Delhi District Court
Complainant vs Sh. Mohd. Abrar (User) on 7 February, 2013
1
THE COURT OF SHRI NAROTTAM KAUSHAL, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 21.10.2010
Judgment reserved on : 07.02.2013
Judgment pronounced on : 07.02.2013
Complaint Case No. 183/10
PS Sangam Vihar, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID 02403RO144032011
BSES Rajdhani Power Limited
A company duly incorporated under Companies Act, 1956
having its registered office at BSES Bhawan,
Nehru Place, New Delhi110019
Corporate, Legal and Enforcement Cell at Andrews Ganj,
Next to Andrews Ganj Market, New Delhi110049.
Through Sh.Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
Sh. Mohd. Abrar (User)
KII1059, Ground Floor,
Sangam Vihar, New Delhi
...Accused
Appearances: AR for the complainant
Sh. Rajesh Kumar, counsel for the complainant
Accused on bail with Sh.N.K.Nagar, advocate
JUDGMENT
1 Complaint u/sec. 135 of the Electricity Act (hereinafter called as 'the Act') was filed by the complainant company against accused Mohd. Abrar seeking to summon, try & convict him for the offence punishable U/sec. 135 & 138 of the Act. Determination of his civil liability U/sec. 154 (5) of Act was also prayed for. 2 It is the case of complainant that on 29.03.2010, a joint inspection team inspected premises bearing No. KII1059, Ground Floor, Sangam Vihar, New Delhi. During inspection of the premises, Mohd. Abrar was found to be user as Page 1 of 7 2 well as registered consumer of electricity. Meter bearing No.13550468, against K.No.2511 N486 1596 was found installed. Real time clock (hereinafter called as RTC) of the meter was found failed and meter was showing current date as 05.02.2000 and time as 02.54 hours, whereas the actual date was 29.03.2010 and actual time 12.55 p.m. Finding it to be a case of suspected DAE, meter was removed and seized. Videography of the premises and connected load was conducted. Load was assesssed as 3.81 KWs for nondomestic use. Meter was sent to NABL accredited laboratory, under intimation to the consumer. As per meter analysis report dt. 15.04.2010, the laboratory declared the meter to be disturbed by use of ESD/ EHV/ HF device, for manipulating recording of consumption. A final show cause notice was issued to the accused on 03.08.2010 for attending personal hearing before the Assessing Officer. Consumer did not attend personal hearing. Assessing Officer, thus, passed speaking order dt. 18.08.2010 concluding it to be a case of DAE. 3 On the basis of connected load & applicable tariff, theft bill of Rs.1,34,046/ was raised. On failure of accused to pay the same, present complaint was filed. Ld. predecessor court took cognizance of the offence punishable U/sec.135 & 138 of the Act on 21.10.2010. Presummoning evidence was recorded and on the basis thereof, accused was summoned to face trial. Accused entered appearance and was admitted to bail and he deposited an amount of Rs.26,800/, towards the theft bill. Notice of accusation U/sec. 251 Cr.P.C. was framed against accused. He pleaded not guilty and claimed trial. He denied any tampering with the meter.
Page 2 of 7 3 4.1 Complainant, in support of its case, examined six witnesses. C.L.Pushkar (PW1) and Shlok Singh (PW2) were members of the raiding team. Sonu - Videographer (PW5) had also accompanied the inspection team and had taken the photographs of the connected load. Nikhil Kumar (PW6) proved the lab report Ex.CW2/G prepared by Sh.Chander Prakash Testing Engineer. Anant Sharma (PW3) was the assessing Officer, who proved his speaking order dt. 18.08.2010, vide which it was concluded to be a case of DAE. Ashutosh Kumar (PW4) is the authorised representative of the company. He proved his authority to file the complaint and pursue the same.
4.2 Both C.L.Pushkar (PW1) and Shlok Singh (PW2) have deposed that the meter bearing No.13550468 found installed in the premises of the accused, was recording a wrong date and time. RTC of the meter had failed. On being cross examined, (PW1) admitted that meter was not visibly tampered. He also admitted possibility of wrong date and time being reflected because of fluctuation in voltage. He also admitted that parallel meter was not installed to compare recording of consumption. Shlok Singh (PW2), on being cross examined, admitted the possibility of failure of RTC, because of failure in energy backup of the meter. He did not know if a meter with failed RTC could record correct consumption of energy. He did not know if the meter was running fast or slow.
4.3 The lab officials, who had analysed the meter, were not available, having left the services of BSES lab. Their signatures on the lab report Ex.CW2/G were identified by Nikhil Kumar (PW6). On being cross examined, Nikhil Kumar Page 3 of 7 4 (PW6) deposed that he had no personal knowledge about the report and he was not present in the lab at the time of testing of the meter or preparation of report. Anant Sharma (PW3) in his speaking order has only relied upon the meter analysis report and also the analysis of CMRI data.
5 Incriminating evidence was put to the accused and his statement U/sec. 313 Cr.P.C. was recorded. He denied that the meter was tampered with. He stated that he had himself requested for change of meter as the same was defective. However, there was no deliberate tampering of the meter. He did not lead any evidence in defence, though he had sought opportunity. 6 Sh.Rajesh, counsel for complainant has argued that identity of premises and accused has not been disputed. Lab report and the testimony of members of the inspecting team sufficiently prove that RTC of meter had failed. The speaking order draws from the inspection report and CMRI data, which had been downloaded at the laboratory. Maximum demand history had occurred more than once in a month. The evidence thus collected during inspection and analysis of the meter establish it to be a case of dishonest abstraction of electricity.
7 Sh.N.K.Nagar, ld. defence counsel has argued that complainant has failed to establish any deliberate tampering of the meter. Referring to the testimony of C.L.Pushkar (PW1) and Shlok Singh (PW2), it is argued that both witnesses have admitted the possibility of failure of RTC, on account of factors other than tampering. It is also argued that accused had himself been seeking Page 4 of 7 5 replacement of meter. No dishonesty can, therefore, be presumed against him. The alleged consumption pattern was not relied upon by the complainant and made available to the accused at any stage, for him to rebutt the same. 8 I have heard the ld. counsels and with their assistance perused the evidence & documents relied upon.
9.1 The identity of the premises, usage of the same by accused and the inspection dt. 29.03.2010 are not disputed. I, therefore, need not record any finding on these issues.
9.2 The issue, which requires adjudication in the present case is whether complainant has established the meter to be tampered with, for dishonest abstraction of electricity. The only tangible evidence on record is date and time on the display of meter to be different than the actual date and time. This observation was noticed by the inspecting team at the spot on 30.09.2009 itself. To corroborate this observation and for authentic evidence of it being tampered with, meter was seized, sealed and sent to the laboratory. However, the witness from the laboratory, who had analysed the meter was not available. Instead, Nikhil Kumar (PW6) was examined, who identified the signatures of the scientist, who had analysed the meter. The analysis report of the meter being tampered with is thus not duly proved.
9.3 However, for academic interest, the credibility of report shall be discussed. Perusal of the report Ex.CW2/G does not indicate any test to have Page 5 of 7 6 been performed on the meter or the same to have been segregated to detect presence of any foreign material. The conclusion has been arrived at, on the basis of observation that the current time shown by the meter was disturbed. The second observation of MD history being disturbed is based on the data downloaded, which forms a part of the report Ex.CW2/G. However, the person, who had downloaded the data has not been examined. Neither Nikhil Kumar (PW6) has made any avernment in his testimony, as regards this downloaded data. The same, therefore, does not have any evidentiary value. Nevertheless, recording of MD more than once in the month of January2000, as indicated in the downloaded data, cannot be held to be sufficient evidence of deliberate tampering of the meter. The disturbed time and date or the disturbed MD are only symptoms of faulty functioning of a meter. An electronic device may fail for hundreds of reasons. Unless, it is established that it was a deliberate act attributable to the accused persons; there can be no criminality attached to it. 9.4 Moreover, mere display of wrong date or recording of MD more than once in a particular month would not necessarily mean that the energy consumption was also not being recorded properly by the meter. An example can be taken of a digital camera, whose primary function is to take photographs; but the digital clock thereon may show a different date, if not properly synchronised. The primary function of taking the photographs is still being correctly carried out by the camera. Similarly, a digital watch on a music system may also not be correctly synchronized; but the primary function of playing music or tuning to the correct frequency is still performed by the transistor or music system. Thus, in order to establish that the function of Page 6 of 7 7 recording energy consumption was also disturbed; complainant ought to have relied upon better evidence.
10 For the reasons stated above, I am of the considered opinion that complainant has failed to establish that the meter was tampered with, as regards its capabilities to record consumption correctly. The disturbance in RTC is also not established to be deliberate at the end of the accused, so as to hold him guilty for the offence of dishonest abstraction of electricity. Accused is, therefore, honourably acquitted of the charge of offence punishable U/sec. 135 r/w/sec. 138 of the Act. Ordered accordingly. Bail bond is cancelled. Surety is discharged.
11 Accused is entitled to refund of the amount deposited by him. It is, therefore, directed that amount of Rs.26,800/ deposited by the accused towards theft bill, be refunded to him with interest @ 6% from the date of deposit, till the date of refund. The amount be sent to accused at his address, within a period of one month from the date of expiry of limitation period to file appeal.
File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 07.02.2013 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
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