Delhi District Court
Complainant vs M/S Night Queen Electrical (User & R/ C) on 13 February, 2013
Page 1 of 28
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 256/11
ID No. 02405R047792006
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 Night Queen Electrical (user & R/ C)
through its partners
2. Kuldeep Kumar (user)
Partner Night Queen Electricals
3. Devender Kumar (user)
Partner Night Queen Electricals
4. Shri Ram (user)
Partner Night Queen Electricals
All at:
R9, BlockR, Uttam Nagar,
New Delhi41.
_____________ Accused
CC No. 256/11
Page 2 of 28
Date of institution: ........................ 20.12.2006
Arguments heard on: ........................ 23.01.2013
Judgment passed on : ........................ 08.02.2013
JUDGMENT:
1. The facts of the case are like this. M/s Night Queen Electricals (accused no.1) is a partnership firm. The complainant company has sanctioned a single point distribution connection to M/s Night Queen Electricals situated at R9, Block R, Vikas Nagar, Uttam Nagar, New Delhi. On 1.4.2006 at 4:30 pm a joint inspection team headed by Sh. Sanjay Kumar, Manager (Enforcement) of the complainant company inspected the premises no. R9, Block R, Vikas Nagar, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises) of M/s Night Queen Electricals. Accused no.1 is user and registered consumer of SPD meter with K No. 224093009002 installed at inspected premises. Accused no.2 to 4 are the partners of accused no.1. The inspection team checked the meter no. DVB/00036 with K number 224093009002 along with CTPT box. The seals of terminal cover and plastic seals of CTPT box number R201694 and 95 were found tampered and refixed. The meter box plastic seals no. R789730 was removed to download CMRI data for further analysis to ensure that CTPT connection inside the box is deliberately tampered CC No. 256/11 Page 3 of 28 to manipulate the recording of consumption of the electricity. A connected load of 873.854 KW was found connected against the sanctioned load of 270 KW under domestic category. The photographs of the inspected premises were taken. The video of the inspected premises was also prepared. Inspection report, meter details report, load report and show cause notice were prepared and offered to the consumer who refused to receive and sign the same. Four IRs no.74402, 03, 04 and 05 were pasted on the tampered meter and CTPT box with the direction to maintain status quo. The meter was retained at site. The show cause notice was sent by post to the accused vide postal receipt dated 12.04.06. The accused have filed the reply dated 21.04.06 through their counsel. On 25.04.2006 Sh. Kuldeep Kumar, partner of accused no.1, along with his counsel attended the personal hearing. CMRI data was given to the accused and 15 days time was granted to file the reply. The note sheet was prepared separately. The date of personal hearing was refixed for 05.06.06 instead of 10.05.06 on the receipt of letter from Sh Rajpal i.e. representative of the consumer and fresh show cause noticed dated 25.05.06 was issued. The hearing was rescheduled for 09.06.06 on the request of accused no.3. On 09.06.06, accused no.4 along with Sh. Sanjeev Kumar Advocate attended the personal hearing. The photographs and video were shown to the them. A copy of CMRI CC No. 256/11 Page 4 of 28 data was provided to them and 15 days time was granted to file the reply. The date of hearing was fixed for 14.06.06. No further submission was received from the accused/consumer. The case was duly considered by Assessing Officer by examining the CMRI data and documents on record who passed the speaking order dated 31.07.06. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which they pleaded not guilty and claimed trial.
3. The complainant examined four witnesses. Complainant evidence was closed. Accused were examined u/s 313 Cr.PC. Accused no.2 and 3 have taken the defence that they have no connection with accused no.1 and they have been falsely implicated. The supplementary statements of accused u/s 313 Cr.PC were recorded after recalling of PW3. The accused have examined five witnesses in defence evidence.
4. The complainant has examined four witnesses. PW1 CC No. 256/11 Page 5 of 28 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. PW2 Arun is a videographer. He stated that on 01.04.06 at 4.30 p.m., he along with officials of the complainant company visited the inspected premises. He has taken the video of the inspected premises as per directions of the team members. He has handed over the camera to M/s Arora Photo Studio. The CD was prepared by Mr. Arora. The contents of the CD Ex.CW2/D1 are the same which were recorded at the spot. He has also taken the still photographs Ex.CW2/D (24 in number). The photographs are the same which were taken at the spot.
6. During cross examination for accused no.1 and 4, he stated that he had joined the inspection team only for the purpose of inspection of the site. It is correct that none of the photographs show that site belongs to M/s Night Queen Electricals. No sign board or display board is focused in the video. During cross examination by accused no.2 and 3 he stated that he does not have any document to show his employment with M/s Arora Photo Studio. Public persons had gathered at the spot. There was no police official in the inspection team.
7. PW3 Nishikant Gupta is an Assessing Officer. He stated CC No. 256/11 Page 6 of 28 that on 25.04.06 Sh. Sanjeev Kumar Advocate along with Kuldeep Kumar, partner of accused no.1, attended the personal hearing and filed the detailed reply Ex.CW1/E in pursuance to show cause notice. CMRI data was handed over to them. The date for personal hearing was fixed as 10.05.06 which was rescheduled for 05.06.06 on the request of the consumer. On 05.06.06, the date of hearing was rescheduled for 09.06.06 on the request of Sh.Davinder, partner of accused no.1, and note sheet. Ex.CW1/I was prepared. On 09.06.06 Sh.Sanjeev Kumar Advocate along with Sriram attended the personal hearing. Photographs and video were shown to them. CMRI data was discussed with them. They sought time to file the reply. Note sheet Ex.CW1/J dated 09.06.06 was prepared. He passed a speaking order Ex.CW1/I dated 31.07.06 on the basis of records including CMRI data Ex.PW2/B.
8. During cross examination by accused no.1 and 4, he stated that consumer or his authorized representative can attend the personal hearing with authority letter. He did not demand authority letter from the persons who attended the personal hearing. Davender Kumar and Sriram have filed copies of their identity cards which are annexed with note sheets Ex.CW1/I and J. He cannot identify Kuldeep Kumar due to lapse of time. Davender Kumar did not write on the note sheet that he is a partner but partner is mentioned against his name. The CC No. 256/11 Page 7 of 28 suggestion is denied that Kuldeep Kumar did not attend the personal hearing. SPD contractors were appointed by DVB/BSES under an agreement. He cannot admit or deny if Kuldeep Kumar and Davender are partners of accused no.1 as he has not seen the partnership deed. The meter was not seized at the time of inspection. It is possible that seals of the meter if removed can be refixed with some adhesive. He has passed the speaking order on the basis of records. It is correct that no defect was found in the meter. It is correct that no fault was found in the meter or CTPT or ACB at the time of inspection but seals were found refixed and tampered. It is correct that function of CTPT is to reduce high voltage and current to the value that can be measured by the meter. It is correct that CTPT cannot be assessed if current supply is not shut down. It is correct that no theft was found on the date of inspection. It is correct that high voltage/current used to pass in CTPT box but there is no high voltage in the terminal box. The R phase reversal shows that current is flowing in the opposite direction. He observed that R phase reversal as per CMRI data. It is correct that when there is no current in one phase it is possible that meter show low voltage. He has not seen the electricity bills generated prior to the date of inspection. He has seen the CMRI data at the time of grant of personal hearing to the accused. The suggestion is denied that CMRI data Ex.CW2/B (actually it is PW2/B) does not pertain to meter in CC No. 256/11 Page 8 of 28 question or consumption pattern/billing details were not referred before passing the speaking order or CMRI data does not show any abnormality/irregularity in the meter or meter number is not mentioned in CMRI. The meter has capacity to store the data. The earlier data stand erased after certain capacity with the input of new data. The data is restored from 90 to 120 days in load survey report. The cross examination of accused no.1 and 4 was adopted by accused no.2 and 3.
9. PW4 Sanjay Kumar stated that on 01.4.06 he along with other officials of the complainant company and videographer from M/s Arora Photo Studio inspected one SPD connection running under the name and style of accused no.1. SPD meter along with CT and PT boxes was checked. Half seals of CT and PT box were found tampered and refixed. The photographs Ex.CW2/D (24 in number) were taken through videographer. The photographs are the same which were taken at site. He had identified video clipping of CD Ex.CW2/D1 which was recorded at the spot. A connected load of 899 KW for domestic and commercial purposes was found running through SPD connection. Inspection report, meter details report, load report and show cause notice Ex.PW4/1, CW2/A, 2/C and Ex.CW1/C were prepared which were offered to the person present at the spot who refused to receive the same. Two IRs. were pasted on CC No. 256/11 Page 9 of 28 CTPT box in order to maintain status quo. He cannot identify the accused due to lapse of time.
10. During cross examination, he stated that they asked from the persons present at the spot about the owner of SPD connection who disclosed that connection is in the name of M/s Night Queen Electricals. One person came and opened the meter box but he does not recollect his name. He has no knowledge about the owners /partners of accused no.1. It is correct that seals of the meter were intact and in perfect condition. They inspected CTPT box which contains two plastic seals. The plastic seals were refixed with some adhesive. The plastic seals were not seized. The seals were never sent to laboratory for analysis. It is correct that CTPT box was situated at a height of 1820 feed from the ground. They had opened CTPT box. It is correct that inspection report does not show that tampering was found inside the CTPT box. It is correct that it is dangerous to touch the CTPT box while current is flowing through conductor. The permission from Executive Engineer is required to break or stop the supply. CTPT box cannot be seized because of connectivity with the meter. It is correct that supply was continued with the same CTPT box and meter. They had visited 67 houses though the approximate number of connections may be 250 or more. The suggestion is denied that it is not possible to supply 900 KW through a transformer of 25 CC No. 256/11 Page 10 of 28 MVA. CMRI data was downloaded. 3035 persons had gathered at the spot. It is correct that CTPT box belongs to the complainant.
11. The accused have led defence evidence. DW1 Sriram is accused no.4. He stated that he is a partner of accused no.1 which is engaged in supplying electricity in the Chandni Farm Colony. Mark A is an agreement with the complainant. Rohtash Rathi is another partner of the Firm. Ex.DW1/A, 1/B and 1/C are the original partnership deed, Form A from Registrar of Firms and Form C, Memorandum and Acknowledgment of Registrar of firm. On 01.04.06 no inspection was carried out. The officials used to come during first week of month to take reading from the meter. Rohtash was dealing with the complainant. He does not know Kuldeep Kumar or Davender Kumar. Mark B to E are the bills from April 05 to July 05. Ex.DW1/DG are the original electricity bills from April 06 to July
06.
12. During cross examination, he stated that Rohtash was dealing with BSES. The entire documents are with Rohtash. He is not aware about the dealing with BSES. The suggestion is denied that on 01.04.06 an inspection was carried out or CTPT box was found tampered.
13. DW2 Kuldeep Kumar stated that he had been running a shop under the name and style of M/s Haryana Electricals from 2001 CC No. 256/11 Page 11 of 28 till 2007. He has executed an agreement Mark 'X' with the complainant for supply of electricity in the area of Press Enclave, Vikas Nagar, Delhi. He is not connected with accused no.1. Ex.DW2/A and B are the declaration of ownership and partnership of M/s Haryana Electricals. On 25.04.06 he went to the office of BSES at Andrews Ganj at the request of his counsel Sh.Sanjeev Kumar.
14. During cross examination, he admitted that he had attended the personal hearing in the matter of accused no.1 and signed note sheet Ex.CW1/F in the presence of Sh.Sanjeev Kumar Advocate. The suggestion is denied that he is a partner of accused no.1.
15. DW3 Davender Kumar stated that he has been imparting coaching in Taekwando since 2000. He is a diploma holder in Taekwando and certificate Ex.DW3/B is issued to this effect. The other certificates Ex.DW3/CM are also issued by Sports Authority of India. His academy is registered vide registration certificate Ex.DW3/A. He was appointed International referee in year 2009 and identity card Ex.DW3/N was issued to this effect. He was a member of Organizing committee for CWG Taekwando Championship 2011 and I card Ex.DW3/O was issued to this effect. He has travelled extensively to various countries for the coaching of Taekwando. Visa is reflected in passport Ex.DW3/P. On 05.06.06, he had gone with his friend Sanjeet Malik to attend the personal hearing in a case of M/s CC No. 256/11 Page 12 of 28 Ishika Electricals. He is not concerned with accused no.1. Sanjeet Malik had requested for adjournment for personal hearing which was granted by the Assessing Officer who asked for the proof. He gave his identity proof to Assessing Officer and wrote his name in the note sheet. He has no connection with the accused no.1
16. During cross examination, he admitted that his signature is at point A on Ex.CW1/I wherein he has been shown as a partner. The suggestion is denied that he was a partner in accused no.1 and for that reason he had gone to seek adjournment.
17. DW4 Rajender Singh DahiyaAGII of the complainant company stated that Ex.DW4/1 is the copy of the Registration of accused no.1. Mark A to E are the photocopies of partnership deed, partnership deed of M/s Haryana Electricals, circular dated 13.09.2000, copy of registration of declaration of ownership and another registration of declaration of ownership document dated 03.03.2001 pertaining to M/s Haryana Electricals. Ex.DW4/24 are the indemnity bond of accused no.1, affidavit and affidavit dated 17.10.2000 of Sukhbir Singh. Ex.DW4/5 and 6 are agreements dated 17.10.2000 between DVB and Sukhbir Singh and agreement in the name of M/s Haryana Electricals. Ex. DW4/7 are the copies of bills of accused no.1 from April 05 till July 06. Mark F is the photocopy of agreement dated 17.04.2002 between DVB and Rajneesh Kumar and CC No. 256/11 Page 13 of 28 Jasbir Singh, partners of accused no.1.
18. DW5 Rajpal stated that he was one of the partners of M/s Ishika Electricals having office at A26, Hastsal Extension, Uttam Nagar, New Delhi. A judgement dated 10.09.2010 mark Z was passed against his firm in CC no.639/06 by Sh.A.K Mendiratta, the then ld ASJ, Special Electricity Court, Dwarka, New Delhi.
19. I have heard ld. counsel for the complainant, ld counsel for the accused and perused the entire evidence on record including written arguments.
20. The initial burden to prove the case rest upon the complainant. The complainant has to link the accused with the inspected premises. The complainant is further required to show that accused were responsible for the commission of theft of electricity or tampering in the seals of CTPT box installed along with SPD meter at the inspected premises in order to affect the recording of consumption of electricity by the meter.
21. It is admitted case that single point delivery connection was granted to accused no.1. A meter along with CTPT box was installed for recording the consumption of electricity.
Regulation 2 (zi) of Delhi Electricity Supply Code and Performance Standard Regulations 2007 defines ''Meter'' to the effect that it is a device suitable for recording consumption of electrical CC No. 256/11 Page 14 of 28 energy including for recording consumption in both Kwh/Kvah supplied or any other parameter/events, such as, MDI, time of day metering, remote reading and shall include, wherever applicable, other associated equipment such as, CT, PT.
Explanation: It shall also include any seal or sealing arrangement and other measures/attributes provided by the Licensee for securing reliability and for preventing theft/unauthorized use of electricity.
22. CTPT box (potential transformer and current transformer) is installed along with meter in SPD connection. The current flows through CTPT box. The CTPT box also reduces the high voltage and current to the value which can be measured by the meter. The consumption of units of electricity is recorded by the meter.
23. Ld counsel for the complainant contended that SPD connection was issued in the name of accused no.1 for supply of electricity to around 250 houses for which one SPD meter along with CTPT box was installed at the inspected premises. He further contended that there was reversal of phases in CTPT box by the accused with a view suppress the consumption of electricity. He further submitted that the seals fixed on the CTPT box were refixed in order to reverse the phases of current and this fact is apparent from the data downloaded from the meter by CMRI instrument (hereinafter referred to as CMRI data). Ld counsel for the accused submitted that CC No. 256/11 Page 15 of 28 there was no tampering in the meter or in the seals of CTPT box which is evident from the testimony of PW3 and 4. He further submitted that no reliance can be placed on CMRI data which was not allegedly downloaded at the spot or in the presence of the accused.
24. Heard and perused the record. PW4 is one of the members of joint inspection team. His testimony clearly shows that on 01.04.06 an inspection was carried out at one SPD connection running under the name and style of M/s Night Queen Electricals. The inspection is nowhere in dispute as this fact also stands admitted by the accused in his reply Ex.CW1/E dated 21.04.2006 filed during the personal hearing before Assessing Officer. It is admitted fact that one meter no. DVB/00036 was installed along with CTPT box. It is admitted fact that accused no.1 was supplying the electricity through SPD connection to around 250 houses. The testimony of PW4 shows that the half seals of CTPT box were found tampered and refixed. The cross examination shows that there were two plastic seals on CTPT box which were refixed with some adhesive. His testimony clearly shows that the plastic seals affixed on CTPT box were refixed.
25. Ld counsel for the accused contended that it is not possible to open the CTPT box due to the high voltage current in CTPT box and the custody of the same lies with the complainant. He further contended that there can not be any tampering inside box owing to the CC No. 256/11 Page 16 of 28 high voltage/current. Heard and perused the record. It is clear from the testimony of PW3 that high voltage/current passes through CTPT box but there is no high voltage current in the terminal box. There is no contrary evidence to show that there was high voltage current in terminal box. It shows that terminal box can be opened in order to manipulate the recording of consumption of electricity through meter. It is clear from the evidence that CTPT box belongs to the complainant so accused have no right to tamper with the functioning of the same. The testimony of PW4 shows that they were present at the spot. They were inquiring about the owners of accused no.1 for the purpose of inspection and in the meantime one person came there and opened the meter box and CTPT box. There is no cross examination to this effect meaning thereby that the keys of the meter box and CTPT box were with the accused. The accused have also admitted the inspection in the presence of their authorized representative in reply Ex.CW1/E dated 21.04.06 filed before the Assessing Officer. The custody of meter with CTPT box was with the accused so they have an access to the meter and CTPT box. The testimony of PW4 further shows that CMRI data was downloaded at the time of inspection. The data was downloaded at the time of inspection that is why the copy of the same was supplied to the accused during personal hearing on 25.04.06 by Assessing Officer. CC No. 256/11 Page 17 of 28 The copy of CMRI data was again supplied to the representative of the accused and his counsel Sh.Sanjeev Kumar on 09.06.06. It was only possible if the data was downloaded at the time of inspection. The accused have nowhere taken a stand that CMRI data was neither supplied to their representative nor to their counsel. The downloading of CMRI data and supply of copy of the same to the accused stands proved.
26. Ex.CW2/B is CMRI data which was downloaded at the time of inspection from meter no. DVB/00036. It shows that there was load imbalance. There should be balance in the active current between R phase and B phase. There is substantial imbalance in the active current between R phase and B phase. It shows that active current is in negative. The active current can not be in negative if it is passing through the CTPT box. The power factor is also in negative which is not possible if proper current is flowing through the CTPT box.
27. The CMRI data further shows that there was reversal between R phase and B phase CT on 24.04.2005, 04.05.2005, 05.05.2005, 14.05.2005, 19.05.2005, 02.06.2005, 03.06.2005, 24.06.2005. The active current is in negative in R phase and B phase on 24.04.2005, 05.05.2005, 19.05.2005, 03.06.2006. The power factor is in negative in R phase though it is positive in B phase on CC No. 256/11 Page 18 of 28 24.04.2005, 04.05.2005, 05.05.2005, 14.05.2005, 19.05.2005, 02.06.2005, 03.06.2005, 24.06.2005 specially when there was a line current. The accused have failed to explain why the power factor was not positive in both the phases when there was line current.
28. The graphical factor also points out that there was some tampering in the CTPT box which affected the recording of consumption of electricity by the meter. The graphs dated 04.12.2005 to 06.12.2005, 07.12.2005 to 24.12.2005, 06.01.2006 to 13.01.2006, 15.01.2006 to 26.01.2006, 05.02.2006 to 09.02.2006, 12.02.2006, 15.02.2006 to 24.06.2006 and 03.03.2006 to 21.03.2006 show that the maximum recorded consumption was below 8 KV whereas graphs pertaining to other dates show that the consumption was in between 5565 KV. The graph dated 24.02.2006 shows that no consumption was recorded from 4.00 to 6.00 p.m which is unlikely. The accused have failed to explain the sharp contrast in the consumption pattern of electricity. The graphic pattern further shows that peak and bottom consumption regarding which no explanation is given by the accused. The variation to such an extent is not possible under normal circumstances unless some tampering is done in CTPT box with a view to affect the recording of consumption of electricity. CTPT box and meter were under the control and custody of the accused as they were supplying electricity to around 250 houses. The tampering was CC No. 256/11 Page 19 of 28 only possible from the accused as they were running the SPD connection. The accused have placed on record the electricity bills Ex.DW1/DG and Ex.DW4/7 from April 05 till July 2006 to show that there was consistency in the consumption of electricity units so the question of tampering does not arise at all. I have perused the electricity bills. It is correct that electricity bills were raised by the complainant in accordance with the meter reading recorded by meter reader but that by itself is not enough to create suspicion on the data downloaded from SPD meter. There is a tampering in the seals of CTPT box with a view to reverse the phases of current which affected the recording of consumption of electricity by the meter and this fact is apparent from the data downloaded from the meter. To my mind, the consumption of electricity units shown in the electricity bills is of no help to the accused to put the case of complainant into zone of doubt.
29. Document mark 'F' is an agreement between DVB and accused no.1 through its partners. This document is filed by the accused though it is not duly proved on record but it can be read against the accused. A bare perusal of this document shows that accused no.1 will prepare a statement of all hutments of the area and will lay insulated low voltage wires on the poles for distribution of electricity after receiving in bulk for one or more point from DVB. CC No. 256/11 Page 20 of 28 This shows that supply of the electricity can be disrupted for the purpose of laying down the wires for the purpose of providing connection electricity to the houses which further gives an access to the accused to CTPT box to switch off the electricity. The tampering at high voltage is possible stands explained.
The connected load of around 250 houses was recorded in load report Ex.CW2/C. The load report was prepared after inspection of few houses. The connected load is nowhere controverted during the examination of witnesses meaning thereby that connected load recorded in the load report stands admitted.
30. Ld counsel for the accused contended that mere tampering in the seals is not enough to bring home the point of tampering as no foreign material was found in the meter or CTPT box. He has placed reliance on Ravinder Motors Vs. BSES RPL AIR 2007 Delhi 85, K K Ahuja Vs V K Vora & Anr 2009 (3) JCC (NI) 194, Kamara Prasad Vs State 77 (1999) DLT 456 , Ramesh Chander & Ors Vs State of Delhi 68 (1997) DLT 257 , Ram Chandra & Ors Vs State of Bihar AIR 1967 SC 341 , WP (C) 18328/2004 titled as Bhasin Motors (I) Pvt Ltd Vs NDPL decided on 21.5.07 by Hon'ble High Court of Delhi, WP (c) 10287/2005 titled as Smt Jagdish Narayan Vs NDPL decided on 18.4.07 by Hon'ble High Court of Delhi, Swarn Dhawan V State (NCT of Delhi) 99 (2002) DLT 416. CC No. 256/11 Page 21 of 28
31. Ld counsel for the complainant contended that tampering in the seals of CTPT box in order to reverse the phases of the current is further corroborated by CMRI data and moreover accused no.1 being the custodian of the meter with CTPT box and supplier of the electricity to the houses was under a bounden duty to keep the meter in the perfect condition.
32. Heard and perused the record. There is no dispute in the preposition of law laid down by their Lordship. The accused cannot draw any support out of the case law referred to above by them as in the instant case the tampering is duly corroborated by CMRI data downloaded from the meter at the time of inspection. CMRI data itself is self speaking to show that there was reversal of phases by tampering the seals of CTPT box with a view to affect the recording of consumption of electricity by the meter. The argument does not hold water.
33. Ld counsel for the accused contended that meter should have been seized and sent to the laboratory to show whether there was any tampering in the meter or not. He further contended that seals of CTPT box should have been seized and sent to the laboratory for testing to prove that there is some adhesive on the seals. Heard and perused the record. The entire evidence on the file shows that there was no tampering in the meter or in its internal mechanism. The CC No. 256/11 Page 22 of 28 question of its removal or seizure and its testing from the laboratory does not arises at all. There was no tampering in the meter so it was not removed and seized. The evidence shows that it was not possible to remove CTPT box as current flows through CTPT box. The seals of CTPT box were refixed with adhesive. There was reversal of current in the CTPT box in order to affect the consumption of units of electricity by the electricity meter. In the circumstances, the question of removal and seizure of CTPT box does not arise. The argument does not hold water.
34. Ld counsel for the accused contended that the testimony of PW4 clearly shows that as he was not duly authorized to inspect the premises in terms of section 135 of the Act. Ld counsel for the complainant urged to the contrary. Heard and perused the record. In Mukesh Rustogi Vs. NDPL 1(2008) DLT(criminal) 879. It was held by their Lordship that "complainant has right to prove the theft of electricity irrespective of the status of the inspection. The invalid inspection does not make the theft of electricity as a non crime. It was further held that even if an inspection is not done by an officer as designated, the members of inspection team are competent to depose in the court about the theft of electricity and manner in which the electricity was being stolen." PW4 has clearly deposed that inspection was carried out and tampering was detected in the seals of CC No. 256/11 Page 23 of 28 CTPT box. CMRI data was downloaded in order to see whether any manipulation is done in the CTPT box to affect the recording of units by the electricity meter. His testimony is consistent with the case set up by the complainant. The argument does not hold water as I have drawn support from Mukesh Rustogi Vs. NDPL, supra.
35. Ld counsel for the accused contended that the photographs and video are not proved in accordance with law so no reliance can be placed on them. Ld counsel for the complainant urged to the contrary. Heard and perused the record . The complainant has placed CD Ex. CW2/D1 on record to show that video of the inspected premises was recorded at the spot. The video was taken by PW2. The data in the CD was downloaded by some other person. The person who has downloaded the data in CD is not examined by the complainant. His examination was essential to show that he has correctly downloaded the data from the camera into the computer and thereafter correct CD was prepared. The CD is not proved in accordance with section 65B of Indian Evidence Act. The photographs are digital prints out. They are prepared from the chip. The chip is not placed on record. The digital prints out cannot be relied upon unless chip is placed on record. CD and photographs are not proved in accordance with law as such complainant cannot draw any capital out of the same.
36. Ld counsel for the complainant contended that accused no. CC No. 256/11 Page 24 of 28 1 is a partnership firm of which accused no.2 to 4 are the partners. He further contended that accused no.2 and 3 have attended the personal hearing for accused no.1 and there is no explanation on record why the personal hearing was attended by them in case they were not the partners. On the other hand, ld counsel for the accused contended that accused no. 4 is a partner of accused no.1. He further contended that accused no.2 and 3 have nothing to do with accused no.1 and there is ample evidence that accused no.2 and 3 are not the partners of accused no.1. He has placed reliance on Ms. Kamna Prasad Vs. State (NCT of Delhi) 77 (1999) DLT 456, Vikas Pahwa Vs. State 63 (1996) DLT 2, K K Ahuja Vs. V K Vohra & ors. 2009 (3) JCC (NI) 194.
37. Heard and perused the record. Ex.DW4/1 shows that M/s Night Queen Electricals is a registered partnership firm. The initial agreement dated 17.04.2002 mark A and Indemnity Bond Ex.DW4/B were executed between M/s Night Queen Electricals and DVB. The agreement and indemnity bond were executed by Rajneesh Kumar and Jasbir Singh as partners of M/s Night Queen Electricals. Both of them along with subsequent partners namely Sanjay Kumar and Surender Yadav have retired from M/s Night Queen Electricals as apparent from Form A Ex.DW1/A and Memorandum Acknowledgment of receipt of documents Ex.DW1/B issued by Registrar of Firm and Retirement cum partnership deed Ex.DW1/C. CC No. 256/11 Page 25 of 28 It is clear that there are two partners namely Sriram and Rohtash Rathi of M/s Night Queen Electricals.
38. It is clear from Ex.DW4/5 and 6 that agreements dated 22.02.2001 were executed by Sukhbir Singh as partner/proprietor of M/s Haryana Electricals in favour of DVB for the supply of single point delivery connection who also executed affidavits and indemnity bond Ex.DW4/3 and 4 in favour of DVB. It shows that Kuldeep Singh, Amit Kumar and Zile Singh are the partners of M/s Haryana Electricals. It is apparent from the document on record that Kuldeep Singh is partner of M/s Haryana Electricals and there is no documentary evidence to show that accused Kuldeep is a partner of M/s Night Queen Electricals.
39. Accused Davender is a sport person who has been running his academy under the name and style of M/s New Delhi Taekwondo Academy since 2004. He is a diploma holder in Taekwondo. He has participated in various national and international championships in Taekwondo regarding which certificates have been issued by concerned authorities. He has been granted visa by different countries as apparent from his passport. All these facts are clear from Ex.DW3/AO.
40. It is clear from the documents on record that Sriram and CC No. 256/11 Page 26 of 28 Rohtahs Rathi are the partners of M/s Night Queen Electricals. Accused Kuldeep and Davender have nothing to do with M/s Night Queen Electricals. There is no oral evidence on record that accused no.2 and 3 were found users of M/s Night Queen Electricals. The personal hearing before Assessing Officer can be attended either by registered consumer or by his representative. Both of them have allegedly attended the personal hearing on one occasion or other as apparent from the note sheets Ex.CW1/F and I. The note sheets reflect that they are partners of M/s Night Queeen Electricals. Mere writing of word partner against their names does not make them partners unless there is some documentary evidence to this effect. Both of them cannot be held liable merely on the premise that they have attended personal hearing on one occasion or other on behalf of M/s Night Queen Electricals as personal hearing can be attended by the representative of the registered consumer. They were not incharge of the conduct of the business of M/s Night Queen Electricals. The burden was upon the complainant to prove that accused no.2 and 3 are the partners of M/s Night Queen Electricals at the time of inspection but the complainant has failed to prove this fact by leading cogent or convincing evidence. It is clear from the entire evidence on record that accused no.4 is one of the partners of M/s Night Queen CC No. 256/11 Page 27 of 28 Electricals. The accused no.4 has not examined other partner or any other person to show that affairs of M/s Night Queen Elecricals were managed by Sh. Rohtash Rathi. He has not taken any defence during the examination of PWs or during the recording of statement u/s 313 Cr.PC that Rohtash Rathi is managing the affairs of the accused no.1. Mere words of the mouth of accused no. 4, who also appeared as DW1, cannot be relied upon in the absence of any evidence on record. There is nothing on the record that other partner was managing the affairs of M/s Night Queen Electricals. Accused no.4 being partner of accused no.1 has also attended the personal hearing. This is only possible if he was managing the affairs of accused no.1. Accused no.4 was managing the affairs of the accused no.1. There is no evidence on record that accused no.2 and 3 are partners of M/s Night Queen Electricals i.e. accused no.1.
41. The testimony of PW3 shows that due opportunity was granted to M/s Night Queen Electricals to present the case and even personal hearing on different dates was attended by their representatives or by their counsel. PW4 has corroborated the case of the complainant on material aspects. There is no evidence of enmity on record. The testimony cannot be thrown over board for the reason that no independent witness was associated.
CC No. 256/11 Page 28 of 28 The conviction can be based on the testimony of a single witness as quality of evidence has to be seen. The testimony of PWs is cogent, convincing and trustworthy and accordingly same is relied upon.
42. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to prove its case against the accused no.2 and 3 beyond shadow of reasonable doubt. Accused no.2 and 3 are acquitted of offence charged. The complainant company has duly proved the case against accused no.4 who is partner of accused no.1 i.e. M/s Night Queen Electricals beyond shadow of reasonable doubt and accordingly accused no.4 Sriram, being partner of accused no.1, is held guilty U/s 135 Electricity Act, 2003 and convicted. Let the file to come up for quantum of sentence on 13.02.2013.
Announced in the open Court on dated 08.02.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 256/11 Page 1 of 5 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 256/11 ID No. 02405R047792006 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Shri Ram Partner of M/s Night Queen Electricals ......................... Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict was supplying electricity through single point delivery connection to around 250 houses for which SPD meter along with CTPT box was installed. He further submitted that convict was dishonestly using the electricity by doing tampering in CTPT box of SPD meter. He further submitted that convict should not be shown any kind go leniency.
2. Ld counsel for the convict submitted that convict is a first offender who has family to support including his parents. He further CC No. 256/11 Page 2 of 5 submitted that convict is the sole earning member of his family. He further submitted that his contact has been terminated who is doing a small time job. He further submitted that speaking order reflects that there was R Phase CT reversal for 52 days from 24.4.05 to 3.6.05 as such bill should have been raised for 52 days only and bill has been wrongly prepared by the complainant company.
3. Heard and perused the record. The speaking order shows that there was R phase CT reversal for 52 days from 24.4.05 till 3.6.2005. This is one of the observations made by Assessing Officer at the time of passing of the speaking order. The speaking order is not based solely on this observation. The speaking order further shows that R phase line current is 'zero' which is not possible. The value of line current is in negative on number of times. The load survey graph from 04.12.2005 to 06.12.2005, 07.12.2005 to 24.12.2005, 06.01.2006 to 13.01.2006, 15.01.2006 to 26.01.2006, 05.02.2006 to 09.02.2006, 12.02.2006, 15.02.2006 to 24.06.2006 and 03.03.2006 to 21.03.2006 show that the maximum recorded consumption was below 8 KV whereas graphs pertaining to other dates show that the consumption was in between 5565 KV. The graph dated 24.02.2006 shows that no consumption was recorded from 4.00 to 6.00 p.m which is unlikely. The load graph report shows that there is sharp variation between CC No. 256/11 Page 3 of 5 maximum and minimum demand on number of days. The single observation in speaking order cannot be picked up to assess the period of theft only for 52 days. There is nothing on the record to show that the theft of electricity by way of tampering in CTPT box was only for 52 days. The argument that bill should have been raised for a period of 52 days does not hold water.
4. The theft of electricity is all pervasive which results into power outrages. Power shortage is also due to large scale power theft leaving the people to sweat in peak summer. The power tariff is increased at regular intervals which makes a hole in the pocket of honest consumer. The power theft also causes loss to State exchequer to the tune of hundred of crores of rupees every year. The power theft is not only an economic issue but it is also a safety issue. The offenders are putting themselves as well as lives of innocent persons at risk by interfering with the power connections. The convict was selling the electricity to number of persons on behalf of the complainant. The convict was indulging in the theft of electricity by tampering the CTPT box in order to suppress the actual consumption of electricity because he knew that he has to pay the charges only for the recorded consumption. Such kind of convict has to bear in mind that he has to face serious consequences including conviction and imprisonment. There should be zero tolerance zone towards power CC No. 256/11 Page 4 of 5 theft as it affects public at large. The deterrent punishment is also required to make power theft as nonprofitable venture. Keeping in view the facts and circumstances of the case, the convict does not deserve and leniency.
5. The load is more than 10 KW. The fine imposed should not be less than three times the financial gain on account of theft of electricity. The bill was raised for a sum of Rs. 30,18,717/. The bill was raised for a period of 6 months with five times penalty. The bill should have been raised in accordance with section 154 (5) of Electricity Act, 2003 which says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of theft of energy or exact period of theft, if determined, whichever is less. Ld counsel for the complainant has agreed that the bill should be in accordance with section 154 (5) of Electricity Act, 2003. The bill amount in accordance with section 154 (5) of the Electricity Act, 2003 comes to 24,14,973/. Hence, convict Sri Ram is sentenced to undergo RI for a period of one year with fine of Rs. 36,22,459/ and in default of payment of fine to undergo SI for 6 months. The civil liability be paid out of the fine, if realized.
ORDER ON CIVIL LIABILITY:
6. Section 154 (5) of the Act says that civil liability shall not CC No. 256/11 Page 5 of 5 be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
7. The bill was raised for a sum of Rs. 3018717/. The bill is raised for a period of six months with five times penalty. The bill should have been raised in accordance with section 154 (5) of the Electricity Act, 2003. The bill amount in accordance section 154 (5) of the Electricity Act, 2003 comes to 2414973/. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 2414973/ which shall be payable with interest @ 7% per annum from the due date of the bill till its realization. The amount already paid, if any, shall be adjusted towards civil liability. Copy of the order be given to the convict free of cost. File on completion be consigned to record room.
Announced in the open
Court on dated 13.02.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 256/11