Delhi District Court
Complainant vs Rehan Khan on 9 December, 2013
Page 1 of 16
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 08/2011
ID No. 02405R0008602011
Section 135 of The Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Rehan Khan
2. Firoz Khan
......................... Accused
Both at:
Shop at Plot no.10
Khasra no. 317,
J J Cluster
Qutub Vihar,
Behind Masjid
(Near by 92111156098110043)
Near Pole no. R 390
Najafgarh, New Delhi110043.
CC No. 08/2011
Page 2 of 16
Date of institution: ........................ 10.01.2011
Arguments heard on: ........................ 02.12.2013
Judgment passed on : ........................ 09.12.2013
Final Order: ........................ Acquitted
JUDGMENT:
1. The brief facts of the case are like this. On 19.03.2010 MMG officials of the complainant company visited the shop situated at plot no.10, Khasra no.317, J J Cluster, Behind Masjid, Near pole no. R390, Qutab Vihar, Najafgarh, New Delhi (hereinafter referred to as inspected premises). One electronic meter number 23686595 was found installed in the inspected premises in the name of accused Rehan Khan. The meter was faulty. The meter was removed. The meter was put in a bag no.347986 and sealed with seal no.062102 under intimation to the consumer vide intimation letter dated 19.03.2010 that meter will be desealed and tested in the laboratory on 19.04.2010 and he can witness the testing of meter. The meter was sent to meter testing laboratory, Pushp Vihar, New Delhi for testing. On 26.05.2010 the meter was tested in the laboratory which was found tampered.
2. On 19.08.2010 a joint inspection team headed by Sh. Rajesh SinghalManager (Enforcement) of the complainant company CC No. 08/2011 Page 3 of 16 inspected the inspected premises on basis of laboratory report. The accused no.1 is user of the inspected premises. Accused no.2 is the registered consumer. There was no electricity meter at the time of inspection. No DT was found at the time of inspection. One service line was found coming to inspected premises from pole no.NJF390. O & M Staff was informed to remove the service line. A connected load of 7.484 KW was found for non domestic purposes. The video showing the irregularities in the inspected premises was taken by Amitphotographer. Inspection report, meter details report, load report and seizure memo were prepared and offered to the accused. The show cause notice was issued to the accused to file the reply and attend the personal hearing before Assessing Officer. The accused did not attend the personal hearing before Assessing Officer on the basis of show cause notice. A speaking order dated 11.10.2010 was passed by Assessing Officer on the basis of record. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. The accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were CC No. 08/2011 Page 4 of 16 supplied to them. NOA U/s 251 Cr.P.C for the offence u/s 135/138 and for the offence u/s 135/138 r/w section 150 of the Act was put to accused Rehan Khan and Firoz Khan to which they pleaded not guilty and claimed trial.
4. The complainant examined six witnesses. Complainant evidence was closed. Accused were examined U/s 313 Cr.P.C. The defence of accused Firoz Khan is of denial simplicitor. Accused Rehan Khan has taken the defence that meter was faulty which was installed in the name of Firoz Khan. However, accused have examined one witness in defence evidence.
5. PW1 Rajesh Singhal stated that on 19.08.2010 he along with other officials of complainant company and PW3 Amit photographer has inspected the inspected premises on the basis of laboratory report. Accused Rehan Khan is user of the inspected premises who is duly identified by him. There was no electricity meter at site. There was no direct theft at the time of inspection. One service cable was coming to the inspected premises. A connected load of 7.48 KW was found for non domestic purposes i.e. wood cutting work. The video was taken by Amit. The video in CD ExCW2/G is identified by him as it was taken at the time of inspection. Inspection CC No. 08/2011 Page 5 of 16 report, meter report, load report and seizure memo Ex.CW2/C F were prepared and offered to accused Rehan Khan who refused to receive and sign the same.
6. During cross examination by the accused, he stated that he is not aware if any complaint was filed by the accused regarding burning of meter with the complainant. A shutter was installed at the entry of the premises. The suggestion is denied that appliances were kept for storage purposes and they were not found in running condition or accused were not present at the time of inspection. Two wood cutters of 5 HP and 2 HP, 1 wood finishing tool of 2 HP, 3 bulbs, 2 fans and 1 grinder etc were found at the time of inspection. The premises was used for wooden work. They have asked the public persons to become witnesses but none of them agreed.
7. PW2 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
8. PW3 Amit is a videographer. He stated that on 19.08.2010 at 2.50 p.m. he along with officials of the complainant visited the inspected premises. He has taken the video as per instructions of the CC No. 08/2011 Page 6 of 16 officials. He has handed over the camera and cassette to M/s Arora Photo Studio. CD Ex.CW2/G was prepared. The contents of CD are identified by him as they were recorded at the time of inspection.
9. PW4 Suchita Gupta stated that the accused did not file any reply or attend the personal hearing on the basis of show cause notice. She has considered inspection report, meter details report, load report laboratory report, data downloaded from meter, video and consumption pattern from 06.03.2009 till 19.03.2010 and passed the speaking order Ex.CW2/I dated 11.10.2010 which bears her signature at point A.
10. During cross examination, she stated that the show cause notice was not personally sent by her.
11. PW5 Rajeev Ranjan stated that on 26.05.2010 meter no. 23686595 was received in a sealed condition in a bag no.347986. The meter was tested by Sh Ved Prakash under his supervision. They have visually observed that meter black push button is missing. The meter terminals are burnt. The meter data mark X was downloaded. The photograph of the meter mark Y was taken. It was observed from the data that MD history of meter has occurred more than once in a month. The scratch marks were found on PCB under black push CC No. 08/2011 Page 7 of 16 button. The meter was found disturbed which happens if meter is subjected to abnormal external disturbances through switches. The laboratory report Ex.CW2/D was issued by Ved Prakash which bears his signature at point A. The report was approved by him which bears his signature at point B.
12. During cross examination, he stated that the meter was tested under his supervision. He was with Ved Prakash at the time of testing.
13. PW6 Raj Kumar, Field Executive stated that on 19.03.2010 he visited the shop at plot no.10, Khasra no.317, J J Cluster, Qutab Vihar, New Delhi where one electricity meter no. 23686595 was found installed in a faulty condition. He removed the meter and sealed with seal no. 062102 in a bag no.347986. He prepared intimation letter dated 19.03.2010 Ex.CW2/A and it was informed to the representative of the consumer that meter will be tested in the laboratory on 19.04.2010 and he can witness the testing of meter. The representative of the consumer refused to receive the intimation letter.
14. During cross examination, he admitted that meter was taken from a shop but he does not remember whether it was a CC No. 08/2011 Page 8 of 16 parchoon/grocery shop. He admitted that shop was situated at the back side. He did not ask any nearby jhuggi wala to join the inspection process. He has not personally received the complaint regarding tampering in the meter in question. He admitted that the meter was installed at the shop of the inspected premises at the time of the removal of meter. The suggestion is denied that property number of accused A/60.
15. The accused have led the defence evidence. DW1 Naresh stated that he has been running a parchoon shop on a monthly rental of Rs. 1200/ in the area for the last 2 2 ½ years. No raid was conducted in his presence. One fan, one light and some other items of parchoon were in the shop. He has been paying half of the amount as rent and half of amount as electricity charges. He has never paid electricity bills to BSES as owner did not show electricity bills to him.
16. During cross examination, he stated that he cannot tell the shop number as there is no shop number. Firoz Khan was the owner of the shop. He cannot tell the month, year and duration of his tenancy. There is no rent agreement. He has bhaichara with the accused. He has deposed at the request of accused Firoz Khan.
17. I have heard ld counsel for complainant, ld counsel for CC No. 08/2011 Page 9 of 16 accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused were responsible for tampering in the meter and they were consuming the electricity through tampered meter.
18. Regulation 2 (m) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 says that 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 meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by the consumer to cause the meter to stop or to run slow.
19. In order to prove its case, the complainant has examined six witnesses. The accused have examined one witness in defence evidence in order to advance their defence. I have perused the entire record of the case.
20. The case of the complainant is that the meter no. 23686595 was removed on 19.03.2010 by PW6. The meter was found in a CC No. 08/2011 Page 10 of 16 faulty condition. The intimation letter dated 19.03.2010 was prepared by him which was offered to representative of the consumer to the effect that meter will be tested in the laboratory and consumer can witness the testing of the meter. The complainant has failed to prove this fact. It is admitted fact that accused Firoz Khan is owner of the shop. He is the registered consumer of the electricity meter no. 23686595. The meter was allegedly removed by PW6 who has prepared investigation/testing of removed meter report Ex.CW2/A. The report does not bear the name and signature of PW6. There is no explanation why the name and signature are not reflected on the report. The report does not bear the name of the representative of the consumer or even name of the consumer who was allegedly present at the time of removal of the meter. It does not show that this document was offered to him. There is no explanation to this effect. Further, the report does not show that meter in question was removed in a faulty condition. It was the duty of the complainant to show or reflect the fault in the meter at the time of its removal. There is no explanation to this effect why the alleged fault in the meter was not reflected in the report. All this show that meter was not allegedly removed by PW6. The meter change report is also prepared at the time of removal of old CC No. 08/2011 Page 11 of 16 meter and installation of new meter. The meter change report is not placed on record by the complainant. The meter change report reflects the faults found at the time of removal of meter. The meter change report is the best possible to show the faults found at the time of removal of meter. The best possible evidence is withheld by the complainant which calls for an adverse inference against the complainant. There is no evidence on record about the alleged faults in the meter at the time of its removal.
21. The complainant has failed to prove that investigation/testing of removed meter report was prepared at the time of removal of meter or it was offered to the consumer or his representative. It can be concluded that consumer was not aware when the meter will be tested in the laboratory to see whether there is any tampering in the meter or not. It is the duty of the complainant to inform the consumer about the date of testing of the meter in the laboratory and it is all together a different matter whether the consumer is present in the laboratory to see the testing or not. There is no evidence that consumer was aware about the date of testing of meter in the laboratory which calls for an adverse inference against the complainant.
CC No. 08/2011 Page 12 of 16
22. Accused Rehan Khan is shown as user of the inspected premises. PW6 has allegedly removed the meter from the shop/inspected premises. His testimony is silent about the user of the shop at the time of removal of the meter. On 19.08.2010 PW1 has gone to inspect the inspected premises on the basis of laboratory report. His testimony shows that accused Rehan Khan was user of the inspected premises at the time of recording the connected load. The question is about the person who is user of the inspected premises on the date of removal of alleged tampered meter. The defence is adduced by the accused that DW1 Naresh was user of the inspected premises. I have perused the testimony of DW1. His testimony nowhere shows the exact date, month and year of tenancy of the shop in question. Mere deposition that he has been running the parchoon shop for 22 ½ years is not enough to show that he was the tenant or in possession of the shop on the date of removal of meter. There is no rent agreement or rent receipt on record. The defence evidence is not convincing to the effect that DW1 was the user on the date of removal of the meter. However, the onus is upon the complainant to show the user of the inspected premises on the date of removal of meter. There is no evidence that accused Rehan Khan was user of the CC No. 08/2011 Page 13 of 16 inspected premises on the date of removal of meter. The testimony of PW1 that accused Rehan Khan was user is of no help to the complainant.
23. The defenec of the accused is that wood cutting work was not in the inspected premises on the date of removal of meter. The defence gets support from the testimony of PW6. The court has to see the nature of activity going in the inspected premises on the date of removal of meter. PW6, who has allegedly removed the meter, has deposed that meter was removed from a shop situated on the back side. He has nowhere deposed that wood cutting work was going on at the time of removal of meter from the inspected premises. There is nothing on record about the exact purpose for which the shop was in use at the time of removal of meter. This is a material fact and omission to depose this fact amounts to contradiction which goes to the root of the case of the complainant.
24. The meter in question was sent to laboratory for testing. The meter was tested by Sh Ved Prakash under the supervision of PW5 Rajeev Ranjan. The meter test report Ex.CW2/D was prepared by Ved Prakash and approved by PW5. The meter was tested by Ved Prakash so his examination was essential to unfold the reasons for CC No. 08/2011 Page 14 of 16 giving opinion in the meter test report. The meter test report does not inspire confidence. There are visual observations in meter test report to the effect that terminals were burnt (T. Burnt) and black push button was found missing. The visual observations do not inspire confidence because no such observation finds reflection in the investigation/testing of removed meter report. The visual observation should have been in both the reports in order to inspire confidence in the mind of court. The laboratory report further shows that there were scratch marks on PCB under black push button. The report further shows that it disturbs the functioning of meter. This part of the report does not inspire confidence. The complainant has not produced the meter in the court to show that scratch marks were found on PCB under black push button or black push button was found missing. The complainant has not explained how it affects the functioning of the meter. The complainant has not made clear whether it affects the recording of consumption of the electricity units or not. Mere existence of scratch marks does not mean that it has affected the consumption pattern. The production of case property would have corroborated the observations recorded in the meter test report. No reason is forthcoming for the non production of meter in the court CC No. 08/2011 Page 15 of 16 which calls for an adverse inference against the complainant.
25. The speaking order Ex.CW2/I is passed by PW4. The consumption pattern from 06.03.2009 till 19.03.2010 was allegedly considered by her. The consumption pattern is not placed on record in order to show that it is not in accordance with the assessed consumption. Moreover, the consumption pattern cannot be considered with the assessed consumption as a shop was found running on the date of removal of meter and there was allegedly non domestic activity in the form of wooden work at the time of recording the connected load. The wooden work was not found in the shop at the time of removal of the meter so the connected load recorded later on cannot form the basis for comparing it with the earlier consumption pattern. The speaking order is defective to this effect on which no reliance can be placed.
26. Ld counsel for the accused contended that no reliance can be placed on the CD as it is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD Ex. CW2/G on record in order to show that it pertains to inspected premises. PW3 has taken the video but he has not prepared the CD. The person who has downloaded the data in the computer and thereafter prepared the CD CC No. 08/2011 Page 16 of 16 is not examined by the complainant. There is no evidence on record that the data was correctly downloaded by that person. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The original cassette is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it. I find force in the argument advanced by ld counsel for the accused.
27. The entire evidence on the file does not show that accused Rehan Khan was found user of the shop of the inspected premises on the date of removal of meter. There is no convincing evidence on record that there was tampering in the meter in question. The speaking order is defective. The testimony of PWs does not inspire confidence.
28. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and accordingly accused are acquitted of the offence charged. File on completion be consigned to record room.
Announced in the open
Court on dated 09.12.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 08/2011