Delhi District Court
Brpl vs . Rajesh @ Gabbar Fir No.765/14 Page No. 1 ... on 15 February, 2018
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IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Session Case No. : 43/15
FIR No. : 765/14
Police Station : Amar Colony, New Delhi
U/s : 135 of Electricity Act, 2003
SC/CIS No. : 6654/16
STATE
VERSUS
(i) Rajesh Kumar @ Gabbar (User/Owner)
(ii) Likhi Ram (R/C)
Resident of E59, First Floor, Sarupa Mohalla,
Garhi Jharia Maria, New Delhi110065
...Accused
Case instituted on : 01.10.2015
Judgment reserved on : 15.02.2018
Digitally
Judgment pronounced on : 15.02.2018 signed by
NEELAM
NEELAM SINGH
SINGH Date:
2018.02.20
16:38:03
+0530
BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 1 of 16
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JUDGMENT
1.The case of the prosecution in brief is that on 30.08.2014 a complaint was received at police station Amar Colony against Rajesh Kumar @ Gabbar and Likhi Ram, however, the present FIR bearing no. 765/14 was registered u/s. 135 Electricity Act, 2003 only against accused Rajesh Kumar @ Gabbar.
2. As per contents of the said complaint, the case of the complainant in brief is that the officials of the MMG (Meter Management Group) department of the complainant replaced a faulty meter bearing no. 12455565 (hereinafter referred as meter in question) from the premises of accused. The removed meter was seized at site vide bag no. 544281 with seal no. 0356857 and sent to the meter testing laboratory for further testing of meter with an intimation letter dated 22.12.2013 to the accused that he may witness the testing/analysis of meter in laboratory on 30.12.2013. The removed meter was tested in laboratory on 29.03.2014 and as per meter testing/analysis report no. BR140311877, the plastic seal, hologram seal and meter top cover was found refixed, meter LED and LCD were found not Ok and illegal resoldering found BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 2 of 16 3 on shunt output and neutral CT output location, thus, it was concluded that meter was tampered.
3. It is the case of the prosecution/complainant that on the basis of said lab report, an inspection team consisting of officials of complainant company inspected the premises of accused on 21.04.2014 at 11.40 p.m for assessing the connected load of the premises. During inspection, it was found that the premises in question was being used and occupied by Rajesh Kumar (User/Owner) and Likhi Ram (Registered Consumer). The inspection team prepared the inspection report, load report, seizure memo as per lab report at site. Videography was also conducted by the videographer from M/s. Arora Studio which contained in the form of Compact disc. At the time of inspection, total connected load was found to be 11.179 KW for domestic purpose. A showcause notice dated 02.05.2014 was issued to the accused requesting him to file reply by 15.05.2014 and to attend the personal hearing on 20.05.2014 before the Assessing officer of the complainant company. Accused did not attend the personal hearing hence, final show cause notice dated 21.05.2014 was issued to the accused to attend personal hearing on 29.05.2014 at 11.00 a.m. despite that accused failed to attend the personal hearing and BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 3 of 16 4 accordingly, after taking into consideration all the facts and circumstances, the Speaking Order was passed on 02.06.2014 by Assessing Officer recording the findings of a conclusive evidence of DAE.
4. On the basis of connected load & applicable tariff, theft bill of Rs.1,42,959/ was raised. On failure of accused to pay the same, present complaint was filed.
5. Ld. Predecessor of this Court took cognizance of the offence punishable u/sec. 135 of the Electricity Act on 01.10.2015.
6. Notice of accusation u/sec. 251 Cr.P.C. for the offence punishable u/s 135 & 138 of the Electricity Act was put to accused Rajesh Kumar @ Gabbar to which he pleaded not guilty and claimed trial on the ground that he had not tampered with the meter. He further answered that at the time of removal of the meter in question, there was no such observation regarding inserting of illegal wire. He further answered that meter was installed on 23.10.2007 and warranty of the meter was expired due to lapse of time. He further deposed that as per the consumption pattern BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 4 of 16 5 and speaking order, the consumption was 70% of the sanctioned load thus no case of DAE is made out. Lastly, it was submitted by accused that false & fabricated case has been made out against him by the complainant company.
7. In order to prove the case of the complainant, ten (10) witnesses were examined by the complainant company.
8. Incriminating evidence was put to the accused Rajesh Kumar @ Gabbar and his statement U/sec. 313 Cr.P.C. was recorded separately. He denied the evidence as false and answered that meter in question was not tampered by him. He also submitted that the warranty as well as guarantee of the meter was expired. He further opted to lead defence evidence and has examined one witness in his defence who has been discussed below.
9. PW1 Sh. Ram Kumar Assistant Manager in the complainant company who deposed that on 21.04.2014 at about 11.40 a.m., he alongwith Sh. Ranvir SinghEngineer, Sh. DharamjitEngineer, Sh. Sandeep Lineman and Sh. PramodVideographer inspected the premises bearing BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 5 of 16 6 house no. E59, First Floor, Sarupa Mohalla, Garhi, New Delhi on the basis of lab report in order to assess the total connected load of the premises which was found to be 11.179 KW for domestic purpose. PW1 further deposed that inspection report, load report and seizure memo were prepared at site and proved the same as Ex. PW1/A (colly), Ex.PW1/B and Ex.PW1/C. He identified the videography as contained in the CD Ex.PW1/D. PW1 further deposed that he filed a complaint before PS. Amar Colony vide DD No. 43B dated 30.08.2014 and proved the same as Ex.PW1/E.
10. In his crossexamination on behalf of accused, PW1 admitted that reports were not submitted to the police officials on the same day. He further admitted that there was one more meter at site at the first floor. He further replied that load was taken for first and third floor. He admitted that he had not mentioned in report regarding the fact that he had seen the receipt of 2 ACs which were purchased by the accused one month prior to inspection at the premises.
11. PW2 Shri Ranvir SinghEngineer in the complainant company, has deposed almost same facts in his examination in chief as deposed by BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 6 of 16 7 PW1. However, in his cross examination on behalf of the accused, he denied that meter in question was defective. He further denied that a false and fabricated case has been lodged by the complainant company against the accused.
12. PW3 Sh. Sandeep KumarLineman in the complainant company who was also one of the raiding team members. PW3 deposed that during inspection, he switched on and off the MCB in order to check the flow of electricity of the connected load through meter.
13. PW4 Sh. Dharamjit SinghDET was also one of the raiding team members who has deposed almost same facts in his examination in chief as deposed by PW1 and PW2.
14. In his crossexamination on behalf of accused, PW4 replied that the term 'F/M' depicted on the lab report as mark X means faulty meter. PW4 admitted that he was not called by any police official in the PS pertaining to the present FIR. He further replied that the manufacturing date of the meter is 2004. He denied the suggestion that the meter in question was defective meter.
BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 7 of 16 8
15. PW5 HC Mahabir Singh, who serve the notice u/s 41.1 Cr.P.C. to accused Rajesh Kumar @ Gabbar to join the investigation in the present case.
16. PW6 Shri G. B. Barapatre, who deposed that he prepared the theft bill Ex. PW6/A, after considering all the documents i.e. inspection report, load report and speaking order and he also proved the said theft bill.
17. In his crossexamination on behalf of accused, PW6 replied that he did not visit the premises in question at the time of inspection. He denied the suggestion that theft bill was prepared as per company policy.
18. PW7 ASI Prabhu Lal, who was working as duty officer on 12.09.2014 had deposed that complaint Ex.PW1/C was handed over by SI Satish to him and on the basis of which, he got recorded the FIR Ex.PW7/A.
19. PW8 Sh. Rajeev Kumar BhattEngineer, who deposed that on 29.03.2014, he received a sealed bag. He further deposed that after breaking the seal, a meter alongwith letter of MMG was taken out. He further deposed that on visual observation of said meter, it was found BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 8 of 16 9 that seals of meter were found broken. PW8 further deposed that he powered up the meter but the same was not powered up. He further deposed that LCD and LED were not OK. He further deposed that on opening the meter, it was found that illegal resoldering was there on shunt output location and neutral CT output location. Thus, on the basis of said observation, it was concluded that the meter was intentionally tampered. PW8 deposed that after testing the meter in question, he prepared the lab report which he proved as Ex.PW8/A and also took the photograph as MarkA.
20. In his crossexamination on behalf of accused, PW8 replied that he could not check the meter on the date given by the MMG as the accused was not present on that date. He further replied that reading in a meter was not getting downloaded. He further replied that meter was not powered up at the time of testing and there was no pulse in the meter. He further replied that meter was checked for 510 minutes. He denied the suggestion that meter in question was defective as the warranty period was expired.
BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 9 of 16 10
21. PW9 ASI Yogender Singh, IO of the present case, who deposed that he recorded the statement of raiding team members u/s 161 Cr.P.C and after conducting the entire investigation, he filed the chargesheet.
22. In his crossexamination on behalf of accused, PW9 admitted that it has been stated by witness namely Ram Kumar in his statement recorded under Section 161 Cr.P.C. that the meter in question was faulty. He further replied that site map was prepared by him on 12.09.2014 at about 8.00 p.m.
23. PW10 Sh. Pramod Kumarvideographer who deposed that he conducted the videography in the present case and identified the videography contained in CD as Ex.PW1/D.
24. In his crossexamination on behalf of accused, PW10 admitted that preparation of documents at site is not depicted in the videography. He further deposed that all the gadgets present at site are depicted in the videography and accordingly the load was taken.
BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 10 of 16 11
25. Accused examined one Sh. Rama Shankar Manager in the complainant company as DW1, who brought the summoned record i.e. Meter change report as Ex.DW1/A and replacement order as Ex.DW1/B.
26. In his crossexamination on behalf of complainant company, DW1 replied that as per document Ex.DW1/A, it is mentioned that the reading of the meter was not visible. He further replied that meter reader informed that the meter in question was not downloading the meter reading electronically which is mentioned in Ex.DW1/B.
27. It is argued by Sh. Naresh Bhardwaj, ld. counsel for complainant company that the case of the prosecution/complainant company is that the officials of MMG (Meter Management Group) visited the premises of accused and replaced the single phase electronic meter bearing no. 12455565 installed against C.A. No. 101852294 with a new electricity meter bearing no. 26177713 and the removed meter was sent to the laboratory in a sealed condition and the laboratory declared the meter being tampered on the ground that plastic seals and hologram seals were refixed, meter LED and LCD were found not Ok and illegal resoldering BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 11 of 16 12 was found in the meter. It is further submitted that consumption pattern was recorded which was found to be on lower side. The consumption pattern recorded for the period 11.12.2012 to 13.11.2013 shows an average recorded consumption of 405 units per month which is found to be only 70% of the assessed consumption which corroborates the conclusion drawn by the laboratory that the meter in question was tampered at the hands of the accused.
28. It is argued by ld. counsel for complainant company that in order to bring home the guilt of the accused, prosecution/complainant company have examined ten (10) witnesses who have duly proved the case of the complainant company.
29. It is argued by ld. counsel for complainant company that there is no dispute regarding connection of accused with premises in question, removal of meter in question by the officials from Meter Management Group and the inspection carried out by the Enforcement team for taking the load of the premises in question. Lastly, it is submitted that the guilt of accused is established on the conclusion of the lab report Ex.PW8/A. BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 12 of 16 13
30. On the other hand, Sh. N. K. Nagar, Advocate, ld. counsel for accused has submitted that it has come in the defence evidence i.e. in document Ex.DW1/A that the meter in question was found Ok at the time of replacement and the meter was replaced with the reason as shown in Ex.DW1/B as "meter faulty" (order for device replacement: meter faulty).
31. Ld. Counsel for accused has further argued that in the cases pertaining to Dishonest Abstraction of Energy (DAE), the official who has passed the speaking order is a crucial witness as the entire case of DAE hinges around his observations and calculations mentioned in the speaking order which finally becomes the basis for filing the complaint case before the Court but unfortunately the prosecution/complainant company has failed to examine the said witness and hence the speaking order is not proved as per law.
32. Ld. Counsel for accused has further argued that it has been held in various decisions passed by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that in cases pertaining to Dishonest Abstraction of Energy (DAE), if the complainant company has created a doubt in the BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 13 of 16 14 mind of the Court that meter is tampered then the Court is bound to check pre and post consumption in order to conclude the case of DAE. Moreover, it has been held in number of cases that RTC failure or the higher MDI or the laboratory report wherein meter is being examined by the complainant company in the absence of accused and in their own laboratory cannot be relied upon in the absence of consumption pattern. Ld. counsel for accused has taken me to the pre and post consumption and submitted that in this case, the post consumption is almost equivalent to pre consumption rather it is less.
33. It is further argued by ld. counsel for accused that PW1 has specifically admitted during his crossexamination that he has not mentioned the fact that two Air Conditioners were purchased by accused just one month prior to the inspection, instead, load for said two Air Conditioners has been taken for the whole year in the consumption pattern. Although no document has been taken for the post consumption but at the request of AR of the complainant company, the consumption pattern is brought and placed on record and it has been very fairly submitted by AR of the complainant company that as per post consumption, the units consumed were 504 per month against the units of 405 which comes out 75% of BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 14 of 16 15 the assessed load and as per the DERC guidelines, benefit of doubt be given to the accused.
34. Lastly it is argued by ld. counsel for accused that the consumption pattern recorded for the period 11.12.2012 to 13.11.2013 shows an average recorded consumption of 405 units per month which is 70% of the assessed consumption and as per DERC guidelines no case for DAE can be made out if the consumption is approximately 70% of the assessed consumption.
35. In the present case, there is no dispute with respect to identity of accused and connection of accused with premises in question. The first question which requires to be decided in the present case is whether complainant/prosecution has established the fact that the meter in question was tampered for dishonest abstraction of electricity by the accused. The only tangible evidence on record is that meter bearing no. 12455565 was found installed at premises of accused which was faulty and same was removed and tested in the laboratory and the conclusion was taken in the lab report Ex. PW8/A that meter was tampered. BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 15 of 16 16
36. On the contrary, bare perusal of Ex.DW1/A reveals that meter in question was changed on account of 'faulty' meter' and the reason for fault arises in the meter from internal side cannot be attributed to the accused. Furthermore, from the comparison of both pre consumption and post consumption, there has been no substantial difference rather it is less after the installation of new meter at site (if the load of two Air conditioners reduced from the load mentioned in load report Ex.PW 1/B).
37. In view of aforesaid discussion, I am of the considered opinion that it cannot be held that intention of the consumer to abstract electricity dishonestly, has been proved conclusively to bring home the offence u/s. 135/138 of the Electricity Act, 2003 against the accused. Hence, the accused Rajesh Kumar @ Gabbar is entitled to the benefit of doubt and he is acquitted of the offence alleged against him u/s. 135 & 138 r/w Section 150 of the Electricity Act, 2003. The file be consigned to record room.
Announced in the open ( NEELAM SINGH)
Court on this 15th February, 2018 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BRPL VS . RAJESH @ GABBAR FIR No.765/14 Page no. 16 of 16