Delhi District Court
Complainant vs Rameshwar Singh on 23 May, 2012
Page 1 of 19
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 358/11
ID No. 02405R0413052009
Section 135 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
Rameshwar Singh
Khasra No. 5, Near Pole No. MDKA750,
Near Telephone Pole No. 161/25,
Near Ice Factory Wali Gali,
Village Kamruddin Nagar,
New Delhi
......................... Accused
Date of institution: 09.04.2009
Arguments heard on: 26.04.2012
Judgment passed on : 11.05.2012
CC No. 358/11
Page 2 of 19
JUDGMENT:
1. The facts of the case are like this. On 08.09.08 at 9.00 pm a joint inspection team headed by Sh. Ajay SharmaAM (Enforcement) of the complainant company along with Sh.Ramesh Photographer from M/s Arora Photo Studio inspected the premises bearing Khasra No.5, Near pole number MDKA750, Near Telephone no. 161/25 and ice factory wali gali, Kamruddin Nagar, New Delhi (hereinafter referred to as inspected premises). The inspected premises is used and occupied by accused who is also the registered consumer of the electricity meter bearing K no. 223050001689 installed in the inspected premises. The labour working in the inspected premises started running on seeing the inspection team. One of them with illegal wires fled outside from the side of meter. The inspection team tried to apprehend him but in vain. All this had happened in a very short time as such it was not covered in the videography. They entered inside the meter room and checked the meter. They observed flame on the meter window (box) glass. M seals (which were provided to fill the space with service line) had been burnt deliberately and enough space was created to enter illegal wires inside the box. The burnt cable (which was burnt during illegal burning of M seals) has been covered with illegal taping. The meter CC No. 358/11 Page 3 of 19 box was opened. Sparking and flash marks were found on the bus bar of the meter at incoming side which are the effect of forcible insertion and removal of illegal wires. Sparking and flash marks even had effected on rasin cast CTs and to some extent damaged the CT. The heated machines coupled with running exhaust and fans show that factory was in running condition when the inspection team reached at site. On that day, the load was not running through meter after 5.30 p.m. CMRI details show that load was running directly through illegal wires. IR no. 208555 was pasted on the meter box to maintain status quo. KCC was requested to install new CT meter at site and to hand over the tampered meter to the Enforcement for evidence. The photographs were taken. The videography was done. There was a connected load of 89.56 KW for industrial purposes. Inspection report, meter report, load report, seizure memo and show cause notice were prepared at the spot. On 18.09.08, KCC department seized the tampered meter from the inspected premises and handed over the same to the Enforcement Department which was taken into possession. The accused did not respond to the show cause notice and accordingly Assessing Officer passed the speaking order on the basis of the record. A theft bill was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre CC No. 358/11 Page 4 of 19 summoning evidence. Accused was summoned for the offence U/s 135 and 138 of Electricity Act (herein after referred to as Act). Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
3. The complainant examined four witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that CT meter is in his name. The meter in question was checked on 06.05.08 and 22.07.08 but there was no allegation of meter tampering. The factory remains close after 55.30 p.m. One lathe machine of approximately 20 KW is installed in the factory. On 12.09.08, the meter was replaced by the complainant. No show cause notice was given to him. Pankaj Tandon is not authorized to file the complaint. The supplementary statement u/s 313 Cr. PC was recorded on the basis of new evidence which has come on record after allowing the application u/s 311 Cr.PC of the complainant. However, one witness is examined in defence evidence.
4. PW1 Sh. Ajay Sharma stated that on 08.09.2008 at 9.00 pm he along with R K Kataria Sr Shift officer, Rajesh DET, of the complainant company along with Delhi Police, CISF officials and photographer from M/s Arora Photo Studio inspected the inspected CC No. 358/11 Page 5 of 19 premises. The labour working in the premises started running as soon as they entered inside the premises and one of them run towards the meter room and fled with certain wires. They tried to apprehend him but in vain. They entered inside the meter room. CT meter was found installed in the name of accused. There was smoke on the display of the meter box. M seal of the meter box (provided for filling the cable hole) was found burnt and sufficient space was made to put illegal wires inside the meter box. Certain burnt marks on incoming cable were found which were concealed with illegal taping. Meter data was downloaded. They opened the meter box and found heavy sparking signs on the incoming of incoming the bus bar of the meter. The signs occur due to contact of illegal wire with bus bar due to heavy load. The kit kat of meter outgoing was found in removed condition. The machines were found in hot condition at the time of checking the load. Fans and exhaust fans were used to cool down the machines. The manufacturing products i.e. PVC dana was in hot condition. The analysis of CMRI data show that the load was not running through meter after 6.00 p.m. The labour fled from the spot in their presence. IR was put on the meter box which was retained at site. They inquired from the neighbours who told that accused is owner and running the factory. They tried to join the public persons but to no avail. There was a total connected load of 89.56 KW for industrial CC No. 358/11 Page 6 of 19 purpose. Videography was done. CD Ex.CW2/G is the same as prepared at the spot. Inspection report, meter details, load report, and show cause notice Ex. CW2/AD were prepared. They tried to give the reports to the neighbours, who gathered at site, but they refused to take the same. On 18.09.08, KCC department handed over the tampered meter to them which was taken into possession vide seizure memo Ex.CW2/F. One CT meter box in an open condition with IR in a torn condition is produced in the court along with copy of seizure memo ExP2. The CT meter Ex.P1 is identified by the witness.
5. During crossexamination, PW1 stated that they tried to stop the person running the wires from the meter room of the inspected premises but in vain. The suggestion is denied that factory was not running at the time of inspection or no one fled with the wires that is why they did not stop that person or seize the wires. 4045 CISF officials were with them. The meter was found intact. It is admitted that on 08.09.08 there was consumption of electricity through meter till 5.30 p.m as per the record. It is admitted that they were using torch at the time of inspection the premises and no electricity was being used at the inspected premises. The suggestion is denied that M seal of the meter was not burnt or there was no space to put illegal wires inside the meter box. It is correct that they have not CC No. 358/11 Page 7 of 19 placed on record any document that M seal was filled in order to block the gap between the cable and hole. The suggestion is denied that meter box and cable were in the same condition as it was at the time of installation. The meter was not seized at the time of inspection. The suggestion is denied that documents were not prepared at site. The documents were not pasted at the site. The suggestion is denied that the documents were not pasted as they were not prepared at site.
6. PW2 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. During cross examination, he stated that there is no Board Resolution in his favour. The suggestion is denied that Sh Lalit Jalan was not authorized to issue authority letter Ex.CW1/A in his favour.
7. PW3 Sudip Bhattacharya is Assessing Officer who has passed the speaking order Ex.CW2/H on the basis of documents including CMRI data and consumption pattern. He was re called as application u/s 311 Cr.P.C of complainant was allowed. He stated that CMRI data Ex.PW3/A was examined by him at the time of passing of speaking order. During cross examination, he stated that CMRI data was not downloaded by him. It is correct that no load was found running through meter after 5.30 p.m. as per CMRI data. A show CC No. 358/11 Page 8 of 19 cause notice is served upon the accused and same is sent by post in case of refusal. The speed post receipt is not placed on record. The suggestion is denied that speed post receipt is not placed on record as show cause notice was never sent by post or second show cause notice is issued in case consumer does not turn up for hearing on the fixed date. The second show cause notice was not given as it was not mandatory though in some cases, second show cause notice is given. There is no specific reason for non issuance of second show cause notice. The meter was not subjected to laboratory test. It is correct that meter is sent for testing in the lab but in the present case the meter was not tested as evidence of tampering was of conclusive nature. The suggestion is denied that consumption was not 9.5% as per record maintained by the company. The suggestion is denied that MDI figures are incorrect.
8. PW4 Vivek Arora stated that on 08.09.08, he had sent his employee Ramesh with the raiding team members to conduct the videography of the inspected premises. Ramesh had handed over camera and cassette to him. He downloaded the data in the computer and prepared CD Ex.CW2/G. He has identified the CD. Ramesh has left the services so his present whereabouts are not known. No tampering was done with the data by Ramesh during the course of inspection. During cross examination, he stated that he has not visited CC No. 358/11 Page 9 of 19 the site. He is not aware about the condition existing at site. The suggestion is denied that CD is not prepared from the videography handed over to him by his employee or CD is fabricated and manipulated. It is correct that original tape is not on the record.
9. The accused has led defence evidence. DW1 Lalit Singh, Meter Engineer, BSES stated that MCRs dated 06.05.08 and 22.07.08 of meter in question are Ex.DW1/A and B. During cross examination, he stated that Mseals of KCC meter box do not get burn automatically. The M seal is affixed on the input of service line so that no foreign material could come in contact with input terminal of the service line of the meter.
10. 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 dishonest abstraction of energy through tampered meter.
11. The complainant has examined four witnesses in order to prove its case whereas accused has examined one witness in order to advance his defence. PW1 Ajay Sharma is one of the members of the joint inspection team. He is the sole member of joint inspection team examined by the complainant as such his testimony needs close scrutiny. I have perused the entire oral as well as documentary CC No. 358/11 Page 10 of 19 evidence on record. His testimony clearly shows that on 08.09.08 at 9.00 p.m. the inspected premises was inspected by the members of joint inspection team. There is nothing on record to show that inspection was not carried out on that day. His testimony further shows that the inspected premises is used for industrial purposes. This fact is not in dispute. His testimony further shows that accused is user of the inspected premises. The factory is owned by the accused. The accused has not come out with any explanation that someone else is using the inspected premises or someone else is owner of the factory meaning thereby that accused is user of the inspected premises. The accused is also the registered consumer and electricity meter is installed in his name. This fact is even admitted by accused in his statement u/s 313 Cr.PC.
12. The testimony of PW1 shows that labour working in the factory started running on seeing them. One of them ran towards meter room and thereafter fled outside with some wires in his hand. They tried to apprehend him but in vain. Ld counsel for the accused submitted that this is not possible as police officials and CISF personnel were with joint inspection team and they could have easily caught that person and the theory propounded by the complainant does not inspire confidence. Ld counsel for the complainant submitted that all this had happened within no time as such they could CC No. 358/11 Page 11 of 19 not apprehend that person. Heard and perused the record. The presence of labour is nowhere disputed by the accused though he has disputed the number. The possibility can not be ruled out that the labour might have run outside by removing the wires from the meter. Such things happen within a fraction of time as workers are well aware about the building structure. The police personnel were with them but there is nothing on record that all of them were inside the room at that time. The explanation furnished by the ld counsel for the complainant appears to be convincing as such argument advanced by the ld defence counsel does not hold water.
13. Ld counsel for the accused contended that CT box seals and meter box seals were intact so the question of tampering with the meter does not arise at all. He further contended that the meter was not removed from the site at the time of inspection for the reasons best known to the complainant. He further submitted that the meter was not tested in the lab so there is no evidence on record that meter was tampered. Ld counsel for the complainant submitted that a CT meter was installed as inspected premises was used for industrial purposes. He further submitted that a distribution box i.e. bus bar was attached with the meter box and there was tampering in the bus bar from which incoming cable was going to the meter. He further submitted that tampering was detected in the bus bar so the question CC No. 358/11 Page 12 of 19 of removal of the meter or its testing in the laboratory does not arise. Heard and perused the record. Bus bar is a distribution point in which incoming wires are inserted through hole and connected with a plate and thereafter the incoming wires are connected to the meter. The wires are then connected to the load of the premises from the meter. Bus bar is a part of a meter and any tampering in the bus bar tentamounts to tampering in the meter. The testimony of PW1 has to be seen in the light of the fact whether there was tampering in the bus bar or in the meter itself. The testimony of PW1 shows that there was smoke on the display of the meter box. The M seals provided for filling the cable hole was found burnt. A space was created to put illegal wire inside the meter box. Certain burnt marks were found on incoming cable which were concealed by illegal taping. There were heavy sparking signs on the incoming of bus bar which occurred due to contact of illegal wires with bus bar due to heavy load. The accused has failed to explain how the burnt marks were found on the incoming cable going to the bus bar. The accused has failed to explain why there was illegal taping on the incoming wire going to the bus bar. The burnt marks on the incoming cable as well as illegal taping suggest that the M seal was deliberately burnt with a view to insert wire in the bus bar where incoming wire is connected. There were heavy sparking marks on the bus bar from the incoming side of wire. CC No. 358/11 Page 13 of 19 The accused has failed to explain how the sparking/burnt marks occurred on the plate of bus bar where the incoming wire was connected. The marks were visible to naked eye. All these show that there was tampering in the bus bar. Bus bar is a part of meter and any tampering in bus bar tentamounts to tampering in the meter. There was no tampering in the system of meter itself and this fact is apparent from the testimony of PW1 as well as inspection report, (meter details) Ex.CW2/B. There was no question to remove the meter at that time in order to send the same to laboratory for analysis. Bus bar is not subjected to any testing in the laboratory as there is no chip or data or port in order to communicate with the meter. The arguments do not hold water.
14. Ld counsel for the accused contended that the question of tampering is out of question as meter recording instrument was changed by the complainant company as apparent from MCRs Ex.DW1/A and 1/B. He further contended that the tampering, if any, in the meter or in the bus bar could have been noticed by the concerned official at that time and non reflection of any tampering in Ex.DW1/B shows that there was no tampering in the meter or in the bus bar. Ld counsel for the complainant contended that the concerned official has only changed the AMR of the meter and as such he could not have noticed any tampering in the bus bar. Heard and perused the CC No. 358/11 Page 14 of 19 record. MCR dated 06.05.2008 Ex.DW1/A is with respect to repair of AMR. MCR dated 22.07.08 Ex.DW1/B is with respect to the replacement of AMR of the meter. It nowhere shows that there was any tampering in the meter or meter seals. To my mind, the accused cannot draw any support out of it for the reason that the complainant has not alleged any tampering in the meter itself. There was tampering in the bus bar from which incoming wire was connected with the meter. There is nothing on the record that the concerned official had also checked the bus bar. The accused could have called the concerned official in order to advance this defence. In view of this, the argument advanced by the Ld. counsel for accused does not hold water.
15. Ld counsel for the accused contended that the load shown in the load report is on the higher side as accused was using the sanctioned load. Ld counsel for complainant contended that the load was recorded on the basis of appliances found at the spot so the question of recording the load on the higher side does not arise. Heard and perused the record. The testimony of PW1 shows that the load was recorded on the basis of appliances found at the spot. There is nothing in his cross examination that a particular appliance was not found at the spot or a particular appliance was out of order at that CC No. 358/11 Page 15 of 19 time. Mere denial is not enough unless some evidence is on record that accused was not using particular appliance at the time of inspection. In the absence of any evidence from accused, it can be held that the load was correctly recorded and there is nothing to see the load report Ex.CW2/C with the aid of spectacles. The argument does not hold water.
16. Ld counsel for the accused contended that documents were neither pasted at the spot nor sent to the accused by post. He further submitted that a second show cause notice was not issued to the accused in accordance with the Delhi Electricity Supply Code and Performance Standards Regulation,2007 as such speaking order Ex.CW2/H was not passed in accordance with law. Ld counsel for the complainant submitted that there is no mandatory requirement to issue a show cause notice for the second time. Heard and perused the record. The documents namely inspection report, inspection report meter details, load report and show cause notice Ex.CW2/A, B, C and D were allegedly prepared at the spot and allegedly offered to the person present at the spot who refused to receive and sign the same. The documents were not pasted at the spot. There is no explanation to this effect but entire evidence shows that the inspection was carried out by the members of joint inspection team. The non pasting of the CC No. 358/11 Page 16 of 19 documents can be an irregularity. Moreover, Regulation 53 of Delhi Electricity Supply Code and Performance Standards Regulation, 2007 nowhere cast a duty on the complainant to issue show cause notice for the second time. There is no mandatory provision for issuance of show cause notice for the second time as such the speaking order passed by assessing officer on the basis of earlier show cause notice is perfectly valid. The argument is devoid of any merit.
17. Ld counsel for the accused contended that CMRI data is not proved in accordance with law as such it cannot be looked into though the same is relied upon by the Assessing Officer. Heard and perused the record. The consumption pattern of the electricity is seen from CMRI data. The consumption pattern is stored in the internal memory of the meter which is downloaded through communicable port. This data is stored in the memory of meter. This data cannot be manipulated. Moreover, the accused is always at liberty to get it downloaded afresh from the memory of the meter. There is nothing on the record to disbelieve CMRI data. The argument does not hold the water.
18. Ld counsel for the complainant submitted that the factory was running after 5.00 p.m. by tampering with the distribution system of the electricity as such the meter was not recording the consumption CC No. 358/11 Page 17 of 19 after 5.00 p.m. Ld counsel for the accused contended that accused used to run the factory till 5.00 p.m. and thereafter labour used to stay there for the safety of the premises. Heard and perused the record. The testimony of PW1 shows that the machinery was found in the hot condition meaning thereby that the machines were stopped just before the inspection. The accused has not led any evidence to show that he was not running the factory after 5.00 p.m. He could have easily examined his employees or any neighbour to show that he was not running the factory after 5.00 p.m. CMRI data Ex.PW3/A shows that load was not running through meter after 6.00 p.m. All this shows that there was no consumption of electricity after 6.00 p.m. through meter by the accused. It means that accused used to run the factory after 6.00 p.m. and there was no consumption of electricity through meter after 6.00 p.m. The argument does not hold the water.
19. Ld. Counsel for the accused contended that complainant has not produced the original data of CD Ex.CW2/G and CD is not proved in terms of section 65 B of Indian Evidence Act as such no reliance can be placed on CD. Ld counsel for the complainant submitted that court can consider CD as same was prepared at the spot. Heard and perused the record. CD Ex.CW2/G is secondary evidence. The primary evidence is the cassette and data downloaded CC No. 358/11 Page 18 of 19 in the computer. The computer and cassette are not produced in the court. The complainant has not examined the person who has conducted the videography. No certificate is placed on record to the effect that computer was operating throughout the material part of period during which data was downloaded. No certificate regarding accuracy of the computer is placed on record. The requirements of section 65 B Indian Evidence Act have not been complied with. The CD can not be looked into for the purpose of evidence. I find force in the submission of Ld. Counsel for the accused.
20. The testimony of PWs is consistent as there is nothing on the record to view their testimony with the aid of spectacles. There is no evidence of enmity so the question of false implication is out of question. The entire evidence on the file shows that accused was drawing electricity by tampering with the bus bar of the meter. Hence, the testimony of PWs, which is consistent and trustworthy, is relied upon.
21. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and convicted. Let the CC No. 358/11 Page 19 of 19 file to come up for arguments on quantum of sentence on 21.05.2012.
Announced in the open
Court on dated 11.05.2012 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 358/11
Page 1 of 3
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 358/11
ID No. 02405R0413052009
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
........................ Complainant
Versus
Rameshwar Singh
......................... Convict
ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that complainant company has considered the representation made by the convict to settle the civil liability and complainant company has settled the civil liability of case in hand for a sum of Rs. 4,02,565/. He further submitted that complainant company has settled the civil liability and company has no objection in case lenient view is taken in favor of the accused.
2. Ld counsel for the convict submitted that convict is first offender. He further submitted that convict is 54 years old. He CC No. 358/11 Page 2 of 3 further submitted that convict has family including one daughter of marriageable age. He further submitted that convict has already undergone agony of trial for the last three years. He further submitted that convict has settled the civil liability with the complainant and this fact is admitted by ld counsel for complainant so a lenient view be taken in favour of the convict.
3. Heard and perused the record. The convict is first offender. There is nothing on the record to show that he has been previously convicted for the same offence. The convict has one marriageable daughter and substantive sentence will affect the prospect of the marriage of his daughter. The convict has settled the civil liability with the complainant. The convict has already deposited a sum of Rs 3 lacs with the complainant and balance settlement amount is brought today by him in the court. All these facts coupled with the fact that convict has settled the civil liability with the complainant, a lenient view is taken in his favour. Hence, convict is sentenced to undergo imprisonment till rising of the court. ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of CC No. 358/11 Page 3 of 3 the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
5. The convict has been held guilty U/s 135 of the Act. Ld counsel for the complainant submitted that civil liability is settled at Rs. 4,02,565/ . Ld counsel for the convict submitted that a sum of Rs. 3 lacs has already been deposited with the complainant and a balance amount of Rs 1,02,565/ is paid to the complainant today in the court by way of pay order. The statements of ld counsel for the complainant and accused are separately recorded and placed on record. The settlement amount is paid to the complainant. Accordingly, the civil liability on the basis of settlement is assessed at Rs. 4,02,565/ which stands paid to the complainant . Copy of the order be given free of cost to the convict. File on completion be consigned to record room.
Announced in the open
Court on dated 23.05.12 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 358/11