Delhi District Court
Cc No. 132/12 (Tpddl vs Anand Kumar) Page No...... 1 Of 15 on 29 April, 2015
IN THE COURT OF MS. SWARANA KANTA SHARMA: ASJ ( ELECTRICITY)
NW DISTRICT:ROHINI: DELHI
CC no.132/12
Unique ID no. 02404R0119282012
Title:
TATA POWER DELHI DISTRIBUTION LIMITED
Regd. Office at
Grid Substation building
Hudson Lines, Kingsway Camp, Delhi110009
also at:
EAC, HRDI Sector3, Rohini, Delhi
through:Shri R.N.Gupta, Technical
............Complainant Company
VERSUS
Shri Anand Kumar S/o Sh. Moti Ram
R/o 2418/181,Ganeshpura,
Tri Nagar Delhi.
...........Accused
u/s 135 of the Electricity Act, 2003
Date of institution : 03/05/2012
Date of reserving order : 28/04/2015
Date of pronouncement : 29/04/2015
Appearances
Shri K.B.Chaudhary, Ld Counsel for the complainant
Shri B.P. Aggarwal, Ld counsel for the accused.
J U D G M E N T
1) The present complaint has been instituted by the complainant (hereinafter referred as the complainant company) through its authorised CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 1 of 15 representative Sh. R.N. Gupta, interalia alleging that on 03/10/2009 an inspection was carried out at the premises of accused i.e. 2418/181, Tri Nagar, Delhi (hereinafter referred as the premises) by the officials of TPDDL. During the course of inspection of the premises of the accused the inspecting team had observed the following irregularities: "Meter box seals of meter bearing no. 41009250 were found tampered, meter terminal seal was found tampered."
Establishment type - Commercial."
The inspection team had further found a connected total load of 04.496 KW against sanctioned load of 1 KW.
2) The inspecting team had prepared inspection report dated 03/10/2009 and copy of the same was delivered to the accused Anand Kumar at site. A show cause notice dated 03/10/2009 was served upon the accused calling upon him to explain why a case of Dishonest Abstraction of Energy be not booked against him. On 14/10/2009 accused Anand Kumar did not appear and another show cause notice dated 21/10/2009 was issued and an opportunity of personal hearing to appear on 29/10/2009 was granted to him. The accused did not appear on the said date. Accordingly a speaking order was passed making a case for dishonest abstraction of electricity and electricity connection was analyzed by the complainant wherein average recorded consumption was found to be 37.12%. On the basis of the average computed consumption the complainant had raised a final assessment bill dated 03/10/2009 for Rs 89,601/ and had called upon the accused to deposit the CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 2 of 15 same. The accused had failed to make the payment of the said bill. On 18/11/2009 reply to the speaking order was received in the office of the complainant on behalf of accused. Accordingly the present complaint was instituted and the complainant examined two witnesses i.e. CW1 Shri G.D. Sharma, CW2 Shri S.C.Ahuja for pre summoning evidence.
3) Vide order dated 14/02/2013 the accused was summoned by the Ld Predecessor of this court. Accused Anand Kumar had appeared before the court and has contested the case.
4) After hearing the Ld. Counsel for accused and Ld. Counsel for the complainant company, charge u/s 135 of the Electricity Act, 2003 was framed against accused Anand Kumar to which he pleaded not guilty and claimed trial.
5) In support of its case the complainant company has examined four witnesses.
6) PW1 Shri G.D.Sharma is member of raiding team. On 03/10/2009 he along with other team members i.e. Shri V.S.Dabas, Shri Sushil Kumar had inspected the premises of the accused at i.e 2418/181, Tri Nagar, Delhi and had found several irregularities in the connection bearing K. NO. 3240012144 which was sanctioned in the name of Anand Kumar for domestic purpose. He stated that during inspection on the site, the Inspecting team had found many irregularities which were mentioned in the inspection report Ex. CW1/1. He CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 3 of 15 stated that following irregularities were noticed by the inspecting team: "Meter box seals of meter bearing no. 41009250 were found tampered, meter terminal seal was found tampered."
Establishment type - Commercial."
7) He stated that on the basis of the observations reported in the inspection report, an action report Ex. CW1/2 was prepared and copy of the inspection report was delivered to the accused. He stated that the meter was found working within permissible limit. At the time of inspection a show cause notice Ex. CW1/3 was served upon the accused and he was granted opportunity of personal hearing. Photographs of the spot were taken which are proved as markA1 to A8 and negatives as markB1 to B8. He stated that the inspection had been carried out in the presence of accused. The witness identified the accused correctly in the court. He also identified him in the photograph markA4. The meter was produced in the court which was also identified by the witness and he had stated that meter box seals and terminal seals were tampered. The meter was proved as Ex. P1.
8) On being crossexamined by Sh.B.P.Aggawal Ld counsel for accused he stated that he has knowledge of Regulation 52 Clause (vii) of the DERC Supply Code 2007. He admitted that at the time of inspection there was no procedure in the company to send the meter to the NABL Accredited Laboratory for testing the meter. He stated that the inspecting team had opened the alleged tampered seals, but he did not remember whether those tampered sealed were retained or not. He admitted that no irregularities were found CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 4 of 15 inside the meter, even after segregation of the same. The accuracy of the meter was found within the limit, He stated that he had not checked the data of the meter. He stated that he could not say whether the consumption was according to the MDI .
9) PW2 Shri Sushil Mahalla is also member of the raiding party who stated similar facts as stated by PW1. He also stated that tampered meter was retained at the spot and he identified the accused correctly in the court and in the photograph markA4. Case property was also identified by the witness as Ex. P1. On being crossexamined by Ld counsel for accused he stated that he has knowledge of Regulation 52 Clause (vii) of the DERC Supply Code 2007. He admitted that at the time of inspection there was no procedure in the company to send the meter to the NABL Accredited Laboratory for testing the meter. He stated that inspecting team had opened the alleged tampered seals, but he did not remember whether those tampered sealed were retained or not. He admitted that no irregularities were found inside the meter, even after segregation of the same. The accuracy of the meter was found within the limit, He stated that he had not checked the data of the meter. He stated that he could not say whether the consumption was according to the MDI. He also stated that he had taken photographs with Camera provided to him by the complainant company. He stated that tampering of seals means that the seal was broken and thereafter it was punched. He stated that he taken the photographs of the seal in punched condition and the same is reflected in photograph markA4. He admitted that the punched seal was not clearly visible CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 5 of 15 in the photograph markA4 as the same had not been taken from digital camera.
10) PW3 Shri S.C. Ahuja is the AR of the complainant company who has proved power of attorney Ex.PW2/1; final assessment bill dated 03/10/2009 as Ex.CW2/6; the meter retaining protocol sheet dated 26/10/2009 vide which inspected meter was retained already Ex. CW2/7 and the K. no. record in the name of the accused.
11) PW4 Shri Kapil Kumar is Senior manager of the Company who deposed that in October, 2009 he was working as authorised officer with the complainant company and that the accused did not attend the personal hearing on 14/10/2009. Therefore on 21/10/2009 he had issued a show cause notice to the accused on the basis of inspection dated 03/10/2009 for personal hearing on 29/10/2009. The said show cause notice was proved as Ex. CW2/2. The show cause notice was sent to the accused alongwith the copy of the inspection report. The personal hearing dated 29/10/2009 was not attended by the accused; the consumption pattern of the accused was analysed and it was found to be low i.e 37.12%; the consumption pattern analysis sheet was proved as Ex. CW2/4. After considering all the facts he had passed a speaking order Ex. CW2/5 and the same was dispatched to the accused on 05/11/2009. On being crossexamined by the Ld counsel by Ld counsel for accused he stated that the meter working was found within limit at the time of inspection. He denied that in the electronic meter consumption could not be tampered with CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 6 of 15 without tampering with the software. He admitted that meter was not sent for testing in any laboratory.
12) Prosecution Evidence was closed thereafter.
13) Statement of accused u/s 313 CrPC was recorded and he claimed himself to be innocent and that he has been falsely implicated in this case. He did not lead evidence in his defence.
14) Written arguments were filed on behalf of accused wherein he has assailed the case of complaint on the following grounds: During the inspection the accuracy of meter had been checked and was found to be within permissible limit as mentioned in the inspection report. It is stated that despite the fact that no abnormalities were found inside the meter the complainant had issued a show cause notice wherein it was alleged that both seals of the meter box and meter terminal were tampered and some scratches had been noticed on the meter terminal screws. It is also stated that in the inspection report no allegation as mentioned above were mentioned. The discrepancies in the inspection report regarding the connected load was pointed out by the Ld counsel. It is further stated that in the inspection report it was alleged that connected load was 4.496KW whereas in the same report the MDI of the accused was mentioned as 3.74KW . The Ld Counsel therefore stated that the case of the complainant is false. It is also stated that evidence collected by the complainant is not as per the Regulations established to prove CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 7 of 15 dishonest abstraction of energy. It is also stated that meter was not seized as per Section 100 of CrPC in the presence of the consumer or his authorised representative and in the presence of two witnesses. It is also stated that the meter was not sent to any accredited laboratory for test report. It is stated that seals of the meter box and the meter terminal which were alleged to be found removed by the inspecting team had been destroyed. It is stated that the same should have been kept intact as per procedure laid down by Electricity Regulatory Commission. It it stated that complainant has passed speaking order without giving opportunity to the accused for making any effective representation.
It is also stated that the complainant has charged Rs. 81695/ on account of alleged DAE and Rs. 7906/ on account of consumption deposit and other charges without giving adjustment of one year for which bill was raised. It is stated that it is also in violation of Tariff provision. It is thus stated that case of the complainant be dismissed with exemplary cost.
15) Ld counsel for the complainant on the other hand has refuted the arguments of the accused and has stated that the documents filed on record as well as statements of the witnesses and photographs of the spot taken by the inspecting team prove beyond reasonable doubt that the accused had indulged in dishonest abstraction of energy.
16) I have heard arguments advanced on behalf of parties and have CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 8 of 15 carefully gone through the statements of witnesses. I have also gone through the documents, photographs placed on record and relevant provisions of law as well as procedure laid down by the Delhi Electricity Regulatory Commission.
17) Having considered the rival submissions of the parties, I am of the opinion that the present case pertains to dishonest abstraction of energy by tampering with the meter. The term DAE is not defined anywhere except the DERC Regulations, 2002. Section 2(m) of DERC regulations, 2002 which reads as under: "(m) "Dishonest abstraction of energy" shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as reversing the polarity of one phase of poly phase meters, changes in CT or PT, etc.)."
18) Similar provision is laid down under Section 135 (i)(b) of the Electricity Act which reads as under: "tampers a meter, installs or uses a tampered meter, current reversing transformer, loope connection or any other device or method which interferes with accurate or proper registration, callibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted;
CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 9 of 15
19) The provision of presumption of DAE has been laid down found in the provision of Section 135(i) Second Proviso as under: "provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is provided, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
20) In the light of above provisions of law. Let me discuss the evidence lead on record by both the parties to decide the case.
21) As is clear from the definition of dishonest abstraction of energy under Regulation 2(m) of DERC Regulations, 2002 and provision of Section 135 of Electricity Act, in order to presume a case of dishonest abstraction of energy or to establish a case of dishonest abstraction of energy the complainant is required to establish that some artificial means for abstraction of energy are adopted by accused to have accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been tampered with to record less energy than actually passing through it. In order to presume a case of DAE as defined under proviso of Section 135 (i) of Electricity Act, the complainant/licencee is required to establish that consumer has adopted artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity. CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 10 of 15
22) The case of the complainant is solely based on the presumption of DAE by the accused as meter box seals, meter terminal seals were allegedly found to be tampered. Before analysing the evidence it is necessary to go through the provisions of Section 52 (iv) & (viii) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 also which provide as under:
(iv) The Authorised Officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in annexeXI or as approved by the Commission from time to time.
(viii) In case of suspected theft, the Authorised Officer shall remove the old meter under a seizure memo and seal it in the presence of the consumer/his representative. The Licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs/videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the Commission. The Authorised Officer shall record reasons to suspect theft in the premises in his report."
23) Now I proceed to analyse the evidence of the complainant to find out whether the requirement of Regulation 52 (iv)(viii) has also been complied with or not so as to bring home the guilt of the accused beyond reasonable doubt.
24) Since it is a case of tampering of the seals and presumption of CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 11 of 15 dishonest abstraction of energy, on that basis it is necessary to find out from the evidence whether such other evidence as may be available to the complainant is on record to prove that the consumer/accused was responsible for committing dishonest abstraction of energy. It is settled position of law by Hon'ble High Court of Delhi in various cases referred and relied on by the counsel for accused and also in "Bhasin Motors (I) Pvt Ltd Vs NDPL reported as 142 (2007) DLT 116," referred by Ld counsel for accused that no case of dishonest abstraction of energy can be booked only on account of one seal on the meter missing or tampering or breakage of glass window etc. unless corroborated by consumption pattern of consumer as per Regulation 26
(ii) and such other evidence as may be available.
25) PW1 Sh. G.D. Sharma has stated that the meter was found working within permissible limit. In his crossexamination PW1 had admitted that at the time of inspection there was no procedure in the company to send the meter to the NABL Accredited Laboratory for testing the meter. He stated that inspecting team had opened the alleged tampered seals, but he did not remember whether those tampered sealed were retained or not. He admitted that no irregularities were found inside the meter, even after segregation of the same. The accuracy of the meter was found within the limit.
26) PW2 Sh. Sushil Mahlla has stated that the meter was found working within permissible limit. In his crossexamination he had admitted that at the time of inspection there was no procedure in the company to send the meter to CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 12 of 15 the NABL Accredited Laboratory for testing the meter. He stated that inspecting team had opened the alleged tampered seals. He admitted that no irregularities were found inside the meter, even after segregation of the same. The accuracy of the meter was found within the limit.
27) PW2 in his crossexamination has stated that by the term tampering meter he means the seals had been "punched". However, during his cross examination he admitted that photographs do not reflect that the seals were punched. It is therefore clear from the testimony of the witness that it could not be proved that the seals were tampered.
28) No sample seal or monogram of the seals has been filed on record by the complainant for comparison of the seals which were allegedly found to be tampered with to prove the tampering of the seals.
29) The analysis of the evidence of the complainant's witnesses merely established that the consumption pattern was about 37.12%. But was no artificial means were found used in this case for disturbing or tampering the internal mechanism of the meter. Further the meter in question was an electronic meter and ultrasonic seals on the meter were not disturbed and there was no evidence that the software of the meter was cracked or was tampered with in any manner.
30) The evidence on the record further established that the complainant had failed to comply with the provisions of Regulation 52 (viii) Delhi Electricity Supply Code and Performance Standards Regulations, 2007 by sending the meter in question to any laboratory for its testing. Therefore, there is no meter CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 13 of 15 testing report to support the case against the accused.
31) The consumption pattern by itself cannot lead to inference of dishonest abstraction of energy in this case, because there is no corroboration of physical tampering of the meter or use of any artificial means to prove that the meter was recording lesser units than the actual consumed unit. Further there is no evidence to show that any device had been used to disturb the internal mechanism to slow down the meter or to record lesser units than the actual consumption. Thus, the consumption pattern cannot by itself constitute evidence of dishonest abstraction of energy. I find support in my opinion the judgment of Col'. R.K. Nayyar Vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257" wherein it has been laid down that:
".....This court is of the view that an inference of fraudulent abstraction of energy must be based on some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the CC no. 132/12 (TPDDL VS Anand Kumar) Page no...... 14 of 15 event of the meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasise that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE "
32) Thus in view of the above discussions, I am of the considered opinion that complainant has failed to establish beyond reasonable doubt that the accused was guilty of dishonest abstraction of energy by tampering with the meter box seals, meter terminal seals of the meter installed at premises.
33) The accused Anand Kumar is accordingly acquitted of the charged offence.
ANNOUNCED IN THE OPEN COURT
th
ON 29 April, 2015.
(SWARANA KANTA SHARMA)
ASJ (ELECTRICITY) NW
ROHINI :DELHI:
29/04/2015
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