Delhi District Court
Cc No. 134/08 (Ndpl vs Jagmohan) Page No..........1/15 on 12 September, 2012
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: ASJ
(ELECTRICITY) : NORTHWEST DISTRICT: ROHINI
COURTS:DELHI
CC no. 134/08
Unique ID no. 02404R0081382008
North Delhi Power Limited
office at Grid Sub Station Building
Hudson Lines, Kingsway Camp, Delhi110009
Also At:
Enforcement Assessment Cell,
Opposite C2 Block, Keshavpuram,
Lawrence Road, Delhi35.
........Complainant Company
V E R S U S
1) Shri Shri Swaran Lal,
Shop no. 53, Rajinder Market,
Tis Hazari, Delhi (complaint dismissed as withdrawn vide
order dt. 09/03/07 as accused has expired )
2) Shri Jag Mohan S/o Late Shri Sri Chand
Shop no. 53, Rajinder Market,
Tis Hazari, Delhi
...........accused persons
Date of institution: 29/07/2005
Date of hearing arguments: 21/08/2012
Date of decision: 12/09/2012
JUDGMENT
(1) The complainant (NDPL) has instituted the present complaint against accused no. 1 Swaran Lal and accused no. 2 CC no. 134/08 (NDPL VS Jagmohan) Page no..........1/15 Jagmohan interalia alleging that accused no. 1 is the registered consumer vide K. No. 31200123973 whereas the accused no. 2 is the user of the electricity at the site i.e. Shop no. 53, Rajendera Market, Tis Hazari, Delhi (hereinafter referred as "the premises"). It is further alleged that on 16.4.2005 a raid was conducted by the joint inspection team of the complainant company in the premises of the accused. During the course of inspection the inspecting team observed 2 numbers deliberately created holes on the top side of the meter body through which disc/digits were accessible to manipulate the recorded consumption. Further scratches were also observed on the digits and dial plate. It was further observed that the connected load was found to be 12.937 KW against the sanctioned load of 7.75 KW as per the following details: Sl. No. Connected Consumer Durables Load
(i). Welding Set (1x10 KVA) 10KVA
(ii). C/Fan (5x60W) 300W
(iii). Lathe (1x3HP) 3HP
(iv). Drill M/C (1x1HP+1X180W) 926W
(v). Tool Grinder (1x1/2HP) 373W
(vi). Hand Grinder (1x120W) 120W
(vii). F/Tube (12x40W) 480W (2) An inspection report dated 16.4.2005 bearing serial no. CC no. 134/08 (NDPL VS Jagmohan) Page no..........2/15 108496 duly signed by all the members was given at the site to accused Jagmohan who had signed it. A Show Cause Notice dated 16.4.2005 was served to accused to show cause why the case of Dishonest Abstraction of Energy (DAE) should not be registered against him. The accused persons were granted opportunity to file their reply to the Show Cause Notice and to attend the personal hearing on 23.4.2005, thereafter a speaking order was passed wherein case of dishonest abstraction of energy was established against the accused persons. Accordingly, on the basis of inspection dated 16.4.2005 complainant raised a Final Assessment Bill dated 05.05.2005 for an amount of Rs.3,70,991/ (Rs. Three Lacs Seventy Thousand Nine Hundred and Ninety One only) against the accused payable by 13.05.2005. The accused failed to make the payment of the said bill and accordingly the present complaint was instituted for the offence punishable u/s 151 read with section 135 & 138 of the Electricity Act, 2003. (3) Complainant examined CW1 Shri Ashok Kumar Gupta and CW2 Shri S. Banerji in its presummoning evidence on 29.5.2006.
(4) On 15.7.2006, the Ld. Predecessor summoned the accused persons for the offence punishable u/s 135 read with section 150 of the Electricity Act, 2003 has taken cognizance of the offence accordingly.
CC no. 134/08 (NDPL VS Jagmohan) Page no..........3/15 (5) Accused no. 1 had died and accordingly on 09.3.2007 the complaint was withdrawn against him. Accused no. 2 Jagmohan has appeared and was heard on the point of charge on 12.4.2007. Charge for the offence u/s 135 of the Electricity Act was framed against him to which he pleaded not guilty and claimed trial.
(6) In order to establish this case of dishonest abstraction of energy by deliberately creating holes on the top side of the meter to manipulate the consumption of electricity, Complainant has examined PW1 Shri Ashok Kumar Gupta who has proved on record General Power of Attorney as Ex.PW1/1; computerized copy of the provisional assessment bill dt. 21/04/05 as Ex. PW1/2; personal hearing sheet as Ex. PW1/3; written representation of the accused as Ex. PW1/4; consumption pattern analysis as Ex. PW1/5. He has also proved the copy of the final assessment bill dt. 05/05/05 as Ex. PW1/6. In his crossexamination he has admitted that he has no personal knowledge of the facts of the case and original speaking order could not be produced as same has been misplaced.
(7) PW2 Shri S. Banerjee is one of the member of the raiding party who deposed that on 16/04/05, a raiding team raided "the premises" i.e no. 53, Rajinder Market, Tis Hazari, Delhi and one industrial unit was found running in the said premises; one CC no. 134/08 (NDPL VS Jagmohan) Page no..........4/15 electro mechanical meter was found installed in the premises on which they found two created holes on the top side of the meter from which the disc and digits were accessible. He further deposed that the load of electricity was taken and was found around 12.9 KW. He further deposed that one Jogmohan met them on the site and identified him as one of the accused and has further proved the inspection report as Ex. PW2/1, joint inspection report as Ex.PW2/2 and the carbon copy of show cause notice as Ex. PW2/3. He further deposed that copy of the inspection report was received by accused Jagmohan at the site and signed at pointB but accused Jagmohan did not accept the show cause notice. He further deposed that on 22/11/07 they went to premises in question to remove the meter for producing in the court and he came to know that the said meter has already been removed by their department. He further clarified that said meter was removed by the zonal staff headed by Shri Sudesh Kumar Sharma, Zonal Manager and when he contacted Shri Sudesh Kumar Sharma who has confirmed that the meter had been removed from the premises in question under his direction but the said meter was not traceable in their zonal office. His further examination in chief was adjourned for producing the electricity meter and he was again examined on 13/07/2012 and no such electricity meter was produced.
CC no. 134/08 (NDPL VS Jagmohan) Page no..........5/15 (8) In his crossexamination he has admitted that meter was removed from the site by the Zonal department but same could not be produced in the court despite best efforts. (9) PW3 Shri C.B.S. Bhaskar is another member of the raiding team who has deposed in the same manner as deposed by the PW2.
(10) In his statement under section 313 CrPC accused has stated that he is innocent and falsely implicated in this case. (11) I have heard Ld counsel Shri K. B. Chaudhary on behalf of NDPL who argued that accused was found present at the site and at the time of inspection meter has been tampered by making holes in its body. In these circumstances, presumption is to be raised regarding tampering of the meter. It is further argued that as per consumption pattern analysis placed on record there was less consumption then the assessed consumption and a case of dishonest abstraction of energy has been established against the accused. It is further argued that all the witnesses are consistent in their deposition and the complainant has proved its case against the accused beyond reasonable doubts. Ld counsel therefore prayed for conviction.
(12) Ld counsel for the complainant has referred and relied upon following citation in support of his arguments: i. In Mukesh Rastogi Vs North Delhi Power Ltd in CC no. 134/08 (NDPL VS Jagmohan) Page no..........6/15 criminal appeal no. 531/07 decided on 23/10/2007 ii. In Sushil Sharma VS BSES Rajdhani Power, 2011 [1] JCC 665.
(13) I have heard Ld counsel Shri B.P. Aggarwal on behalf of accused who argued that the complainant has miserably failed to prove its case of dishonest abstraction of energy against the accused. It is further argued that complainant has relied upon the tampering of the meter and less consumption of electricity as shown in the consumption pattern analysis of the accused. Ld counsel has vehementally argued that the holes in the meter as was claimed by the witnesses has not been proved because the said meter was removed by the NDPL officer from' the premises' has not been produced in evidence. It is further argued that the consumption pattern solely is not sufficient to establish the dishonest abstraction of energy because the tampering of the meter is to be established by showing the external device which has been used for the electricity meter for showing less consumption.
(14) Ld counsel further argued that as per Delhi Electricity Regulations and Section 135 (2) (b) of the Electricity Act, 2003, the meter is to be seized and produced in evidence. It is therefore argued that complainant has failed to establish its case against the accused. Ld counsel has referred and relied upon following CC no. 134/08 (NDPL VS Jagmohan) Page no..........7/15 citation in support of his arguments: i. In J.K. Steelomelt (P) Ltd Vs BSES Rajdhani Power Ltd, 140 (2007) DLT 563, Hon'ble High Court of Delhi, wherein it was held that: "22. In reiteration of the above judgments, it is held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a manner that would slow down the consumption. This could be, for instance, in the form of an accu check instrument being used to detect if the meter was recording lesser consumption than it should."
23. In the present case, the formula for levying penalty in the case of confirmed DAE in terms of Regulation 26 (ii) has been used to infer DAE. As already mentioned in the above judgments, that formula can be applied only after the two seals were found missing there is no tangible evidence in the instant case to show that there has been a tampering with the internal mechanism of the meter by the consumer to make the meter recording lesser consumption of electricity. In this case as well no accu check instrument has been employed to detect if the meter was recording lesser units. On the other hand, both the inspection reports dated 2.3.2002 and 13.12.2004 indicate that the disc was moving in the right direction on all three phases. The fact that the disc was moving in the right direction, in the absence of any accu check instrument being used, should have actually led the respondent to conclude that the case of DAE had CC no. 134/08 (NDPL VS Jagmohan) Page no..........8/15 not been established. In the 13.12.2004 cannot lead to an inference of DAE at all. Thus the every basis of the impugned speaking order stands vitiated.
26...........It is one thing to plead that the connected load is more than the sanctioned load but is another to say that in fact the connected load has been used throughout by the petitioner. This could be only verified by the actual consumption recorded in the meter. If, as is indicated in the inspection report, the meter wiring is OK and the disc is moving in the right direction then the actual units recorded will reflect how much of the connected load is in fact being used. Therefore, merely because the connected load is more than the sanctioned load, cannot lead to an automatic presumption that the entire connected load is being used by the consumer throughout the period." ii. In Jagdish Narayan VS North Delhi Power Ltd & Anr , 140 (2007) DLT 307 wherein it was held that : "24. The decision of the Hon'ble Supreme Court in Jagannath Singh Vs B.S. Ramaswamy, [ 1966] 1 SCR 885 in illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Section 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In this case, it was contended that the existence of an open studhole on the meter was CC no. 134/08 (NDPL VS Jagmohan) Page no..........9/15 sufficient proof that dishonest abstraction of energy had been taken place. In answer to that contention, the Hon'ble Supreme Court observed as under: "A meter with an exposed studhole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A Check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
25. Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh Vs BSES Rajdhani Power Ltd, 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with Regulation 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft. "
CC no. 134/08 (NDPL VS Jagmohan) Page no..........10/15 iii. In Modern Terry Towels Ltd, VS Gujarat Electricity Board, Vadohara and Others, AIR 2003 GUJARAT 63, it was held that merely because from the exposure of a stud hole without more, a presumption cannot be raised against the consumer that there was unauthorised user of energy by employing artificial means.
iv. In Bhasin Motors (I) P. Ltd Vs NDPL, 142 (2007) DLT 116, it was held as under: "18. In the instant case the inspection report could at best have only led to an suspicion of DAE which was thereafter required to be established through 'conclusive evidence'. However, apart from the computed assessment determined by using the LDHF formula, there is no material to establish DAE. In the circumstances, this Court holds that the impugned Speaking Order has clearly erred in declining the request of the petitioner for ascertaining the consumption pattern of the meter by installing a parallel meter. DAE has, therefore, not been established in this case. "
v. In Col. R. K. Nayar (Retd) VS BSES Rajdhani Power Ltd, 140 (2007) DLT 257 wherein it was held that: "15. ......................................................................... g. The Second proviso to Section 135 (1) of the Act enables the shifting of the burden of proof only on the initial burden being discharged by the respondent. That initial burden is on the respondent to prove that "any artificial means or means not authorised by the Board or Licencee CC no. 134/08 (NDPL VS Jagmohan) Page no..........11/15 exist ". Unless it is so proved, the presumption of dishonest abstraction does not get attracted.
21. ........................................................................... The only other ground on which the inference of FAE is sought to be made is the pattern of consumption and comparing the computed consumption with the recorded consumption. As already held, the consumption pattern by itself again cannot lead to an inference of FAE it would have to corroborate what is detected on a physical examination. An accu check meter could have been used to detect if the meter was recording lesser energy than it should. That, however, was not done in the instant case. Since it is not shown that there was some device or even any technique used to slow down the meter to make it record lesser energy, the consumption pattern cannot by itself constitute the substantial evidence of FAE........................................................................" (15) I have carefully examined the evidence on record and considered the arguments on behalf of parties and case laws referred by them.
(16) Accused has been charged for dishonest abstraction of energy by deliberately creating holes on the top side of the meter body through which disc/digits were accessible to manipulate the recorded consumption. In order to establish its case complainant has examined three witnesses and their examination in chief was already discussed by me.
(17) PW2 Shri S. Banerjee and PW3 Shri C.B.S. Bhasker CC no. 134/08 (NDPL VS Jagmohan) Page no..........12/15 are the material witness because PW1 Shri Ashok Kumar Gupta is a formal witness. PW3 in his crossexamination has stated that the disc of the meter was found moving in the right direction and at the time of inspection there was proper recording in the meter. He further admitted that at the time of inspection no artificial means to obstruct the working of the meter was found. He further admitted that they did not take any photograph of the site. (18) PW2 Shri S. Banerjee in his crossexamination stated that the meter was removed from the site by the zonal department and same could not be produced in the court despite best efforts. He further stated that the half seals of the meter were found intact and at the time of inspection no artificial means were found to stop the movement of the disc of the meter. He further voluntarily stated that two holes at the top of the meter as well as scratches were found on the disc and dial of the meter but no photographs/ videographic of the meter showing the holes and scratches were taken. He further admitted that disc of the meter was found moving in right direction. At the time of inspection the meter was recording consumption. The accuracy of the meter was not checked and they never found any evidence to show that the disc of the meter was found stopped or meter was recording less consumption prior and after inspection.
(19) Admittedly, the meter where the alleged holes on the CC no. 134/08 (NDPL VS Jagmohan) Page no..........13/15 top side were found was never produced for the scrutiny of the Court. The said meter was removed by the official of the NDPL and NDPL/complainant has failed to produce the said meter despite its best efforts. Admittedly, no photographs of the hole on the top of the meter were taken. Both the witnesses are consistent in their deposition and in their crossexamination that they did not find any artificial means being used for stopping the meter and disc of the meter was also found moving in the right direction.
(20) In the light of this evidence the reliance placed by the Ld counsel for the complainant on the consumption pattern analysis Ex. CW1/5 alone is not sufficient to establish the case of dishonest abstraction of energy against the accused in the absence of other evidence to establish that consumer was involved in dishonest abstraction of energy. Reliance can safely be placed upon the judgments in J.K. Steelomelt (P) Ltd Vs BSES Rajdhani Power Ltd and Jagdish Narayan VS North Delhi Power Ltd & Anr referred Supra.
(21) The cases relied upon by the Ld counsel for the complainant related to the direct theft of electricity and none of the case is having facts regarding dishonest abstraction of energy as is the case in hand. The said judgments are therefore not relevant for the facts in this case.
CC no. 134/08 (NDPL VS Jagmohan) Page no..........14/15 (22) From the above discussion, I am of the opinion that complainant has failed to establish the charges as leveled against the accused beyond any reasonable doubt. In these facts and circumstances, the accused is entitled to be acquitted. Bail bonds cancelled and surety bonds discharged.
(23) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON
12
September, 2012
th
(RAJ KUMAR CHAUHAN)
ASJ(ELECTRICITY)
(NORTH WEST DISTRICT)
ROHINI COURT:DELHI
CC no. 134/08 (NDPL VS Jagmohan) Page no..........15/15