Delhi District Court
Bses vs . Pawan Electrical, Cc No. 310/11 Page 1 ... on 22 July, 2014
1
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. : 310/11
Police Station : Malviya Nagar, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02406 RO344912011
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. M/s. Pawan Electric Goods (Registered Consumer)
2. Pawan Kumar Verma (User)
At: Shop No. 26/27, Corner Market,
Malviya Nagar, New Delhi - 110 017
...Accused
Appearances : AR with Shri S.K. Alok, counsel for complainant.
Accused on bail with Shri N.N. Dhingra, Advocate.
Complaint instituted on : 13.09.2011
Judgment reserved on : 08.07.2014
Judgment pronounced on : 22.07.2014
JUDGMENT
1. The case of the complainant in brief is that on 03.02.2011 meter bearing no. 23610215 installed at the premises of accused was BSES Vs. Pawan Electrical, CC No. 310/11 Page 1 of page 16 2 replaced by the Meter Management Group (MMG) with new electronic meter no. 21266907 and that the said meter was duly sealed in the presence of the accused and sent to the testing/analysis to Meter Testing Lab under intimation to the accused. It is further mentioned in the complaint that upon investigation of the removed meter, meter hologram seal no. RK68898 and meter top cover were found refixed, two illegal resistance was found connected in CT4 and CT5, current date as shown by the meter was 02.01.2000 instead of actual date as 03.02.2011, accuracy of the meter was found ()81% and laboratory declared the meter as tampered.
2. It is further mentioned in the complaint that in pursuance of the meter being found tampered, on 14.02.2011 the officers of the complainant company namely Shri P.C. Pathak - Senior Manager, Shri Ramesh Chand - Assistant Grade II, Shri Akash - Lineman and Shri Sumer - videographer inspected the premises of the accused and that accused persons found using total connected load of 4.170 KWs for nondomestic purpose and the inspection team prepared inspection report, meter details, seizure memo and load report. It is also mentioned in the complaint that videography/visual footage pertaining to said inspection was also recorded. BSES Vs. Pawan Electrical, CC No. 310/11 Page 2 of page 16 3
3. It is further alleged in the complaint that the accused was found indulged in dishonest abstraction of energy and that a showcause notice for the same was issued to the accused to file reply and appear for personal hearing in the complainant's office and that accused Pawan Kumar Verma appeared for said hearing and he denied any tampering with the meter. It is further mentioned in the said complaint that the Assessing Officer after considering all the relevant aspects of the matter passed Speaking Order and thus, accused was causing wrongful loss to the complainant and wrongful gain to him and were thus acting dishonestly.
4. It is further mentioned in the complaint that accused were using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.1,29,850/ was payable to the complainant by the accused and same was computed as per DERC Regulations and as per applicable tariff and that the due date of the said theft bill was given as 10.05.2011 and same was served upon the accused but he failed to pay the said theft bill.
5. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide BSES Vs. Pawan Electrical, CC No. 310/11 Page 3 of page 16 4 his order dated 28.09.2011 and the accused appeared and my ld. predecessor vide his order dated 16.01.2012 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 abetted nor committed any theft of electricity nor tampered with the meter in question. Accused answered that the meter was suomoto changed by the complainant company on 30.07.2010 by new meter bearing no. 21266907, which was working since then and that on 14.02.2011, the meter bearing no. 23610215 was not in existence, but the inspection report mentioned the meter no. 23610215. Accused further answered that the inspection was conducted only with a view to determine the consumption load on the basis of recorded load of 4.170 KW, which was against sanctioned load of 6 KW and that the meter was neither removed on 14.02.2011 nor same was sealed in the presence of any member of family of the consumer and that the removed meter bearing no. 23610215 was sent to the laboratory of which he had no knowledge and that vide notice dated 24.02.2011, he came to know of inspection or removal of meter or alleged tampering with the same and that he was not liable to pay any damages or loss to the complainant company as alleged.
BSES Vs. Pawan Electrical, CC No. 310/11 Page 4 of page 16 5
6. In order to prove the case of the complainant, eight witnesses were produced, which have been discussed below.
7. 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 the inspection team visited the premises with a view to check load of the meter bearing no. 21266907 installed and that on 30.07.2010 meter no. 23610215 was removed by the BSES, and therefore, there was no question of tampering with the same. Accused admitted the load report. Accused answered that none of the document was prepared in his presence nor he is aware of the contents of the said documents and that meter test report is false and that the meter was found OK and that he was not present at the time of analysis of the meter in laboratory. Accused further answered that he received show cause notice from complainant company and that he attended personal hearing before the Assessing Officer and described all the facts which were not mentioned in the Speaking Order. Accused further answered that he was paying the bills against the connection regularly and that he was not aware of said tampering and that he is not liable to pay any amount as allegedly claimed by the complainant company and that meter in question was removed from the premises for the alleged tampering and same was replaced by a BSES Vs. Pawan Electrical, CC No. 310/11 Page 5 of page 16 6 new meter on 30.07.2010 on the pretext that the electronic meters were to be replaced and not on the date of inspection. Accused further answered that on the meter report given on 30.07.2010, the remarks were given on the top of it as "meter memory problem" and it had remarks that meter was intact and Ok in every respect. Accused proved the final order of Consumer Redressal Forum as Ex. DA and the meter change report bearing no.1088400 dated 30.07.2010 as Ex. DB. However, he had not opted to lead defence evidence.
8. I have heard the counsel for the complainant and counsel for the accused Shri N.N. Dhingra, advocate, and perused the record including the videography/photography displayed on the computer screen of the court. I have also perused the written arguments by the ld. defence counsel on behalf of the accused.
9. PW1 Sh.Ramesh Chand was the Assistant in the office of the complainant, who deposed that on 14.02.2011 at around 01.15 p.m, he along with Shri P .C. Pathak, Shri Akash, and Shri Sumer visited and inspected the premises in question i.e. Shop No.2627, Corner Market, Malviya Nagar, New Delhi and that they had conducted the raid on the basis of lab report provided to them and that the total connected load of the said premises was found to 4.170 KW for nondomestic purpose. PW1 further deposed that a shop of electric appliances was BSES Vs. Pawan Electrical, CC No. 310/11 Page 6 of page 16 7 running at the time of inspection and that one person was present at site, but he did not remember as to whether the accused Pawan Kumar Verma was present at the spot or not. PW1 proved the inspection report, meter details and load report as Ex.CW2/3 to Ex.CW2/5. PW1 also identified videography as contained in the CD of videography Ex.CW2/6. PW1 also identified the seized meter no. 23610215 as Ex. P1 .
10. In his cross examination on behalf of the accused, PW1 replied that he had no personal knowledge with regard to the date of removal of the meter. PW1 answered that he was from the Enforcement Department and conducted raid on 14.02.2011 for the purpose of determination of connected load only and inspection team was constituted for the said purpose. PW1 further answered that the videography was taken of the meter which was in existence on the date of inspection and not of the one, in respect of which lab report was prepared. PW1 replied that the load was not assessed/determined when the meter in question was removed, but the same was assessed / determined subsequent to the submission of the lab report bearing no. BRPL/11/13350 dated 03.02.2011, which was given to them on 14.02.2011. PW1 did not know as to whether consumer was associated with the inspection team or not. BSES Vs. Pawan Electrical, CC No. 310/11 Page 7 of page 16 8
11. PW2 Shri P.C. Pathak was the Deputy General Manager of the complainant company, who deposed almost on the same lines on which PW1 has deposed and as mentioned in the complaint. PW2 further deposed that accused Pawan Kumar Verma was present at the site at the time of inspection and he also identified the accused, who was present in the court on the date of deposition of the witness.
12. In his cross examination on behalf of of the accused, PW2 could not say about the condition of meter in question because he inspected the premises on the basis of the lab report provided to him. PW2 replied that he inspected the premises for the assessment of connected load pursuant to the lab report and that when inspection team reached the spot, there was one new meter installed at site. PW2 further replied that at the time of inspection, meter in question was intact and there was no tampering with the same. PW2 answered that on the basis of assessment of the connected load, he could not say as to whether there could be any theft of electricity. PW2 replied that they had gone to the spot for assessing the connected load only of the premises in question on the basis of lab report and on the basis of the meter installed at the relevant time and present inspection had nothing to do with alleged theft.
BSES Vs. Pawan Electrical, CC No. 310/11 Page 8 of page 16 9
13. PW3 Shri Nikhil Kumar proved the lab report as Ex.CW2/2, which was prepared by Sh.Ved Prakash Yadav, Testing Engineer, who had tested the meter and that the said report was approved by Shri Bimal Mondal. PW3 also identified signatures of Shri Ved Prakash Yadav and Shri Bimal Mondal on Ex. CW2/2 PW3 further deposed that Shri Ved Prakash and Shri Bimal Mondal had left the services of the complainant company. In his cross examination on behalf of the accused PW3 replied that he had no personal knowledge of the meter qua which the said report was prepared by the said officials. PW3 further replied that he was not present in the lab at the time of testing of the aforesaid meter or preparation of the report.
14. PW4 Sh. Mustufa Barbhaiwala was the Assessing Officer of the complainant company, who deposed that as per the lab report dated 03.02.2011, two illegal resistance were found for tampering and same were connected in CT4 and CT5, current date was shown in the meter as 02.01.2000 on actual date as 03.02.2011 and the laboratory declared the meter as tampered. PW4 further deposed that the show cause notice dated 24.02.2011 as Ex.CW2/8 was sent to the consumer for hearing on 04.04.2011 and that accused Pawan Verma, who was the registered consumer, attended the personal hearing on 04.04.2011 and BSES Vs. Pawan Electrical, CC No. 310/11 Page 9 of page 16 10 accused had denied any tampering with the meter. PW4 further deposed that he passed the Speaking Order and proved the same as Ex. CW2/8 on the basis of inspection report, Meter report, Load report & Lab Report. PW4 further deposed that he found the present case was of dishonest abstraction of electricity as two illegal resistances were found connected in CT4 and CT5 of the meter as mentioned in the lab report, which was also corroborated by the consumption pattern.
15. In his cross examination on behalf of the accused, PW4 admitted it as correct that he relied upon the lab report for drawing his conclusion. PW4 volunteered that he had looked for corroboration from the consumption pattern as recorded by the meter installed in the premises in question. PW4 replied that reference to consumption pattern was made in Speaking Order and that he had not brought his file, wherein, consumption pattern might be on record. PW4 admitted it as correct that the consumption pattern was not filed in the court record. PW4 volunteered that consumer had appeared before him on 04.04.2011 and had marked his presence on the note sheet at page 3 of the Ex.CW2/9 and bears his signatures at point A and signatures of PW4 is at point B. PW4 replied that the page 32 of the note sheet bears the print date as 28.03.2011 and his BSES Vs. Pawan Electrical, CC No. 310/11 Page 10 of page 16 11 signature was appended on 04.04.2011 and that at the time of personal hearing, accused Pawan had categorically denied any tampering to the meter, which was removed on 30.07.2010. PW4 replied that consumption pattern as relied upon by him was only on the basis of meter in question i.e. meter bearing no.23610215. PW4 volunteered that when the meter in question had remained installed in the premises, consumption pattern for a period of one year was taken into consideration. PW4 replied that date of removal of meter was mentioned in investigation/ testing of the meter dated 30.07.2010, which is Ex.CW2/1 and the lab report dated 03.02.2011 which is Ex.CW2/2. PW4 answered that the date of removal of meter was not mentioned in the other documents and that he did not see the videography conducted by the inspection team and that he had considered the photograph of the tampered meter at page no.15.
16. PW5 Shri Sumer videographer had proved the CD of videography as Ex.CW2/6 and he also identified the videography contained therein. In his cross examination on behalf of the accused, PW5 admitted it as correct that at the time of videography conducted by him, the allegedly tampered meter was not in existence at the time of videography and that at the time of videography on 14.02.2011, meter bearing No.21266907 was found installed in the premises. BSES Vs. Pawan Electrical, CC No. 310/11 Page 11 of page 16 12
17. PW6 Shri A.S. Menon, the Deputy General Manager, 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 bill was raised against the tampered meter bearing no. 23610215 as per Speaking Order.
18. PW7 Shri Anil Kumar deposed that on 30.07.2014, he visited the premises in question to install a new meter in place of defective meter and that he visited the site on the basis of report given to him by the Meter Reader, wherein it was found that the meter was not downloading properly. PW7 further deposed that he replaced the new electronic meter bearing no. 21266907 on the said date and he proved the investigation/testing of removed meter as Ex. CW2/1. PW7 further deposed that he prepared the said Ex. CW2/1 at site and handed over the same to the person present at the shop in question.
19. In his cross examination on behalf of the accused, PW7 replied that the report given by the Meter Reader is not placed on record and he could produce the same after checking the record because the Meter Reader submits the report in the Data Center at the office of the complainant company. He did not remember the old meter number. The witness was directed to produce the record and in his further BSES Vs. Pawan Electrical, CC No. 310/11 Page 12 of page 16 13 cross examination on the following date, he produced record of defective meter bearing no. 21266907 and the meter change report as Ex. PW7/DA and consumer details of the said meter as Ex. PW7/DB, wherein the alphabet 'N' denotes "meter reading not downloaded", whereas the alphabet 'Y' denotes "the meter reading downloaded"
and where ever alphabet 'Y' is mentioned, the meter is said to be working alright. He further replied that alphabet 'N' appeared on 16.11.2009 when the meter was not recording the consumption regarding which the information was given to him sometime in month of July, 2010 and on the basis of the said document, he changed the meter on 30.007.2010. He further replied that at the time of removing the meter, he did not see any tampering with the meter and therefore, he could not say as to whether the meter was tampered or faulty and he volunteered that the said meter could not be checked manually and that was why he did not check the said meter to know whether it was tampered or not. He replied that generally they change the meter and inform the consumer and ask him to sign and receive the documents, but in the present case, the consumer had refused to sign on the meter change report, but he did not remember the name of the person, who refused to sign the documents. He further replied that he was deputed to change the meter with the instructions that the meter was having memory problem as a consequence of which, the BSES Vs. Pawan Electrical, CC No. 310/11 Page 13 of page 16 14 necessary information was not being downloaded and he could not say as to how the word "tampering" has occurred in the present case since the meter was changed because of memory problem. He volunteered that only official from laboratory could tell about the same. He could not say as to when the meter, after its removal because of the fault, was sent to laboratory but as indicated in Ex. CW2/1, the consumer was informed that meter would be tested on
20.08.2010.
20. PW8 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. CW1/2 and he proved the complaint as Ex. CW1/3 and he also proved the letter of authority as Ex. CW1/1. 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.
21. This is a case of dishonest abstraction of energy. But the very basis of the case i.e. meter testing report cannot be said to have been proved in the present case. Neither the meter testing engineer Shri Ved Prakash Yadav nor his supervisory officer Shri Bimal Mondal have been produced in the witness box to prove the said meter testing report.
BSES Vs. Pawan Electrical, CC No. 310/11 Page 14 of page 16 15
22. There is a delayed testing of the meter also in the present case because as per the deposition of PW7, he changed the meter in question on 30.07.2010 and as per own document of the complainant company Ex. CW2/2, the meter was tested on 03.02.2011 and no explanation is forthcoming for the said delay in testing of the meter from the side of the complainant.
23. The second limb of the case, which is the consumption pattern and which would have corroborated the lab testing report, if would have been proved, is also missing in the present case. PW4 who was the Assessing Officer and passed the Speaking Order Ex. CW2/9 admitted in his cross examination that consumption pattern has not been filed in the court record.
24. Moreover, PW7 who removed the meter in question on 30.07.2010, in his cross examination has specifically admitted that he did not notice any tampering with the meter and that was why he could not say whether the meter was tampered or was faulty and he admitted that he changed the meter with the instructions that the meter was having memory problem as a consequence of which necessary information was not being downloaded. Even otherwise, as BSES Vs. Pawan Electrical, CC No. 310/11 Page 15 of page 16 16 per the meter change report Ex. PW7/DA, the seals of the meter were found intact.
25. In these circumstance, it cannot be said that the complainant company has been able to prove its case against 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 22.07.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Pawan Electrical, CC No. 310/11 Page 16 of page 16