Delhi District Court
Complainant vs Samar Singh ..................... ... on 2 September, 2013
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IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 114/11/07
ID No. 02405R0853522007
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
Samar Singh ..................... Accused
S/o Sh Chuttar Singh
R/o House Near Pole No. 19E,
Village Mundka,
New Delhi
Date of institution: ........................ 12.12.2007
Arguments heard on: ........................ 26.08.2013
Judgment passed on : ........................ 02.09.2013
Final Order: ........................ Acquitted
CC No. 114/11/07
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JUDGMENT:
1. The brief facts of the case are like this. Accused is the registered consumer of electricity meter No. 12462324 with K number 2631J1620767 installed at premises near pole No. 19E, Village Mundka, New Delhi (hereinafter referred to as inspected premises). On 19.01.2007 the officials of the complainant company replaced the said meter with new meter no.13460278 vide separate meter change report. The meter was sealed in a bag and the consumer was informed vide notice dated 19.01.2007 that meter will be tested in the laboratory on 24.01.2007 in order to ascertain whether the meter has been deliberately burnt or not and he can witness the testing of meter. The meter was sent to meter testing laboratory, Pushp Vihar, New Delhi for testing. On 01.02.2007 the burnt meter was tested in the laboratory which was found deliberately tampered and deliberately burnt.
2. On 19.03.2007 a joint inspection team headed by Sh.Manish MittalAsstt. Manager (Enforcement) of the complainant company inspected the inspected premises on basis of laboratory report. The accused is user and registered consumer of the electricity meter installed in the inspected premises A connected load of 28.543 KW was found for industrial purposes. The photographs of the CC No. 114/11/07 Page 3 of 13 inspected premises were clicked by them. CD of photographs was prepared. Load report and show cause notice were prepared and offered to the accused who refused to receive and sign the same. The accused did not attend personal hearing on the basis of show cause notice A speaking order was passed by Assessing Officer on the basis of the record and consumption pattern from 10.12.2005 till 09.12.2006. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. The accused was summoned for the offence U/s 135/138 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to them. NOA U/s 251 Cr.P.C was put to him to which he pleaded not guilty and claimed trial.
4. The complainant has examined six witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. His defence is of denial simplicitor. However, no defence evidence has been led.
5. PW6 Mukesh stated that he has been working as Sealing Engineer at Mundka Division of the complainant since 2007. He CC No. 114/11/07 Page 4 of 13 knows Joginder who was working in the same division. He has seen him while writing and signing. The investigation/testing of meter report Ex. CW2/A bears the signature of Joginder at point A. Joginder has left the services of the company in 2008 and his whereabouts are not known.
6. PW2 Saurav Vashishth stated that on 01.02.2007 he has received a sealed bag no. 203380 from the store for testing of meter. He tested the meter No. 12462324 in the laboratory. The accuracy of the meter could not be checked as meter terminal was found burnt. The phase and neutral terminal of the meter were found short. The meter seals were found tampered. He declared the meter tampered and issued the report Ex. CW2/C. He has taken the photograph mark A of the meter. The meter Ex. P1 is identified by him which was tested in the laboratory.
7. During cross examination, he stated that foreign material was found in the meter. The phase and neutral were connected with illegal wire and that illegal wire is a foreign material. The photograph of illegal wire was taken. The illegal wire is shown at points X and Y in photograph mark A.
8. PW4 Pankaj Tandon stated that he is authorized by the CC No. 114/11/07 Page 5 of 13 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.
9. PW1 Mahender Parsad stated that on 19.03.2007 at 3.30 pm he along with other officials of the complainant company inspected the inspected premises on the basis of laboratory report. The premises is used by the accused who is also registered consumer of electricity meter installed in his name for domestic purposes but it was used for industrial purposes. Accused was present at the time of inspection who is duly identified by him. A connected load of 28.540 KW was found for industrial purposes. The photographs were taken at site. CD Ex.CW2/F was prepared. The photographs in the CD are duly identified by him. Load report and show cause notice Ex.CW2/D and E were prepared and offered to the accused who refused to receive and sign the same. Likewise is the testimony of PW3 Manish Mittal in his examination in chief.
10. During cross examination PW1 stated that accused met them inside the inspected premises at the time of inspection. The load was noted and assessed by the team members. The load is mostly covered in the photographs clicked at site.
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11. No cross examination was done to PW3 though opportunity was given.
12. PW5 Sudip Bhattacharya is Assessing Officer. He stated that the personal hearing was not attended by the consumer. He has checked the consumption pattern of the meter from 10.12.2005 till 09.12.2006. The average consumption is 365 units per month which is around 8.9% of the assessed consumption. He has considered the inspection report, load report, laboratory report and consumption pattern and passed the speaking order Ex.PW5/A which bears his signature at point A.
13. During cross examination he stated that he has not placed the consumption pattern on record. The speaking order was passed on the basis of documents.
14. Ld counsel for the complainant submitted that meter in question was removed from the inspected premises which was sent to laboratory for testing and meter was found tampered and burnt. He further submitted that accused, being registered consumer, is bound to maintain the meter and he must ensure that there is no tampering in the meter. He further submitted that accused has failed to explain how there was tampering in the meter. Ld counsel for the accused CC No. 114/11/07 Page 7 of 13 submitted that the complainant has failed to prove by leading any evidence that there was any tampering in the meter.
15. I have heard ld counsel for complainant, ld counsel for 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 has done tampering in the meter and was consuming the electricity through tampered meter.
16. 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.
17. The meter in question was removed on 19.01.2007 by one Joginder from the inspected premises who has allegedly prepared the investigation/testing of removed meter report dated 19.01.2007 along with meter change report. Joginder has not been examined by the CC No. 114/11/07 Page 8 of 13 complainant. His examination was essential to unfold the material facts. His examination was further essential to show the exact condition in which the meter was allegedly removed by him. There is nothing on record about the condition of the meter in which it was removed. His non examination calls for an adverse inference against the complainant company. The complainant has examined PW6 in order to prove investigation/testing of removed meter report. His testimony is of no help to the complainant as investigation/testing of removed meter report is not a public document so mere identification of signature is no proof of the document. His testimony is silent about the date of removal of meter as well as meter number. The complainant has failed to prove when the meter was removed. Further, meter change report was also prepared by Joginder. The photocopy of meter change report is placed on record. The original of meter change report is not placed on record. The photocopy is not admissible in evidence. The said report has not been exhibited in the testimony of any of the PWs after framing the notice of accusation. The said report is not proved by the complainant which calls for an adverse inference against the complainant.
18. There is no evidence on record about the condition of the meter at the time of its removal. There is no evidence that it was CC No. 114/11/07 Page 9 of 13 sealed in a bag at the time of removal and meter in the same condition was sent to the laboratory for testing.
19. On 01.02.2007 the meter was tested in the laboratory by PW2 Saurav Vashishth. He has issued the report Ex.CW2/C. The laboratory report is not above board. The hologram seal number is shown as A017103 in the laboratory report. The photocopy of meter change report shows that hologram seal number is RS031314. There is a difference in the number of hologram seal. The complainant has failed to explain how the different hologram seal number is appearing in the laboratory report. The testimony of PW2 shows that accuracy could not be done as meter terminal was burnt. This observation is not correct. There is no evidence on record that communication port in the meter was not responding at the time of removal of the meter. There is no evidence on record when the last reading was taken or what was the last reading recorded by the meter reader. The meter was showing reading of 7498 on the date of removal of meter meaning thereby that meter was running or showing the consumption of energy. To my mind, the complainant could have done the accuracy test when the meter was showing reading and there is no evidence that communication port of the meter was not responding.
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20. The testimony of PW2 shows that phase and neutral were connected with illegal wire and illegal wire is a foreign material. The testimony of PW2 does not find support from laboratory report Ex.CW2/C. The laboratory report shows that phase and neutral terminal were short. The laboratory report does not show that phase and neutral were connected through illegal wire i.e. foreign material. The testimony of PW2 further shows that meter seals were found tampered. This observation was not recorded by PW2 in his laboratory report for the reasons best known to him. Such kind of observation was not even recorded in the meter change report though it is not duly proved. PW2 has improved his testimony for which no explanation is coming on record. There is no observation from PW2 in the laboratory report that meter terminals were "deliberately" burnt by the consumer. The testimony of PW2 is not inconsonance with the laboratory report Ex. CW2/C as such his testimony does not inspire confidence. Mere burning of terminal is not enough to conclude that there is tampering in the meter. The complainant has failed to show that there was any tampering in the meter.
21. The evidence on the record shows that meter in question was sanctioned for domestic category which was used for industrial CC No. 114/11/07 Page 11 of 13 purposes. The complainant has failed to prove this fact. The reading was regularly recorded by the complainant. The complainant has failed to explain why this fact was not earlier noticed by the meter reader. The meter under domestic category is a single phase meter. The three phase supply is required to run the industry. There is no evidence that any converter or splitter was used by the accused to use the meter. There is a alleged connected load of 28.540 KW for industrial purposes. The domestic meter cannot bear load to such an extent and meter will burn in case it is put to a use for industrial purposes. The allegation of the complainant that domestic meter was used for industrial purposes does not appear to be convincing.
22. PW5 is a Assessing Officer. He has passed the speaking order Ex. PW5/A. It shows that consumption pattern from 10.12.2005 till 09.12.2006 was considered by him at the time of passing the speaking order. The consumption pattern is not placed on record for the reasons best known to the complainant. The withholding of consumption pattern by the complainant calls for an adverse inference against the complainant. The consumption pattern for the past 6 months has to be considered in terms of Regulation 26 (ii) of The Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations 2002. The complainant has failed CC No. 114/11/07 Page 12 of 13 to explain why consumption pattern for the last one year was considered. The Assessing Officer has failed to take into consideration the consumption pattern of the new meter installed in the inspected premises with the consumption pattern of the meter in question. There is no explanation to this effect. Further, the speaking order shows that domestic meter was unauthorizedly used for industrial purposes. The explanation to section 126 of the Act says that unauthorized use of electricity is the use of electricity for the purpose other than the purpose for which use of electricity is authorized. There was alleged unauthorized use of electricity. The Assessing Officer did not invoke section 126 of the Act for the reasons best known to him. The speaking order shows that phase and neutral terminals were found short by illegal wires as per meter test report. The meter test report does not show the presence of illegal wires. The complainant has failed to explain how the word 'illegal wires' are used by Assessing Officer when meter test report is silent to this effect. There is no explanation why the CMRI data was not downloaded. All these facts show that speaking order is not above board.
23. The complainant has failed to prove the allegations as set out in the complaint. In the light of my aforesaid discussion, I have CC No. 114/11/07 Page 13 of 13 no hesitation to hold that complainant company has failed to bring home the guilt against accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. The amount deposited by accused be returned back to him with an interest of 6 % from the date of deposit of the amount till its return after the expiry of the period meant for appeal. File on completion be consigned to record room.
Announced in the open Court on dated 02.09.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 114/11/07