Delhi District Court
Bses vs . Sumat Prakash Jain, Cc No. 10/09 Page ... on 15 July, 2014
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. : 10/09
Police Station : New Friends Colony, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02403 RO019532009
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
1. Shri Sumat Prakash Jain, User
2. R.L. Marwah, Registered Consumer
(Complaint was dismissed against this accused on 10.02.2009)
Both at: C665, New Friends Colony,
New Delhi
...Accused
Appearances : AR with Sh.Rajesh Kumar, proxy counsel for complainant.
Accused Sumant Prakash Jain present on bail along with
Shri S. Satyanarayana, Advocate
Complaint instituted on : 27.01.2009
Judgment reserved on : 03.07.2014
Judgment pronounced on : 15.07.2014
BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 1 of 30
JUDGMENT
1. The case of the complainant in brief is that on 06.08.2008, the officers of the complainant company namely, Shri M.D. Jaiprakash - Senior Manager and Shri Ashish Rawat conducted inspection at the premises i.e. C665, New Friends Colony, New Delhi and accused Sumant Prakash Jain was found to be the user of electricity and accused R.L. Marwah was found to be the registered consumer of the electricity. The inspection team further made observations on two numbers of electronic three phase meters bearing no. 27021122 and 27104523, respectively and all the seals of said meters were found intact, and accuracy of both the meters were tested and same was found running 0.41% and 0.15% slow respectively, meter no. 27021122 was very old, but current reading of the same was only 196.6 KvAh and therefore, previous meter reading of said meter was collected from office of the complainant and same was found to be 97487KvAh dated 31.05.2008, data of the said meter was downloaded with CMRI HH 227564 for further analysis and paper seal vide IR no. 03163 dated 06.08.2008 duly signed by inspection team was pasted on the meter to maintain status quo. It is further mentioned in the complaint that the inspection team further assessed the total connected load of the premises and same was found to be 32.946 KWs for domestic purpose BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 2 of 30 and that the CMRI data was analysed in the office by Shri Maneesh Arora, Deputy General Manager (Enforcement) and following abnormalities were observed:
i. main energy register was restored to zero from 94787 KvAh on 11.05.2008 and also on 12.05.2008, 13.05.2008, 14.05.2008 and 03.06.2008.
ii. Load survey of the meter confirmed the same i.e. abnormal power shut down iii. In view of the above, it indicates that consumer has restored abnormal shut down on the meters through Electro Static Discharge or high frequency induction to suppress the actual recording of the meter.
2. It is further mentioned in the complaint that inspection team prepared the inspection report, load report and necessary videography was also got conducted and that a show cause notice was issued to the accused to file reply by 22.08.2005 and to attend the personal hearing on 27.08.2008 and that accused was represented through Shri Manohar Singh on 03.09.2009 and that Shri Rakesh Gupta, Assessing Officer, passed the Speaking Order dated 24.10.2008 after examining and considering the facts and documents.
BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 3 of 30
3. It is further mentioned in the complaint that it was a case of dishonest abstraction of energy and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.1,21,891/ with due date as 21.11.2008 and same was served upon the accused but they failed to pay the said theft bill.
4. The case was fixed for presummoning evidence and complaint was dismissed against accused R.L. Marwah vide order dated 10.02.2009 of my Ld. Predecessor. Accused Sumant Prakash Jain was summoned to face the said allegations vide order dated 25.03.2009 of my Ld. Predecessor. Accused Sumant Prakash Jain appeared and my Ld. Predecessor vide his order dt. 09.02.2011 framed notice u/s. 251 Cr.P.C. for the offence 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 he was not the owner of the premises in question, but was only using a portion allotted to him of the said premises being the employee of M/s. Belliss India Ltd. in the year 2000, therefore, he was not aware as to the status of the meters and that the electricity bills were being regularly paid by the said company and that he had not tampered the meters and the M/s Belliss India Ltd. itself was the tenant in the premises in question and that he was not the owner nor tenant in the said premises, therefore, had no interest whatsoever in BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 4 of 30 the premises or usage of the meters since the responsibility of payment of bills was upon the said company and not on him. Accused further submitted that he was not committing any theft of electricity and thus, he is not liable to pay any amount as claimed by the complainant company.
5. In order to prove the case of the complainant, seven witnesses were produced, which have been discussed below.
6. The statement of the accused Sumat Prakash Jain was recorded u/s. 313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was not indulged in any type of theft or tampering with the meter and that the regular consumption bills were raised by the BSES in respect of subject meter, which were paid by M/s. Belliss India Ltd. Accused further answered that the load report is highly exaggerated and totally imaginary and same was not prepared in his presence and that in the videography, the load was not properly captured and that he was using the electricity within the sanctioned load of 11 KWs and that on the day of alleged inspection, all the appliances were under the process of packing as he was shifting to other accommodation and that he was occupying the first floor of the premises as Managing Director of M/s. Bellis India Ltd., which was BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 5 of 30 taken on lease by the said company and the ground floor of the said premises was used for residential purposes of the company's overseas clients. Accused further answered that the theft bill is false and has been prepared on frivolous ground. Accused further answered that he did not receive any information regarding personal appearance on 27.08.2008, however, on further information, one Sh. Manohar Singh, on behalf of the accused and employee of the said company attended the personal hearing on 02.09.2008 and he was given the next date as 03.09.2008, who gave the representation against the show cause notice, but the submissions made by the said Manohar Singh were not considered by the said Assessing Officer and he passed the Speaking Order based upon his whims and facies and same is violative of natural justice, thus, feeling aggrieved by the said Speaking Order, two legal notices Ex. D1 and D2, were sent on 23.12.2008 and 03.03.2009 and courier receipts of the same are Ex. D3 and D4. Accused further answered that that the said allegations were not withdrawn by the complainant company despite the service of said notices, he was constrained to file suit for defamation and damages against the complainant company, which was pending disposal at the Hon'ble High Court of Delhi. Accused further answered that he was not committing any theft of electricity by tampering the meter and that he did not tamper the meter as he was having no motive for the same nor BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 6 of 30 he could gain anything by tampering the said meter in his personal capacity. However accused opted to lead defence evidence and produced two defence witnesses and appeared as DW3 vide permission u/s. 315 Cr.P.C.
7. I have heard the counsel for the complainant and counsel for the accused, Shri S. Satyanarayana, Advocate. I have also perused the record including the CD of videograpy displayed on the computer screen of the court.
8. PW1 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. PW1/1 and he identified the signatures of the previous A.R. on the complaint Ex. CW1/3 and he further proved letter of authority of the previous A.R. as Ex. CW1/2 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused he replied that he had not visited the site and he had been substituted as authorised representative and he deposed on the basis of documents on record. He denied the suggestion that false and fabricated case against the accused has been made.
BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 7 of 30
9. PW2 Shri M.D. Jaiprakash was the Senior Manager of the complainant, who deposed that he along with Sh. Ashish Rawat conducted an inspection of the premises bearing No.C665, New Friends Colony, New Delhi and they found two meters installed in the said premises. PW2 deposed that the meter bearing No.27021122 appeared to be very old, however, the reading was around 196 KVAH and that they enquired from their office as to why the meter was showing only 196 KVAH whereas it appeared very old and that they came to know from the EBS i.e. Electronic Billing System that actual and previous reading / consumption through the above noted meter was around 94,700 KVAH and that apparently, present was a case of reverse reading in the meter which gave rise to suspicion in their mind about the correctness of the meter in question. PW2 further deposed that the data of both the meters including meter bearing No.27021122 were downloaded through CMRI (computerised meter reading instrument) for further analysis. PW2 further deposed that after downloading the data from the chip installed in all electronic meters, they asked the Meter Management Group to change the meter and that at the time of inspection, the user Mr. Sumat Prakash Jain, who was present at site had told about the problem in the meters. The identity of accused Sumant Prakash Jain was not disputed as accused was permanently exempted through counsel. PW2 further deposed BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 8 of 30 that during inspection, they discovered that the load of ground floor portion and the servant quarter had been transferred to said defective meter and this fact was explained to the accused. PW2 proved the inspection report as Ex.CW2/1 and the load report as Ex.CW2/2 and he deposed that he offered the same to accused for his signatures, but he refused the same. PW2 further deposed that the CMRI data was subsequently analysed by Mr. Manish Arora - DGM and PW2 was told that certain abnormalities were observed in the analysis of CMRI data, on the basis of which a show cause notice was issued copy of which is Ex.CW2/4. PW2 further deposed that the total connected load of the ground floor and servants quarter connected through the meter bearing No.27021122 was around 33 KW for domestic purposes.
10. In his cross examination on behalf of the accused, PW2 answered that the complaint received was not reduced into writing and that he had not taken any written permission before the inspection as he himself was an authorised officer. PW2 admitted it as correct that no authority has been placed on record. He volunteered that no identification card was issued to him by the company, which records his designation as authorised officer (Senior Manager) Enforcement Department (Inspection). PW2 replied that on the date of inspection, he did not check with the concerned BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 9 of 30 department as to whether there was any periodical check conducted by the concerned department on the said meter in the past and that he had confirmed with Mr. Manish Arora, DGM (Enforcement) telephonically regarding the consumption from the EBS (electronic billing system). PW2 admitted it as correct that no written record as to the fact about the consumption of the meter in question i.e. around 94700 KVH was filed in the present case and that no prior notice before conducting the inspection was given to the consumer and that he had asked the accused, who was present at the site, to made available his bills of consumption but he did not make them available. PW2 further replied that he personally asked the accused to furnish the said bill, in the presence of other team members and that he had not checked the previous consumption for each month as he was present at the spot of inspection and that he could not gather all the information telephonically from Mr. Arora. PW2 further answered that he retrieved data from the meter using CMRI (Computerised Meter Reading Instrument) in the presence of representative of accused as the accused deputed one of his employees to be present with PW2 and that the said representative was within a radius of 5 meters from me when I retrieved the data. PW2 did not know as to whether the videographer had captured the said person in videography of data retrieval. PW2 further answered that there was BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 10 of 30 no requirement to give notice to the consumer for downloading from CMRI to the office computer and therefore, no such notice was given. PW2 answered that during the inspection, he had explained to the accused that a comparison of previous consumption record and the present reading indicates a reverse reading and that he would record the load on the meter in question only after examining the entire load connected on the said meter. PW2 answered that he made efforts to paste the load report and inspection reports including the meter report on the wall of the premises of the accused but he refused for the same. PW2 did not know as to whether said refusal from pasting was captured in the videography. PW2 replied that the load of each appliance was recorded in the load report on the basis of standard load and not by verifying the rating plate of each appliance and that no such record of standard load was placed on record. PW2 admitted it as correct that they did not use any tongtester. He volunteered that tongtester cannot be used in concealed wiring.
11. PW3 Shri Sudip Bhattacharya was the Assessing Officer, who proved the Speaking Order Ex. CW2/5, which was passed Shri Rakesh Gupta, who had left the services of complainant company. PW3 also identified signatures of said Shri Rakesh Gupta on Ex. CW2/5. In his cross examination on behalf of the accused, PW3 answered that he BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 11 of 30 was not aware about the analysis or the reasons for satisfaction of Shri Rakesh Gupta in Ex. CW2/5 and that he had not brought any document on the day of his deposition to suggest that he himself or Shri Rakesh Gupta were contemporary in the BRPL Enforcement office and that he was not the summoned witness. PW3 admitted it as correct that he did not bring any document to show that the said Rakesh Gupta had left the services of BSES. PW3 could not say as to whether Shri Rakesh Gupta had applied mind and gone through the various documents before passing the Ex. CW2/5 and that the said order was not passed in his presence.
12. PW4 Shri Maneesh Arora was the General Manager of the complainant company, deposed that he had brought CMRI data, which is collectively Ex.PW4/1 and that the data pertaining to the meter bearing No.27021122 was downloaded at 10:25 a.m. on 06.08.2008 and dumped on his office personal computer on 06.08.2008 at 16:51 hours. PW4 further deposed that as per page No.11 & 12 of the CMRI data Ex. PW4/1, the main energy registers were showing duplicate data generation on 02.08.2008 at history 1 and in history 4 as 27.06.2008 and that corresponding to these dates, all the readings of the meter in KWH & KVAH was reset to zero. PW4 further deposed that in normal MRD i.e. Meter Reading Data cases, the meter logic BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 12 of 30 generates 12 histories corresponding to each month and starting date is first of every month at 00:00 hours, but in the present case, two histories were generated in the month of June2008 and August2008 which shows that the meter was subjected to electrostatic discharge i.e. ESD by some external means at the point of generation of duplicate histories and that similarly, the energy consumption had gone to zero in the corresponding period as given above. PW4 further deposed that in page 25 & 26 of Ex. PW4/1, in section 'power of details' the meter has recorded 35 days 19 hours 39 minutes of power off in history 1 and 05 years 41 days 23 hours 34 min, in history 4 in a month which was also not possible under normal circumstances since the power off is highly unlikely for such durations except when the meter is subjected to ESD. PW1 further deposed that at page No.35, under load survey graph two graphs have been generated on 11.05.2008 & 14.05.2008 with zero load throughout the day in graph dated 11.05.2008 at page 35 and for 16 hours on 14.05.2008 and that in Cumulative tamper report on page no.60, power failed recorded from 09.02.2001 at 22:23 hours to 30.04.2008 upto 12:15 hours i.e. for 636 days 13:51 which is highly unlikely under normal circumstances except in application of ESD by external means. PW4 further deposed that all these abnormalities are possible in case the meter was subjected to electrostatic discharge by some external means/ device BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 13 of 30 i.e. remote device, powered externally to impart electrostatic discharge without opening the meter.
13. In his cross examination on behalf of the accused, PW4 admitted it as correct that the data base chip or CD or any other device which shows that the alleged CMRI data was download from site in respect of meter in question on 06.08.2008, was not placed on the court record and that the said CMRI data was not downloaded by him and that no notice was issued to the consumer regarding uploading the data uploaded into personal computer on 06.08.2008. PW4 further replied that there are many CMRI instruments maintained by complainant company. PW4 could only tell the reading of the subject meter as on 06.08.2008, only after seeing the CMRI data or inspection report and after seeing the CMRI data at page at serial no.11 in Ex.PW4/1, in Billing Parameters in block 'Main Energy Registers', PW4 stated that at the time of inspection the meter reading was 196500.0 Wh and 220700 Vhh. PW4 admitted it as correct that in the said block no date as of 06.08.2008 was mentioned. He volunteered that it mentioned current which states that it was the reading at the time & date of inspection at point B and that as per the inspection report and the CMRI data the RTC found OK, also the meter seals were found intact and OK and that as per inspection reports, no artificial BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 14 of 30 means were found in or around the meter at the time of inspection on 06.08.2008. PW4 replied that he might have given 45 commands to get the printout of all the pages. PW4 further admitted it as correct that upto pages 29, the time was reflected as 10.25 and thereafter, till page 87 no time, date of downloading was mentioned. He volunteered that same was based on the software supplied by the meter manufacturer M/s. Secure Meters Ltd. PW4 further admitted it as correct that no representative from M/s. Secure meters Ltd. was accompanied during the inspection or at the time of downloading the data. PW4 answered that the meter was not sent to the third party laboratory for downloading the CMRI data. PW4 volunteered that the meter was replaced with a new meter around 21.08.2008 and the old meter remained in the custody of the consumer. PW4 was not aware as to whether even after 21.08.2008, the meter in question was sent to any independent lab i.e. NABL Laboratory or not. PW4 admitted it as correct that at the time of uploading the meter data to personal computer neither the registered consumer R.L. Marwa nor user S.P. Jain was present. PW4 could not say as to whether the documents Ex.PW4/1 were sent to the registered consumer/ user of the premises in question, after being printed out. PW4 admitted it as correct that no calibration certificate of CMR instrument was placed on judicial record. He volunteered that there was no calibration required for BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 15 of 30 CMRI as it was not measuring instruments and same was downloading instrument. PW4 replied that according to him, the CMRI was not defective during inspection as all the self checks of the instrument were OK during uploading the data in personal computer. PW4 admitted it as correct that no list of breakdowns of electricity in the area prior to one month or thereafter had been placed on judicial record. PW4 answered that he had not done any expertise course to give the opinion of applying the electro static discharge on the meter. PW4 replied that, his opinion that there was a use of electro static discharge, was on the basis of studying the CMRI data. PW4 could not describe the type of device used and he replied that the same would be in the exclusive knowledge of the accused.
14. PW5 Shri A.S. Menon, the Deputy Finance Officer, proved the theft bill Ex. CW2/6 and he deposed that he prepared the said theft bill on the basis of formula given under the Electricity Act. In his cross examination on behalf of the accused, he replied that the formula applied for preparing the theft assessment bill is LDHF multiply with the applicable tariff and that the fixed charges raised in the bill were also permissible in the tariff regulation. PW5 replied that the tariff regulation applicable to theft assessment bill and the consumption bill was same. PW5 admitted it as correct that the tariff as applicable at BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 16 of 30 the time of raising of the bill was not placed on record or proved by him.
15. PW6 Shri Arun, videographer deposed that on 06.08.2008, he along with shri M.D. Jaiprakash, Shri Ashish Rawat, Shri Rajesh Gupta and one lineman visited the premises bearing no. C665, New Friends Colony, New Delhi and on the directions of Shri M.D. Jaiprakash, he conducted the videography of the inspection and the connected load and he also identified the videography and proved the CD of videography as Ex. CW2/3. In his cross examination on behalf of the accused, he replied that he reached at the premises in question along with the inspection team at 11.00 a.m. and that he did not receive any directions from Shri M.D. Jaiprakash in writing to conduct the videography. He further replied that he brought the original identity card issued by authorised person from M/s. Arora Photo Studio. PW6 admitted it as correct the identity card Ex. PW6/D1 bear the date of issuance as 01.04.2012 and same was valid upto 31.01.2013. He volunteered that the Icard was renewed every year.
16. PW7 Vivek Arora proved the videography, CD of which is Ex.CW2/3 which was taken by his employee Arun and he correctly identified the videography contained in the said CD. BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 17 of 30
17. DW1 Shri Manohar Singh deposed that he was working as Assistant Manager (Administration) in Belliss India Ltd. since September 1981 and that Shri Sumat Prakash Jain was the Managing Director of said Belliss India Ltd. and that Sumat Prakash Jain used to reside at C665, First Floor, New Friends Colony, New Delhi in the year 2008 and that Mr. R L Marwah was the landlord of the aforesaid premises. DW1 further deposed that the electricity consumption charges for the premises C665, Ground and First Floor, were being paid by Belliss India Ltd and that one bill was generated by the BSES R. P. Ltd. and that he was asked by the company management to go personally to visit the office of BSES at Andrews Ganj, New Delhi along with the said bill for its clarification. On the day of deposition, DW1 did not remember the name of the official to whom he met at the BSES office and he deposed that perhaps the official was A.F.O. and that he had requested said AFO to rectify the said bill which was raised on the basis of the theft of electricity. DW1 further deposed that no one was willing to listen or talk and that he could enter the office cabin, where he met official from Finance Department and that after talking with him, said official directed him to deposit Rs. 50,000/ and said that thereafter he could go through the case. DW1 further deposed that the said official also mentioned that "first you steal BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 18 of 30 electricity, then you come for bill rectification". DW1 further deposed that he did not make the payment of Rs. 50,000/ as there was no theft of electricity going on in the premises in question and regular consumption bills used to be paid regularly and that the official from Enforcement Department abused him and that the Managing Director of the company had called them "thieves" and that the impugned bill of Rs. 1,21,891/ raised by the complainant company was totally false.
18. In his cross examination, on behalf of the complainant, DW1 replied that he was not a summoned witness and that he came to depose at the instance of the accused and that he had deposed on his own knowledge of the facts. DW1 further replied that he along with the accused was present at the time of inspection, however, said R. L. Marwah was not present and that the accused Sumat Prakash Jain was the user of the premises on the day of inspection. DW1 did not know as to whether the meter installed in the premises at the time of inspection, was found tampered by the inspection team. DW1 further replied that the meter was not removed at the time of inspection. DW1 admitted it as correct that videography of the premises in question was got done by the said inspection team and that a report was prepared by the inspection team at the spot. DW1 answered that the accused did not refuse to receive the report at the spot at the time BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 19 of 30 of inspection nor the said report was offered to be given. DW1 admitted it as correct that he had appeared before the Assessing Officer in response to show cause notice, however, he did not remember the date and name of the said officer. DW1 answered that he came to know that he had to appear before the said Assessing Officer because one paper was received to that effect. DW1 did not know as to whether the officials of the complainant company downloaded the CMRI data of the meter in question at the spot.
19. DW2 Shri Bikash Mukherjee deposed that he was one of the Directors of Belliss India Ltd. and that Shri Sumat Prakash Jain was the Managing Director of said Belliss India Ltd. DW2 further deposed that the electricity consumption charges for the premises C665, Ground and First Floor, were being paid by Belliss India Ltd. and that M/s. Belliss India Ltd. entered into lease with Shri R.K. Marwah on 26.06.2000 and thereafter the lease was renewed on 02.12.2005 and further renewed on 09.08.2007. DW2 further deposed that the said premises was handed over back to Shri Raj Kumar Marwah by M/s. Belliss India Ltd. in August 2008. DW2 further brought the copy of lease deeds and same were exhibited collectively as Ex. DW2/A and the handing over letter dated 18.08.2008 exhibited as Ex. DW2/B. DW1 further deposed that the company M/s. Belliess India Ltd. used BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 20 of 30 to make all the payments of the electricity consumption bills for the energy consumed through meter time to time directly to the BSES Rajdhani Power Ltd. and that an information to this effect used to be conveyed to landlord by the said company. DW1 further proved the electricity bills pertaining to CRN No. 2540130156 and CRN No. 2540037259 generated in the name of Shri R.L. Marwah to the premises bearing no. C665, New Friends Colony, New Delhi, total 13 + 7 = 21 in numbers as as Ex. D1 to D21. DW2 further deposed that one Shri Manohar Singh, staff of M/s. Belliss India Ltd., was sent to BSES R.P.L. office to explain the factual position to the officials of the BSES and that they came to know that said staff official was insulted by the officials of BSES and that they filed case of defamation against BSES R.P.L. on this pretext and the same was pending adjudication before the Hon'ble High Court of Delhi.
20. In his cross examination on behalf of the complainant, DW2 replied that he was not summoned witness. DW2 admitted it as correct that he came to depose in the present case at the instance of the accused S.P. Jain. DW2 answered that he was not aware as to whether accused S.P. Jain was present on the date of inspection at the premises in question. On being confronted with the videography, DW2 identified the premises shown in the same, wherein accused S.P. BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 21 of 30 Jain was covered as present and that accused was pointed out by DW2 as a person wearing baniyan and pyjama. DW2 also identified employee of M/s Belliss India Ltd. namely Manohar Singh, who was depicted in the videography and was present at the spot. DW2 admitted it as correct that accused S.P. Jain used to occupy the first floor of the premises and in his said capacity, he was present on the date of inspection as depicted in the videography. DW2 further admitted it as correct that accused S.P. Jain was the Managing Director of the M/s Belliss India Ltd. on 06.08.2008 and that letter dated 18.08.2008 Ex.DW2/B had signature of accused S.P. Jain at point A. DW2 did not know as to how many meters were installed in the premises in question or that in whose names the same were installed. DW2 further replied that from the bills of electricity, he could say that the meters were in the name of Mr. R.L.Marwah. DW2 answered that he was not present at the time of inspection on 06.08.2008 in the premises in question. DW2 did not notice the actual place where the electricity meters were installed in the premises in question.
21. DW2 in his further examination in chief also proved the ledger account of the M/s. Belliss India Ltd. for the period from 01.04.2002 to 31.03.2009 of the said company as Ex. D22. In his further cross examination he replied that he had not brought any document with BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 22 of 30 regard to employment of Shri Manjay Kumar Sharma, Manager Finance or engagement of CA Shri Ishwar Prasad, however, he identified the signatures of both the said persons on Ex. D22 as he was one of the Director of the said company and that the said persons had signed before him on Ex. D22
22. DW3 accused S.P. Jain appeared as defence witness and deposed that he was occupying premises bearing no. C665, New Friends Colony, New Delhi as Managing Director of M/s. Belliss India Ltd. and that the said premises was taken on lease by the said company. DW3 further deposed that the first floor portion of the said premises was his residential accommodation and the ground floor was being used for overseas guests of the said company. DW3 further deposed that the electricity meter was already installed at the backside of the ground floor portion feeding load to the entire premises and that the BSES used to raise the consumption bills in the name of registered consumer i.e. Shri R. L. Marwah and that M/s. Belliss India Ltd. used to deposit all the consumption charges from time to time for the energy consumed through the meter at the time of inspection. DW3 further deposed that he was only an occupier on behalf of the said company and that there was no complaint ever. DW3 furhter deposed that there was no motive by any stretch of imagination as BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 23 of 30 there was nothing to gain as the consumption bills were paid by the company without any dispute and that the officials of BSES have levelled false allegations against him and that defamed him in official circle and that his personal circle with the stigma of stealing electricity. and that the said allegations had seriously affected his reputation. DW3 further deposed that after receiving an information regarding the allegations levelled by the BSES, two legal notices i.e. dated 23.12.2008 and 03.03.2009, were sent through advocate to the department to recall the charges / allegations levelled, however, no reply to the same was received by him. DW3 further deposed that feeling aggrieved, he filed a defamation suit against the BSES before the Hon'ble High Court of Delhi, New Delhi, which was numbered as CS(OS) No. 1059 of 2009 and that the same was pending adjudication and he also brought the photocopy of the said suit for defamation and same was Mark A (running in 19 pages).
23. In his cross examination by the ld. counsel for the complainant, DW3 replied that he got no knowledge as to whether an inspection was carried out by the officials of the complainant company on 06.08.2008 at the premises in question and that he was present at the first floor at the time of inspection, however, he did not know as to whether there was any inspection in the premises in question. DW3 BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 24 of 30 replied that he had no knowledge as to whether he was covered in the videography at the time of inspection of the premises in question. On being confronted with the videography, the said DW3 was visible in the same. DW3 replied that by the day of inspection of the premises, he had vacated the first floor of the same which was being occupied by him for residential purpose prior to that and that most of his household articles were already taken out of the said first floor and that remaining household articles were loaded in the truck which was parked outside the premises in question at the time of the inspection. DW3 answered that he was Managing Director of M/s. Belliss India Ltd. and had left the same on 04.01.2013. DW3 admitted it as correct that he had not visited the office of the complainant company ever and that Sh. Manohar Singh was the employee of his company at the relevant time, who appeared before the Assessing Officer at the time of passing of the Speaking Order. DW3 further admitted it as correct that at the time of hearing and passing of the Speaking Order, whatever transpired between the Assessing Officer and Sh. Manohar Singh, was reported by said Manohar Singh to the Manager (Administration) of his company and that only on the communication of said Sh.Manohar Singh, DW3 filed the suit for damages for defamation before the Hon'ble High Court of Delhi and that he had no direct talk with the Assessing Officer of the complainant company. BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 25 of 30 DW3 could not say as to whether said Sh. Manohar Singh had informed the full truth regarding his talks with the Assessing Officer as he himself not heard Manohar Singh saying anything in this regard. DW3 further replied that he had no knowledge as to whether registration of present case regarding theft of electricity was published in the newspaper or at media. DW3 further answered that since the meter was installed in the premises in question at the rear side on the ground floor and that he never visited the said place to see the said meter, therefore, he could not say as to whether the meter was tampered or not. DW3 admitted it as correct that R.L.Marwah was the owner and registered consumer of the premises in question and meter in question.
24. DW3 was recalled for his further examination in chief, wherein he proved the certified copies of plaint and two ordersheets collectively as Ex. D3/A.
25. In this case, the Speaking Order cannot be said to have been proved as such because PW3 only identified the signatures of the Assessing Officer, who passed the Speaking Order.
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26. The total case of the complainant rests on the deposition of PW4 Shri Maneesh Arora, who analysed the CMRI data as per his deposition reproduced above. He observed that energy registers of the meter in question were set at zero twice in the month, whereas the meter logic generates twelve histories only corresponding to each month. Secondly, he observed that the meter in question recorded a power off in the history for 35 days 19 hours and 39 minutes which is not possible under normal circumstances and same is highly unlikely for such durations. Thirdly, he observed that two survey graphs were generated on 11.05.2008 and 14.05.2008 with zero load through out the day in the graph dated 11.05.2008 and for 16 hours on 14.05.2008, which is impossible under normal circumstances. Fourthly, he observed that it was recorded by the meter that power failed from 09.02.2001 to 30.04.2008 i.e. for 636 days which is highly unlikely under normal circumstances.
27. PW4 has given reason for the said abnormalities in the meter in question that the meter was subjected to electro static discharge by some external means/device i.e. remote device, powered external to impart electro static discharge without opening the meter. BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 27 of 30
28. At the same time in his cross examination, he admitted that the said CMRI data was not downloaded by him and he further admitted that as per inspection report and CMRI data, the RTC (Real Time Clock) of the meter was found Ok and meter seals were also found intact and he further admitted that no artificial means were found in or around the meter at the time of inspection on 06.08.2008. It is further answered by him that the meter was not sent by him to the third party laboratory for downloading the said CMRI data. He further answered that his opinion with regard to use of electro static discharge in the present case, is based upon the study of CMRI data but he has not done any expertise course to give the opinion of applying the electro static discharge on the meter. He could not describe the type of device used as the same would be in the exclusive knowledge of the accused.
29. Although, considering the entire evidence on record including the deposition of defence witnesses, the conduct of the accused in the present case is also not beyond shadow of doubt because he being the user, not only of the premises, but of electricity also, was duty bound under the law to keep the meter in question in safe custody and without any interference with the same and in the whole cross examination of PW4, the accused could not assail the said BSES Vs. Sumat Prakash Jain, CC No. 10/09 Page no. 28 of 30 observations of PW4 with regard to the meter in question, but at the same time, the complainant cannot be allowed to take the benefit of the weakness in the defence of the accused and the complainant has to stand on its own legs in order to prove the case against the accused.
30. No doubt, the said observations of PW4 with regard to the meter in question, are very strong indication of interference with the meter, whereby the meter was made corrupt in recording the correct consumption, but suspicion howsoever strong, cannot take the place of proof.
31. If we go by the observation of PW4 that the meter was allegedly tampered by external means such as remote device to impart electro static discharge, then there should have been a device at the receiving end in the meter also in the corresponding manner, but no such device has been established on the record which was receiving the signals of the remote for electro static discharge. If the electro static discharge was possible without opening the meter as claimed by PW4 in his deposition, the said fact should have been established on the record by a positive evidence but there is no such evidence to that effect.
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32. The deposition of PW4 is inferential in nature and a mere analysis without a demonstration of the same in the shape of evidence before the court and position becomes more doubtful when PW4 specifically answered that no artificial means were found in or around the meter at the time of inspection and Real Time Clock and the seals of the meter were intact. The benefit of this doubt must go to the accused because a thin line of distinction has appeared in the judicial mind as to whether the meter in question was tampered or was defective inherently. Thus, I extend benefit of doubt to the accused 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 15.07.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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