Delhi District Court
Bses Rajdhani Power Ltd. vs . Subhash Chand Sharma & Etc. on 2 April, 2012
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE, THE
SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 09.01.2007
Judgment reserved on : 12.03.2012
Judgment pronounced on : 02.04.2012
Complaint Case No. 64/07
U/s 135 & 138 r/w/sec. 150 of Electricity Act, 2003
BSES Rajdhani Power Ltd. Vs. Subhash Chand Sharma & Etc.
AMENDED MEMO OF PARTIES
BSES Rajdhani Power Limited
Having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019,
And its Corporate, Legal & Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its substituted authorized officer,
Sh.Ashutosh Kumar
...Complainant
Versus
Subhash Chand Sharma,
52/1/2, Ground Floor,
Yusuf Sarai, New Delhi
...Accused
Appearance: AR for the complainant with
Sh.S.K.Alok, proxy counsel for
Sh. Rishab Raj Jain, counsel for the complainant
Accused on bail with Sh.M.K.Choudhary, Adv.
JUDGMENT
1 A complaint U/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') for offences punishable U/sec. 135 & 138 r/w/sec. 150 of the Act was filed against accused Subhash Chand Sharma and Tek Chand Sharma. It was prayed that Page 1 of page 9 2 the accused persons be summoned, tried and convicted for the aforesaid offences. Determination of their civil liability u/sec. 154 (5) of the Act has also been prayed for.
2 The memo of parties was subsequently amended and the complainant was restricted against Subhash Chand Sharma only. It is the case of the complainant that a team of its officials along with the authorized officer inspected the premises bearing No.52/1/2, Ground floor, Yusuf Sarai on 18.09.2006. Accused Subhash Chand Sharma was found to be user and accused Tek Chand Sharma (since deceased) was the registered consumer. On inspection, it was found that the half plastic seal and hologram seal was tampered and refixed. Meter terminal seal and top plastic seal were found missing. The officials of the complainant also found that the meter was running slow by 81.91 %, when checked with the accu check instrument. The meter was segregated at site and it was found to contain two illegal resistance connected with the meter PCB. It was thus, found that accused no.1 was consuming and abstracting electricity illegally through tampered meter and committing offence of dishonest abstraction of electricity. A total connected load of 29.33 KW was assessed. On the basis of connected load, theft bill of Rs. 1,92,201/ was raised. On failure of the accused persons to deposit the same, present complaint was filed.
3 The complaint was filed on 09.01.2007 before the ld. predecessor of this court, who recorded the presummoning evidence and on the basis thereof, summoned accused Subhash Chand and Tek Chnad Sharma. Accused Subhash Chand Sharma entered appearance and was admitted to bail. He also submitted that accused no.2 had already expired and furnished his death certificate. The trial Page 2 of page 9 3 qua accused no.2 was declared to have abated, vide order dated 29.03.2007. Memo of parties was directly to be amended.
4.1 Notice of accusation was framed on 02.05.2007, accused pleaded not guilty. He pleaded that he had made complaint to the complainant company regarding the faulty meter on 08.12.2005. In response thereof, the meter was checked on 16.12.2005 and meter was reported to be faulty. Another request was made to the complainant on 31.01.2006 for replacement of the meter as the faulty meter was not changed till then. He denied misappropriating energy and tampering with the meter.
4.2 Subsequently, notice of accusation was reframed on 19.02.2008 and his liability to pay Rs.1,92,201/ towards the theft bill was put to him and he denied his liability to pay the complainant.
5 Complainant in support of, its case examined 4 witnesses. Sh.Krishan Kumar
- Trainee Engineer (PW1) & Sh. Sanjeev Kumar - Assistant Manager (PW3) were the members of the inspection team, who had found the meter to be tampered and running slow on 18.09.2006. They proved the inspection report, Load report & Meter report. They have also deposed that a show cause notice of DAE was served upon the accused. Photographs of the inspection were taken by digital camera. Sh. Binay Kumar (PW2) is the Authorized Representative of the complainant company who proved filing of the complainant and letter of authority, authorizing him to file the complaint. Sh. Sudip Bhattacharya (PW4) is the Assessing Officer of the complainant company who proved passing of speaking order by Sh.R.K.Gupta, the then Assessing Officer, vide which the company held the case to be established case of DAE.
Page 3 of page 9 4 6 Incriminating evidence was put to the accused and his statement u/sec.313 Cr.P.C. was recorded. He admitted his presence in the house at the time of inspection. However, denied that he was stealing the electricity. He admitted some of the load. He denied the documents prepared and photographs taken at the time of inspection as he was not present at the site at the time of inspection. He denied that accue check instrument had found the meter to be running slow. He denied that the meter was tampered and also denied the receipt of show cause notice. He challenged the speaking order, having been passed in his absence. He sought opportunity to lead defence evidence.
7 After seeking permission u/sec.315 Cr.P.C., accused examined himself as DW1. He deposed that the meter in question which was installed at his premises was found to be faulty, on a complaint made by him. He placed on record, a copy of his report to the complainant company and acknowledgment of his report. He deposed that his meter had been changed but he did not remember, as to when the same was changed. He denied receipt of show cause notice and also the connected load. 8.1 Sh.S.K.Alok, Ld. Counsel for the complainant has argued that from the testimony of witnesses examined and from the statement of accused; it is apparent that the accused is the owner and was in possession of the inspected premises. Accused also admits his presence at the time of inspection. The inspection team had segregated the meter at site in the presence of consumer and had found that the meter contained foreign body. Two resistances were found on the PCB, which were slowing down recording of consumption. Referring to the consumption pattern Ex.CW1/3, it is submitted that during the month of inspection, the consumption was much less than the previous consumptions.
Page 4 of page 9 5 8.2 Sh.M.K.Choudhary, ld. defence counsel has argued that the meter in question was installed in the premises on 25.06.2005. On a complaint to the officials of the complainant company, it was tested and found to be faulty, as per meter testing report Ex.PW1/D1. The accused had requested on 08.12.2005 for testing of meter, acknowledgment of his complaint is Mark PW1/D2. Reminder by the accused for request of change of meter dated 31.01.2006 is marked as Mark PW1/D3. It is thus argued that the applicant had himself informed of fault in the meter and there was thus no mensrea. It is further submitted that regulation 52 of Delhi Electricity Supply Code and Performance Standard Regulations 2007 has been flouted. Alleged tampered meter, has not been produced before the court. The alleged resistances found on the PCB were not produced before the court. The photographs do not record the presence of the accused or his representative before whom the meter was segregated. The speaking order dated 09.03.2007 does not consider the consumption pattern. Reliance has been placed upon the law laid down in J.K.Steelomelt and Harvinder Motors.
8.3 In rebuttal, Sh. Alok has referred to statement of accused u/sec.313 Cr.P.C., when in answer to the first question he admitted his presence. On being cross examined as DW1, he deposed that his brother Mahesh Chand Sharma was present. PW2 when crossexamined has deposed that accused was present who refused to accept the documents at site.
9.1 I have heard the Ld. Counsels and with their assistance perused the pleadings, documents and evidence on record. The inspection in the present case was conducted on 18.09.2006 i.e. before the notification of Delhi Electricity Supply Page 5 of page 9 6 Code and Performance Standard Regulations 2007, the procedure, thus required to be followed as provided in DERC Performance Standard - Metering and billing Regulations, 2002. Relevant regulation no.25 stipulates the team not to remove the tampered meter in case of suspected DAE but to disconnect the supply and affix a numbered Johnson paper slip on the tampered meter. The consumer was required to be served a show cause notice and after affording him personal hearing, Assessing Officer was required to pass speaking order.
10.1 In the present case, after following the above referred procedure, speaking order Ex.CW1/4 was passed on 16.10.2006. A perusal of the speaking order and the procedure followed indicates prima facie that the case of suspected DAE is made out. The photographs of the segregated meter at site show illegal resistance found connected in phase CT and neutral CT. The accu check meter was used which recorded meter to be running slow by 81.93 %. However, the complainant's case suffers set back, in as much, as the meter which was allegedly tampered was never produced before the court. The illegal resistances allegedly found connected to the phase CT and neutral CT were not produced before the court. This becomes all the more important in the circumstances when the presence of the accused at the time of inspection is not established. There is no photograph of the accused at site, when the meter was segregated and the documents prepared at site, do not bear his signature. Show cause notice allegedly served at site does not bear his signature. There is no photograph or evidence that on refusal of the accused or his representative to sign and receive the inspection report and show cause notice, the same were pasted at site. Moreover, the consumption pattern which is placed on record Ex.CW1/3 has not been referred and relied upon by the Assessing Officer, while passing the speaking order.
Page 6 of page 9 7 10.2 I also find force in the argument of ld. defence counsel that it was the accused himself who had made complaint to the officials of the complainant company regarding the meter being faulty. It is established that the meter was installed on 25.06.2005 and the accused had made a complaint for testing of the meter, as early as, on 08.12.2005. The officials of the complainant company visited the spot and reported the meter to be faulty on 16.12.2005 vide report Ex.PW1/D1. Accused again made a request on 31.01.2012 for replacement of the meter (Mark PW1/D3), yet the meter was not changed by the complainant company. In the face of above mentioned facts & circumstances, when the accused had himself reported the faulty meter and reminded for replacement thereof, it was unethical on the part of complainant to have inspected the premises on 18.09.2006 and lodged a case of DAE against him. Necessary and mandatory ingredient for the offence punishable u/sec.138 of the Act is 'Dishonest' abstraction of electricity, meaning thereby, the mens rea to commit theft by tampering with the meter has to be established, before the court records a conviction. In the present case, complainant has miserably failed to establish the dishonest intention.
10.3 Accused has on the contrary proved that he had no dishonest intention and had rather himself informed the complainant company of the meter being faulty. Despite having found the meter to be faulty in December2008, the complainant took no steps for replacement of the meter. It is thus estopped from initiating the criminal prosecution of the accused. In similar circumstances, the Hon'ble High Court of Delhi has acquitted the accused persons. Reliance can be placed upon the law laid down in following cases : Page 7 of page 9 8 In Jagdish Narayan Vs. NDPL 140 (2007) DLT 307, it was held that in order to draw a presumption of DAE against a consumer, it first must be shown that an artificial means or means not authorized by the Board or licensee existed for the abstraction, consumption or use of electricity by the consumer - till such time this initial burden is discharged by the supplier of electricity, burden of proof does not shift to the consumer. It was further held that mens rea or intention of the consumer to dishonestly abstract electricity must be proved 'conclusively' to bring home the charge of DAE - that can be established only by showing that the consumer was responsible for tampering the meter by some visible means and the external manifestations of tampering can only raise a suspicion which can not take the place of proof. In this judgment it was observed that an accucheck meter can be deployed to find out if the meter indicates recording lesser units and the analysis of consumption pattern is merely corroborative and not substantive evidence of DAE.
In Col. R.K.Nayyar Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257, it has been held by the Hon'ble High Court of Delhi that mere tampering of seals is not sufficient to make out a case for Dishonest Abstraction of Energy. There has to be direct and conclusive evidence to establish complicity of the consumer in the tampering of the meter before raising the demand, which is punitive in nature. It has also been held that the computed load can not furnish basis of the allegations of Dishonest Abstraction of Energy. The load is to be computed only after the case of Dishonest Abstraction of Energy has been made out by independent and conclusive evidence. It was observed as follows: "To explain this further, where the respondent finds on inspection some evidence of 'tampering' like a missing or broken glass, a broken Page 8 of page 9 9 seal, a missing or tampered rivet, it usually notes that it is a case of 'suspected DAE'. It has to then proceed to investigate further to confirm this suspicion.
The wording of this definition does not help drawing up presumption of DAE merely on the discovery of a tampered meter. Moreover, the shifting of the burden of proof to the consumer has to have a statutory basis."
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 is, therefore, entitled to acquittal and is accordingly acquitted. Bail bond is cancelled. Surety discharged. File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 02.04.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
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