Delhi District Court
Is Placed On State Bank Of Travancore vs Kingston Computers (I) on 25 November, 2013
Page 1 of 22
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 123/11/07
ID No. 02405R0855272007
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
1. M/s K N Flour Mills
2. Nafe Singh ......................... Accused
at
Khasra no. 108/1,
VPO Dhansa,
Rest House Road,
Najafgarh, New Delhi73.
Date of institution: ........................ 29.08.2007
Arguments heard on: ........................ 11.11.2013
Judgment passed on : ........................ 25.11.2013
Final Order: ........................ Acquitted
CC No.123/11/07
Page 2 of 22
JUDGMENT:
1. The brief facts of the case are like this. On 30.10.2006 at 12.10 pm a joint inspection team headed by Sh.Rajesh Kumar Asstt. Manager (Enforcement) of the complainant company inspected the premises bearing Khasra No.108/1, VPO Dhansa, Rest House Road, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused no.2 is using the inspected premises for running the mill under the name and style of M/s K N Flour Mill. A three phase whole current electronic meter no.27064097 with K number 26210A030008 was installed in the name of accused no.2. The meter was checked. The meter terminal seals were found intact. The accuracy of the meter was checked with accucheck instrument. The meter was found slow by 62.89%. The meter box was opened. The meter terminal seal was found intact. The meter half seals were tampered. The ultrasonic strip was found repasted with adhesive on the meter. The meter was segregated in the presence of consumer. R and Y phase potentials were found disconnected from PCB of the meter as a result meter was slow. The accused no.1 was using the electricity through tampered meter. Accused no.2 has aided and abetted the commission of said offence. A connected load of 80.263 KW was found for industrial purposes. The video of the inspected premises was taken. The CC No.123/11/07 Page 3 of 22 photographs were clicked. IR was pasted on the meter in order to maintain status quo and supply was restored through new meter. Inspection report, load report and show cause notice were prepared and offered to the accused who refused to receive and sign the same. Sh O P Ahuja, representative of accused no.2, attended the personal hearing. The Assessing Officer after considering the documents of the case, consumption details and submissions of the representative of accused no.2 passed the speaking order dated 20.04.2007. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused was summoned for the offence U/s 135/138 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. Accused no.2 is proprietor of accused no.1. 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 Dr Kailash was not present at the spot. The meter was not slow. There was no tampering in the meter. The CC No.123/11/07 Page 4 of 22 meter was showing exact consumption. However, three witnesses have been examined in defence evidence.
4. PW1 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.
5. During cross examination, he stated that Gopal Saxena is present CEO of the complainant company.
6. PW2 Rajesh Kumar stated that on 30.10.2006 at 12.00 (noon) he along with other officials of the complainant company inspected the inspected premises. Dr Kailash is proprietor of M/s K N Flour Mill who is running the said mill in the inspected premises. A three phase whole current electronic meter was installed in the name of accused no.2. The meter was checked. The meter was not showing phases in the display for R and Y phase but current was running through both the phases. The accuracy of the meter was checked with accucheck instrument. The meter was found slow by 63%. The meter box was opened. The meter terminal seal was found intact. The meter half seals on the left and right hand side of the meter were found tampered. The ultrasonic strip was found repasted with adhesive and CC No.123/11/07 Page 5 of 22 oxidation marks of adhesive were found on the meter body. The unidirectional screw marks were found on the meter. The meter was segregated in the presence of Dr Kailash. R and Y phase were found cut as a result meter was not recording income phases. IR was pasted on the meter in order to maintain status quo and supply was to be restored through new meter by MMG officials. A connected load of 80 KW was found for industrial purposes. The video of the inspected premises was taken. CD Ex.PW2/A was prepared. The video in CD is identified by him as it was recorded at site. The photographs Ex.CW2/4 were also clicked at the time of inspection. Inspection report including meter details report, load report and show cause notice Ex.CW2/13 were prepared and offered to Dr Kailash which bears the signature of Dr Kailash at point B.
7. During cross examination, he stated that CD is in continuity and there is no editing. The video was taken by photographer through a camera having magnetic tape. The magnetic tape is in the office. The photographs were taken through digital camera having memory card. The memory card is still in use. The box seals were alright and it is not possible to assess the meter without tampering or breaking the seals of meter box. The suggestion is CC No.123/11/07 Page 6 of 22 denied that it is not possible to reassemble the meter seals once they are opened. The CMRI data was downloaded but same is not filed along with complaint. He has checked the accuracy of meter on industrial load which was approximately 35 ampere on each phase. The meter was constant on 800 pulses.
8. He has checked the meter through communication port and not through the pulse of meter. It is correct that atleast 800 pulses i.e 1 unit should have been passed through the meter to check its accuracy. Voluntarily stated that meter accuracy can be checked by communication as well as by calibration mode i.e. LED. They have passed 398 watts per hour through the meter to check the accuracy which is less than 1 unit. He did not send the meter for testing in the laboratory. The tong tester measures the current.The load was recorded with the help of tong tester. They have not written the current in the load report. He did not study the consumption pattern. He did not inquire about the shifts running in the factory. He does not know whether any adverse was recorded by meter reader prior to the inspection. The case property was not seized from the site.
9. PW3 Sudeep Bhattacharya stated that Sh R K Gupta, Assessing Officer of the complainant company, has left his job on CC No.123/11/07 Page 7 of 22 01.05.2007. He has seen him while signing the document in the ordinary course of business. Speaking order Ex.CW2/6 bears the signature of Sh R K Gupta at point A. During cross examination, he stated that speaking order was not passed in his presence. He has no personal knowledge about the speaking order.
10. PW4 is a videographer. He stated that on 30.10.2006 he along with officials of the complainant company visited the inspected premises. He has taken the video of the inspected premises and handed over the cassette and camera in the studio to Sh Vivek Arora who had downloaded the data in the office computer and prepared the CD Ex.PW2/A. He has identified the video in the CD as it was recorded at site.
11. During cross examination, he stated that he has not taken the photographs which were taken by team member. The cassette was in the camera which is not on court record. There is no authorization from CFSL about the genuinity of the CD.
12. The accused has led the defence evidence. DW1 Anish Garg is Joint Director, DERC, New Delhi. He stated that he has brought the public notice dated 01.08.2005 ExDW1/A issued by DERC. They should pass minimum 1 kwh power into the meter for CC No.123/11/07 Page 8 of 22 testing. The less power was used for testing the meter as report shows that 398.7616 WH power was used.
13. During cross examination by the complainant, he admitted that meter in question can be tested by calibration as well as by communication mode as there are two ways to check the meter. Both the methods are scientific and having same significance. He admitted that Ex.DW1/A contains guidelines which were in force in 2005. He cannot say if the same situation continued till 2007 when DERC Supply Code and Performance Standards Regulations 2007 were passed.
14. DW2 Srajan Bhargava, Manager, Key Consumer Cell, BSES stated that he has brought the consumption pattern Ex.DW2/1 of CRN No. 2620061857.
15. DW3 Surender Kumar Singhal, AGII, Division Jaffarpur, BSES stated that he has brought the record with respect to connection of K number 26210A30008 having CRN no. 2620061857. ExDW3/A C are the copies of meter book sheet, consumption pattern and photocopy of K number. The connection was installed for industrial purposes in the year 1984. The misuse charges were levied in between for NF purposes but the same were withdrawn CC No.123/11/07 Page 9 of 22 later on. It was for Lal Dora certificate which was subsequently supplied by the consumer. The load was enhanced thereafter.
16. During cross examination by complainant, he stated that the load was enhanced to 55 HP from 10 HP in a year 1996 97. The misuse was withdrawn in 2003 from initial stage. It is correct that K number at point A in letter dated 17.08.2004 is different from the K number of the document which is summoned.
17. 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 there was tampering in the meter which was done by the accused or accused was responsible for tampering in the meter and thereafter for dishonest abstraction of energy through tampered meter.
18. 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 CC No.123/11/07 Page 10 of 22 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.
19. To prove the factum of dishonest abstraction of energy, the complainant has examined four witnesses whereas accused has examined three witnesses in order to advance his defence. I have perused the entire record of the case. The complainant has to primarily connect the accused with the inspected premises either as a owner or a user. M/s K N Flour Mill was found running in the inspected premises at the time of inspection. It is admitted by the accused Nafe Singh that he is owner of M/s K N Flour Mill. He has been running the said flour mill in the inspected premises on the date of inspection. It is clear from the record that accused no.2 is owner of M/s K N Flour Mill. Ld counsel for the accused submitted that complainant has even wrongly recorded the name of owner of M/s K N Flour Mill. He further submitted that proper facts were not verified by the complainant at the time of inspection as to who is owner of the mill. Ld counsel for the complainant submitted that the information was recorded as disclosed by Dr Kailash at thetime of inspection. It is correct that testimony of PW2 shows that Dr Kailash is owner of M/s CC No.123/11/07 Page 11 of 22 K N Flour Mill. It is admitted fact that Dr Kailash was present at the time of inspection. The name of Dr Kailash was recorded as owner of M/s K N Flour Mill on the basis of information disclosed by him and I find force in the submission of ld counsel for the complainant. Dr Kailash should have properly disclosed that someone else is owner of M/s K N Flour Mill. The accused could have easily examined Dr Kailash to show that he did not disclose that he is owner of M/s K N Flour Mill. It is not the defence of the accused that complainant has deliberately recorded the name of Dr Kailash as owner of M/s K N Flour Mill. To my mind, Dr Kailash was recorded as owner of M/s K N Flour Mill on the basis of information disclosed by him otherwise there is no reason to record his name as owner of M/s K N Flour Mill. The argument that proper facts regarding the ownership of M/s K N Flour Mill were not verified by the complainant at the time of inspection does not hold water.
20. Ld counsel for accused submitted that complaint has not been signed, verified and filed by duly authorized person as there is nothing on the record that PW1 Sh Pankaj Tandon was duly authorized to file or institute the complaint. Ld counsel for complainant submitted that PW1 is authorized representative of the CC No.123/11/07 Page 12 of 22 complainant who has filed the complaint on the basis of authority Ex.CW1/1 given by the then CEO of the complainant company. Heard and perused the record. The complainant has filed the complaint through PW1 on the premise that he has been duly authorized by the then CEO of the complainant company vide authority letter Ex.CW1/1 to file the complaint. The complainant company has not placed on record any document to show that Sh Lalit Jalan was duly authorized by the Board of Directors of the complainant company to file or institute the complaint on behalf of complainant company. The copy of board resolution was placed on record but the same is not proved in accordance with law as such mere placing the copy of the resolution on record is of no help to the complainant. There is nothing on record that the then CEO of the complainant company was duly authorized to further delegate his powers to any person. PW1 is not the Principal Officer of the complainant company. The complaint has been instituted by PW1 on the basis of the authority given by the then CEO of the complainant company. Such an authority is not recognized under the law. The complaint has not been instituted by duly authorized person. Reliance is placed on State Bank of Travancore Vs Kingston Computers (I) CC No.123/11/07 Page 13 of 22 P.Ltd., III (2011) SLT53.
21. Ld counsel for accused contended that the meter box seals were found intact and it was not possible to have access to the internal mechanism of the meter so the allegation that there was tampering in the meter by the accused does not inspire confidence. Ld counsel for complainant urged to the contrary. Heard and perused the record. The examination in chief of PW2 shows that ultrasonic strip of the meter was repasted with adhesive and oxidation marks of adhesive were found on meter body along with unidirectional screw marks on the meter. Half seal on the left and right hand side of the meter were found tampered. R and Y phases were cut. The cross examination of PW2 shows that box seals of the meter were alright. It is not possible to access the meter without tampering or breaking the seals of box. The inspection report Ex.CW2/1 shows that meter terminal seal number R426169 was intact. The evidence shows that meter box seals and meter terminal seals were intact. There was an alleged tampering inside the meter. The complainant has failed to explain how the meter from inside can be tampered with once meter box seals and meter terminal seals are intact. It is difficult to reach inside the meter once meter box seals and meter terminal seals are intact. There is no CC No.123/11/07 Page 14 of 22 explanation from the complainant which puts a question mark on the observation of the complainant as recorded in inspection report Ex.CW2/1 with respect to the tampering in the meter or in the testimony of PW2 qua the tampering of meter. There is a force in the argument of ld defence counsel.
22. Ld counsel for accused contended that segregation of meter at site might have caused tampering in the meter. Ld counsel for the complainant contended that segregation can not cause any tampering in the meter. Heard and perused the record. The testimony of PW2 shows that meter was segregated at site. The complainant has failed to show that members of joint inspection team can segregate the meter at site. The segregation of meter at site may also cause some damage to the internal mechanism of the meter. The complainant has failed to place on record any regulation framed by DERC that meter can be segregated at site. To my mind, the possibility of damage to the internal mechanism can not be ruled out on segregation of meter at site. There is force in the submission of ld defence counsel.
23. Ld counsel for accused contended that the meter was not tested at site in accordance with guidelines issued by DERC through a public notice dated 01.08.2005 Ex.DW1/A which shows that a CC No.123/11/07 Page 15 of 22 minimum of 1 kwh power should be passed through the meter for testing purposes. He further submitted that less than 1 kwh power was passed through meter for the purpose of testing as such the method adopted to test the meter at site was defective and correct result has not come out. Ld counsel for complainant submitted that the meter can be tested through calibration mode as well as through communication mode. He further submitted that meter was found slow by 62.89% which shows that there was tampering in the meter. Heard and perused the record. The guidelines Ex.DW1/A were issued by DERC through public notice dated 01.08.2005 and this fact is admitted by DW1 i.e. official of DERC. It shows that minimum of 1kwh power should pass through the meter for the testing purposes whereas in the instant case power of 398.7616 wh was passed. PW2 has admitted in the cross examination that 398 watts hour was passed through meter which is less than 1 unit. It is clear that required power was not used to test the meter in order to get the correct result. The use of less power by members of joint inspection team for testing the meter is contrary to the guideline Ex.DW1/A issued by DERC. No explanation is coming on record why the less power was used to test the meter. A doubt is created in the mind of court whether correct CC No.123/11/07 Page 16 of 22 result was taken by using the less power.
24. Further, the meter was checked with accucheck instrument and meter was found slow by 63% as stated by PW2. The CMRI data was downloaded. The said data was not placed on record at the time of filing of complaint. The application u/s 311 Cr.PC of the complainant was allowed and CMRI data was placed on record. The said data is not proved in accordance with law as no official was called by the complainant to prove the data. Mere placing the data on record is not sufficient unless it is duly proved in accordance with law. The data could have proved that meter was slow at the time of inspection. It calls for an adverse inference against the complainant. I find force in the argument advanced by ld defence counsel.
25. Ld counsel for accused contended that speaking order Ex.CW2/6 cannot be looked into as it is not proved in accordance with law. Ld counsel for complainant has urged to the contrary. Heard and perused the record. The speaking order was passed by Sh R K Gupta, the then Assessing Officer. His signature on the speaking order is proved by PW3. Sh R K Gupta has not been examined by the complainant. His examination was essential to show the basis on which he has passed the speaking order. The speaking order does not CC No.123/11/07 Page 17 of 22 fall in the category of list of document for which no formal proof is required. Section 294 Cr.PC is not applicable to speaking order. The examination of Sh R K Gupta was essential and his non examination calls for an adverse against the complainant. The speaking order has not been proved in accordance with law. The complainant has failed to show how the case of DAE was made out against the accused on the basis of speaking order.
26. Ld counsel for accused contended that the complainant has not replaced the meter in question and supply was continued through meter in question which shows that there was no tampering in the meter. He further submitted that the consumption pattern after the date of inspection was not taken into consideration to compare it with the consumption pattern prior to the date of inspection for the reasons best known to Assessing Officer. Ld counsel for complainant submitted that MMG officials were directed to replace the meter and speaking order was passed after considering all the facts. Heard and perused the record. The meter in question was retained at site. The testimony of PW2 shows that MMG officials were directed to replace the meter in question. There is nothing on record that new meter was installed by MMG official meaning thereby that supply to the CC No.123/11/07 Page 18 of 22 premises was through the meter in question. The complainant has failed to explain why the supply to the premises in question was through the same meter once it was allegedly found tampered. The continuation of supply through the meter in question puts a question mark on the theory of tampering propounded by the complainant. There is no explanation on the record why the new meter was not installed which calls for an adverse inference against the complainant. The consumption pattern after the date of inspection was not downloaded by the complainant in order to compare it with the consumption pattern prior to the date of inspection. The consumption pattern after the date of inspection would have brought on record the variation in the consumption of electricity, if any. The accused has placed the consumption pattern Ex.DW2/1 and DW3/B of the meter in question on record to show the consumption pattern before or after the date of inspection. There is no explanation why the consumption pattern after the date of inspection was not taken from the meter in question and why it was not considered by Assessing Offer at the time of passing the speaking order. The non explanation calls for an adverse inference against the complainant.
27. Ld counsel for the accused contended that the complainant CC No.123/11/07 Page 19 of 22 has placed CD Ex. PW2/A and photographs Ex.CW2/4 on record in order to show the manner of theft of electricity in the inspected premises. He further submitted that the complainant cannot draw any support out of the CD and photographs as they are not proved in accordance with law. Ld counsel for the complainant has urged to the contrary. Heard and perused the record. The complainant has placed CD Ex. PW2/A on record in order to show that it pertains to inspected premises. PW4 has taken the video but he has not prepared the CD. The person who has downloaded the data from the cassette in the computer and thereafter prepared the CD is not examined by the complainant. The original cassette is not placed on record. 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. The digital printouts of the photographs are placed on record. The printouts are taken from the memory chip. The memory chip is not placed on record. The photographs cannot be relied upon in the absence of memory chip. The photographs and CD are not proved in CC No.123/11/07 Page 20 of 22 accordance with law as such same are not relied upon.
28. Ld counsel for the accused contended that misuse charges levied against the accused were withdrawn and there was no misuse of electricity meter on the date of inspection. Heard and perused the record. It is clear from the testimony of DW3 that a meter of 10 HP for industrial purposes was initially installed in the inspected premises and the load was enhanced to 55 HP in 19961997 as apparent from Ex.DW3/A. The misuse charges were levied against the accused which were withdrawn in the year 2003 as apparent from Ex.DW3/C. The case pertains to the year 2006. The withdrawal of misuse charges in year 2003 does not have any affect on the merit of the case. There is no allegation in the complaint that accused was misusing the electricity meter installed in the inspected premises. There is no allegation of misuse. The withdrawal of misuse charges in the year 2003 does not have any bearing on the case in hand. The court has failed to understand why the defence evidence regarding withdrawal of misuse charges in the year 2003 has been adduced. The defence to this effect has been led for the sake of defence otherwise there is no necessity to lead such kind of defence.
29. Ld counsel for the accused contended that charges for CC No.123/11/07 Page 21 of 22 units consumed by the accused through meter in question were not subtracted by the complainant from the assessed units and this benefit should be given to the accused. Ld counsel for the complainant has urged to the contrary. Heard and perused the record. The electricity bill placed on record by the complainant show that he has been given credit of Rs.3,67,404/ for the assessed period. The bill shows that accused has been given benefit of the charges for the assessed period. The accused has failed to show that necessary benefit has not been extended to him. The argument is for the sake of argument, otherwise, it is devoid of any merits.
30. The complainant has failed to prove that there was tampering in the meter. The complainant has failed to prove that there was dishonest abstraction of energy through tampered meter. The evidence on the file is not enough to substantiate the allegations set out against the 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 the accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. The amount, if any, deposited by accused be returned back to him with an interest CC No.123/11/07 Page 22 of 22 at the rate of 7 % per annum from the date of deposit of the amount till its return after the expiry of the period meant for appeal. File on completion be consigned to record room.
Announced in the open
Court on dated 25.11.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.123/11/07