Delhi District Court
Bses Rajdhani Power Ltd. vs Sonu & Anr. on 5 October, 2012
1
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 : 01.04.2008
Judgment reserved on : 27.09.2012
Judgment pronounced on : 05.10.2012
Complaint Case No.348/08
PS Malviya Nagar, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID - 02403RO946362008
BSES Rajdhani Power Ltd. Versus Sonu & Anr.
AMENDED MEMO OF PARTIES
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place, N.D19
and its Corporate, Legal and Enforcement Cell
at Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Through Sh.Ashutosh Kumar
(Authorized Representative) ...Complainant
Versus
1 Sonu
167 B, Shahpur Jat, New Delhi
2 Sis Ram {since deceased, complaint declared to
167 B, Shahpur Jat, New Delhi have abated, vide order dt.25.09.08}
...Accused
Appearances: AR for the complainant
Sh. Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for the complainant
Accused on bail with Sh.S.Satya Narayana, advocate
JUDGMENT
1 Complaint u/sec. 135 & 138 r/w/sec. 151 of the Electricity Act (hereinafter called as 'the Act') has been filed by the complainant company against accused persons seeking to summon, try and convict them for the Page 1 of 6 2 offence punishable U/sec. 135 of the Act and also praying for determination of their civil liability.
2 It is the case of complainant that on 14.12.2006, electricity meter bearing No.22085407 installed in the premises bearing No.167, B, Shahpur Jat, New Delhi was changed with an electronic meter bearing No.23484965. The old meter was sent to the laboratory under intimation to the consumer, to analyse if the same had been deliberately tampered with. Consumer did not turn up at the laboratory but the meter was found to be tampered with. Hologram seals were open, LED was broken, LCD was found damaged and shunt wire soldering were disturbed. On the basis of above said lab report dt. 22.12.2006, premises was inspected on 08.01.2007 for assessment of connected load. Accused Sonu was found to be user of the premises. Total connected load of 10.39 KW was assessed. User was issued a show cause notice and direction to attend a personal hearing. The user did not reply to the show cause notice nor attended the personal hearing. The Assessing Officer, vide speaking order dt. 15.05.2007 found it to be a case of dishonest abstraction of electricity.
3 On the basis of connected load and applicable tariff, theft bill of Rs.77,713/ was raised. On failure of the accused persons to deposit the same, complaint was filed seeking to try and convict them. Determination of civil liability was also prepared for.
Page 2 of 6 3 4 Cognizance of the offence punishable U/sec. 135 & 138 of the Act was taken by the ld. Predecessor court on 01.04.2008. After recording pre summoning evidence, accused persons were summoned to face trial. Accused no.2 was reported to have expired, therefore, the complaint qua him was declared to have abated. Accused no.1 Sonu entered appearance and was admitted to bail. Notice of accusation U/sec. 251 Cr.P.C. was framed against accused no.1 on 15.01.2009. He pleaded not guilty and claimed trial. He stated that the meter had burnt on 25.03.2006 and complaint was made to the company on 28.03.2006 and thereafter on 01.04.2006. No action was taken on this complaint till 14.12.2006. He had been charged for the defective period of meter i.e. 21.11.2005 to 14.12.2006 and had paid an amount of Rs.68,300/. 5 Complainant, in support of its case, examined five witnesses. Ashok Kumar (PW1) and Prabhash Chand (PW3) are both members of the team, who had inspected the premises on 08.01.2007 for the purpose of assessing connected load. Binay Kumar (PW2) is the authorised representative of the complainant company, who has proved filing of the complaint. Sudip Bhattacharya (PW4) is the Assessing Officer, who has proved the speaking order passed by him. Saurabh Vashisht (PW5) has identified the signature of Manish Jain, who had tested the meter and opined it to be tampered with. 6 Complainant's evidence was put to the accused and his statement U/sec. 313 Cr.P.C was recorded. He denied the inspection dt. 08.01.2007. He denied the connected load or the documents prepared at the spot. He also Page 3 of 6 4 disputed the theft bill and the CD of videography. He challenged the legality of speaking order and the meter analysis report. He stated that the meter along with cable was burnt in March, 2006 and he made a complaint, which was not attended to till 14.12.2006, when a new meter was installed. He was falsely booked in the present case. He sought opportunity to lead defence evidence and examined his brother Jitender Pawar as (DW1). DW1 proved the burning of meter and complaint to the BSES for replacement of meter. He deposed that on the basis of complaint made by him, he was raised a bill for the period, when defective meter remained installed, for an amount of Rs.68,380/. He paid the said amount.
7 Sh. Rajesh Kumar, counsel for the complainant has referred to the meter analysis report, consumption pattern and the speaking order. It is argued that accused has not disputed his possession of the inspected premises. It is also not disputed that his grand father (accused no.2 since deceased) was the registered consumer for the meter in question. It is, thus, submitted that the complainant has established its case. 8 Sh.S.Satya Narayana, ld. defence counsel has submitted that the complaint by the brother of the accused regarding meter and its cable having been burnt was made on 28.03.2006, which was followed up on 01.04.2006. Both the complaints have been proved as Ex.DW1/A and Ex.DW1/B. It is further submitted that the meter was replaced as late as on 14.12.2006 and the consumer was raised a bill for the period 21.11.2005 to 14.12.2006. The said Page 4 of 6 5 bill Ex.DW1/C was paid by the accused. There was thus no occasion to file the present complaint.
9 I have heard the ld. counsels with their assistance, perused the complaint, evidence on record and the documents relied upon. 10 Complainant's case suffers from material discrepancy. There is no witenss examined to prove the removal and seizure of meter. The link evidence of having carried the meter to the lab has not been proved. The meter analysis report is not proved by examining the witness, who had analysed the meter. Saurabh Vashisht (PW5) has only identified the signature of meter analyst. In his cross examination, he admitted that he had no knowledge of contents of the report. He has also admitted that the meter was not tested in his presence. In face of the facts as noticed above, the first part of complainant's case, as regards the sanctity of meter removed and tested at the lab is not proved. The test analysis report also fails to be established. Thus, the backbone of the complainant's case that the meter was removed and tested and found to be tampered with, fails to support the weight of remaining structure. The second leg of complainant's case, as regards the consumption pattern and passing of speaking order would consequentially fail, when the first leg stands disproved. The assessment of load and raising of theft bill is of an absolutely no consequence, when the tampering of the meter and dishonest abstraction of electricity fails to be proved. Page 5 of 6 6 11 In any case, the present complaint also deserves to fail for the reason that complainant had charged the consumer for the alleged period of theft. Raising of bill Ex.DW1/C for the period 21.11.2005 to 14.11.2006 establishes that the complainant had acknowledged receipt of information seeking replacement of meter and also its fault of not attending to the complaint by consumer regarding burning of the meter. Having already charged the cosnumer for the disputed period, vide bill dt. 20.02.2007, complainant had absolutely no right to file the present complaint; which is subsequent to the raising of bill and receipt of payment therein. Bill Ex.DW1/C stands paid on 15.02.2007 and the present complaint was field on 31.03.2008. The filing of present complaint was thus totally unethical, unwarranted and uncalled for. 12 For the aforesaid reasons stated in para 10 & 11 above, I am of the firm opinion that complainant has failed to prove it case and the accused is entitled to an honourable acquittal. Accused is acquitted. Ordered accordingly. Bail bonds are cancelled. Sureties are discharged.
File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 05.10.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
Page 6 of 6
7
CC No. 348/08
05.10.2012
Present AR for the complainant with
Sh. Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for the complainant
Accused on bail with Sh.S.Satya Narayana, advocate
Vide a separate judgment announced today, accused is acquitted. Bail bond is cancelled. Surety is discharged.
File be consigned to record room.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/05.10.2012 Page 7 of 6