Delhi District Court
Brpl vs . Rajesh Devi Page No. 1 Of 14 on 7 August, 2023
IN THE COURT OF SH. VINOD KUMAR MEENA,
ADDITIONAL SESSIONS JUDGE, SPECIAL
ELECTRICITY COURT, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
Ct. Case No. 205/2018
CNR No. DLSW01-004204-2018
BSES Rajdhani Power Limited
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi-110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
New Delhi - 110049
through Mr. Ashutosh Kumar
(Authorized Representative) .....Complainant
Versus
Rajesh Devi
W/o Sh. Dharmender,
R/o Plot at KH. No. 74/20,
Near Veterinary Hospital,
Vill. Rawta, New Delhi-110073
......Accused
Date of institution of the case : 20.02.2018
Offence complained of : U/s 135/138 Electricity
Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 07.08.2023
Date of judgment : 07.08.2023
Ct. Case No. 205 of 2018
BRPL Vs. Rajesh Devi Page No. 1 of 14
- :: JUDGMENT :: -
1.Vide this judgment, the court shall decide the present complaint case which is filed by complainant BSES Rajdhani Power Ltd. U/s 135/138 of Electricity Act against accused Rajesh Devi.
2. Before proceeding further on deciding the present matter on merits, the brief facts of the case are mentioned herein as under:
Brief facts:
I. It is the case of complainant that on 12.10.2017, Meter Management Group (MMG) department of the complainant company removed the single phase electronic meter bearing no. 21789132 (hereinafter referred as impugned meter) installed against CA No. 151116736 for the premises Plot at Khasra No. 74/20 near Veterinary Hospital, Village Rawta, New Delhi-110073 (hereinafter referred as impugned premises) and restored the supply of the premises through a new electronic meter bearing no. 40451926. The meter bearing no. 21789132 was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused that she may witness the testing/analysis of the meter in laboratory. The letter issued to the consumer dated 12.10.2017 is Ex. CW2/1.
II. On 17.11.2017, the impugned meter was tested by the laboratory and as per lab report, illegal cut marks found on Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 2 of 14 the terminal block of meter and meter serial number found zero as per display and the laboratory declared the meter, "found tampered". The said lab report is Ex.PW2/A. III. On 24.11.2017 (hereinafter referred as impugned date and time), a BSES team comprising of Sh. Hari Shankar Mishra (Assistant Manager, BSES), Sh. Virender (DET, BSES), Sh. Satbir (Lineman, BSES) and Sh. Saurabh (Videographer) visited premises of accused i.e. Plot at KH No. 74/20, Near Veterinary Hospital, Village Rawta, New Delhi-110073 for an inspection in furtherance of lab report.
IV. Connected load of the premises was assessed to be 9.054 KW/NX/DAE for non-domestic purpose.
V. Members of BSES raiding/inspection team prepared the Inspection Report Ex. PW1/B, Load Report Ex. PW1/C and Seizure memo Ex. PW1/D. Accused refused to receive and sign the reports/memos. Based on these reports, complainant raised a theft bill of Rs 4,58,600/- against the accused.
VI. Videography of the site was done by Sh. Saurabh.
VII. Complainant alleged that accused acted dishonestly with an intention to cause wrongful gain to herself and wrongful loss to it, employed an illegal method to steal electricity. She illegally abstracted and consumed electricity without paying the applicable tariff. She is thus alleged to have committed direct theft of electricity punishable under section 135/138 of Electricity Act, 2003.
Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 3 of 14VIII. On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135/138 of Electricity Act, 2003 through its authorised representative Mr. Ashutosh Kumar.
3. Copy of complaint and supporting documents were supplied to the accused. After hearing arguments, notice u/s 251 of Cr.P.C for the offence under section 135/138 of Electricity Act, 2003 was served upon accused to which she pleaded not guilty and claimed trial.
Complainant's evidence:
4. In complainant's evidence, six witnesses i.e. PW-1 Sh. Virender (Graduate Engineer Trainee, BSES), PW-2 Sh. Vinay Kumar Singhal (DGM, BSES), PW-3 Sh. Satbir (Technician, BSES), PW-4 Sh. Mustafa Barbhaiwala (Senior Manager, BSES), PW-5 (Assistant Personal Officer, BSES) and PW-6 Sh. Ashutosh Kumar, Authorized Representative of complainant were examined.
I. PW-1 Sh. Virender, Graduate Engineer Trainee, BSES deposed that on 24.11.2017, at about 01:15 PM, he alongwith Sh. Hari Shankar Mishra (Assistant Manager, BSES), Sh. Satbir (lineman) and one videographer namely Sourbh from M/s Arora Photo Studio, on the basis of lab report visited and inspected the premises i.e. Plot at Khasra No. 74/20, Near Veterinary Hospital, Village Rawta, New Delhi-110073. He further deposed that during inspection, Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 4 of 14 Smt. Rajesh Devi was present and the entire inspection was carried out in her presence. He further deposed that the connected load of the premises was assessed as 9.054 KW for commercial purposes i.e. for running a welding material shop. He further deposed that Sourab videographer had conducted the videography, CD is Ex. PW1/A. He further deposed that raiding team prepared the Inspection Report Ex. PW1/B, Load Report Ex. PW1/C and Seizure memo Ex. Ex.PW1/D. He further deposed that after preparation of the reports, they offered the same to accused to receive and sign the same but she refused. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence. He further corroborated the version of complaint in his cross-examination.
II. PW-2 Sh. Vinay Kumar Singhal, DGM, BSES deposed that meter bearing no. 21789132 was sent to NABL accredited meter testing laboratory in a sealed condition for further testing/analysis of the meter under the intimation to consumer that he may be present in the laboratory at the time of testing of the meter and the meter was tested in the laboratory on 17.11.2017. He further deposed that the laboratory declared the meter as tampered with illegal cut marks at the terminal block of the meter and the serial number of the meter was found (zero) 0 as per display. He further deposed that premises of the accused was inspected by the authorsed inspection team of BSES on 24.11.2017 where a connected load of 9.054 KW for non-domestic use Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 5 of 14 was found against sanctioned load of 2 KW for non- domestic i.e. for running the shop. He further deposed that he analysed the Inspection report Ex. PW1/B, load report Ex. PW1/C, seizure memo Ex. PW1/D, lab report Ex. PW2/A, consumption pattern report Ex. PW2/B and came to the conclusion that it was conclusive case of theft of electricity by meter tampering and accordingly a speaking order Ex. PW2/C was passed by him on 05.12.2017. He further deposed that consumption of the meter significantly increased after replacement of the old electricity meter. He further deposed that initially the consumption records for the period from 11.10.2016 to 10.09.2017 showed as average recorded consumption of one unit per day which has inadvertently written as one unit per month in the speaking order passed by him. He further deposed that the consumption pattern of the old meter in question was recording only 2.60 % of the assessed/actual consumption. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
III. PW-3 Sh. Satbir, Techinician BSES deposed on the same lines as PW-1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
IV. PW-4 Sh. Mustafa Barbhaiwala, Senior Manager, BSES deposed that on 12.10.2017, the impugned meter was removed by BSES and sent it to the laboratory for testing of Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 6 of 14 the same and on 17.11.2017, meter was tested by Baroda Caliberation Services, third party independent laboratory and the laboratory declared the meter as tampered. He further deposed that he had received the report of said laboratory on 17.11.2017 on behalf of the complainant and sent it to concerned department of BSES for further action. The said acknowledgment of receiving the lab report is Ex. PW4/A. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
V. PW-5 Sh. Shishpal, Assistant Personal Officer, BSES brought the consumption pattern pertaining to CA No. 151116736 which is Ex. PW5/A. He further proved the latest electricity bill for the month of January, 2023 which is Ex. PW5/B. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
VI. PW-6 Sh. Ashutosh Kumar, Authorized Representative of complainant deposed that he had been authorised vide Power of Attorney Ex. PW6/A to institute the present complaint. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence Statement of accused:
5. Accused was examined under section 313 of CrPC, wherein she pleaded innocence. She, inter alia, stated that she has been falsely implicated in the present matter. She further stated that she reside at her residence which is 1 KM away from Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 7 of 14 the impugned premises.
Defence Evidence:
6. In defence evidence, accused has examined one witness i.e. Sh. Sher Singh.
DW-1 Sh. Sher Singh deposed that one meter was installed in the impugned premises and accused was not involve in any kind of theft of electricity. He further deposed that he used to check the electricity meter in question in the morning and evening and used to pay regularly the electricity bill as and when received. He further deposed that when he received the notice from BSES office at Hari Nagar, thereafter, he visited the said office and pointed out that accused had not indulged in any kind of theft and when the meter was changed at the premises in question, the electricity bill in respect of unit consumed were more or less same and the same has been reflected in the consumption pattern i.e. Ex. PW5/A and electricity bill Ex. PW5/B. He further deposed that as and when they have called from BSES office, they had visited the office and they had not received any notice and even the BSES officials have not taken any signature of himself or the accused. He further deposed that the person who were reflected in the CD Ex.PW1/A are not know or identified by him and even these people were not their tenant at any point of time and the person who were their tenant had vacated the property during the covid time.
Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 8 of 14Final Arguments:
7. Final arguments advanced by Ld. Counsel for the complainant and ld. counsel for accused heard. Case file perused carefully.
8. It is argued by Ld. Counsel for the complainant that accused was committing theft of electricity by tampering the meter. It is also argued that on 12.10.2017, the officials of complainant visited impugned premises and they found that electronic meter bearing no. 21789132 was found to be faulty and this meter was seized and same was replaced with new electricity meter bearing no. 40451926. The seized meter was sent to NABL accredited meter testing laboratory for testing. Upon testing of said meter, illegal cut mark was found on terminal block of the meter and accordingly meter was declared as "found tampered" which substantiated that accused was committing theft of electricity by tampering the meter. It is also argued that on 24.11.2017 inspection was conducted at the impugned premise and connected load was assessed as 9.054 KW for commercial purpose. It is also argued that the complainant has proved the case through six witnesses and accused be convicted.
9. On the other hand, it is argued by Ld. Counsel for accused that present case has been filed on the basis of false and concocted facts just to harass the accused in the present matter. It is further argued by Ld. Counsel for the accused that no reason has been assigned by BSES officials for visiting and changing the Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 9 of 14 meter on 12.10.2017. It is also argued that entire process from seizing the meter to conducting the testing of meter in laboratory has been done in a suspicious manner, as the earlier meter was removed without any basis and replaced with a new meter. The old meter sent to laboratory without intimation and testing has been done in a highly suspicious manner. It is also argued that the speaking order passed by PW-2 has been passed in a mechanical manner which is just the reproduction of laboratory report. It is also argued that the connected load has been mentioned as around 9 KW whereas the actual consumption is not more than 1 KW. It is also argued that the consumption is almost same even after installation of new meter. It is also argued that the case has been made on the basis of laboratory report, however, the person who had tested the impugned meter had not brought as witness in the present matter. It is also argued that present case is nothing but a bundle of lies and be dismissed and accused be acquitted. It is finally argued by Ld. Counsel for accused that complainant failed to prove its case, so the accused may be acquitted.
10. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss here as to whether the accused is a consumer within the meaning of section 2(15) of Electricity Act, 2003 or not. To decide this, the provision as enumerated under Section 2(15) of Electricity Act, 2003 is quoted here as under:
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 10 of 14 and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.
11. After going through the abovementioned definition/meaning of consumer and applying the same in the factual matrix of the present case, it is observed by the court that the premises in question is in the name of accused Rajesh Devi through she was not residing at the impugned address. Accused was using electricity, which was supplied by the complainant, in the impugned premises. A meter bearing no.21789132 had already been installed in the impugned premises and after removing of the meter, a new meter bearing no. 40451926 was installed at the impugned premises. Accordingly, accused Rajesh Devi is coming within the ambit of meaning of consumer as provided under Section 2(15) of Electricity Act, 2003.
12. Now, the question arises as to whether the complainant has proved the allegations as made through the present complaint thereby raising the presumption as provided under Section 135 of Electricity Act, 2003.
13. It is the allegation of the complainant that accused was committing theft of electricity by tampering the meter. It is also the case of the complainant that the meter was taken from the premises on 12.10.2017 and supply of electricity was restored through a new electronic meter bearing no. 40451926 and the meter was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused. It is also the case of complainant that on 17.11.2017 meter was tested by the Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 11 of 14 laboratory and as per lab report, meter found tampered which substantiated the fact that accused was committing theft of electricity by tampering the meter. So the main contention of the complainant is that the meter was tested in the laboratory and as per laboratory report Ex. PW2/A, it was proved that accused was committing theft of electricity by tampering the meter. The meter was admittedly sent to NABL accredited meter testing laboratory, however, very strangely nobody has been produced as a witness from that laboratory. The entire case of the complainant is based on the lab report i.e. Ex. PW2/A, however, same has not been proved through the person who tested the impugned meter and prepared the same. The court is unable to understand why nobody has been produced in evidence by complainant from that laboratory. The lab report Ex. PW2/A has not passed the test of examination and cross-examination, thus, cannot be said to be proved.
14. The court has to mention, at the cost of repetition, that the basis of impugned theft bill is the lab report Ex. PW2/A. It is again pertinent to mention here that said lab report has not been proved through the person who had conducted the test of meter. Even otherwise, after going through the said lab report Ex. PW2/A, it is observed that the crux of said lab report Ex. PW2/A is that firstly, cut mark was found on the terminal block of the meter and secondly, the serial number of the meter was displayed as zero. As far as finding the cut mark of the terminal block is concerned, the court has to mention that no videography or photograph pertaining to removal/seizure of impugned meter, has Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 12 of 14 been placed on record before the court. The court has to mention here that it was incumbent upon the complainant to have done the videography to substantiate that meter was in perfect condition at the time of removal of the said meter, which has not been done in the present case. As far as second point is concerned, the court found no reason for imputation of charges of theft of electricity on the basis of this technical fault. It has to be mentioned here that the court found no basis to substantiate that displaying of meter number as zero could be taken as a ground qua tampering of the meter. Moreover, nobody has been produced from the meter testing agency to clear the clouds of doubt. It is also observed that as per consumption pattern Ex. PW5/A the consumption before and after the impugned meter is almost the same. There is no extraordinary variation or fluctuation to substantiate the theft of electricity as contended by complainant. The consumption pattern per se suggested that units consumed in earlier meter and new meter are same and accordingly no tampering, as alleged, can be attributed on the part of accused.
15. In view of the abovementioned, the court is of the view that the complainant has miserably failed to even give a hint that accused has committed the alleged theft as alleged through the present complaint. As the complainant has failed to prove the impugned theft, no question arises of presumption as provided under Section 135 of Electricity Act.
16. Accordingly, accused Rajesh Devi, W/o Sh. Harmender Singh is acquitted of offence punishable under sections 135/138 Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 13 of 14 of Electricity Act, 2003.
17. Accused has already furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have already been accepted and shall remain in force for a period of six months from today.
18. File be consigned to Record Room.
Digitally signed Pronounced in the open court on this VINOD by VINOD KUMAR 07th August, 2023 KUMAR MEENA Date: MEENA 2023.08.07 14:38:08 +0530 (VINOD KUMAR MEENA) ASJ: Special Electricity Court South West District, Dwarka Courts New Delhi Ct. Case No. 205 of 2018 BRPL Vs. Rajesh Devi Page No. 14 of 14