Delhi District Court
Bses vs . Andrus Charan, Cc No. 415/09 Page 1 Of ... on 29 August, 2013
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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. : 415/09
Police Station : Kalkaji, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02406 RO537962009
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
Andrus Charan @ Andrew Charan
R/o 1359A1/8, Basement
Govindpuri, New Delhi ...Accused
Appearances : AR with Shri Rishab Raj Jain, counsel for complainant.
Accused on bail with Shri A.A. Khan, Advocate.
Complaint instituted on : 02.07.2009
Judgment reserved on : 17.08.2013
Judgment pronounced on : 29.08.2013
JUDGMENT
1. The case of the complainant in brief is that on 28.01.2009, the officers of complainant company namely Shri Sant Ram - Senior BSES Vs. Andrus Charan, CC No. 415/09 Page 1 of page 13 2 Manager, Shri Anuraj - Field Executive and Shri Harve - Office Assistant conducted inspection at the premises occupied and used by accused Andrus Charan at 1359A1/8, Basement, Govindpuri, New Delhi and observations were made on the New K. No. 2510 N6651192 and meter no. 13240175 and it was found that load of 6.858 KW was connected against sanctioned load of 4 KW under non domestic category and that the meter terminal seals, meter half seals and hologram seals of single phase electronic meter no. 13240175 found tampered and refixed and that on performing accuracy check with accucheck instrument, meter found within accuracy limit and that meter was segregated at site in the presence of consumer and illegal soldering marks were found at the PCB of the meter. It is further mentioned in the complaint total connected load of 6.868 KW was illegally used by the accused and the raiding team prepared inspection report and load report. It is further mentioned in the complainant that faulty meter bearing no. 13240175 was sent to the laboratory in sealed condition for further testing/ analysis and that as per meter testing/ analysis report, it was found that meter terminal seals, meter half seals and hologram seals were found tampered and refixed and illegal soldering marks were found on the PCB of the meter. It is also mentioned in the complaint that BSES Vs. Andrus Charan, CC No. 415/09 Page 2 of page 13 3 photographs and compact disc pertaining to said inspection showing the irregularities, had taken at the relevant time.
2. It is further alleged in the complaint that the accused was found indulging in dishonest abstraction of energy and that a show cause notice for the same was issued to the accused to file reply and appear for personal hearing before the complainant office and that accused appeared for said hearing and submitted that he was doing business of books binding for last four years and he did not know about the meter tampering and a note sheet to this effect was prepared and signed by the accused. It is further mentioned in the said complaint that after considering and examining the submission, fact, documents and electricity consumption details of the accused, a detail Speaking Order was passed and thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
3. It is further mentioned in the complaint that accused was using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.1,29,374/ was payable to the complainant by the accused and same was computed as per DERC Regulations and BSES Vs. Andrus Charan, CC No. 415/09 Page 3 of page 13 4 as per applicable tariff and that the due date of the said theft bill was given as 02.02.2009 and same was served upon the accused but he failed to pay the said theft bill.
4. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide his order dt. 14.07.2009 and the accused appeared and my ld. predecessor vide his order dt. 05.10.2012 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 had not tampered the meter and there was no tampering as per his knowledge and the meter had been segregated at the site before sending of same to the laboratory and that laboratory report was mere formality and same could not be read against him and that accucheck had found the meter to be recording full consumption and that the photographs did not pertain to his premises and that there was no distinct change in the consumption pattern after installation of new meter and that he was not committing any theft of electricity and that he was not liable to pay any damage or loss to the complainant company as alleged. BSES Vs. Andrus Charan, CC No. 415/09 Page 4 of page 13 5
5. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
6. The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that he was present at the time of analysis of the meter and lab report was prepared by the officials of complainant company on their own whims and fancies and that he received the showcause notice from the complainant company and he attended the hearing before the Assessing Officer and he described all the facts, which were not mentioned in the Speaking Order. He further answered that he had not tampered the meter and that he was regularly paying the bills against the electricity connection that there was no variation in the preconsumption and postconsumption pattern and he also exhibited the electricity bills as Ex. D1 to D3. He further answered that he was not aware of any tampering and that the photographs did not pertain to his premises and that the meter in question was segregated at site and it was sent to the laboratory in open condition and that the said meter was deliberately and intentionally tampered by the inspection team. However, he had not opted to lead defence evidence. BSES Vs. Andrus Charan, CC No. 415/09 Page 5 of page 13 6
7. I have heard the counsel for the complainant and counsel for the accused Shri A.A. Khan, advocate, and perused the record including the videography/photography displayed on the computer screen of the court.
8. PW1 Shri Sant Ram Sharma, Deputy General Manager, in the complainant company deposed that 28.01.2009 at about 12.00 p.m., he along with Shri Anurag and Shri Hardev visited and inspected the premises bearing no. 1359A1/8, Govindpuri, New Delhi and it was found that one meter was for basement was installed and all seals of the meter i.e. terminal seal, meter half seal and hologram seal were found tampered. He further deposed that the ultrasonic welding was damaged so the meter was open and there were illegal soldering marks present on the PCB of the meter and that the inspection team booked the case under dishonest abstraction of energy (DAE). PW1 further deposed that the workers of the accused Andrus Charan were present at the site and inspection was carried out in their presence and said premises was office of book binding. He further deposed that inspection team assessed the total connected load of the premises and same was found to be 6.85 KW for commercial use and BSES Vs. Andrus Charan, CC No. 415/09 Page 6 of page 13 7 he also proved inspection report as Ex. CW2/1, load report as Ex. CW2/2 and photographs collectively as Ex. CW2/4. He also proved the show cause notice as Ex. CW2/6 and he further proved the photographs and videography contained in the CD, Ex. CW2/5. PW1 further deposed that the meter in question was sent to laboratory for analysis/testing.
9. In his cross examination on behalf of the accused, he admitted that the meter was segregated at the site to know any physical tampering inside the meter and he also admitted that for segregating the meter, seals had to be opened. He volunteered that the seals were already missing, therefore, the team did not have to remove the seals. PW1 replied that accucheck was used at the time of inspection and working of the meter was found OK. He did not remember whether videography was carried out at the time of inspection. PW1 answered that offering of the documents or refusal of the same by the accused, had not been covered in the videography. PW1 admitted that accused Andrus Charan was not present at the site at the time of inspection. PW1 answered that the meter was reassembled at the site and inspection report pasted on it and then it was sent to laboratory.
BSES Vs. Andrus Charan, CC No. 415/09 Page 7 of page 13 8
10. PW2 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. PW2/1 and he also identified the signatures of previous A.R. Shri Binay kumar on the complaint Ex. CW1/3 and he also proved the letter of authority as Ex. CW1/2. In his cross examination on behalf of the accused, he replied that he did not visit the site and that he had no personal knowledge of the case.
11. PW3 Shri A.S. Menon, Deputy Finance Officer in the complainant company, proved the load report as Ex. CW2/2 and Speaking Order as Ex. CW2/8 and he also proved the theft bill as Ex. CW2/9. PW3 deposed that he prepared the said theft bill on the basis of formula given under the DERC Regulations. In his cross examination on behalf of the accused, he admitted that the bill raised was a liability on the premises and not towards the individual.
12. PW4 Shri Neelesh Chandra, Manager in the complainant company and identified the signatures of Ms. Mita Saha, Assessing Officer, who passed the Speaking Order Ex. CW2/8 as he had seen her signing and writing. In his cross examination on behalf of the BSES Vs. Andrus Charan, CC No. 415/09 Page 8 of page 13 9 accused, he replied that he had no personal knowledge of the present case and that the present case was never examined by him nor the same was under his domain at any point of time.
13. PW5 Shri Nikhil Kumar, Diploma Engineer of complainant company deposed that the lab report Ex. CW2/3 was prepared by Shri Jayant Joseph and he identified his signatures as he had seen him signing and writing. In his cross examination on behalf of the accused, he replied that he had no personal knowledge of the present case nor the said meter testing report was prepared in his presence nor the said meter was tested in his presence.
14. PW6 Shri Rajiv Ranjan, Manager in the complainant company deposed that the meter in question was tested by one Shri Jayan Joseph. He further deposed that as per visual observation of the laboratory while opening of the bag were that hologram seal of the meter was tampered, meter was found in open condition and load report and inspection reports were pasted on the meter. He further deposed that while opening the meter, they had observed that an illegal resoldering was found on the meter PCB (Print Circuit Board) on a location CT4 and CT5. PW6 deposed that meter in question BSES Vs. Andrus Charan, CC No. 415/09 Page 9 of page 13 10 was tested by Jayant Joseph in his presence and that they finally concluded that the said meter was tampered and the said meter was tested in the presence of consumer. He also proved the meter analysis report dated 12.02.2013 as Ex. CW2/3 and he also identified the signatures of consumer on the said report and the said report was also received by the consumer.
15. In his cross examination on behalf of the accused, PW6 admitted that lab report Ex. CW2/3 was in photocopy and he had no knowledge as to whether its original was sent to the Enforcement Department. PW6 replied that he had no personal knowledge whether the meter in question was sent to the laboratory in open condition. He admitted that the data of the said meter was not downloaded and that that maximum demand detail column was blank in the said lab report. PW6 replied that he received the bag in the laboratory but he was not aware about the seizure of the meter.
16. Even if I take the deposition of PW1 as gospel truth for the sake of argument, it has not been whispered at all by him that if the meter was found tampered, any substitute meter was installed. It is admitted case of the said witness that instead of sending the said BSES Vs. Andrus Charan, CC No. 415/09 Page 10 of page 13 11 meter directly to the laboratory for testing, the meter was segregated at the site itself and seals were opened. It is further admitted case of the said witness that accucheck was used at the time of inspection and working of the meter was found to be OK. He admitted that accused was not present at the time of the said inspection. It is also admitted case that meter was reassembled at the site and then it was sent to the laboratory.
17. Similarly, PW6 under whose alleged supervision the said meter was tested has admitted that meter was found in open condition in the laboratory and an inspection report was pasted on the meter. He could not tell about the original lab report and it is admitted case of the complainant that Ex. CW2/3 is the copy of the lab test report. PW6 further admitted that data of the meter was not downloaded and column of Maximum Demand Detail was left blank.
18. Non installation of a substitute new meter is perse violation of rule 52 (8) of DERC Regulations and this fact that a new meter was installed at the spot was not mentioned either in the inspection report or the Speaking Order or deposition of any other witness. BSES Vs. Andrus Charan, CC No. 415/09 Page 11 of page 13 12
19. Further, a doubtful circumstance is that photographs on the record collectively Ex. CW2/4 are showing the date as recorded by the digital camera as 01.10.2007 whereas the inspection was carried out on 28.01.2009. Why there was a such a long gap in taking the alleged photographs of the premises in question on 01.10.2007 and conducting an inspection of the alleged tampered meter on 28.01.2009 has not been explained by any of the witness or by otherwise piece of an evidence. What was the need of taking the said photographs prior to the inspection? Was there an anticipation with the complainant that meter would be tampered at the said premises? These questions remained unanswered, creating a doubt about true genesis of the case.
20. Moreover, neither the lab test report nor the Speaking Order were proved by calling the concerned officials in the witness box who prepared the said documents. On this account, the alleged prior and post consumption pattern as alleged, cannot be said to have been established beyond reasonable doubt. Even the lab report was mentioning that LCD and LED of the meter were found OK and in the meter detail report the reading was shown as 16133 at the BSES Vs. Andrus Charan, CC No. 415/09 Page 12 of page 13 13 time of alleged inspection but in the lab testing report, the said units of reading of the meter increased to 16175.
21. In the said circumstances, it cannot be said at all that the presumption as provided under the 3rd proviso to section 135 of the Electricity Act, 2003 can be raised against the accused to be rebutted by him. The complainant company has miserably failed to bring home the guilt of the accused beyond reasonable doubt and as such benefit of doubt is extended to the accused. Hence, accused is acquitted of the offence alleged against him u/s. 135 & 138 of the Electricity Act, 2003. His PB and SB are cancelled and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 29.08.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Andrus Charan, CC No. 415/09 Page 13 of page 13