Delhi District Court
Bses Rajdhani Power Ltd vs Sangeeta (User) And Anr on 16 December, 2024
IN THE COURT OF SH. VINOD KUMAR MEENA,
ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY
COURT, SOUTH WEST DISTRICT, DWARKA COURTS,
DELHI
Ct. Case No. 1100/2020
CNR No. DLSW01-008666-2020
BSES Rajdhani Power Limited
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi-110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
New Delhi - 110049
through Mr. Ashutosh Kumar
(Authorized Representative) .....Complainant
Versus
1.Sangeeta (User) R/o Plot No. 139, F/F, New T Block, Uttam Nagar, Near Shivani Medicos, New Delhi-110045.
2. Parkash Kaur (RC) (Proceedings against her stands abated vide order dated 24.05.2023) ......Accused Date of institution of the case : 27.11.2020 Offence complained of : U/s 135/138 of Electricity Act Plea of the accused : Pleaded not guilty Final order : Acquittal Date on which judgment reserved : 10.12.2024 Date of judgment : 16.12.2024 Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 1 of 20 Digitally signed by VINOD VINOD KUMAR KUMAR MEENA Date:
MEENA 2024.12.16 15:12:36 +0530
- :: JUDGMENT :: -
1. Vide this judgment, the court shall decide the present complaint case which is filed by complainant BSES Rajdhani Power Ltd. U/s 135/138 read with Section 150 of Electricity Act against accused Sangeeta as user and against accused Prakash Kaur as registered consumer (during trial, proceedings against accused no. 2 stand abated vide order dated 24.05.2023).
2. To decide the present case at hand, it becomes inevitable to discuss here the facts of the case in brief.
Brief facts:
3. It is the case of complainant that on 06.11.2019, Meter Management Group (MMG) department of the complainant company removed an electronic meter bearing no. 21196818 (hereinafter referred as impugned meter) installed at the premises i.e. Plot No.139, F/F, New T Block, Uttam Nagar, Near Shivani Medicos, New Delhi-110045 (hereinafter referred as impugned premises) and restored the supply of the premises through a new electronic meter bearing no. 26729899. The meter bearing no. 21196818 was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused. They issued letter to the consumer on 06.11.2019 that meter would be tested on 09.12.2019 at 10.30 AM/2.00 PM and the impugned meter was tested on 09.12.2019 by the laboratory and as per lab report, meter data downloaded and current date shown by meter is 01:01:1900 as on actual date 06:12:2019 and the laboratory declared the meter, "got disturbed"(as mentioned in the Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 2 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:12:42 +0530 complaint). On 18.12.2019 at about 12:45 PM (hereinafter referred as impugned date and time), a BSES team comprising of Sh. Ram Parsad Nirmal (Assistant Manager, BSES), Sh. Upender (DET, BSES), Sh. Hari Parsad (Lineman, BSES) and Sh. Sayed (Videographer) visited premises of accused i.e. Plot No.139, F/F, New T Block, Uttam Nagar, Near shivani Medicos, New Delhi-110045 for an inspection in furtherance of lab report. Connected load of the premises was assessed to be 13.430 KW for non-domestic purpose. Members of BSES raiding/inspection team prepared the Inspection Report, Load Report and Seizure memo. Accused refused to receive and sign the reports/memos. Based on these reports, complainant raised a theft bill of Rs. 1,19,916/- against the accused persons. Videography of the site was done by Sh. Sayed.
Allegations against accused:
4. Complainant alleged that accused persons with an intention to cause wrongful gain to themselves and wrongful loss to it, employed an illegal method to steal the electricity and to suppress the detection they burnt the meter. They thus illegally abstracted and consumed electricity without paying the applicable tariff and accordingly, committed theft of electricity punishable under section 135/138 r.w. Section 150 of Electricity Act, 2003. On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135/138 r.w. Section 150 of Electricity Act, 2003 through its authorized representative Mr. Ashutosh Kumar.
Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 3 of 20 Digitally signedVINOD by VINOD KUMAR KUMAR Date:
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5. Copy of complaint and supporting documents were supplied to the accused no.1.
6. After hearing arguments, notice u/s 251 of Cr.P.C for the offence under section 135/138 of Electricity Act was served upon accused no.1 Sangeeta to which she pleaded not guilty and claimed trial.
Complainant's evidence:
7. In complainant's evidence, five witnesses i.e. PW-1 Sh. R P Nirmal (Sr. DGM, BSES), PW-2 Sh. Vinay Singhal (DGM, BSES), PW-3 Sh. Upendra (DET, BSES), PW-4 Sh. Sayed (Videographer) and PW-5 Sh. Ashutosh Kumar, Authorized Representative of complainant were examined. The brief averments of all the witnesses are reproduced here as under:
7.1 PW-1 Sh. R P Nirmal, Sr. DGM, deposed that on 18.12.2019 at about 12:45 PM, he alongwith Sh. Upender (Engineer), Sh. Hari Prasad (Technician) and Sh. Sayed (Videographer) visited and inspected the premises bearing no.
Plot No.139, F/F, New T Block, Uttam Nagar, Near shivani Medicos, New Delhi-110059 where they found five meters installed at site, out of which two meters for shop and one meter for the Idea Tower and other remaining two meters for domestic purpose which were of ground floor, first and second floor. He further deposed that meter bearing no. 26729899 was found disconnected and the supply of the second floor was running through the other domestic meter. He further deposed that when they found the meter disconnected, they inquired from Prakash Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 4 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:12:55 +0530 Kaur and Sangeeta who remained at site then they showed inability to tell about anything. Then Sangeeta told them that her husband Sh Pramod would be able to tell the information regarding the same. Then they called Mr. Parmod on phone and he said the supply of electricity of ground floor and first floor was through above-said meter no. 26729899 and supply of electricity meter of second floor was through the other domestic purpose prior to one month. After the defect of one of the domestic meter, the supply of second floor was shifted to the other meter through which the supply of electricity was supplied to the Idea tower. Thereafter, supply of electricity of ground floor and first floor was shifted to the other domestic meter and after that they assessed the connected load of the ground floor and first floor only and the same was found to be about 13 KW for domestic purpose. He further deposed that videography was conducted by Sayed as per their instruction at site vide CD Ex. PW3/A. He further deposed that they prepared the inspection report Ex.PW1/A (colly), load report Ex.PW1/B and seizure memo Ex.PW1/C. He further deposed that after preparation of the reports, they offered the same to accused to receive and sign the same who refused the same. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
7.2 PW-2 Sh. Vinay Singhal, DGM deposed that on after seeing the lab report, inspection report, load report and consumption pattern, he has passed the speaking order dated 23.12.2019 Ex.PW2/1 (colly) and after that the same was Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 5 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:13:01 +0530 forwarded to the billing department for preparation of theft bill Ex.PW2/2.
7.3 PW3 Sh Upender, DET BSES deposed the same lines as PW-1. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
7.4 PW4 Sh. Sayed, videographer deposed that on 18.12.2019 at about 12:45 PM, he along with Sh R P Nirmal (Manager), Sh Upender (Technician) and Sh Hari Prasad (GET) visited and inspected the premises i.e. Plot No. 134, Ground Floor, Uttam Nagar, Near Shivani Medicine Store, New Delhi-59 and conducted the videography as per direction of his team leader, Manager Sh R P Nirmal. He further deposed that after conducting the videography, he downloaded the videography in the office computer and prepared CD Ex.PW3/A. He proved certificate u/s 65 B of Indian Evidence Act as Ex. PW4/A During his cross-
examination by Ld. Defence counsel, he denied the suggestions put by the defence.
7.5 PW-5 Sh. Ashutosh Kumar, Authorized Representative of complainant deposed that he had been authorized vide Power of Attorney to institute the present complaint. He further deposed that he was authorized by Sh. Arvind Singh Gujral (the then CEO) vide GPA Ex. PW5/A to appear before any court on behalf of the company. During his cross-examination by Ld. Defence counsel, he denied the suggestions put by the defence.
Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 6 of 20 Digitally signedVINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:13:07 +0530 Statement of accused:
8. Accused was examined under section 313 of CrPC, wherein she pleaded innocence. She, inter alia, stated that she has been falsely implicated in the present matter. Accused further stated that the meter was replaced on their complaint as they were getting inflated bills without any basis and on complaint the officials of BSES visited their place and they informed that RTC failure in the installed meter as a result of which meter was replaced, however, the seized meter was neither sealed in her presence nor it was sent to any laboratory and the BSES officials had never intimated about any such thing. She further stated that her husband received one message on his mobile phone to the effect that BSES is demanding a sum of Rs 1,20,000/- and then her husband visited the office of BSES and inquired abut the reason of such demand, he intimated that he has to deposit Rs.1,20,000/-. She further stated that her husband conveyed to BSES officials that he had not received any notice regarding any test by any laboratory. Later on her husband filed a complaint before DERC and the complainant was found guilty and held liable to pay penalty of Rs. 10,000/-. Later on this case was instituted on false ground.
Final Arguments:
9. Final arguments advanced by Ld. Counsel for the complainant and ld. counsel for accused person heard. Case file perused carefully.
Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 7 of 20 Digitally signedVINOD by VINOD KUMAR KUMAR Date:
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10. It is argued by Ld. Counsel for the complainant that accused person was committing theft of electricity by tampering the meter and to hide the act of commission of offence of theft, they deliberately got disturbed the meter. It is also submitted that the officials of complainant visited impugned premises on 06.11.2019 and they found that electronic meter bearing no. 21196818 was found to be tampered and this meter was seized and same was replaced with new electricity meter bearing no. 26729899. The seized meter was sent to NABL accredited meter testing laboratory for testing. Upon testing of said meter, it was found that illegal cut marks found on meter terminal block and current date shown by meter is 01-Jan-1900 as on actual date 06- Dec-219 and the laboratory declared the meter, "tampered" which substantiated that accused persons were committing theft of electricity by tampering the meter. It is also argued that on 18.12.2019 at 12:45 PM, inspection was conducted at the impugned premise and connected load was assessed as 13.430 KW for domestic purpose. It is also argued that the complainant has proved the case through five witnesses and accused person be convicted.
11. On the other hand, it is argued by Ld. Counsel for accused that present case has been filed on the basis of false and concocted facts just to harass the accused in the present matter. It is also argued that the meter was replaced on the complaint of accused as they were getting inflated bills without any basis, however, no tampering had ever been done and no theft of electricity as alleged had ever been committed by the accused. It Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 8 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:13:20 +0530 is also argued that entire process from seizing the impugned meter to conducting the testing of meter in laboratory has been done in suspicious manner. It is also argued that the case has been made on the basis of laboratory report, however, the person who had tested the impugned meter had not brought as witness in the present matter. It is also argued that no notice or intimation of any kind was sent to the accused which suggested the apparent manipulation on the part of complainant. It is also argued that the laboratory report has been prepared on the basis of whims and fancies of BSES officials in connivance of laboratory and the same is nothing but false and fabricated. It is also argued that present case is nothing but a bundle of lies and be dismissed and accused person be acquitted.
Findings:
12. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss here as to whether the accused is a consumer within the meaning of section 2(15) of Electricity Act, 2003 or not. To decide this, the provision as enumerated under Section 2(15) of Electricity Act, 2003 is quoted here as under:
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 9 of 20 Digitally signed by VINOD
VINOD KUMAR MEENA KUMAR Date:
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13. After going through the abovementioned definition/meaning of consumer and applying the same in the factual matrix of the present case, it is observed by the court that the premises in question is in the name of accused no.2 Parkash Kaur. Accused no.1 was using electricity, which was supplied by the complainant, in the impugned premises. A meter bearing no. 21196818 had already been installed in the impugned premises and after removing of the meter, a new meter bearing no. 26729899 was installed at the impugned premises. Accordingly, accused person is coming within the ambit of meaning of consumer as provided under Section 2(15) of Electricity Act, 2003.
14. Now, the question arises as to whether the complainant has proved the allegations as made through the present complaint thereby raising the presumption as provided under Section 135 of Electricity Act, 2003.
15. It is the allegation of the complainant that accused person was committing theft of electricity by tampering the meter. It is also the case of the complainant that the meter bearing no. 21196818 was taken from the premises on 06.11.2019 and supply of electricity was restored through a new electronic meter bearing no. 26729899 and the impugned meter was sent to the laboratory in sealed condition for testing/analysis under intimation to the accused. It is also the case of complainant that on 09.12.2019 meter was tested by the laboratory and as per lab report, meter found tampered which substantiated the fact that Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 10 of 20 Digitally signed by VINOD VINOD KUMAR KUMAR MEENA Date:
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accused was committing theft of electricity by tampering the meter. So the main contention of the complainant is that the meter was tested in the laboratory and as per laboratory report, it was proved that accused person was committing theft of electricity by tampering the meter. At this stage, it becomes inevitable to deal the contention of accused to the effect that he was not intimated or given notice of the fact that the impugned meter is going to be tested in a laboratory. It is noticed by the court that meter was replaced by issuing one document Mark-A2 and in said document, the date for testing the meter has been mentioned as 14.11.2019. Very strangely, one document, which is Annexure-C / Ex. CW2/1 (lab testing notice of removed meter) the date of testing the meter has been shown as 19.11.2019. Both these documents had been allegedly issued on same date. It is contention of accused that he was provided only document Mark- A2 and the Annexure-C / Ex. CW2/1 had never been handed over to her. During cross examination, PW-1 categorically stated that lab testing notices were not prepared at the site. The relevant para is quoted here as under:-
"...It is correct that lab testing notices were not prepared at the site (Vol. Again said, I do not know about same)..."
It is further observed that though two dates have been shown for testing of the meter as 14.11.2019 & 19.11.2019 respectively, however, meter was finally tested on 09.12.2019. It is further observed that admittedly, there is no proof or evidence to substantiate that any notice was served upon the accused before conducting the said test.
Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 11 of 20 Digitally signed by VINODVINOD KUMAR MEENA KUMAR Date:
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16. At this stage, court deem it fit to mention here the relevant provisions as provided in Regulation 32(8) of the Delhi Electricity Regulatory Commission (Supply Code and Performance Standards Regulations), 2017(hereinafter referred as DERC Supply Code 2017). The same reads as under :-
"32 (8) Testing of tampered meter
(i) If the Licensee suspects a case of unauthorised use of electricity and theft of electricity through a tampered meter, the meter shall be tested in an accredited laboratory notified by the Commission for that purpose:Provided further that in the absence of an accredited laboratory notified by the Commission, the meter shall be tested in any accredited laboratory other than that of the Licensee.
(ii) The Licensee shall remove the meter from site/consumer ‟s premises and seal it in the presence of the consumer or his representative in a container affixing thereon paper seals which shall be signed by both the parties. In case the consumer refuses to sign the paper seal, the same shall be photographed and videographed.
(iii) The Licensee shall schedule a date and time for the testing of meters with the accredited laboratory notified by the Commission and shall give at-least 3 (three)days prior notice to the consumer, intimating the date and time of testing so that the consumer or his authorized representative, if so desires, can be present during such testing.
(iv) The Licensee shall keep the sealed container with the meter under safe and secure custody, and hand over the same to the accredited laboratory notified by the Commission for testing on the scheduled date.
(v) If at the time of handing over the sealed container with the meter for testing to the accredited laboratory notified by the Commission,it is found that the seal of the container is damaged or tampered or missing, in all such cases the licensee shall replace the meter at its own cost and shall not carry out any further proceedings or actions against the consumer on account of tampering or suspected tampering of the meter.
(vi) The accredited laboratory notified by the Commission shall test the meter on the scheduled date.Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 12 of 20 Digitally signed by VINOD
VINOD KUMAR MEENA KUMAR Date:
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(vii) If as a result of testing, it is established that:
a. the meter was not tampered, the licensee shall replace the meter free of charge, and it shall neither charge any fee for testing, nor initiate any action against the consumer. b. the meter was tampered, the licensee shall initiate action against the consumer, as per the provisions of the Act and applicable regulations for theft of electricity or unauthorized use of electricity, as the case may be, and shall also recover the cost of meter and the testing fee as notified in the Commission‟s Orders from the consumer." (underlined for emphasis)
17. From the above mentioned and especially after reading Regulation 32(8)(iii) of DERC Supply Code 2017, it is clear that a mandate has been given to the BSES to the effect that they have to give notice of at least 3 (three)days thereby intimating the date and time of said testing, which is not done in this case. The entire case of the complainant is based on the lab report, however, same is under clouds on the ground that the mandatory notice has not been served to the accused. Moreover, the court has observed that admittedly the meter was tested by one Harish Kumar Rao and approved by Sh Pankaj Kumar Sinha, Engineer of BSES, however, very strangely they have not been produced as a witness. The entire case of the complainant is based on the lab report, however, same has not been proved through the person who tested the impugned meter and prepared the same. The court is unable to understand why Sh. Harish Kumar Rao has not been produced in evidence by complainant. The lab report has not passed the test of mandate as provided by above mentioned Regulations; moreover, it has been not been proved through the person who conducted the test or prepared the report.
Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 13 of 20 Digitally signedVINOD by VINOD KUMAR KUMAR MEENA Date:
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18. The basis of impugned theft bill is the lab report as well as the speaking order Ex. PW2/1. It is again pertinent to mention here that said lab report has been prepared without giving the mandatorily notice as provided under Regulation 32(8)(iii) of DERC Supply Code 2017. As far as the speaking order Ex. PW2/1 is concerned, same is noting but the reproduction of lab report and the inspection and load report. The court also deem it fit to mention here that it is contended by accused that no notice has been served before passing the speaking order Ex. PW2/1.
19. Before proceeding further, the court deem it fit to mention here the relevant provisions as provided in Regulation 58 of the Delhi Electricity Regulatory Commission(Supply Code and Performance Standards Regulations), 2017. The same reads as under :-
"58. Procedure for dealing the case of Unauthorized Use of Electricity (UUE):-
(1) Provisional assessment and Notice:-
If the Assessing officer on the basis of Inspection Report and other materials comes to the conclusion that it is prima facie a case of unauthorised use of electricity, he shall:
(i)make provisional assessment based on the best of his judgement which is reasonable in the given circumstances and is based on all the available evidence and records. While doing so the Assessing officer shall compute the amount payable by the person benefited by the unauthorized use of electricity as per provision laid down in sub-section (5)read with sub-section (6)of Section 126 of the Act:
Provided that if the period of unauthorized use of electricity can be conclusively established, the assessment shall be done for the entire period for which the unauthorized use was taking place and if the period of such unauthorized use is not known or Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 14 of 20 Digitally signed by VINOD VINOD KUMAR MEENA KUMAR Date:
MEENA 2024.12.16 15:13:55 +0530 cannot be conclusively established, the period of assessment shall be limited to 12 (twelve) months immediately preceding the date of inspection:
Provided further that period of unauthorized use of electricity shall be assessed based on the following factors:-
a. actual period from the date of commencement of supply to the date of inspection;
b. actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
c. actual period from the date of preceding checking of installation by the assessing officer to date of inspection; d. data recorded in the energy meter memory wherever available;
e. based on the document being relied upon by the accused person.
(ii) Serve a notice along-with a provisional assessment bill and copy of videography of inspection, within 7(seven) days from the date of inspection or date of receipt of meter testing report, if required, whichever is later, to the consumer giving reasons as to why a case of unauthorised use of electricity is being initiated against him. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
(2) Objection against notice along-with provisional assessment:-
The consumer, on whom notice along-with a provisional bill of assessment has been served, may file objections, if any, before the Assessing officer, within 7 (seven) days from the date of receipt of notice.
(3) Personal Hearing:-
(i) The Assessing officer shall arrange a personal hearing with the consumer or his authorized representative within 7 (seven) days from the date of filing of consumer‟s objections.
(ii)At the request of the consumer, the hearing may be arranged for a future date but not later than 10 (ten) days from the date of filing of the objections by the consumer.
(4) Final assessment Order:-
(i) The Assessing officer shall pass a final assessment order within 30 (thirty)days from the date of service of the order of provisional assessment of the electricity charges payable by Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 15 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR MEENA Date:
MEENA 2024.12.16 15:14:01 +0530 such person.
(ii)The final order of assessment shall clearly show as to whether the case of unauthorized use of electricity is established or not. Such Order shall contain the brief of inspection report, submissions, oral or written, made by consumer and reasons for acceptance or rejections of the same.
(iii)If no unauthorized use of electricity is established, the Assessing officer shall pass an Assessment Order dropping the case immediately and the consumer shall be informed accordingly with a copy to the next higher officer.
(iv)In case the unauthorized use of electricity is established, the Assessing officer shall assess the electricity charges as per provisions contained in sub-section (5)read with sub-section (6)of the Section 126 of the Act and shall pass the final Assessment Order under sub-section (3) of Section 126 of the Act.
(v)The assessment of energy in the final order shall be made as per the formula prescribed in Appendix-Ito the Regulations:Provided that if unauthorized use of electricity is on account of wrong usage of tariff category or for the premises or areas other than for which supply of electricity was authorised, the Assessing officer shall take assessment of energy as recorded in the meter for the period of assessment.
(vi)While making the assessment bill, the Licensee shall give credit to the consumer for the amount already paid by the consumer for the period of the assessment bill.
(vii)The Final Assessment Order, shall clearly mention that the Order is appealable by the consumer before the Appellate Authority (name, designation and address to be mentioned) within 30 (thirty) days of serving the said order as per provisions of sub-section (1) of Section 127 of the Act.
(5)Billing & payment based on final assessment Order:-
(i)The Licensee shall serve the bill to the consumer for charges of unauthorized use of electricity as per the final assessment order issued by the Assessing Officer.
(ii)The bill shall be payable by the consumer within 30 (thirty)days from the date of service. The Licensee may extend the last date of payment of the assessed amount or allow the payment in installments subject to payment of interest on the unpaid amount for the extended period beyond 30 (thirty) days at the rate of 16 (sixteen) percent per annum compounded Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 16 of 20 Digitally signed VINOD by VINOD KUMAR KUMAR Date:
MEENA MEENA 2024.12.16 15:14:07 +0530 every6(six)months.
(iii)The consumer shall accept the bill and deposit the assessed amount within the time lines and manner as per sub-regulation (5) (ii) or prefer an appeal against it before the Appellate Authority in accordance with the Act and the Regulations."
(underlined for emphasis)
20. After going through the above-mentioned Regulation, it is clear that Assessing Officer was under a mandate to issue notice as mentioned in Regulation 58(1)(ii) of DERC Supply Court, 2017. It was also a mandate that Assessing Officer was supposed to give personal hearing to the consumer as per Regulation 58(3) of DERC Supply Court, 2017.
21. Applying the same to the factual matrix of the present case, it is observed that the Assessing Officer who passed the speaking order came as PW-2 and in his cross-examination he admitted that no notice has been issued nor any personal hearing has been given to the accused before passing the speaking order. The relevant para of cross-examination of PW-2 is quoted here as under:
"...It is correct that before passing the speaking order Ex. PW2/1(colly.), no prior show cause notice was issued to the consumer. Vol. Same was not required as per DERC 2017 Regulations..."
22. From the above-mentioned, it is clear that admittedly notice has not been served upon the accused before passing the speaking order. Nor any personal hearing has been given. It appears that speaking order has been passed in a routine manner.
23. It is also observed by the court that accused made a complaint regarding said meter and meter testing was done at the Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 17 of 20 Digitally signed by VINOD VINOD KUMAR MEENA KUMAR Date:
MEENA 2024.12.16 15:14:14 +0530 spot on 01.11.2019. In the meter testing report Mark-A1, the only observation which was given/which do found mention in said report is RTC fail (real time clock fail) and the error was found to be 0.89 %. The impugned meter was changed on 06.11.2019 and one slip Mark-A2 was given and in that report too, nothing has been mentioned regarding alleged visible tampering. The speaking order had shown 31.68% consumption in comparison to the lab testing report dated 09.12.2019 and meter testing report dated 01.11.2019 which was 0.35 % and 0.89 % respectively. This question was specifically put to PW-1, however, he failed to answer the same. The relevant para of cross examination of PW-1 is quoted here as under:
"...I do not know as to how and on what basis the jump of meter reading recorded 31.68% consumption than actual consumption when the meter lab testing report showed error only of 0.35% in the accuracy test..."
24. The meter testing report dated 01.11.2019 Mark-A1 was confronted to PW-2, however, he gave evasive and contradictory answers. The relevant para of cross examination of PW-2 is quoted here as under:
"...I had duly considered the meter test report dated 01.112019 before passing the subject speaking order. At this stage, the witness is confronted with Mark A1, I am not aware about this document Mark A1. I have not considered Mark A1 at the time of passing the speaking order dated 23.12.2019. Vol. It was not available with me at that time. I am not aware whether document Mark A1 was available with the department during the time or not..."
25. From the above-mentioned, it is clear that the testing of impugned meter has been done without giving notice or Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 18 of 20 Digitally signed by VINOD VINOD KUMAR KUMAR MEENA Date:
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intimation to the accused. Even the person who tested the meter or prepared the lab report has not been produced as a witness. The speaking order has been passed without giving notice or personal hearing to the accused. Even the speaking order Ex.PW2/1, is just the theoretical reproduction of lab report. The impugned theft bill has been prepared on the basis of lab report and speaking order Ex.PW2/1. The court is of the view that the impugned theft bill has been prepared in a routine manner. It is pertinent to mention here that consumption pattern of old meter and new meter has not been provided for comparison. It appears that the connected load has been calculated without any basis. So even the consumption pattern which has been filed alongwith complaint does not show anything to substantiate allegation raised by complainant.
26. In view of the above-mentioned, the court is of the view that the complainant has miserably failed to even give a hint that accused has committed the alleged theft as alleged through the present complaint. As the complainant has failed to prove the impugned theft, no question arises of presumption as provided under Section 135 of Electricity Act.
27. Accordingly, accused no.1 Sangeeta, W/o Sh. Parmod is acquitted of offence punishable under sections 135/138 of Electricity Act, 2003.
28. Accused has already furnished personal bond and surety bond in terms of Section 481 BNSS. The same have already been accepted and shall remain in force for a period of six months Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 19 of 20 Digitally signed by VINOD VINOD KUMAR MEENA KUMAR Date:
MEENA 2024.12.16 15:14:26 +0530 from today. Amount, if any, deposited by accused be refunded to the accused as per rules.
29. File be consigned to Record Room.
Digitally signedPronounced in the open court on this VINOD by VINOD KUMAR KUMAR Date:
MEENA 16 th December, 2024 MEENA 2024.12.16 15:14:31 +0530 (VINOD KUMAR MEENA) ASJ: Special Electricity Court South West District, Dwarka Courts New Delhi Ct. Case No. 1100 of 2020 BRPL Vs. Sangeeta and Ors. Page No. 20 of 20