Delhi District Court
Complainant vs Ved Prakash on 30 July, 2014
Page 1 of 10
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 91/13
ID No.02405R0026212013
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
Ved Prakash
H. No. 122A,
Block J, Dharampura,
Najafgarh,
New Delhi110043.
.....................Accused
Date of institution: .................... 06.02.2013
Arguments heard on: .................... 28.07.2014
Judgment passed on : .................... 30.07.2014
Final Order: .................... Acquitted
CC No.91/13
Page 2 of 10
JUDGMENT:
1. The brief facts of the case are like this. On 3.10.2012 at 12:10 pm a joint inspection team headed by Sh. Sahi RamAsstt Manager (Enforcement) of the complainant company inspected the premises bearing No. 122 A, J Block, Dharampura, Najafgarh, New Delhi (hereinafter referred to as inspected premises) being used by the accused where a single phase electronic meter bearing number 23551852 was installed in his name. The meter was checked. The input terminal of the meter was found burnt. The meter was removed and sealed in a bag No. 509933 with seal No. 169277 and taken into possession for the purpose of testing/analysis in the laboratory and supply was restored through a new meter number 21529629. A connected load of 2.836 KW against sanctioned load of 4 KW was found for domestic purposes. The video of the inspected premises was taken. Inspection report, meter details report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same.
2. On 10.10.2012 the meter was tested in the laboratory. The meter input phase terminal was found burnt. The data was downloaded and photograph of the meter was also taken. CC No.91/13 Page 3 of 10 A show cause notice dated 31.10.2012 was issued to the consumer to file the reply by 20.11.2012 and to attend the personal hearing on 27.11.2012 before Assessing Officer. The accused gave a letter dated 20.11.2012 to the Assessing Officer to the effect that meter terminals got burnt due to loose connection and complaints were given in the office of BSES on 16.11.2006 and 31.12.2009. The copies of the complaints were attached with the letter. There is no fault on his part. A final notice dated 29.11.2012 was issued to the consumer to attend the personal hearing on 6.12.2012 but consumer did not attend the personal hearing. On 8.12.2012 the Assessing Officer passed the speaking order by considering documents on record, CMRI data and consumption pattern of the meter and held that a case of dishonest abstraction of energy is made out against the consumer. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. 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. NOA for the offence U/s 135/138 of the Act was put to the accused to which he pleaded not guilty and claimed CC No.91/13 Page 4 of 10 trial.
4. The complainant examined three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the plea that he has given three complaints to the complainant but no action was taken on the complaints. However, no defence evidence has been led.
5. PW1 Ms Vaishali Bansal stated that on 10.10.2012 she was posted at BRPL Laboratory Pushp Vihar, New Delhi. On that day she received a sealed bag bearing no.509933 with seal no.169277 which was desealed in the presence of Mustafa Bharbhaiwala. One meter bearing no.23551852 was taken out. The photograph of the meter was taken. The data mark X was downloaded from the meter. The input phase terminal of the meter was found burnt on visual observation. She tested the meter and issued the report Ex.CW3/A. The meter was resealed in the same bag with seal no.0213089 BRPL.
6. PW2 Anil Malhotra is Assessing Officer. He stated that one show cause notice Ex PW2/A was issued by him to accused to file the reply and attend the personal hearing on 27.11.2012. The accused did not attend the personal hearing. A final show cause notice Ex. PW2/B was issued to the accused to attend the personal hearing on CC No.91/13 Page 5 of 10 06.12.2012. He has considered the documents namely inspection report, load report, meter test report, consumption pattern and passed the speaking order Ex.CW2/C which bears his signature at point A.
7. During cross examination, he stated that he does not recollect the date of passing the speaking order. He is not aware if complaints dated 16.11.2006 and 31.12.2009 were given by the accused with respect to the burning of meter due to loose connection. The suggestion is denied that input meter terminal can be burnt due to high voltage. He admitted that all the seals were intact and there were no burn marks on the meter. The input terminal of meter can never burn itself under normal condition.
8. PW3 Pankaj Tandon stated that he is authorized representative of the complainant. On 09.10.2006 Sh Lalit Jalan was Chief Executive Officer of the complainant company. The Board of Directors of complainant company has passed a resolution Ex.CW1/A in a meeting dated 22.03.2006 vide which Sh Lalit Jalan has been authorized to institute, conduct, defend, settle and to appear before any court and to appoint consultants, professionals, advocates and attorney for the company. Sh Lalit Jalan has been further authorized to delegate any of his powers to any person. He has been CC No.91/13 Page 6 of 10 duly authorized by Sh Lalit Jalan to institute or defend or sign or verify plaints, affidavits, written statement and to appear before any court vide authority letter Ex. CW1/B. He has filed the complaint Ex. CW1/C on the basis of authority given to him by the complainant
9. 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 or licensee. The complainant has to show that accused has done tampering in the meter and consumed the electricity through tampered meter.
10. In order to draw a presumption of DAE against a consumer in terms of second proviso to section 135 (1) of the Act, it must be shown by the complainant that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer. The onus lies upon the complainant and it will shift to the consumer once this onus is discharged. The automatic presumption of DAE on the basis of burning of input phase terminal would not be a safe and error free method as some other tangible evidence must exist.
11. To prove the factum of dishonest abstraction of energy CC No.91/13 Page 7 of 10 through tampered meter, the complainant has examined three witnesses. I have perused the entire evidence on record. Certain facts are clear from the evidence on record. The accused is user of the inspected premises where one electricity meter number 23551852 i.e. meter in question was installed in his name.
12. The point that needs consideration is whether any tampering in the meter in question was allegedly done by the accused.
13. The reason for tampering in the meter given by the complainant is burning of meter input phase terminal. The complainant has failed to prove its case. The inspection in the inspected premises was carried out by a joint inspection team headed by Sh Sahi Ram. The meter in question was checked and input phase terminal was allegedly found burnt. The complainant has not examined any of the members of joint inspection team to show that meter with burnt input phase terminal was found at the time of inspection and thereafter meter was removed and taken into possession. Their examination was essential to unfold the basic facts of the case of the complainant. Their non examination calls for an adverse inference against the complainant.
14. The meter in the laboratory is tested by PW1. The CC No.91/13 Page 8 of 10 laboratory report Ex.CW3/A shows that meter input phase terminal was found burnt on visual observation. PW1 has not checked the internal mechanism of the meter. She has not given any reason about the burning of input phase terminal of the meter. The reasons are missing from the laboratory report. The meter is sent in the laboratory in order to ascertain whether burning was deliberate or it was accidental due to fluctuation of the voltage. There is no reason in the laboratory report. There is nothing in the report that burning of input phase terminal can affect the consumption pattern of the meter. The laboratory report without any reason does not advance the case of the complainant. The laboratory report is of no help to the complainant.
15. The speaking order is defective. The data mark X was downloaded by PW1. The said data has not been proved in accordance with law. The said data is nowhere considered by PW2. The consumption pattern of meter was considered by PW2. The testimony of PW2 does not show the period of consumption pattern but it is reflected in the speaking order Ex PW2/C. The said consumption pattern is not placed on record. The consumption pattern should have been placed on record in order to corroborate the reasoning given in the speaking order that consumption was 36.05% CC No.91/13 Page 9 of 10 of the assessed consumption. The said document is in possession of complainant. No explanation is forthcoming for not placing the said document on record which calls for an adverse inference against the complainant. The new meter was installed on the day of inspection i.e. 03.10.2012. The speaking order was passed on 08.12.2012. The consumption pattern of new meter was not taken into consideration for the reasons best known to the Assessing Officer. There is no explanation why the consumption pattern of the new meter was not taken into consideration. The speaking order is defective on these points as such speaking order does not inspire confidence.
16. The defence of the accused is that he has made complaints about the loose connection and burning of the meter. The defence does not inspire confidence. The accused has not placed on record that he has filed any letter in response to show cause notice with the Assessing Officer or copies of the complaints dated 16.11.2006 and 31.12.2009. The accused has not even summoned record from the office of the complainant in order to further his defence. The accused has failed to further his defence. However, the complainant cannot draw support from this fact because defence howsoever weak it may be, the initial onus is still upon the complainant to prove its case. CC No.91/13 Page 10 of 10
17. The evidence on record is not enough to show that meter input phase terminal was deliberately burnt by the accused. There is no evidence that burning of input phase terminal of the meter can affect the consumption pattern of the meter.
18. 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 at the rate of 6 % 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 30.07.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.91/13