Delhi District Court
Complainant vs Inder Raj Gulati on 7 November, 2012
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDIL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 23.04.2008
Judgment reserved on :02.11.2012
Judgment pronounced on : 07.11.2012
Complaint Case No. 380/08
U/s 135 r/w/sec.138 r/w/sec. 150 of Electricity Act, 2003
Unique ID 02403RO0964982008
BSES Rajdhani Power Limited
A Company Duly Incorporated Under
The Companies Act, 1956
Having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019,
Also at :
Corporate, Legal & Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its substituted authorised officer,
Sh.Ashutosh Kumar
...Complainant
Versus
Inder Raj Gulati
B187, Amrit Puri B,
New Delhi ...Accused
Present : AR for the complainant with
Sh.Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for complainant
Accused on bail with Sh.D.K.Sharma, Adv.
JUDGMENT
1 A complaint U/sec. 151 r/w/sec. 154 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') for offence punishable U/sec. 135 r/w/sec. 138 & r/w/sec. 150 of the Act was filed against the accused persons. It was also prayed for determining the civil liability of the accused U/sec. 154 (5) of the Act. 2 It is the case of complainant that on 30.08.2007, a joint inspection team inspected the premises bearing No.B187, Amrit Puri B, New Delhi. One single phase electronic meter No.22426527 against K.No.2530 N851 1264 was found installed, which was replaced by the MMG department with new electronic meter bearing No.23392139 on 24.07.2007. Old meter was sent to the meter testing lab in sealed condition for analysis. A notice was served upon the consumer on 24.07.2007 to witness analysis of the meter in lab. On analysis of the meter, it was found that hologram seals were tampered with, EL LED was found cut, CT wire and shunt wire soldering were found disturbed and re soldered. Memory chip was found missing. The lab had thus, vide its report dt. 08.08.2007 declared the meter to be tampered with. In view of the report, load was assessed on 30.07.2007, which was found to be 4.463 KW for non domestic use. A show cause notice dt. 30.08.2007 was served upon the accused requesting for a reply to be sent by 06.09.2007 and to attend personal hearing on 11.09.2007. Accused Inder Raj Gulatia filed his reply dt. 11.09.2007 stating that there had been spark in the meter, whereafter it had stopped working. Considering the reply filed by him and the lab report, speaking order dt. 17.10.2007 was passed by the Assessing Officer holding it to be a conclusive case of DAE. On the basis of connected load and applicable tariff, theft bill of Rs.98,127/ was raised. On failure of the accused to deposit the same, present complaint was filed. 3 Cognizance of the complaint was taken by the ld. predecessor of this court on 23.04.2008. Presummoning evidence was recorded. On the basis thereof, only accused no.3 was summoned. Proceedings against accused nos.1 & 2 were dropped, vide order dt. 07.02.2009. Accused Inder Raj Gulati entered appearance on 06.02.2010. Complainant filed an amended memo of parties, which was taken on record. Thus, accused Inder Raj Gulati was the sole accused, who faced trial. Notice of accusation was framed on 08.04.2010. Accused pleaded not guilty and claimed that he had filed a complaint on 14.08.2007 intimating that the meter was not working properly. On his complaint, meter was replaced on 24.08.2007. He claimed that the meter was not tampered with. 4 Complainant, in support of its case, examined four witnesses. Ashutosh Kumar (PW1) is the Authorized Representative of the complainant company. He proved the GPA in his favour, authorizing him to appear on behalf of the complainant company and the complaint filed by the previous Authorized Representative. Sudip Bhattacharya (PW2) has proved speaking order passed by Rakesh Gupta - Assessing Officer by identifying the signature of Rakesh Gupta. Nikhil Kumar (PW3) witness from the BRPL laboratory, Pushp Vihar, New Delhi has proved the lab report prepared by Ved Prakash Yadav and Pintu Santra by identifying their signatures. Sachin Gupta (PW4) was a member of the inspecting team. The witness could not give the correct date of inspection and was therefore sought to be cross examined by counsel for complainant. On being cross examined by counsel for complainant, he deposed that inspection was conducted on 30.08.2007 at premises bearing No.B187, Amrit Puri B, New Delhi. He did not remember if the accused was present at the time of inspection. He however proved the connected load and the documents prepared at site. He also identified the videography of the premises. The witness, on being cross examined by ld. defence counsel, deposed that he did not remember the number of floors in inspected premises. He did not know if the meter installed was sanctioned for domestic or non domestic use. The consumption pattern of the previous year was not considered at the time of issuance of show cause notice. He admitted that Inder Raj Gulati was not covered in videography. 5 Incriminating evidence was put to the accused and his statement U/sec. 313 Cr.P.C. was recorded. He admitted removal of the meter in his presence but stated that the same was not seized. His signatures were obtained on several papers but he was not explained their contents. At the time of removal of the meter, all seals were intact. He contested lab report and stated that he had rented out the premises to one Rajeev. He explained that there was a spark in the meter on 14.07.2007, which had had brought to the knowledge of the complainant company. On his request, meter was checked and declared to be faulty. The meter was replaced on 24.07.2007, however, he was falsely implicated in the present case. He sought opportunity to lead defence evidence and examined himself as solitary defence witness. He proved payment of the charges deposited by him for testing of the meter. He further deposed that he submitted his representation to the complainant explaining that premises was on rent with one Rajiv Bajaj. The meter was burnt due to high voltage. On being cross examined by counsel for complainant, he denied that meter had been tampered with by him. He proved electricity bills in his name as Ex.DW1/D (colly). 6 Sh.Rajesh Kumar, counsel for complainant has argued that tampering of the meter is proved by the testimony of Nikhil Kumar (PW3). Assessment of load is proved in the testimony of Sachin Gupta (PW4) and Sudip Bhattacharya (PW2) has proved the speaking order. It is, therefore, argued that complainant's case is proved beyond reasonable doubt.
7 Sh. D.K.Sharma, ld. defence counsel has argued that the complainant has miserably failed to prove seizure and sealing of the allegedly tampered meter. The meter was actually tested only on a request by the accused. Complainant has not proved the consumption pattern to corroborate the evidence of tampering of the meter. Moreover, the speaking order and analysis report cannot be read in evidence as the witnesses, who had passed the order and prepared the analysis report have not been examined. Sole witness to the load assessment report had to be declared hostile and did not remember the proceedings at all.
8 I have heard the ld. counsels and with their assistance perused the evidence on record.
9.1 Complainant's case is like a castle in the air. The basic foundation to establish a case of DAE is nonexistent. There is no pleading and no evidence as to, who inspected the premises on 17.07.2007 and what were the reasons to suspect that the meter was tampered with. The most important piece of evidence i.e. the allegedly tampered meter is not proved to have been removed and seized from the premises of the accused. The first step of complainant's case as proved, commences with the inspection dated 30.08.2007, when the connected load was assessed. All steps prior to 30.08.2007, at the premises of the accused have neither been sufficiently pleaded nor proved at all. Meter removal report & seizure report are not placed on record by the complainant or proved through any admissible evidence. Thus, the very basis on which edifice of lab report and speaking order has been raised, does not exist. 9.2 Moreover, the officials of complainant company, who had analysed the meter and prepared the load report were not available and have not been examined. Sh.Nikhil Kumar (PW3) has only identified their signatures on the analysis report. The contents of analysis report, therefore, cannot be read against the accused. Similarly, the speaking order has not been proved by the officers, who had passed the same. Sudip Bhattacharya (PW2) has merely identified the signature of Rakesh Gupta, Assessing Officer. The contents of this order can also not be read against the accused.
9.3 Further, Sachin Gupta (PW4), who was examined to prove the assessment of load was declared hostile at the very initial stage of examination in chief. He had to be led by the counsel for complainant to prove the documents prepared at site. The witness could not recall any facts without referring to the documents. His evidence also cannot be said to be highly credible. There, of course, is no evidence on record to corroborates the complainant's case by way of consumption pattern with old meter and the new meter. There is also no evidence that the meter was recording less consumption. It was also not checked of its efficiency.
10 For the aforesaid reasons, I am of the considered opinion that the complainant has miserably failed to establish its case. The accused is entitled to benefit of doubt and is, accordingly, acquitted.
Bail bonds are cancelled. Sureties are discharged.
File be consigned to Record Room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 07.11.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
CC No. 380/08
07.11.2012
Present AR with Sh.Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for complainant
Accused on bail with Sh. D.K.Sharma, advocate
Vide separate judgment announced today, accused is acquitted from the offence punishable u/sec. 135 r/w/sec. 138 & r/w/sec. 150 of the Electricity Act.
Bail bonds are cancelled & sureties are discharged.
File be consigned to Record Room.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/07.11.2012