Delhi District Court
Bses Rajdhani Power Ltd. vs Rajesh & Darshan Lal on 21 May, 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. : 447/09
Police Station : Fatehpur Beri, New Delhi
Under Section : 135 of Electricity Act, 2003
Unique ID No. : 02403R0343612009
BSES Rajdhani Power Ltd. Versus Rajesh & Darshan Lal
AMENDED MEMO OF PARTIES
BSES Rajdhani Power Ltd.
A company duly incorporated
under the Companies Act, 1956
Having its registered Office at
BSES Bhawan, Nehru Place, N.D.19
and Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Rajesh (User)
Kh.No.1440, Near Oswal Farm,
village Fatehpur Beri, New Delhi
...Accused
Appearances : AR with Sh. Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for complainant.
Accused on bail with Sh.Vijender Sharma, Advocate.
Complaint instituted on : 11.07.2009
Judgment reserved on : 14.05.2013
Judgment pronounced on : 21.05.2013
BSES VS RAJESH & ANR, CC No.447/09 Page 1 of page 18
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JUDGMENT
1 The case of the complainant in brief is that on 17.11.2008, the officers of the complainant company namely, Rajesh - Assistant Manager, Sh.G.P.Singh - Trainee Engineer and Sh.A.K.Pandey - Trainee Engineer inspected the premises of the accused i.e. Kh. No.1440, Near Oswal Farm, Village Fatehpur Beri, New Delhi and it was found that three phase whole current electronic meter No.28048911 was found installed against K.No. 2520 0F31 0209 was replaced by the Meter Management Group with new electronic meter bearing No.27114343 and that the meter No.28048911 was sent to the Meter Testing Lab in sealed condition for further testing/ analysis under the intimation to the consumer that he may witness the testing/ analysis of the said meter in the lab. It was mentioned in the complaint that as per meter testing/ analysis report No.EMTR/02/2285 dt. 23.09.2008, the lab observed that hologram seals were found opened, meter ultrasonic welding found tampered and refixed, LCD (meter display) and meter LED (indicators) were not working as on application of rated voltage and current there was no display and no pulse indication at the back side of PCB terminals where R, Y, B phase and neutral were connected, one leg of each R, Y, B phase and neutral terminal was also found cut. CMRI Data of the meter was also downloaded and it was observed that meter recorded abnormal maximum demand i.e. 239.26 BSES VS RAJESH & ANR, CC No.447/09 Page 2 of page 18 3 KVA, 239.34 KW and from 02/06/2007 till the date, there was no billing date as such ERDA laboratory declared the meter as tampered meter. 2 It is further mentioned in the complaint that the raiding team visited the premises on 17.11.2008 when the connected load of 11.358 KWs used for agricultural purpose against the sanctioned load of 3.73 KWs under the agricultural category and that accused Rajesh, as alleged, was found user as well as owner of the farm house in question and that accused Darshan Lal was the registered consumer of the electricity and that the inspection team also prepared the meter details and load report at site and show cause notice dt. 17.11.2008 for dishonest abstraction of energy which was issued to the consumer by requesting the consumer to file reply by 25.11.2008 and to attend personal hearing on 28.11.2008 and that all the reports and show cause notice were prepared at site including the lab report and that necessary videography of the inspection was also done by the joint inspection team at site. It is also mentioned in the complaint that accused were using electricity illegally, by drawing the same dishonestly from the complainant's system and theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs.4,50,476/ with a due date as 05.03.2009 and was served upon the accused but they failed to pay the said theft bill.
BSES VS RAJESH & ANR, CC No.447/09 Page 3 of page 18
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3 The case was fixed for presummoning evidence and accused were
summoned to face the said allegations by my ld. predecessor vide his order dt. 27.07.2009. Accused no. 1 Rajesh appeared and granted interim bail subject to condition of deposit of Rs.40,000/ by the ld. Predecessor court vide order dt. 16.02.2010 and was supplied with the copies of the documents and CD and that the proceedings qua accused no.2 Darshan Lal have been dismissed vide order dt. 16.02.2010. My ld. predecessor vide his order dt. 16.09.2010 framed a notice U/sec. 251 Cr.P.C. against the said accused for the offence U/Sec. 135 & 138 of the Electricity Act, 2003 and accused pleaded not guilty and claimed trial on the ground that he has not tampered the meter in question and that there was only 5 KW motor/ submersible pump installed at the premises and was using the electricity through the meter installed within the sanctioned load and that water level generally remains at 5060 feet at the premises in question and no one including himself was using the water pump for more than 5 KW or 7.5 KW which was wrongly mentioned in the load report by the complainant being that of 15 HP and that complainant even did not know about the khasra number of the premises and the the team members had taken away the other meter from Khasra No.1677/1371 in the Revenue Estate of village Fatehpur Beri.
BSES VS RAJESH & ANR, CC No.447/09 Page 4 of page 18
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4 The complainant has produced seven witnesses in order to prove its
case, the relevant of which have been discussed below. 5 The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that he was not present at the spot at the time of alleged inspection nor he tampered the meter nor he was committing any theft of electricity and he admitted that meter No.28048911 was not removed in his presence nor it was sealed in his presence and the said meter was not tampered with and the load report is exaggerted and imaginary. He further answered that no documents were prepared at site at the time of alleged inspection and videography was not done in his presence. He further replied that the meter which was installed as on today had been in existence since 2005 when he purchased the aforesaid land and that he had been paying bills against the same meter regularly and meter analysis report was not prepared in his presence nor he was served with any notice of appearance before the lab for analysis of the meter nor he was aware of any data downloaded from the meter. He further replied that he did not attend the personal hearing on 28.11.2008 as he was not served with any show cause notice for appearing before the Assessing Officer. He further BSES VS RAJESH & ANR, CC No.447/09 Page 5 of page 18 6 replied that meter which was in existence at the premises was not replaced since 2005 and tampering of the meter, if any, was done by the previous owner of the premises who was also the registered consumer namely Darshan Lal.
6 Accused has produced DW1 Babu Ram in his defence to depose that he was the manager of the farm house of the accused situated at khasra No.1440 near Oswal Farm, village Fatehpur Beri, New Delhi from 2006 till date and that no electricity meter was ever impounded from the said farm house in his presence and that there was only one submersible pump of 3 KWs in the farm house. In his cross examination on behalf of the complainant, he replied that the farm house was being used for agricultural purpose and he admitted that raid was conducted by the officers of the complainant company on the date of inspection and that there was three phase electricity meter installed in the premises at the time of inspection. He replied that probably the electric meter was installed in the name of previous owner of the farm house but he could not tell the sanctioned load of the same. He admitted that he has not filed any electricity bill relating to the meter in question. He could not say as to who has signed on the notice Ex.CW2/D at point C. BSES VS RAJESH & ANR, CC No.447/09 Page 6 of page 18 7 7 I have heard the counsel for the complainant and counsel for the accused Sh.Vijendra Sharma, advocate, and perused the record including the videography displayed on the computer screen of the court. 8 PW1 Sh.Rajesh Kumar who was the member of the raid party deposed that on 17.11.2008, he along with Sh.G.P.Singh - DET, Sh.A.K.Pandey - GET and one electrician inspected the premises bearing Kh.No.1440, near Oswal farm, village Fatehpur Beri, New Delhi and that as per the lab report, they inspected the said premises and as per lab report No.EMTR/02/2285 dt. 23.09.2008, the meter in question was declared tampered as the back side of PCB terminals (R,Y,B & N) connected on PCB, one leg of each was found cut and abnormal MD recorded (i.e. 239.26 KVA, 239.34 KW) from 02.06.2007 till date, no billing date details found in CMRI data and meter as offered to ERDA was found tampered and the load report is Ex.CW2/E and that they assessed the total connected load as 11 KWs approximately for farm house category purpose. He further testified that they found that the said premises was being used by Rajesh as stated by the guard who was present at the spot during the inspection and that they also conducted the videography at the spot and that they prepared meter report, load report and show cause notice at the spot during the inspection which are Ex.CW2/A, Ex.CW2/B & Ex.CW2/C which bears his BSES VS RAJESH & ANR, CC No.447/09 Page 7 of page 18 8 signatures at point A and that the said documents were offered to the guard, present at the spot, to receive and sign the same but he refused the same and the CD of the videography is Ex.CW2/H and that they submitted all the documents to their office to take further necessary action against the accused.
9 In his cross examination on behalf of the accused, PW1 admitted that there was no number and name written outside the farm house in which the raid was conducted by them and that the reader has informed them about the location of the farm house at which the meter, for which the lab report was received, was installed. He did not remember the name of the electrician who accompanied them and his signatures were not obtained on the said documents. He further admitted that neither he nor any member of the raid checked the accuracy of the meter installed at the premises during the inspection. He replied that guard of the farm house did not disclose name, parentage and address of the accused but no action was initiated against the said guard in the present case. He replied that he could not tell the name of the person who prepared the lab report and the date of the same. He replied that he never visited the house of Rajesh Sharma, the accused prior to filing of the complaint or thereafter. He did not remember as to how many electrical appliances were running in the BSES VS RAJESH & ANR, CC No.447/09 Page 8 of page 18 9 farm house during the inspection. He admitted that no documentary proof was given relating to the ownership of the farm house to file the complaint against accused Rajesh Sharma except the said documents. He replied that he had prepared the show cause notice Ex.CW2/C. He had no knowledge regarding the regular electricity bill payments regarding the farm house. He replied that they did not seize any illegal material from the spot during the inspection including the electricity meter, wire or cables etc. He replied that the total connected load consisted of 1 submersible pump, fans & CFL and the said pump was of 15 HP approximately and that in the said farm house, there was only one small room/ kotha. He admitted that 15 HP submersible pump can be run by a starter but they did not seize the said starter.
10 PW2 is the formal witness, being the AR of the company who proved the signatures on the complaint of the previous AR which is Ex.CW1/A and his authority letter.
11 PW3 Sh.Sudip Bhattacharya was the Assessing Officer who deposed that on the basis of testing of the removed meter Ex.CW2/D, lab report Ex.CW2/E and photographs of the meter Ex.CW2/F, inspection report (meter details) Ex.CW2/A, the load report Ex.CW2/B and show cause BSES VS RAJESH & ANR, CC No.447/09 Page 9 of page 18 10 notice Ex.CW2/C, he had passed the speaking order and that the personal hearing which was scheduled for 28.11.2008 vide show cause notice dt. 17.11.2008 was not attended and that he relied upon the lab report which stated that hologram seals of the meter were open, ultrasonic welding of the meter was found tampered and refixed with adhesive, inside the meter R, Y, B & Neutral one leg each terminal were found cut and the laboratory declared the meter as tampered and the lab also downloaded the CMRI data which showed that meter was not recording energy since June, 2007 and on the basis of said facts, he concluded it to be the case of DAE and accordingly, passed the speaking order which is Ex.CW2/G. 12 In his cross examination on behalf of the accused, PW3 admitted that he had not given any show cause notice to the consumer prior to passing of the speaking order and that the show cause notice contained the name of the registered consumer Darshan Lal and also the user Rajesh. He replied that he did not have any personal knowledge as to whether the show cause notice was served upon the registered consumer or the said user. He replied that there was no documentary proof of service of the show cause notice to the aforesaid persons when he had passed the speaking order. He further replied that he had not called the aforesaid registered consumer and the user at the time of passing of the speaking BSES VS RAJESH & ANR, CC No.447/09 Page 10 of page 18 11 order. He replied that number of the meter on which, case of DAE was booked, was 28048911 and that he had not called any official from the meter testing lab at the time of passing of the aforesaid speaking order. 13 PW4 Sh.Vikas - Junior Engineer II, ERDA, Vadodara Gujrat proved the meter testing lab report as Ex.CW2/E which is signed by him at point B and deposed that he had taken the photographs of the said meter which are Ex.CW2/F and that he had tested the electric meter No.28048911 in the lab and he found that ultrasonic welding of the meter was tampered, its plastic seal was refixed with the help of adhesive, no display and no pulse on application of rated voltage and basis current and meter was found dead. He further deposed that he found that the back side of PCB terminals (R, Y, B & N phase) connected to PCB, one leg of each found cut and that as per CMRI data, he further found that abnormal MD i.e. (239.26KVA, 239.34 KW) from 02.06.2007 to 23.09.2008, no billing date details were found and on the basis of above said observations, he declared the meter as tampered and he identified the green colour bag bearing No.231153 with yellow colour tag of BRPLR0052564 as Ex.P2, which was opened and the three phase four wires energy meter was identified by him as Ex.P1.
BSES VS RAJESH & ANR, CC No.447/09 Page 11 of page 18
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14 In his cross examination on behalf of the accused, PW4 replied that
the meter when received in laboratory was accompanied with a forwarding letter. He replied that there was no copy of seizure memo of the seizing authority. He himself or any other official from ERDA had not issued any notice before testing the meter to Darshan Lal or Rajesh Sharma and that none of them was present in the lab at the time of testing. He answered that the meter was received in the said green bag duly sealed with the seal of BRPL and that the seal which was in existence on the bag before testing, has not been produced in the court, though, he had put the broken seal in the bag. He could not admit or deny that the meter Ex.P1 was not removed or seized from the premises of the accused. 15 PW5 Vivek Arora proved the videography, CD of which is Ex.CW2/H which was taken by his employee Beni Ram and in his cross examination, he admitted that he never visited the premises in question which has been shown in the CD.
16 PW6 Sh.Deepak Kumar prepared the theft bill which is Ex.CW2/1. 17 PW7 Sh.Rishi Kumar Sharma deposed that during an inspection on 28.08.2008 at the premises on one Darshan Lal, the Meter Management Group (MMG), removed a defective/ burnt meter No.28048911 and at that BSES VS RAJESH & ANR, CC No.447/09 Page 12 of page 18 13 time, a notice was served upon the consumer for desealing and testing of the meter at the lab on 10.09.2008 and that the notice Ex.CW2/D bears the signatures of BSES engineer Mahesh at point A who is not in the service of the said company anymore and he identified the signature of Sh.Mahesh on various documents. In his cross examination on behalf of the accused, he replied that he had no knowledge of the condition of the said meter at the time of its removal. He did not know if it was properly sealed at the time of its removal. He did not know the number and the facsimile of the seal used at the time of seizing and sealing the meter.
18 From the said evidence on record, the undisputed facts which have come on record are that the accused was not present at the spot at the time of alleged inspection or alleged removal of the said tampered meter nor any witness has identified him before the court. It is further on record that the said alleged tampered meter was in the name of one Darshan Lal against whom the proceedings were dismissed by my ld. Predecessor. It is also not disputed that the alleged show cause notice which was served upon the consumer before passing of the speaking order was signed by someone whose identity could not be established by way of evidence on the record. There is no evidence on record as to by what mode the said show cause notice was served upon any person including said Darshan Lal BSES VS RAJESH & ANR, CC No.447/09 Page 13 of page 18 14 or the accused. Admittedly, the meter was never tested by the said lab in the presence of the accused or his authorised representative, although there is no legal requirement as such.
19 In the said background, PW1, the member of the raid party, specifically admitted that accuracy of the meter was not checked at the spot by any device. He could not give the details of electrical appliances found at the spot. It is admitted case that no documentary proof including any ownership document of the farm house in question has been proved on the record either from any other source or from Land Revenue Authorities. It is further categorically admitted by PW1 in his cross examination that no meter was seized nor any wire or cable was seized from the spot at the time of inspection. Although, PW1 admitted that a 15 HP submersible pump could be run by a starter but even the said starter was not seized. Similarly, the Assessing Officer PW3 also admitted that he has not given any show cause notice to the consumer prior to passing of the speaking order and he did not know as to whether the show cause notice was served upon the accused or not. He admitted that there is no documentary proof of the service of show cause notice on any person. PW4 who tested the meter specifically claimed that when the meter was received in the lab, it was sealed with the seal of BRPL and the broken seals BSES VS RAJESH & ANR, CC No.447/09 Page 14 of page 18 15 after opening the bag, was again put inside the bag but the said seals were never produced before the court. He specifically admitted that no copy of seizure memo of the authority who allegedly seized the meter was made available to him. PW7 only proved the signatures of one Sh.Mahesh who removed the meter on 28.08.2008 and he further proved that a notice Ex.CW2/D was served upon the consumer for the testing of the meter at the laboratory on 10.09.2008 but the said Sh.Mahesh has not been produced in the witness box.
20 From the said circumstances, it is evident on the record that the important and pivotal link of seizure of the alleged tampered meter from the spot is missing in the present case as already discussed by me that Sh.Mahesh has not been produced in the witness box. Although, there was no requirement either under the Electricity Act, 2003 or the DERC Regulations that the presence of the consumer at the time of testing the meter in the laboratory is mandatory but PW7 has proved the signatures of Sh.Mahesh on the notice Ex.CW2/D which was addressed to Darshan Lal which clearly mentions that the defective meter would be tested on 10.30 a.m/ 02.00 p.m. on 10.09.2008 and he may be present to witness the investigation/ testing process either in person or through authorised representative. Once this notice was claimed to have been issued, the BSES VS RAJESH & ANR, CC No.447/09 Page 15 of page 18 16 prudence as well as 'fair play in action' requires that the meter should have been tested either in the presence of Darshan Lal or the accused as the person giving the said notice was very well aware that name of the then alleged owner was disclosed by the guard as Sh.Rajesh, the accused but admittedly it was not done and the meter was tested at the back of the accused.
21 In the similar manner, the show cause notice was also not served upon the accused or said Sh.Darshan Lal nor the Assessing Officer PW3, admittedly himself also not issued any further show cause notice or ensured that the alleged show cause notice for personal hearing had actually been served either upon the registered consumer or the user as such. Thus, the complainant has miserably failed to provide the link that the show cause notice was really served or to produce any document to show that show cause notice was served by any particular mode and thus, the principles of natural justice, have not been fulfilled in the present case. Further, which meter was removed has not been clearly established on record beyond reasonable doubt or as to whether it was properly sealed or not or copy of seizure memo was sent to the said laboratory to further supply the link that the same meter was sent to the laboratory for testing which was actually seized from the spot. Even the premises in question BSES VS RAJESH & ANR, CC No.447/09 Page 16 of page 18 17 has not been established beyond reasonable doubt in view of the answers given by PW1 in his cross examination as reproduced above. The very accuracy of the meter was not checked at the spot by any accu check machine which is a device available to the complainant company and is a matter of common knowledge and is being used in such cases which are pending before this court, of which this court may take judicial notice also. 22 In the said circumstances, I am of the considered opinion that the complainant has not been able to establish as to which premises, they actually visited or they prima facie found any meter which was tampered at the spot as no device was applied to check the accuracy of the meter at the spot, nor its seizure and sealing has been proved on record nor it has come on the record that the same meter was sent to the laboratory as the concerned witness namely Sh.Mahesh was not produced in the witness box nor any copy of the seizure memo was sent to the laboratory nor the broken seals of the bag in which the meter was allegedly sealed which were admittedly put into the said bag by PW4, was produced before the court and in this view of the situation, I am of the considered opinion that the complainant has failed to shift the burden on the accused nor it has been successful in getting the third presumption as mentioned in Section 135 of the Electricity Act, 2003, to be raised against the accused.
BSES VS RAJESH & ANR, CC No.447/09 Page 17 of page 18
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23 In view of my said discussion, accused is entitled to benefit of doubt
which is extended to him and he is acquitted of the offence 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 21.05.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES VS RAJESH & ANR, CC No.447/09 Page 18 of page 18