Delhi District Court
Bses vs . Ajit Singh, Cc No. 368/11 Page 1 Of Page ... on 26 July, 2013
1
IN THE COURT OF SHRI RAKESH TEWARI,
ADDITIONAL SESSIONS JUDGE, THE SPECIAL COURT UNDER THE
ELECTRICITY ACT 2003, SAKET COURTS, NEW DELHI
Complaint Case No.: 368/11
Police Station : Sun Light Colony, New Delhi
U/s 135 & 138 of Electricity Act, 2003
Unique ID No. RO304052011
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Ajit Singh
S/o Shri Kiran Pal @ Kripal Singh
R/o 2/64, 3rd Floor, Double Storey,
Jangpura - A, Hospital Road,
New Delhi.
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant
Accused on bail with Shri A.A. Khan, Advocate.
Complaint instituted on : 15.11.2011
Judgment reserved on : 17.07.2013
Judgment pronounced on : 26.07.2013
BSES Vs. Ajit Singh, CC No. 368/11 Page 1 of page 17
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JUDGMENT
1. The case of the complainant in brief is that on 31.10.2009, the officers of the complainant company namely, Shri Ashok Kumar
- Senior Manager, Shri Krishan Kumar - Diploma Engineer, Shri Mahender Prasad - Diploma Engineer and Shri Praveen Kumar Photographer along with other team members, as per the directions of DGM, Enforcement inspected the premises of the accused i.e. 2/64, 3rd Floor, Double Storey, Jangpura - A, Hospital Road, New Delhi and it was found that the accused Ajit Singh was the user as well as Registered Consumer of the electricity and that one single phase electronic meter no. 24148236 vide K.No. 2504 C 201 2249 with current reading at 4797 KWh was found installed and that the meter feeding the 3rd floor of double storey quarters and the black push button of the said meter found missing and RTC of the said meter found disturbed as date and time shown by the meter was 14.01.00 and 10.36 hours, whereas the actual current date and time was 31.10.2009 and 13.17 hours, respectively and that the same was also confirmed with another meter no. 24091894, which was found OK at the site. It is further mentioned in the said complaint that load of 16.246 KWs was found connected against the sanctioned load of 2.00 KW under BSES Vs. Ajit Singh, CC No. 368/11 Page 2 of page 17 3 domestic category and that in view of said irregularity, the said meter was seized in the presence of the accused and electricity supply of the said premises was restored through a new meter and that the said meter was sent to NABL accredited meter testing laboratory in sealed condition for further testing/analysis under intimation to the accused vide letter no. 17111 dated 31.10.2009. It is further mentioned that the inspection report, meter details, load report in the form of assessment of connected load as well as seizure memo were prepared at the site and that the videography of the said theft was got conducted and and as per meter test/analysis report black push button found broken, current date shown by the meter was 26.01.2000 on actual date 12.11.2009 and the meter MD history date found occurred more than once in a month and the meter ID found zero and that in response to show cause notice dated 31.10.2009 for suspected theft of electricity, accused attended the personal hearing on 16.11.2009, he denied any tampering and thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
2. It is further mentioned in the complaint that it was a case BSES Vs. Ajit Singh, CC No. 368/11 Page 3 of page 17 4 of dishonest abstraction of electricity and theft bill, as per the DERC regulations and tariff order was raised by the complainant for Rs. 69,372/ with due date as 22.12.2009 and was served upon the accused but he failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my Ld. Predecessor vide his order dated 15.12.2011 and the accused appeared and was supplied with the CD of videography and documents and my Ld. Predecessor vide his order dated 15.02.2013 framed a notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 & 138 of the Electricity Act, 2003 against the said accused, and accused pleaded not guilty and claimed trial on the ground that there was no tampering with the meter and that the said meter was installed five months prior to the date of inspection and he made complaint on 16.12.2008 to complainant company regarding the fact that somebody had removed the black push button and that no action was taken on his said complaint despite his personal visits and that on 31.10.2009, false inspection was carried out and that the case against him was false and and that he was not liable to pay any BSES Vs. Ajit Singh, CC No. 368/11 Page 4 of page 17 5 damages and loss to the complainant company.
4. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
5. The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that he was not indulged in any type of tampering with the meter and that the said inspection was carried out in his absence and that the meter no. 24148236 was removed from his premises in his absence and he further answered that the load report is highly exaggerated and totally imaginary and load report was not prepared in his presence and he was not aware of the contents of the documents prepared and that he received the show cause notice from complainant company and he attended the personal hearing and described all the facts, which were not mentioned in the Speaking Order and he further answered that he moved application for checking of the meter before the competent authority because the meter got sparking and required fee was deposited for said checking and that on 02.01.2009, the meter in BSES Vs. Ajit Singh, CC No. 368/11 Page 5 of page 17 6 question was checked by the officials of complainant company and in the report of said officials, black push button was not found and in the lab report dated 12.11.2009 the black push button was shown as "broken" instead of "not found" and proved the copy of said application as Mark X and the meter was inspected and report to this effect as Mark Y. However, accused did not opt to lead defence evidence.
6. I have heard the counsel for the complainant and counsel for the accused Shri A.A. Khan, advocate, and perused the record including the CD of videography displayed on the computer screen of the court.
7. PW1 Shri Krishan Kumar, Diploma Engineer in the complainant company deposed that on 31.10.2009 at around 1.09 p.m., he along with Shri Ashok Kumar, Mahender Prasad and Shri Parveen visited and inspected the premises of accused bearing no. 2/64, 3rd Floor, Double Storey, Jangpura, New Delhi and found that one single electronic meter no. 24148236 was installed, which was feeding to the third floor of the said premises and the RTC of the meter was disturbed and black push BSES Vs. Ajit Singh, CC No. 368/11 Page 6 of page 17 7 button was found missing. He further deposed that they assessed the connected load of the said premises approximately 16.20 KWs for domestic purpose and they seized the meter in question and that they prepared the inspection report, meter details, load report, seizure memo and show cause notice and proved the same as Ex. CW2/A to Ex. CW2/E, respectively. He also proved meter removal letter as Ex. CW2/F. He further deposed that they offered the said documents to the person present at the site, but he refused to accept and sign the same and that they found that the premises in question was being used by accused Ajit Singh. He identified the videography captured in the CD, Ex. CW2/I . He also correctly identified one single phase electronic meter bearing no. 24148236 as Ex. P1.
8. In his cross examination on behalf of the accused, PW1 admitted that the hologram and the plastic seals were found intact at the time of inspection and he answered that no external device was found attached to the meter at the time of inspection. He did not remember as to whether there was electronic chip in the meter which records the day to day consumption. He further answered that they found that the RTC of the meter in question BSES Vs. Ajit Singh, CC No. 368/11 Page 7 of page 17 8 was disturbed and black push button was missing and that the plastic seal and hologram of the meter in question were intact. He did not remember as to whether anybody could tamper the meter without tampering/manipulating the plastic seal and hologram of the meter.
9. PW2 Shri Ashok Kumar, Senior Manager in the complainant company deposed in his examination in chief the facts almost on the same lines on which the PW2 has deposed and as mentioned in the complaint and he further deposed that the meter adjoining to the meter in question was also analysed and that adjoining meter was found OK and that the meter in question was replaced with the help of MMG (Meter Management Group) with new meter. PW2 further deposed that wife of the accused was present at the site and they intimated the consumer to attend the laboratory test vide intimation letter dated 31.10.2009 and he also proved the carbon copy of said intimation letter as Ex. CW2/F and he also correctly identified one single phase electronic meter as Ex. P1 and two yellow colour plastic seals bearing no. 010641 BRPL and 022149 BRPL. BSES Vs. Ajit Singh, CC No. 368/11 Page 8 of page 17 9
10. In his cross examination on behalf of the accused, PW2 answered that he did not remember as to how old was the meter in question. He admitted that the meter in question was installed on the first floor, whereas, accused Ajit Singh was residing on the third floor. He volunteered that generally, in multi storey building, all the meters were installed at one common place. He admitted that the document Marx X was the demand note for meter testing and that at the time of inspection, the seals of the meter in question were intact. He volunteered that black push button of the said meter was missing. He did not remember as to whether there was any difference in respect of recorded consumption between the old and the new meter. He answered that there was no external device or wire or shunt or resistance found attached to the said meter and that meter reader was supposed to visit the premises to regularly record the consumption.
11. PW3 Shri Ritu Raj Sinha, Assessing Officer of the complainant company, deposed that he had given personal hearing to accused Ajit Singh, who attended the same and accused handed over him photocopy of his driving license and BSES Vs. Ajit Singh, CC No. 368/11 Page 9 of page 17 10 accused made his statement, which was noted on the note sheet Ex. CW2/I. He further deposed that after perusal of relevant documents, the meter was found disturbed and black push button was missing, which was reconfirmed by the lab report and he passed the Speaking Order Ex. CW2/J on the basis of said facts and circumstances, holding the present case to be a case of D.A.E.
12. In his cross examination on behalf of the accused, PW3 answered that he had no personal knowledge of the present case and that he only observed the previous consumption of the meter in question during passing of the said Speaking Order. He did not remember the history of payment pattern of the meter in question.
13. PW4 Shri Nikhil Kumar, Diploma Engineer of the complainant company deposed that the meter bearing no. 24148236 was tested by him in the presence of accused Ajit Singh and same was approved by Shri Bimal Mondal, Assistant Manager, BRPL Laboratory and he also proved the lab report as Ex. CW2/G and the said lab report was also signed by accused BSES Vs. Ajit Singh, CC No. 368/11 Page 10 of page 17 11 Ajit Singh at point D. He further deposed that the visual observation of the meter was black push button broken. He further deposed that he received the electronic meter bearing number 24148236 contained in sealed bag, which he had analysed qua which he submitted his lab report Ex. CW2/G. He also identified the downloaded data along with photograph of the meter collectively as Ex. PW4/A.
14. In his cross examination on behalf of the accused, PW4 admitted that he had downloaded data of six months only. He volunteered that in case of disturbed meter, it is not sure with regard to the period of which data is available in the chip and same was downloaded and that in meters, which were not disturbed, data of the last six months is accessible and could be downloaded. He further answered that RTC was disturbed if attempt was made to tamper with the meter using external or internal device and that in the present case, there was no evidence of use of internal device, and present case was a case of disturbance by external device. PW4 also replied that the meter in question was of Kaifa, which was manufactured in China and the guarantee/warranty of the same was provided by the meter BSES Vs. Ajit Singh, CC No. 368/11 Page 11 of page 17 12 manufacturer, which was mentioned on the body of the said meter. PW4 admitted that the warranty period of the inspected meter was till March2013. PW4 further replied that the meter in question was not sought to be replaced from the manufacturer and that no meter had been got replaced by the manufacturer on account of failure of RTC. PW4 replied that the said meter was analysed in the presence of consumer and that no illegal chip was found inside the meter body and that he had no knowledge as to whether any application regarding missing of black push button was moved by the accused or not.
15. PW5 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW3/B and he also proved the present complaint Ex. CW1/A. In his cross examination on behalf of the accused, he replied that he did not visit the premises in question at any point of time and that he had no personal knowledge of the present case.
16. PW6 Shri Praveen Kumar was the videographer from M/s.
Arora Photo Studio, who conducted the videography of the BSES Vs. Ajit Singh, CC No. 368/11 Page 12 of page 17 13 premises bearing no. 2/64, 3rd Floor, Double Storey, Jangpura, New Delhi, on the direction of Shri Ashok Kumar, Senior Manager and he also identified the videography correctly captured in the CD and he also proved the said CD as Ex. CW2/L. In his cross examination on behalf of the accused, he answered that there was no possibility of tampering with the data contained in the cassette while making CD from the cassette and that the date of inspection was depicted in the videography and not the time. At this stage, the CD was again displayed to confront the witness and it transpired that there was no date or time within the recording of the videography, but it was in a memo pasted on the videography that the date was mentioned and in the videography, a mobile phone in operation was depicted which was displaying the date also.
17. From the said evidence on record, it is clear from the cross examination of PW1 that hologram and plastic seals of the meter in question were found intact at the time of inspection nor any external device attached to the meter was found at the time of inspection. The PW1 even did not know if there was an electronic chip in the meter which records the day to day BSES Vs. Ajit Singh, CC No. 368/11 Page 13 of page 17 14 consumption. The said witness even did not know as to whether anybody can tamper the meter without tampering/ manipulating the plastic seals and hologram of the meter. He could not explain as to how missing push button can cause internal mechanism of the meter to be disturbed. It is also admitted that at the time of inspection, previous consumption pattern of the meter was not compared. More or less, similar answers were given by PW2 in his cross examination who was also a member of the inspection team, who also admitted that there was no external device or wire or shunt or resistance found attached to the meter in question.
18. Similarly, PW3 the Assessing Officer also admitted that the plastic seal, hologram seal, LCD and meter LED had been mentioned OK in the lab report Ex. CW2/G. He did not know the history of payment pattern of the meter in question.
19. The PW4, who tested the meter on the one hand admitted that the plastic seals and hologram seals of the meter were found intact, but on the hand, he replied that RTC is disturbed if an attempt is made to tamper the meter, using an external or BSES Vs. Ajit Singh, CC No. 368/11 Page 14 of page 17 15 internal device. In the second breath, he admitted that in the present case there was no evidence of use of internal device but it was a case of disturbance by external device. He even admitted that the warranty period of inspected meter given by the manufacturer company was upto March 2013. He further admitted that no illegal chip was found inside the meter body. He had no knowledge as to whether any application regarding missing of black push button was moved by the consumer or not.
20. From the said answers given by the said witnesses, a reasonable doubt has arisen as to whether the alleged missing of black push button or disturbed Real Time Clock in the present case could have affected the correct recording of the consumption of the meter, so as to say that it was really tampered. No external device which was allegedly affecting t he Real Time Clock has been proved on record. On the other hand, the accused in his defence has proved the documents Mark X and Mark Y making a complaint regarding checking of the meter at his instance as the meter was having sparks and the meter was also inspected on a said complaint on 02.01.2009 vide report Mark Y. BSES Vs. Ajit Singh, CC No. 368/11 Page 15 of page 17 16
21. The only evidence relied in the case on behalf of the complainant company is the consumption pattern and it is undisputed law laid down by the Hon'ble High Court of Delhi in catena of judgments that consumption pattern by itself cannot lead to the inference of dishonest abstraction of electricity and it is to be corroborated what is detected on physical examination. Mere circumstance that black push button was found missing or broken or the Real Time Clock was found disturbed cannot lead to conclusive proof of tampering or D.A.E. and in the absence of any collateral material or conclusive proof about D.A.E., mere missing of black push button or disturbed Real Time Clock could not have justified the said findings. I am fortified in my view by the judgments of the Hon'ble High Court of Delhi titled "Udham Singh Vs. BSES Rajdhani Power Ltd., 136 (2007) DLT 500", titled "Jagdish Narayan Vs. NDPL, 140 (2007) DLT 307", titled "J.K. Steelomelt (Pvt) Ltd. VS. BSES Rajdhani Power Ltd., being W.P. (civil) 2291/2005 decided on 24.04.2007", titled "Colonel R.K. Narayan (Retd.) Vs. BSES Rajdhani Power Ltd., 140 (2007) DLT 257".
BSES Vs. Ajit Singh, CC No. 368/11 Page 16 of page 17 17
22. In view of my said discussion, I am of the considered opinion that complainant company has miserably failed to bring home the guilty of the accused beyond reasonable doubt and he is acquitted of the offence punishable u/s. 135 & 138 of the Electricity Act, 2003. His PB & SB are hereby cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 26.07.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Ajit Singh, CC No. 368/11 Page 17 of page 17