Delhi District Court
State vs 1) Sunny on 15 April, 2023
IN THE COURT OF MS. SHELLY ARORA
ADDL. SESSIONS JUDGE (ELECTRICITY), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.343/2021
FIR No.907/2020
U/s 135/138/150 of Electricity Act
PS Harsh Vihar
DLET01-005827-2021
State versus 1) Sunny
S/o Sh. Sushil Kumar Malik
R/o I-1, Khasra No.24, Pole No.992,
Radha Vihar Mandoli near
Prem Nagar Chowk,
Jyoti Nagar, Delhi-110093
2) Sushil Kumar Malik
S/o Sh. Kirpal Singh
R/o I-1, Khasra No.24, Pole No.992,
Radha Vihar Mandoli near
Prem Nagar Chowk,
Harsh Vihar, Delhi-110093
Date of institution 09.09.2021
Arguments heard 15.04.2023
Date of judgment 15.04.2023
JUDGMENT
1. Accused Sunny and Sushil Kumar Malik have been facing trial on the allegations that accused Sushil Kumar Malik being registered consumer of electricity connection in inspected premises, abetted user/accused Sunny who allegedly indulged in meter tampering and consequent commission of theft of electricity under relevant provisions of the Electricity Act, 2003 (hereinafter called the Act).
FIR No.907/2020 State vs Sunny & Anr. 1 of 27 Brief facts of the prosecution case
2. As per prosecution story, on 09.06.2020, the officials of Enforcement Department of BSES Yamuna Power Limited (hereinafter referred as 'the complainant company') visited the premises of accused persons bearing No.I-1, Khasra No.24, Pole No.992, Radha Vihar Mandoli near Prem Nagar Chowk, Delhi-110093 and found that meter bearing no.70160526 already installed in the said premises was faulty which was then replaced with new meter bearing no.70294634 on the same day. As per sight evidence, it was suspected to be Dishonest Abstraction of Energy (DAE), as such meter no.70160526 was sealed, seized and sent to lab for thorough analysis and vide letter No.BYPL No.221359 dated 09.06.2020, the accused/user was advised to appear in lab on 23.06.2020 to witness meter testing but the accused/user did not turn up. The removed meter was tested in lab vide Lab Report No.BCS/EM/TPT/19/784 dated 09.07.2020, as per which, the removed meter was found tampered and it was observed that (i) Meter cover box found in opened condition (ii) Meter found abnormally burnt (iii) Meter LCD found not OK (iv) meter data could not be downloaded and (v) Meter found externally burnt.
3. Thereafter, the members of inspection team of the complainant company, on the basis of lab report, carried out an inspection on 10.07.2020, at about 5.04 pm, at the aforesaid premises. The inspection team comprised of Sh. Ashish Tiwari (Sr. Manager), Sh. Satish (DET) and Sh. Amar Singh (Lineman). The premises was found to have been used and occupied by accused Sunny who was found to be user while accused Sushil Kumar Malik was found to be registered consumer. At FIR No.907/2020 State vs Sunny & Anr. 2 of 27 the time of inspection, new meter no.55254636 with reading 00 KWH unit was found installed for non-domestic (commercial) purposes in the premises and the premises was found vacant. Inspection Report, Load Report and Seizure Memo were prepared at the site and meter No.70160526 was seized during inspection. An advisory notice was also issued to user/accused. Necessary videography of the inspection proceedings was done by videographer Sh. Vinod. Entire set of documents was prepared at site and tendered to the persons present at the spot, who refused to sign and accept the same. Thereafter, on 16.07.2020, on the basis of Inspection Report and Lab Report, a Speaking Order was passed by Sh. Ravinder Yadav, Assessing Officer who gave finding that it was a case of Dishonest Abstraction of Energy (DAE).
4. On the basis of connected load and applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.2,50.585/-. Accordingly, a theft bill was raised and sent to accused persons but they did not deposit the said amount. On failure to pay the bill amount, the complainant company through its Authorised Officer/Sr. Manager Sh. Ashish Tiwari, lodged a complaint with SHO, PS Harsh Vihar, upon whose direction FIR No.907/2020 was registered and investigation was marked to SI Chanderbir, IO of the case.
5. After completion of investigation, charge-sheet was filed against the accused persons.
NOTICE
6. On 21.04.2022, notice for the commission of offences under Section FIR No.907/2020 State vs Sunny & Anr. 3 of 27 135 and Section 138 of the Act, both r/w Sec.150 of the Act was served upon accused Sushil Kumar Malik. A separate notice U/s 135/138 of the Act was served upon the accused Sunny. Both accused persons pleaded not guilty and claimed trial instead.
7. In order to substantiate the allegations against the accused, the prosecution examined following witnesses.
PROSECUTION EVIDENCE
8. PW1 SI Chanderbir is the IO of the case, who deposed that after registration of FIR No.907/2020, investigation was marked to him. The copy of FIR is Ex.PW1/1. Thereafter, on 28.02.2021, he visited the inspected premises and served the accused persons with notices U/s 41(A) Cr.P.C (Ex.PW1/2 and Ex.PW1/3) upon which accused persons joined the investigation. He interrogated the accused persons and prepared interrogation report Ex.PW1/4. Both accused persons produced copies of their Aadhar Cards as well as copies of ownership documents of the inspected premises which are Mark A (colly). During investigation, it was revealed that accused Sushil Kumar Malik is owner of the inspected premises while accused Sunny was the user of the electricity in the inspection premises at the relevant time. IO bound down both accused persons vide Pabandinamas Ex.PW1/5 and Ex.PW1/6. After completion of investigation, charge-sheet was filed.
9. PW2 Sh. Satish Kumar is the Diploma Trainee Engineer (DET), who deposed that on 09.06.2020, electricity meter no.70160526 installed in the name of accused Sushil Kumar Malik against CA No.101592088, was removed and seized vide bag no. 800735 with seal no. 916374 and FIR No.907/2020 State vs Sunny & Anr. 4 of 27 sent to Lab for its testing and intimation letter Ex.PW2/1 was served upon the accused Sushil Kumar Malik. On 08.07.2020, the removed meter was tested in lab and it was found that said meter was burnt abnormally and the lab concluded that the meter no.70160526 was found externally burnt. The lab/meter testing report is Ex.PW2/2. PW2 further deposed that on the basis of lab report, on 10.07.2020, at about 05.04 pm, an inspection was conducted by the enforcement team comprising of himself, Sh. Ashish Tiwari (Sr. Manager), Sh. Amar Singh (lineman) and Sh Rajeev (Videographer) at the premises of accused persons i.e. H.No.I-1, Khasra No.24, Radha Vihar, Mandoli, near Prem Nagar Chowk, Delhi-110093. At the time of inspection, accused Sunny was present at the site and one electricity meter no.70294634 was found installed against CA No.101592088 in place of removed/burnt meter no.70160526 and the electricity supply was being used for ground floor. The premise was found vacant. No connected load was found and necessary videography of the inspection proceedings was done by Sh. Rajeev (videographer). The CD containing videography of the inspection proceedings is proved on record as Ex.PW2/3. During evidence, the CD was played on the laptop and after seeing the video, witness has identified the video which was recorded by the videographer during inspection. The witness also identified the accused Sunny appearing the in said video. The inspection report Ex.PW2/4 and the load report Ex.PW2/5 were prepared at the spot. The meter in question was seized vide seizure memo Ex.PW2/6. During inspection, an advisory notice Ex.PW2/7 was also issued to accused/user by team leader Sh. Ashish Tiwari (Sr. Manager). Entire set of inspection documents was prepared at the site FIR No.907/2020 State vs Sunny & Anr. 5 of 27 in presence of accused Sunny and same was tendered to him but he refused to sign and accept the same. Thereafter, on 14.09.2020, Sh. Ashish Tiwari lodged a complaint Ex.PW2/8 with SHO, PS Harsh Vihar for registration of an FIR against the accused persons. During evidence, the case property i.e. burnt electricity meter was produced and shown to the witness who identified the same as the same meter which was received from lab after its testing. The burnt meter is Ex.P1.
10.PW3 Sh. Amar Singh is the Lineman, who was one of the member of the inspection team, deposed on the similar lines as testified by PW2.
11.PW4 Sh. Ravinder Yadav being Assessing Officer of Enforcement Department of BSES YPL at relevant time, deposed that in the month of July, 2020, he received a file pertaining to accused persons comprising of meter removal letter Ex.PW2/1, lab report Ex.PW2/2, inspection report Ex.PW2/4, load report Ex.PW2/5, seizure memo Ex.PW2/5, advisory notice Ex.PW2/7, CD containing videography of the inspection proceedings Ex.PW2/3, for passing Speaking Order. He further deposed that after analyzing all the documents and the consumption pattern Ex.PW4/1 of the tampered meter along with reading chart of the said meter Ex.PW4/2, he passed the Speaking Order Ex.PW4/3 and that, on the basis of Speaking Order, a theft bill of Rs.2,50,585/- Ex.PW4/4 was raised and sent to the accused persons.
12.Thereafter, prosecution evidence was then concluded and matter was listed for recording of statement of accused persons U/s 313 Cr.P.C.
STATEMENT OF ACCUSED
13.All the incriminating material was put to the accused persons under FIR No.907/2020 State vs Sunny & Anr. 6 of 27 statement of accused recorded U/s 313 Cr.P.C. It is not denied that meter No.70160526 was lying installed in the name of accused Sushil Kumar Malik at the inspected premises and on 09.06.2020, the said meter was removed by the complainant company and sent to Lab for testing. Accused persons simply denied the Lab Report without attempting to explain as to how it is false and incorrect. It is not denied that at the time of removal of the said meter, intimation letter Ex.PW2/1 was issued to them to remain present in the Lab to witness the meter testing. However, accused persons denied the factum of inspection as well as preparation of inspection documents. Accused persons have stated that they are innocent and have been falsely implicated in this case. However, accused persons stated that they have settled the dispute and NOC has been issued. Accused persons opted not to lead any evidence to their defence.
FINAL ARGUMENTS
14.Final arguments were advanced by the Ld. Addl. PP for the State as well as Ld. Counsel for accused persons.
15.Ld. Addl. PP for the State with the assistance of AR of the complainant company argued that accused persons were involved in dishonest abstraction of energy by tampering the meter installed at the inspected premises. It is further submitted that meter No.70160526 was replaced by the complainant company and the same was sent to Lab for its testing. The removed meter was tested in lab vide report Ex.PW2/2, and as per this report, meter was found tampered. It is also submitted that at the time of inspection, accused Sunny was found to be user and accused FIR No.907/2020 State vs Sunny & Anr. 7 of 27 Sushil Kumar Malik was found to be registered consumer as well as owner of the inspected premises at the relevant time. Accused Sushil Kumar Malik, being registered consumer, abetted/permitted/allowed to commit dishonest abstraction of energy after tampering the aforesaid meter. It is further argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses.
16.On the other hand, Ld. Counsel for accused persons argued that accused persons have neither committed any tampering of meter nor they have committed dishonest abstraction of energy. It is further argued that the lab report and Speaking Order are false and fabricated one. It is also submitted that accused persons have no concern with alleged offence. It is emphasized that accused persons are innocent and have been falsely implicated in this case, thus, ought to be acquitted in this matter.
DISCUSSION
17.At the outset, it would be appropriate to reproduce the definition of 'consumer'. The relevant provision of Section 2 (15) of the Act is produced 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;"
18. In this case, accused Sushil Kumar Malik was found to be registered consumer as well as owner of the inspected premises and accused FIR No.907/2020 State vs Sunny & Anr. 8 of 27 Sunny was found to be user at the relevant time. There is no denial that accused Sushil Kumar Malik is the registered consumer of electricity connection bearing meter no.70160526. So, he is the one who was supplied electricity by the licensee for his own use. Whether or not he has himself put it to use or has allowed/permitted, for money/monetary benefit otherwise, for any other person to use electricity would make no difference and would nonetheless thus qualify to be 'consumer' within the meaning of the Act. In this regard, this court is also supported with the judgment of the Hon'ble Delhi High Court reported as Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal No.479/2011).
19.As per prosecution case, the accused/user Sunny was found indulged in dishonest abstraction of electricity by tampering meter No. 70160526 which was found installed in the name of accused Sushil Kumar Malik at the inspected premises. As per lab report, Meter cover box was found in opened condition; Meter was found abnormally burnt; LCD not OK; LED not tested; Meter data could not be downloaded and Meter was found externally burnt. On the basis of lab report, an inspection was carried out on the aforesaid date and time at the inspected premises and the connected load in the replaced meter i.e. Meter No.70294634 was found to be 0.00 KW whereas average consumption pattern was found to be 0.30% which is less than the prescribed limit of DERC. Thus, the onus is on the prosecution to prove these allegations against the accused persons beyond reasonable doubt to establish commission of offence under the Act.
20.Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the FIR No.907/2020 State vs Sunny & Anr. 9 of 27 Act which are required to be gone into for appropriate disposal of the case. The provisions of Sections 135, 138 as well as Section 150 of 'the Act' are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstracted or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with booth :
Section 138. Interference with meters or works of licensee. - (1) Whoever, -
(a) unauthorisedly connects any meter, indicator or apparatus with any electronic line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering;
shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in the case of a continuing FIR No.907/2020 State vs Sunny & Anr. 10 of 27 offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence.
21.We have already analyzed that accused Sushil Kumar Malik, who has not denied himself to be the registered consumer, falls within the category/ definition of 'consumer' as enumerated in the Act.
22.Moving further, the only thing which needs to be determined by appreciation of evidence is whether the act allegedly attributable to accused constituted interference of meter works of licensee and whether accused, as alleged, used electricity through such maliciously and dishonestly interfered device which compromised upon accurate registration or metering of electrical current/supply, causing loss of energy to licensee and financial gains to accused.
23.Accused persons have denied having tampered meter bearing no.70160526 at the inspected premises which, upon sight evidence, was suggestive of being faulty, on account of which same was seized and sealed to be sent for thorough lab testing. Accused persons themselves admitted that meter was removed on 09.06.2020 and date of testing was also indicated for 23.06.2020 vide Removal Letter Ex.PW2/1. A new meter bearing no.70294634 was immediately replaced in place of FIR No.907/2020 State vs Sunny & Anr. 11 of 27 suspected faulty meter on the same day.
24.Case of 'Suspected Theft' is governed by Regulation 64 of Delhi Electricity Regularity Commission (Supply Code and Performance Standards) Regulations, 2017, which came into force w.e.f. 01.09.2017 (hereinafter referred to as "Regulations") which is reproduced as under:-
"64. Suspected Theft:-
(1) In all such cases where theft cannot be established on inspection but the theft is suspected based on the consumption pattern, etc., the Authorized officer may remove the old meter under a seizure memo and seal it in the presence of the consumer or his representative which shall be signed by both the parties, and shall restore the supply to the consumer with a new meter:
Provided that if the consumption pattern for last 1 (one) year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer within 3 (three) days:
Provided further that if the consumption pattern is uniform as above, the existing meter shall not be sent for any further testing. (2) The meter shall be tested as per sub-regulation (8) of Regulation 32.
(3) If the Assessing officer, on the basis of Inspection Report, consumption pattern, results of meter testing, comes to conclusion that it is prima facie a case of theft of electricity, procedure as specified in the Regulation 62 & Regulation 63 shall be followed:
Provided that the Assessing officer shall pass a Speaking Order substantiating the case of theft of electricity within 7 (seven) days of meter testing report."
25.Accused persons have stated that lab report is incorrect and fabricated as meter was not tested in their presence. It is not disputed that accused persons or any of their representative did not approach the lab on the date of meter testing which took place on 08.07.2020. Accused persons have not stated that they did not receive the meter removal letter FIR No.907/2020 State vs Sunny & Anr. 12 of 27 Ex.PW2/1, which clearly noted the date of 23.06.2020 on which meter was to be tested. The said letter also bears the signature of accused Sushil Kumar Malik at point A. Meter was eventually got tested in the Lab on 08.07.2020 in place of 23.06.2020. Accused persons have however not raised any objection that meter was not tested in any accredited laboratory or same was not received properly sealed or same was not kept sealed and kept in safe and secure custody prior to its handing over to the laboratory. Moreso, it is not claimed by accused that they visited the lab on 23.06.2020 which was date noted on Meter Removal Letter Ex.PW2/1 at the time of testing of meter.
26.Testing of false meter is governed by Regulation 32(8) of the Regulations, which is reproduced as hereunder :-
"(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 FIR No.907/2020 State vs Sunny & Anr. 13 of 27 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) 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.
(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."
27.There is no dictum either in the Act or in the Regulations which mandates the presence of accused, being user or owner or registered consumer at the time of testing of meter. Moreover, accused was notified vide Meter Removal Report about the date and time of its testing in the lab. The observations made by Hon'ble Delhi High Curt in case titled as Kanta Sharma vs. BSES Rajdhani Power Ltd. [WP(C) 17121/2011 : DoD; 16.03.2011] are pertinent in this respect, which are reproduced as under :-
"......Once the Regulations are not found to impose any obligation on the respondent to test the meter in the presence of the consumer and the consumer fails to avail the opportunity on the date given for testing, the process cannot be made cumbersome and the condition that no testing can be carried out without the presence of the petitioner and which may lead to delays cannot be imposed......."
FIR No.907/2020 State vs Sunny & Anr. 14 of 27
28.Meter bearing No.70294634 was duly tested by accredited lab called Baroda Calibration Services on 08.07.2020. Although not specifically testified/mentioned in the testimony or mentioned in Lab Report, it was explained/clarified by AR of complainant during course of arguments, when enquired, that Baroda Calibration Services was accredited Laboratory notified by Commission which is why suspected theft meter was sent there for testing. The Lab Report was duly proved as Ex.PW2/2 as per which (i) Meter cover box was found in opened condition (ii) Meter was found abnormally burnt (iii) Meter LCD was found not OK (iv) meter data could not be downloaded and (v) Meter was found externally burnt. Tampered meter was duly identified by PW2 as Ex.P1. No suggestion was put to the witnesses by the Ld. Defence Counsel that meter was not tampered and was tested in mechanical manner in their absence. Report includes Certificate u/s 65B of Indian Evidence Act. Nothing was put to witnesses to impeach the Lab Report to create doubt on its genuineness/reliability/credibility. Thus, report Ex.PW2/2 stands proved. Following significant details emerged from that report :-
"(d) Visual Observations:
Meter coverbox found in opened condition.
Meter found abnormally burnt.
(e) Functional Test :
1) LCD : NOT OK
3) LED : NOT TESTED
4) Meter Data Downloaded Through: NOT DOWNLOADED
(h) Other Observation with Remarks:-
Meter data could not be downloaded.
(h) Conclusion:-
Meter found externally burnt.
29.AR of complainant was enquired as to whether actual extent of FIR No.907/2020 State vs Sunny & Anr. 15 of 27 interference with the metering can be deciphered to which he denied that it was not possible to ascertain as to the duration for which it was applied and how much did it interfere and in what manner precisely it interfered with the recording of consumed electrical energy, specially in the absence of downloaded data, however it has to be read and interpreted in conjunction with the energy consumption pattern of the consumer. As per 'applicable Regulations' also, meter testing ought not to be done if the consumption pattern is uniform and is not less than 75% of the assessed consumption.
30.The consumption pattern of the consumer placed on record as Ex.PW4/1 analyzed for the period between 21.06.2019 to 22.02.2020 of Meter No. 70160526 reflect that MDI (Maximum Demand Indicator) and Meter reading recorded by the meter are not in consonance with each other as units consumption in the month of September 2019 are Zero while the MDI recorded by the meter for the said month is 0.28 KW and for subsequent months, units consumption is Zero which shows that meter was tampered. AR of the complainant submitted that the removed meter was meant for commercial purposes and sanctioned load was 5 KW for which fixed charge (approx Rs.1451/-) was required to be paid by the consumer and in this matter the meter No.70160526 was activated on 07.06.2019 and for the first three months the billed units was 3 KWH, 16 KWH and 9 KWH and thereafter billed units plummeted to Zero. Any prudent consumer would like to get the electricity meter surrendered/disconnected if there is no requirement of electricity, in order to save fixed charges amount. But in this matter, the consumer continued to pay Electricity Bill limited to fixed charges as FIR No.907/2020 State vs Sunny & Anr. 16 of 27 the Billed units as well as MDI was Zero and same cannot be possible without tampering of the meter. After meter was concluded to be "externally burnt" as also supported with practically no consumption as per billed units for a time period coupled with enhanced consumption for first few months and after change of meter also, that an inspection to assess connected load was carried subsequent to the date of Lab Testing Report. At the time of inspection, there was no connected load as the inspected premise was found vacant. It was argued by AR of complainant company that the billed units as well as MDI both did not commensurate with the load report Ex. PW2/5 which suggests that load was deliberately removed right before the inspection, to tailor and portray less connected load and consequently lessor number of billed units. Detailed Speaking Order Ex.PW4/3 was passed after analysis of consumption pattern Ex.PW4/1 and reading chart Ex.PW4/2 read in conjunction with the Lab Testing Report Ex.PW2/2 and Connected Load Report Ex.PW2/5. Speaking Order made thorough analysis of consumption pattern, relevant portion of which is reproduced herein for ready reference:-
"Analysis of Electronic Billing Data reveals that meter is downloaded with Inconsistent & hanged consumption and not in consonance with maximum Demand recorded by the meter. Analysis of lab report reveals that: Meter plastic seals and Hologram seals found Burnt. Meter LCD found NOT OK. Meter cover box found in opened condition. Meter found abnormally burnt. Lab report concluded meter found externally burnt. Further average consumption pattern on Sanctioned Load as peer computer module work out to 0.30% which is less than the prescribed limit of DERC and also corroborates the finding of lab report. Meter MDI (KW) FOUND CONTINUOUSLY HANGED TO 0.00 KW from 21.10.2019 to 22.02.2020 and reading (KWH) also found hanged from 20.09.2019 to 22.02.2020 as per SAP Reading Chart. At the time of inspection, premises found vacant at G.F. so case booked on sanctioned load.
FIR No.907/2020 State vs Sunny & Anr. 17 of 27 Therefore, the observations of inspection team & lab are considered in order because the case has been well video-graphed with respect to connected load, meter & metering position, as per the circumstances. Hence a DAE case to be processed against the consumer.
31.Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied in deducing the difference in recorded and assessed consumption pattern. Speaking Order has been proved as Ex.PW6/3 which also noted that average consumption assessed pattern corroborated the Lab Report.
32.Consumption assessed as per Load Report Ex.PW2/5 was 0.00 KW comparing average actual consumption with average LDHF assessed consumption, as per which, average consumption was computed to be 0.30%. Same is not justifiable and reasonable. Assessed Consumption as per the sanctioned load of 5 KW was thus drawn as per which consumption pattern was declared to be 0.30% which was evidently less than 75% as requisite under Regulation 64. Following calculations were made as part of assessment of consumption pattern to arrive at conclusion of 0.30%:-
"Calculations :
Total Units 25.998
Average Consumption for 1 day KVAH
Average Consumption for 1 day KWH 0.099
Summer Days (SD) 117
Winter Days (WD) 145
Sr. Enf Rate Summer Inter Petty Hr & Factor Petty Hrs Summer Winter Petty Average
No. Type Category Load Load App.
(F1)(HxF) & Factor LDHF (SL) LDHF (WL) LDHF LDHF
(A) (B) Load
(C) (F2) (AxSDxF1) (BxWDxF1) (PL) (SL+WL+PL
(HxF) (Cx(SD )/(SD+WD)
+WD) x
FIR No.907/2020 State vs Sunny & Anr. 18 of 27
F2)
1 NDO NDLT 5.000 5.000 0.000 11x0.60 1x1 3661. 4785. 0. 33.
M-
GN-
MT<
10kw
Average Consumption for 1 day (CP) 0.099
Total Average LDHF (Cons) 33.
Average % (CP/CONS)x100) 0.30
33.In the present matter, electricity meter is tampered as (i) Meter cover box was found in opened condition (ii) Meter was found abnormally burnt (iii) Meter LCD was found not OK (iv) meter data could not be downloaded and (v) Meter was found externally burnt. The accused persons malafidely removed the connected load before the inspection which is depicted from the MDI recorded by the meter. During the course of arguments, AR of the complainant company submitted that if output supply of electricity is not passing through an electricity meter or consumption of energy is almost nil in that situation there is very less chances of burning of meter itself. It is also submitted that loose connection of wires with the meter may cause fire but in this case it was not so. Printout of photo of burnt meter is also on record in which the meter cover box is missing. It is not the case of the accused that any spark occurred due to loose connection of wires in the meter and that meter in question was installed without meter cover box. All these facts indicates that meter was tampered and in order to conceal tampering, the meter was intentionally burnt.
34.Broadly and generally speaking, unauthorized fiddling with meter or its wire by consumers for registering less energy is also called meter tampering. Registration actual less than usage of electrical energy FIR No.907/2020 State vs Sunny & Anr. 19 of 27 would help consumer in evasion of actual payable amount. Dishonest intention is innate to any deliberation of interference with the work of licensee. Tampering of meter can broadly be classified as internal tampering and external tampering. Electricity theft done by changing the metering system after opening the meter is called an "internal tampering". Soldering of resistance on PCB, internally bye-pass (P-P, N-N) etc. may be some known modes of internal tampering. External Tampering broadly can be divided in four parts i.e. (i) Abnormal Magnetic Influences (ii) External Circuit Inside (iii) Neutral Disturbance and (iv) Meter Burnt.
35.In the present case, accused physically tampered to record less energy consumption rather no consumption at all and thus, deliberately interfered in the metering system and in order to conceal the tampering, the meter was externally burnt. The said act of accused thus qualifies to fall in the category of 'intentionally burnt the meter'.
36.Prosecution has thus proved on the basis of testimony of witnesses and all proved documentations that electricity meter bearing No.70160526 installed at the inspected premises in the name of accused Sushi Kumar Malik as registered consumer was deliberately tampered with. Prosecution has proved that meter was abnormally burnt willfully to conceal the tampering of the meter or tampered the meter willfully to injure or alter the electricity recording meter installed by licensee in the name of registered consumer. Not only this, the meter was tampered in a manner that meter process was not being recorded and MDI (KW) found continuously hanged and it is proved that electricity meter was altered so that it interferes with metering of electric current and results FIR No.907/2020 State vs Sunny & Anr. 20 of 27 in theft of electricity, which would ultimately be dishonest abstraction/consumption/usage of electricity.
37.Having so deliberated, now, onus shifts upon the accused persons both under Section 138 of Electricity Act and Section 135 of Electricity Act to prove that it was not done or indulged willfully or knowingly by them or on their behalf or that they had no fraudulent/dishonest/malicious intention behind such an act. At this stage, before proceedings further, it is important to underline distinction between Section 138 and 135 of Electricity Act with respect to facts of the present case.
38.In M/s Mohit Paper Mills Ltd. & Ors. vs. PVVNL & Ors. (DoD : 14.10.2011), Hon'ble Allahabad High Court has observed as under :-
"144. ............. Clause (d) relates to an act on the part of a person by causing damage to meter, indicator or apparatus belonging to a licensee or intentionally altering the index of any such meter, indicator or apparatus or preventing any such meter, indicator or apparatus from duly recording or registering energy. Distinction between Clause (d) of Section 138 and Section 135 is that the former deals with mere damage or alteration and even if there is no actual withdrawal of energy, that would not make any difference while the later deals with the situation where the energy has been abstracted or consumed or used. A case covered under Section 138 is punishable in the manner provided therein but it would not be covered by terms "unauthorized use of electricity" as defined in Explanation (b) of Section 126 and, therefore, the scheme of the Act shows that an offence under Section 138 is such which is not within the mischief of Section 126 and for that purpose the assessment is not permissible".
39.The onus thus shifts upon the accused persons to show and prove that they never indulged in employing any artificial means either to interfere or alter the metering pattern amounting to tampering of meter and also never dishonestly used/consumed/abstracted energy by FIR No.907/2020 State vs Sunny & Anr. 21 of 27 indulging in such meter tampering.
40.Section 138 raises a presumption in favour of licensee that existence of any means for alteration of electricity meter under custody or control of consumer would raise presumption that such an improper use has been knowingly and willingly caused by such consumer, until proved to the contrary. Similarly, there is a proviso attached with Section 135 of the Act that employing any artificial means not authorized by licensee would be presumed to be caused dishonestly by consumer, until contrary is proved.
41.The Hon'be Supreme Court in case reported as 2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee has laid down the law related to the rebuttal of presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
42.In view of the law laid down by the Hon'ble Supreme Court in the aforesaid case, now it is to be seen if the accused persons taken any defence or produce any evidence which may disprove accused persons having willfully resorted to tampering of meter and indulged in dishonest abstraction of energy.
43.It is clear from the record that the accused persons simply denied the lab report and claimed that they did not do any tampering, however, they failed to lead any evidence in their defence. It is not disputed by the accused that the meter number No.70160526 was removed.
FIR No.907/2020 State vs Sunny & Anr. 22 of 27 Accused did not dispute that new meter No.70294634 was installed after removing meter No.70160526. It is clear from the lab report as well as Speaking Order duly proved by prosecution witnesses that meter No.70160526 was tampered for committing Dishonest Abstraction of Energy after opening Meter cover Box and in order to conceal tampering, the meter was abnormally burnt. Accused persons have not explained throughout the case as to how and why the the Meter cover box was in open condition and later on meter got burnt abnormally. It is not the case of the accused that Meter cover box was already open fitted or that when installed, he did not prefer a complaint in this regard to the concerned authority but no action was taken. The consumption pattern Ex.PW4/1 further shows variations in consumption of energy.
44.Mere mechanical formal denial without even assigning any reason for such denial cannot make up for rebutting the presumption. Lab Report as well as Speaking Order have merely been stated to be fabricated. No reason for terming those to be fabricated has been assigned by accused person. Removal of Meter as well as inspection has not been denied. No reason has been assigned of any innocent understanding of opening of meter cover box and abnormally burnt of the meter. It was not even suggested that accused persons were not aware of the same or meter was not in his control or custody or premises was not being put to use or commercial activity never happened in the premises or meter was simply faulty at one point of time and that they being an honest consumer just kept paying the bills. Nothing substantial was led to discredit the testimony of prosecution witnesses or to draw any FIR No.907/2020 State vs Sunny & Anr. 23 of 27 conclusion other than deduced above. Mere denials without actually stating as to why officials having no previous enmity in their line of duty would prepare false reports against accused persons. There is nothing stated which would show that analysis drawn or contentions were not as per applicable parameters or Regulations were overlooked so any such conclusion is not acceptable. There is no suggestion even that premises were indeed vacated which is why there was no consumption or billed units. Accused persons have simply stated in their statement recorded U/s 313 Cr.P.C that they have already settled the dispute and settlement amount has been paid by them. Accused persons have not led any evidence in their defence. Accused persons have miserably failed to discredit or disprove or create any dent in the case of prosecution.
45.It can thus be concluded that accused persons have not been able to rebut presumption in favour of complainant company that electricity meter was maliciously injured and electric energy was dishonestly consumed/abstracted.
46.There is nothing placed on record by accused persons to disassociate themselves from the premises or usage of electricity meter. It is not disputed that accused Sushil Kumar Malik was registered user/ consumer as well as owner of the inspected premises while accused Sunny was user in the inspected premises. It is not attempted to be proved or even put across as a suggestion leave alone leading any positive evidence that accused Sushil Kumar Malik had no inkling of activities of his son/user/accused Sunny. He never denied that he was unaware or disassociated himself from illegal activities indulged by FIR No.907/2020 State vs Sunny & Anr. 24 of 27 user/accused Sunny. No evidence has been produced to show that he hardly used to visit the premises or that he tried his level best to ensure that no illegal activity keeps budding at his place. He never attempted to prove that the electricity meter was not in his active control or custody so he was not aware of the illegal means employed for alteration of electricity meter.
47.There are legal consequences and ramifications of usage of premises as we well as usage of facilities to be enjoyed at the premises. There is nothing on record to suggest that accused Sushil Kumar Malik initiated any action against user/accused Sunny at all or that he never acquiesced an act purportedly or supposedly done at behest of user/accused Sunny. There are certain legal obligations which every registered consumer must fulfill. It is he who has been drawing monetary benefit by running commercial activity and by stopping the metering process by tampering the meter, therefore his responsibility irrespective of proof of allegation against accused/user very much remains and accused are answerable towards those allegations.
48.In his statement, PW1/IO has clearly deposed that during investigation, it revealed that accused Sushil Kumar Malik was the owner of the inspected premises while accused Sunny was the user in the inspected premises at the relevant time and meter in question was found installed in the name of Sushil Kumar Malik and these facts have not been disputed by the accused persons at all in their statements recorded U/s 313 Cr.P.C. Accused Sushil Kumar Malik has not attempted to show his disassociation with either inspected premises or user or activitiy of user at the relevant time. In case, accused Sushil Kumar Malik was unaware FIR No.907/2020 State vs Sunny & Anr. 25 of 27 that user/accused Sunny has committed dishonest abstraction of energy, he ought to have brought this fact to the notice of the complainant company. However, it is clear that accused Sushil Kumar Malik did not take any action in this regard against the user/accused Sunny and his aforesaid conduct speaks for itself that accused Sushil Kumar Malik was well aware of the illegal act of the user/accused Sunny. Thus, under these facts and circumstances, it can be very well said that once the accused Sushil Kumar Malik had come to know about the said illegal activity on the part of the user/accused Sunny, he ought to have taken appropriate action against the user and he was also duty bound to inform the complainant company about the same, however, accused Sushil Kumar Malik did not do the needful which shows that accused Sushil Kumar Malik was fully aware of the said illegal activity being committed by the user/accused Sunny and therefore, he has settled the theft bill and paid the entire settlement amount. Thus, under these circumstances, it can be said that accused Sushil Kumar Malik had abetted the offence of dishonest abstraction of energy.
49.All the documents relied by prosecution have been duly proved by prosecution witnesses. All prosecution witnesses have been duly cross- examined by Ld. Counsel for accused persons. The testimony of witnesses has remained unshattered. There is nothing on record to show that witnesses have not supported the prosecution version or have made inconsistent submissions.
50.In this case, accused Sunny has been served with the notice for the commission of offence punishable U/s 135 as well as 138 of the Act while accused Sushil Kumar Malik U/s 135 & 138 read with section FIR No.907/2020 State vs Sunny & Anr. 26 of 27 150 of the Act. However, on conjoint reading of Section 135 and 138 of Electricity Act, it appears that the act of the accused Sunny is squarely covered under clause (b) & (d) of Section 135 of the Act and that of the accused Sushil Kumar Malik U/s 135 of the Act r/w Section 150 of the Act as there was dishonest abstraction of energy from a tampered meter which amount to direct theft of electricity.
51.From the above discussion, I am of the considered view that accused persons have miserably failed to show a reasonable probability of their defence that the meter in question was not tampered and that they are not liable for any alleged theft. The prosecution has thus established its case beyond any reasonable doubt that accused Sushil Kumar Malik being the owner/registered consumer abetted meter tampering and usage of such tampered meter for abstraction of energy and therefore, accused Sushil Kumar Malik is convicted for commission of offence punishable U/s 135 r/w Section 150 of the Indian Electricity Act, 2003 and and accused Sunny is convicted for the offences punishable U/s 135 of the Electricity Act 2003. Ordered accordingly.
Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2023.04.15 16:36:32 -0400 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in the open court on this 15th April, 2023.
FIR No.907/2020 State vs Sunny & Anr. 27 of 27