Delhi District Court
Tata PowerDdl vs . Dharmender Gupta on 12 December, 2017
1
CC No. 26/12
New No. 515162/16
PS Vijay Vihar
U/s 135 of The Electricity Act
Tata PowerDDL Vs. Dharmender Gupta
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ASJ
(ELECTRICITY), NORTH WEST DISTRICT, ROHINI COURTS,
DELHI.
Title :
Tata Power Delhi Distribution Limited
Erstwhile North Delhi Power Limited
Registered Office at:
Grid Sub Station Building
Hudson Lines, Kingsway Camp
Delhi110009.
Also at:
Enforcement Assessment Cell
HRDI Building, Sector3,
Rohini, Delhi110085.
Through: Shri R.N. Gupta
Technical Consultant of the Company ............Complainant
VERSUS
1. Atul Govil S/o Shri Om Parkash Govil (RC)
2. Dharmender Gupta (User)
Inspected Premises
B111, Ground Floor, Vijay Vihar, Delhi.
Page 1 of 14
2
CC No. 26/12
New No. 515162/16
PS Vijay Vihar
U/s 135 of The Electricity Act
Tata PowerDDL Vs. Dharmender Gupta
R/o (Accused No. 1)
F100, Ashok Vihar,
Phase1, Delhi.
.............Accused
Under Section 135, 138 read with Section 151 of The Electricity Act.
1. Date of Institution : 13.01.2012
2. Date of reserving order : 29.11.2017
3. Date of pronouncement of
Judgment : 12.12.2017
JUDGMENT
The present complaint has been filed by the complainant company alleging therein that on 14.07.2011 at 3.30 p.m. a joint inspection team of the complainant company had inspected the premises i.e. B111, Ground Floor Vijay Vihar, Delhi (hereinafter be referred as 'said premises". During inspection, it was found that meter box seals, terminal seals, half seals of meter bearing No. 10178490 installed vide K. No. 44105037932 were found tampered and on segregation an illegal electronic remote circuit device was found inside the meter body to manipulate the Page 2 of 14 3 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta actual recorded electricity consumption and it was found theft of electricity was being committed by the accused Dharmender Gupta by tampering the electricity meter. At the time of inspection, a total load 14.551 KW was found connected for commercial purpose.
2. Accordingly, the present complaint was instituted and the complainant company has examined two witnesses i.e. CW1 Shri R.N. Gupta and CW2 Shri Tajender Kumar Kashyap for pre summoning evidence. On the basis of pre summoning evidence, vide order dt. 17.5.12 the accused Dharmender Gupta was summoned. Accused Atul Govil was summoned vide order dt. 15.9.15 and he settled the case with the complainant. Vide order dt. 6.1.16, the case stands settled and withdrawn against the accused Atul Govil.
Charge U/s 135/138 of The Electricity Act has been framed against the accused Dharmender Gupta to which the accused pleaded not guilty and claimed trial.
3. In support of its case, the complainant company has examined four witnesses. Statement of accused has been recorded U/s 313 Cr.P.C. in which he has denied the case of the complainant. The accused has examined Shri Vinod Kumar Page 3 of 14 4 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta Solanki as defence witness.
PW1 Shr R.K. Sharma has deposed that on 14.7.2011 he was working as Manager in Enforcement Department of the complainant company. On 14.7.2011, he along with Shri Tajender Kashyap, Shri Amit photographer and employees security force had gone to the premises of accused Dharmender at B111, GF, Vijay Vihar, Delhi. There, they had inspected one electricity meter. At the time of inspection, meter box seal, meter terminal seals and meter revits were found tampered. One remote circuit device was found inserted in the meter to manipulate the recorded consumption. At the time of inspection, the accused Dharmender Gupta was found present at the site. His photograph was also taken. He is appearing in photograph mark A1 at point A. The electricity was being used for nondomestic purpose and a load of 14.55 KW was found connected against the sanction load of 5 KW. The inspection report Ex. CW2/1 was prepared by them. The inspection report was served upon the accused after taking his signature as well as contact number at point B. Due to the irregularities found at the time of inspection, a show cause notice Ex CW2/3 was served upon the accused Dharmender Gupta for Page 4 of 14 5 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta attending personal hearing. The said show cause notice bears his signatures at point A and signatures as well as contact number of the accused at point B. The photographs were taken by the photographer Shri Harish from M/s Birender Prasad. The said photographs are marked A1 to A12. Illegal device is appearing in the photographs mark A3, A4 and A5. After conducting the inspection proceedings, they pasted the paper seal number 131929 dt. 14.7.11 on the meter box to maintain status quo of the inspected meter at site. Meter half seals could be seen as tampered in the photographs mark A8 and A10. Paper seal could also be seen as torned in the photograph mark A9. At the time of inspection, the meter was found tampered and the accused was found to be user and by tampering the meter, theft of electricity was being committed and thereby he has caused wrongful loss to the complainant company and wrongful gain to himself.
In cross examination on behalf of the accused, PW1 has deposed that he do not remember as to how many floors are there in the building where the inspected premises is located. At the time of inspection, the accused was present and in whose presence they had conducted the inspection proceedings. The Page 5 of 14 6 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta accused had stated himself to be the tenant as well as user of electricity connection in the inspected premises. Besides, the accused, his labourers were also present at the site. He has denied the suggestion that the accused was taking supply of electricity through submeter and had no connection with the inspected meter.
PW2 Shri Amit Kumar was the member of the inspection team and he has deposed on the same lines as of PW1.
In cross examination, PW2 has deposed that they had checked as to which premises the meter in question was in use. The meter in question was being used at the ground floor. He has denied the suggestion that he has been falsely implicated in the case in connivance with Atul Govil.
PW3 Shri D.S. Dangwal has deposed that he has issued two show cause notices to the accused for personal hearing which are Ex. PW3/1 and Ex. PW3/2. He has also analyzed the consumption pattern of the electricity connection and has proved the consumption pattern analysis sheet as Ex. PW3/4. He has passed the speaking order Ex. PW3/3.
PW4 Shri S.K. Garg is the authorized representative of Page 6 of 14 7 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta the complainant company and has proved the power of attorney Ex. PW4/1 and the electricity theft bill issued against the accused Dharmender as Ex. PW4/2.
DW1 Shri Vinod Kumar has deposed that he is the friend of the accused and he used to come on the room of the accused. While at the time of vacating the room, he paid all dues of house rent and electricity bill according to sub meter on behalf of the accused.
In cross examination, DW1 has deposed that he was not present when the inspection was conducted. He has not filed any receipt of house rent or the electricity bill deposited on behalf of the accused.
4. Ld. Counsel for the complainant company has argued that from the evidence on record, the complainant has proved its case beyond reasonable doubt against the accused.
On the other hand, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the case. There is no evidence on record which would prove that it is the accused who has committed the alleged offences. The complainant has failed to prove its case beyond reasonable doubt Page 7 of 14 8 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta against the accused.
5. It is for the complainant company to prove its case beyond reasonable doubt against the accused that he has committed the alleged offences U/s 135/138 of The Electricity Act.
Section 135 of Indian Electricity Act, 2003 reads as follows: Theft of electricity "(1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or Page 8 of 14 9 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(c) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;".
6. It is the case of the complainant that the accused was the user of the electricity at the said premises and the accused has committed the theft of electricity by tampering the meter as meter box seals, terminal seals, half seals of meter bearing No. 10178490 installed vide K. No. 44105037932 were found tampered and on segregation an illegal electronic remote circuit device was found inside the meter body to manipulate the actual recorded Page 9 of 14 10 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta electricity consumption.
PW1 and PW2 are the members of the raiding party/inspection team and they are the material witnesses of the case. In their testimonies, PW1 and PW2 has supported the case of the complainant.
PW1 and PW2 have proved the inspection report prepared at the spot as Ex. CW2/1. As per inspection report, meter box seal, meter terminal seals and meter half seals on the meter in question were found tampered and it is also noted that these seals are removed to check.
It is also observed in the inspection report that meter has been segregated at site and found that an illegal electronic remote circuit device inside the meter body to manipulate the actual recorded consumption.
The defence of the accused Dinesh is that he was taking the supply of electricity through sub meter and he has no concern with the inspected meter.
PW3 has proved the consumption pattern analysis sheet of the meter in question as Ex. PW3/4.
However, in my opinion the consumption pattern by Page 10 of 14 11 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta itself cannot lead to inference of dishonest abstraction of energy in this case, because there is no corroboration of physical tampering of the meter or use of any artificial means to prove that the meter was recording lesser units than the actual consumed units. I find support in my opinion the judgment of Col. R.K. Nayyar Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257" wherein it has been laid down that:
"....This court is of the view that an inference of fraudulent abstraction of energy must be based on some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed Page 11 of 14 12 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of DAE on the consumer in the event of the meter being found tampered is not being reasonable or even realistic. Something more would have to be demonstrated to infer and intention by the consumer to "fraudulently" abstract electricity in this context it is necessary to emphasis that the analysis of consumption pattern cannot constituted substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly Page 12 of 14 13 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta abstract electricity. It will be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE."
7. The complainant has not proved the meter in question and the alleged illegal electronic remote circuit device as these has not been produced in the court. It creates a doubt in the case of the complainant.
As per the inspection report Ex. CW2/1, the tampered seals of the meter in question were removed to check, but there is no lab report to prove that these seals are in fact tampered. Accordingly, there is no corroborative and conclusive documentary evidence to prove that these alleged seals of the meter in question were tampered.
PW1 and PW2 has also deposed that photographs were taken at the spot and are placed on record as mark A1 to A
12. However, these photographs has not been proved on record as per law as the concerned photographer who has taken these photographs has not been examined by the complainant. Accordingly, these photographs has no evidential value to link the Page 13 of 14 14 CC No. 26/12 New No. 515162/16 PS Vijay Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Dharmender Gupta accused with the alleged offence.
Keeping in view of these material lapses in the case of the complainant, I am of the opinion that it is not proved beyond reasonable doubt that the meter in question was in fact tampered. Accordingly, accused Dharmender Gupta is acquitted of the charges. Bail bond cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court (Rajneesh Kumar Gupta) today i.e. 12.12.2017 ASJ (Electricity) North West District Rohini Courts Delhi Page 14 of 14