that bills No. 322, 326, CC No. 817/10 .. Page 9 of 19 ..
327 and 328 are not in the bill book.
18. DW2 Vipin Mittal is the accused. He stated that he has lodged a complaint dated 21.11.08 as meter has caught fire. The complaint No. 1016 was given to him. On 21.08.2009 he has enlarged the area of his shop and purchased four air conditioners vide bills Ex. DW2/AD. The BSES officials gave wire for burnt meter and left the spot. Ex. DW2/EI are the electricity bills of the old and new meter. There was no AC in the shop prior to the renovation. The initial sanctioned load was 6 KW which was enhanced to 12 KW after the renovation. He has lodged 3 complaints with the complainant which are Ex. DW2/JL.
19. During crossexamination, he stated that the firm was started in the name of Nandini Sarees in 2007. Sh. Manoj Aggarwal was its proprietor in 2007. On 21.08.09, he has become the proprietor of the firm. It is correct that shop number/premises number, name of proprietor are not mentioned in the bills Ex. DW2/AD. There is no stamp of Kalsi Cool Care on the bills. All the bills are in the same handwriting with same ink. His residence is on the first floor as shop is at the ground floor. Bill No. 325 is reflected in complaint dated 11.6.2010. The inspection was carried out on 7.4.2010 in his CC No. 817/10 .. Page 10 of 19 ..
shop in his presence. He has not placed any photograph of shop on record.
20. I have heard ld counsel for complainant, ld counsel for 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 tampered meter.
21. Regulation 2 (m) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 says that dishonest abstraction of energy shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by the consumer to cause the meter to stop or to run slow.
22. To prove the factum of dishonest abstraction of energy, the complainant has examined seven witnesses. The accused has examined two witnesses in defence evidence in order to advance his defence. I have perused the record of the case. There are certain CC No. 817/10 .. Page 11 of 19 ..
admitted facts. The inspected premises is used for running one show room under the name and style of M/s Nandini Sarees. The meter No. 13050698 was installed in the name of Nandini Sarees in the inspected premises. Accused Vipin Mittal is the proprietor of M/s Nandini Sarees. The initial sanctioned load was 6 KW. The load was enhanced to 12 KW after the alleged renovation of the shop.
23. Ld counsel for the accused contended that a complaint dated 21.11.08 regarding burning of the meter was given to the complainant which was registered at serial No. 1016 and thereafter complaints Ex. DW2/JL were also given to the complainant. He further submitted that the defect in the meter was not rectified as such the fault squarely lies upon the complainant. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The accused has not placed on record the copy of the complaint dated 21.11.2008. He has not summoned any witness from the office of the complainant in order to prove that any complaint qua fire in the meter was given by him. The defence could have been proved by leading documentary evidence. There is no documentary evidence to further the defence with respect to the complaint dated 21.11.2008. The complaints Ex. DW2/JL were given after the inspection dated CC No. 817/10 .. Page 12 of 19 ..
7.4.2010 as such they are not relevant in order to advance the defence of the accused. The argument does not hold water.
24. Ld counsel for the accused submitted that PW7 has not replaced the meter in question and his testimony is not in consonance with the report regarding testing of removed meter Ex. CW2/1 so his testimony does not inspire confidence. Ld counsel for the complainant urged to the contrary. Heard and perused the record. It is admitted fact that the meter No. 13050698 was replaced on 15.5.09. Lineman has replaced the meter. PW7 has allegedly claimed that meter was removed under his supervision. His testimony does not inspire confidence. His name is Amit Kumar. Ex. CW2/1 is the investigation/testing of removed meter report. It shows that this document is signed by one Amita and one Kumar. PW7 does not sign as Kumar as he signs as Amit Kumar. PW7 has failed to explain why there is word Kumar instead of Amit Kumar in Ex. CW2/1 and how the signature of one Amita is appearing on it. There is no explanation why it does not bear the signature of lineman. The name of lineman is not disclosed by him. Ex. PW6/DA is the meter change report. This document does not bear the signature either of PW7 or of lineman. There is no explanation why this document does not bear CC No. 817/10 .. Page 13 of 19 ..
his signature in case it was prepared at the spot in his presence. All these facts show that meter was not removed in the presence of PW7. I find force in the arguments of ld defence counsel.
25. Ld counsel for the accused contended that certain observations were not recorded in meter change report which were apparently visible though the same finds reflection in energy meter test report as such energy meter test report is not above board on which no reliance should be placed. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The meter in question was removed by one lineman though complainant has failed to disclose his name for the reasons best known to the complainant. The meter was sent to the laboratory for testing/analysis. The concerned officials have tested the meter and issued the report Ex. CW2/2. The observations in energy meter test report are not inconsonance with the meter change report Ex. PW6/DA. The energy meter test report shows that current date shown by the meter is 25.04.2074 instead of 29.08.2009. The meter input terminals were found burnt. The LCD and meter LED were not okay. The meter change report Ex PW6/DA does not show that any defect was found in the meter. The reason for replacement of meter is left blank in CC No. 817/10 .. Page 14 of 19 ..
meter change report. The seals are shown intact in meter change report. There is no reference with respect to defect in real time clock or meter terminals were found burnt in the meter change report. There is no explanation why the defects which could have been seen with the naked eye are not recorded in the meter change report Ex. PW6/A. The seals are intact so the further observations that LCD and meter LED were not okay becomes suspicious as this is internal mechanism of the meter which cannot be disturbed without removing the seals of the meter. The energy meter test report further becomes suspicious as there is nothing to show that some marks of external voltage were found on the body of the meter. The energy meter test report is not above board as meter change report Ex. PW6/DA does not show any defect in the meter at the time of its replacement. The energy meter test report does not inspire confidence. I have drawn support from Bansilal Vs BSES RPL, 169 (2010) DLT 678. There is force in the arguments of ld defence counsel.
26. Ld counsel for the accused contended that no reliance can be placed on energy meter test report as it is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The energy meter test report is not CC No. 817/10 .. Page 15 of 19 ..
proved in accordance with law. The meter was tested by Manish Rai and report is approved by Rajeev Ranjan. Both of them have not been examined by the complainant. Their handwriting and signatures are proved by the examination of PW2 which is not sufficient to prove the report. The witness has to step into witness box in order to undergo crossexamination and to prove the report. Their nonexamination deprives the accused from cross examine them. Their non examination calls for an adverse inference against the complainant. The energy meter test report is not a public document so it is not per se admissible. The report is not proved in accordance with law so complainant cannot draw any capital out of it.
27. Ld counsel for the accused submitted that certain material facts were not considered by assessing officer so speaking order is not above board . Ld counsel for the complainant urged to the contrary. Heard and perused the record. There was a specific request from the consumer to get the meter tested from 3rd party independent laboratory. There is no explanation why the meter was not got tested from the 3rd party independent laboratory. No reason is assigned by assessing officer in the speaking order for discarding the request of the consumer. Further the consumption pattern was allegedly CC No. 817/10 .. Page 16 of 19 ..
considered. The details of consumption pattern are not placed on record. The production of the details could have shown the exact details as well as maximum demand indicator in a particular month. There is no explanation why the consumption pattern is not placed on record. There is no explanation why the load was not recorded on the day when meter in question was replaced because there can be difference in the connected load from the day of the replacement of the meter till the actual load is recorded by complainant on the basis of laboratory report. The assessing officer did not compare the consumption pattern of the old meter with new meter as speaking order is silent to this effect. No explanation is forthcoming to this effect. All these facts bring the speaking order in a zone of doubt. I find force in the submission of ld counsel for the accused.
28. Ld counsel for the accused contended that no reliance can be placed on the CD as CD is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD Ex. CW2/8 on record in order to show that it pertains to inspected premises. PW6 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 CC No. 817/10 .. Page 17 of 19 ..
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 CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it. I find force in the argument advanced by ld counsel for the accused.
29. Ld counsel for the accused contended that there was no AC prior to the renovation of the showroom and four air conditioners were installed after its purchase from DW1 vide bills Ex. DW2/AD (Ex. DW1/AD are the carbon copies). He further contended that there cannot be any comparison with the load prior to the renovation and after the renovation of the showroom. Ld counsel for the complainant urged to the contrary. Heard and perused the record. There is nothing on the record about the number of appliances used by the accused on or before the date of replacement of the meter in question so the oral version that there was no air conditioner prior to the renovation of the showroom does not inspire confidence. DW1 is owner of M/s Kalsi Cool Care. The court is not concerned whether he has issued the bills according to date or not because this fact has to be seen by some other CC No. 817/10 .. Page 18 of 19 ..
authority. He has sold four air conditioners to the accused vide bills Ex. DW2/AD. All these air conditioners have been allegedly purchased after the replacement of the meter. The air conditioners have been shown in the load report. The load has been correctly recorded in the load report as all the air conditioners have been shown in the load report. The accused has failed to prove by leading any evidence that there was no air conditioner prior to the replacement of the meter or what was the load at the time of replacement of the meter. The argument is without any merits as accused has failed to lead any evidence in support of the argument.
30. The complainant has failed to corroborate the allegations as set out in the complaint Ex. CW1/A. The evidence on the file is not enough to base the conviction of accused.
31. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. The amount deposited by accused be returned back to him with an interest of 6 % from the date of deposit of the amount till its return after the expiry of CC No. 817/10 .. Page 19 of 19 ..
the period meant for appeal. File on completion be consigned to record room.
Announced in the open Court on dated 30.07.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 817/10