Delhi District Court
Bses Rajdhani Power Ltd ... vs Desh Raj Saini ... on 21 April, 2014
Page 1 of 15
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 38/12
ID No. 02405R0013712012
Section 135 of The Electricity Act, 2003.
BSES Rajdhani Power Ltd ....................Complainant
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
Versus
1. Desh Raj Saini .....................Accused
2. Bhagwan Devi .....................Proceedings abated
Date of institution: .....................24.01.2012
Arguments heard on: .....................11.04.2014
Judgment passed on : .....................21.04.2014
Final Order: .....................Acquitted
JUDGMENT:
1. The brief facts of the case are like this. On 5.10.2009 at CC No.38/12 Page 2 of 15 2:20 pm a joint inspection team headed by Sh. Mukesh Chander, Senior Manager; inspected the shop No. D405 situated at Khasra No. 29/1/3, Sector 7, Extension I, Harijan Basti, Palam, Delhi (hereinafter referred to as inspected premises). Accused No. 1 is user of the inspected premises. Accused No. 2 is the registered consumer of electricity meter No. 13370870 installed in the inspected premises. The meter was checked. The meter was showing current reading as 20777 KWH. Meter body and body seals were found tampered and refixed. The meter number in the memory and name plate is different as per the email received from Business Manager, Palam. On 30.09.2009 a notice under section 163 of Electricity Act bearing No. BR163OA000101 was given to the consumer and IR Nos. 202362 and 63 were pasted on the meter. A connected load of 8.462 KW was found running for nondomestic purposes. The video of the inspected premises showing irregularities was taken by Shekhar, photographer from M/s Arora Photo Studio. CD was prepared. The meter No. 13370870 was removed and sealed in a bag No. 250969. The electricity supply of the inspected premises was restored through new single phase electronic meter No. 24264074. Inspection report, meter details report, load report and seizure memo were prepared and CC No.38/12 Page 3 of 15 offered to the consumer who refused to receive and sign the same. A show cause notice dated 5.10.2009 was issued to the accused to file the reply by 12.10.2009 and to attend the personal hearing on 30.10.09 before the assessing officer. On 30.10.2009 Desh Raj Saini and Dinesh Kumar attended the personal hearing and next date of hearing was to be fixed after receiving the laboratory report. On 7.11.2009 the meter was tested in the laboratory which was found tampered. A fresh show cause notice dated 31.12.2009 was issued to the accused to file the reply by 15.1.2010 and to attend personal hearing on 28.1.2010 before the assessing officer. On 28.1.2010 Desh Raj and Dinesh Kumar attended the personal hearing and denied to have done any tampering in the meter. A speaking order 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.
2. The accused No. 1 was summoned for the offence U/s 135/138 of Electricity Act (herein after referred to as Act) and accused No. 2 was summoned for the offence under section 135/138 read with section 150 of the Act on the basis of pre summoning evidence. Accused No. 2 has expired. The proceedings against her CC No.38/12 Page 4 of 15 stand abated on 22.5.2012. Copy of complaint and documents were supplied to accused No. 1. NOA U/s 251 Cr.P.C was put to him to which he pleaded not guilty and claimed trial.
3. The complainant examined six witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. His defence is of denial simplicitor. However, he has examined two witnesses in defence evidence.
4. PW1 Er. Satender Kumar stated that on 05.10.2009 at 2:20 pm he along with other officials of the complainant company and PW4 Shekhar has inspected the inspected premises being used by accused No. 1 where one single phase electronic meter was installed in the name of accused No. 2. On 30.09.2009 he along with Sh. Mukesh Chandra has gone to the inspected premises on the basis of mail received from Business Manager, Division Palam as meter number on the number plate and software was different. They had requested the accused No. 1 to allow them to inspect the premises who did not allow them to inspect the premises. A notice Ex. CW2/A under section 163 of the Act was issued to the accused. On 05.10.09 they have inspected the premises. They have checked the accuracy of the meter through accucheck instrument which was found within CC No.38/12 Page 5 of 15 limits. The terminal seals were found missing. Other seals and body of the meter were found tampered and refixed. The meter was removed and seized for the purpose of testing in the laboratory. The officials from MMG, Palam were called to replace the meter. Video of the inspected premises was taken. CD Ex. CW2/G was prepared. He has identified the contents of CD as it were recorded at the time of inspection. One unsealed gunny bag is produced from which one green bag bearing No. 250969 with seal No. 010991 BRPL is taken out. The bag was opened. One meter No. 13370870 is taken out . The meter Ex P1 is duly identified by him. Inspection report, meter details report, load report, seizure memo and show cause notice Ex. CW2/BF were prepared and offered to the accused Desh Raj who refused to receive and sign the same. PW3 R K Sharma has corroborated the version of PW1 in his examinationinchief.
5. During cross examination, PW1 stated that he does not remember the name of Business Manager, Palam Division as well as the date on which email was received. He is not aware about the meter number stored in software. The suggestion is denied that meter number in software and number plate is same or all the seals were ok or load is recorded on higher side. He did not see different meter CC No.38/12 Page 6 of 15 number at site. The meter was not slow. He does not remember whether terminal seals were tampered or not. He does not remember whether meter box seals were there or not. The inspection report was prepared by Sh Mukesh Chandra at the time of inspection.
6. During cross examination, PW3 stated that he saw the meter number on number plate. He only saw one number on number plate. There was no meter box seal on the meter. The plastic seals were missing. He does not recollect whether terminal seals were missing or not. The front portion of the meter appears to have refixed with back portion. The inspection report was prepared by Sh Mukesh Chandra and load report was prepared by Sh Satender.
7. PW2 Nikhil Kumar stated that on 7.11.2009 he has received single phase electronic meter No. 13370870 sealed in a bag No. 250969. He checked the meter and downloaded the meter data. The plastic seals and hologram seals were found refixed. The meter top cover were found refixed. The meter ID was found different on the analysis of data. The meter was opened. There were illegal resoldering on 12 volt AC location and transformer wire was found rejoined. He concluded that meter is tampered and report Ex. CW3/A was issued. The photograph mark Y of the meter and data mark X was CC No.38/12 Page 7 of 15 downloaded from the meter.
8. During crossexamination, he stated that the consumption is not affected if meter number is different. The meter was received without terminal cover. He does not know who has removed the terminal cover. He admitted that there was no effect on the consumption of the meter by the alleged tampering.
9. PW4 Shekhar is photographer. He stated that on 05.10.2009 he along with officials of the complainant company went to the inspected premises to take its video. He has taken the video of the inspected premises at the instance of Sh Mukesh Chandra. The cassette and camera were handed over to Sh Vivek Arora, owner of M/s Arora Photo Studio, who prepared the CD Ex.CW2/G in his presence. He has identified the contents of CD as it were recorded at site.
10. During crossexamination, he admitted that original cassette of CD is not placed on record.
11. PW5 Rituraj Sinha is Assessing Officer. He stated that on 30.10.2009 Desh Raj and Dinesh have attended the personal hearing. The laboratory report was not available so it was decided to give fresh show cause notice on the receipt of laboratory report. A fresh show CC No.38/12 Page 8 of 15 cause notice dated 31.12.2009 was issued to the accused. Desh Raj and Dinesh again put their appearance. They submitted that premises has been used for sweet shop for the last six years and they are not aware about any tampering in the meter. He has considered inspection report, load report, laboratory report, consumption pattern from September, 2008 till September, 2009 and submissions of Des Raj and Dinesh. The speaking order Ex.PW5/A was passed by him which bears his signature at point A.
12. During crossexamination, he stated that meter number of memory is not written in the speaking order. The meter number in the memory and number plate is same at the time of installation of meter. The consumption pattern of the old meter was not compared with the consumption pattern of new meter. The meter was not slow.
13. PW6 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.
14. The accused has led defence evidence. DW1 Virender Kumar, Asstt Accountant, Division Palam, BSES RPL stated that bills dated 04.08.2008 and 04.06.2009 mark A and B were revised on CC No.38/12 Page 9 of 15 01.08.2009. The revision of the bills was done on the basis of actual reading of the meter.
15. DW2 Narender Paliwal, GM (Business), Palam Division, BSES RPL stated that on 10.08.2009 their employee has tested the meter number 13370870. The carbon copy of meter test report is Ex.DW2/A (objected to being a carbon copy).
16. 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 was dishonestly consuming the electricity through tampered meter.
17. The complainant has examined six witnesses in order to prove its case whereas accused has examined two witnesses in order to advance his defence. I have perused the entire oral as well as documentary evidence on record. It is admitted fact that accused Desh Raj is user of the inspected premises where one electricity meter number 13370870 was installed in the name of deceased accused Bhawani Devi. The testimony of PW1 and 3 shows that on 30.09.2009 they had gone for the inspection of inspected premises on the basis of email received from Business Manager, Palam Division, CC No.38/12 Page 10 of 15 BSES RPL but they could not inspect the premises as a result notice Ex.CW2/A U/s 163 of the Act was given to the accused. This fact is nowhere controverted during the course of their cross examination as a result this fact stands admitted.
18. The testimony of PW1 and 3 shows that on 05.10.2009 at 2.20 p.m an inspection was carried out in the inspected premises. Their testimony to this effect has gone unrebutted meaning thereby that inspection stands admitted.
19. The basis reason to go for the inspection in the inspected premises is that one email was received from Business Manager, Palam Division that meter number is different in number plate and software of the meter. The complainant has failed to prove this fact. The complainant has not examined Business Manager. The copy of e mail is not placed on record. The examination of Business Manager was essential in order to unfold the real facts. The copy of email could have thrown light on the fact that it was received from Business Manager. The non examination of Business Manager and non placing the copy of email on record calls for an adverse inference against the complainant.
20. The defence of the accused is that there is only one meter CC No.38/12 Page 11 of 15 number i.e. 13370870. The complainant has failed to bring on record the meter number in the software of the meter. The testimony of PW5 shows that meter number of memory is not written in the speaking order. The testimony of PW2 is silent about the meter number in the memory of the meter. The meter number in the memory could have been ascertained in the laboratory but even PW2 has failed to depose about the meter number in the memory of the meter. To my mind, theory propounded by the complainant that meter number is different in the number plate and memory in the meter has no legs to stand and is devoid of any merit.
21. The inspection report shows that the meter body and seals were found tampered and refixed. The complainant has examined PW1, 2 and 3 to prove this fact. PW2 has tested the meter. The testimony of PW1 and 3 shows that other seals and the body of meter were found tampered and refixed. This is a general allegation. Both of them should have been specific about the details of the seals which were allegedly found refixed and tampered as the laboratory report Ex.CW3/A shows that plastic seals and hologram seals were found tampered. The laboratory report shows the details of seals which were allegedly found tampered. The testimony of PW1 and 3 does CC No.38/12 Page 12 of 15 not corroborate the analysis report given by PW2. PW1 and 3 have improved their version by deposing that terminal seals were found missing as the laboratory report Ex.CW3/A is silent about this aspect. The improvement amounts to contradiction which goes to the root of the case of the complainant.
22. PW1 and 3 have omitted to depose some facts which are visually observed by PW2 at the time of testing the meter. The laboratory report Ex. CW3/A shows that meter cover was found refixed. PW1 and 3 have omitted to depose this fact as both of them could have also noticed this fact when it was visually observed by PW2. No explanation is coming to explain this omission. The omission amounts to contradiction which goes to the root of the case of the complainant.
23. An inference of DAE cannot be drawn merely on the fact that plastic and hologram seals were allegedly found refixed and tampered by PW2 while testing the meter because the meter was not found slow. There should be a conclusive evidence to prove DAE.
24. Ld counsel for the complainant submitted that there was tampering in the meter as the laboratory report Ex.CW3/A shows that illegal resoldering was found on 12 V AC location and transformer CC No.38/12 Page 13 of 15 wire was found rejoint. Ld counsel for the accused contended that he is not aware about such tampering as meter was even tested on 10.08.2009 by the complainant and meter test report was issued. Heard and perused the record. The meter reading of meter in question was taken on the basis of actual consumption as apparent from the testimony of DW1. It is correct that on 10.08.2009 the meter in question was tested. The meter test report Ex DW2/A was issued. The report is objected by the complainant on the ground that it is carbon copy. The objection does not stand as complainant has not raised any objection that original is not in their possession. No question or suggestion is put to DW2 by ld counsel for the complainant that this document was never issued by the complainant. The complainant could have examined any witness to show that the meter in question was never tested by any of their employees. The court can look into this document . On 5.10.2009 the inspection was carried out in the inspected premises. PW2 has categorically admitted in the crossexamination that there is no affect on the consumption of the meter by the alleged tampering. The meter was not found slow. The testimony of PW2 has made it clear that there is no affect on the consumption pattern by way of such tampering. To my mind, CC No.38/12 Page 14 of 15 tampering in the meter is done dishonestly in order to draw some advantage i.e. to affect the actual consumption of electricity through meter. The illegal soldering marks on 12 VAC location cannot be termed as tampering when it does not effect the consumption pattern of the meter or slow down the meter. The complainant has failed to bring on record any conclusive evidence that there was tampering in the meter which affected the consumption pattern of the meter.
25. The speaking order Ex. PW5/A does not inspire confidence. The consumption pattern of the old meter from September, 2008 till September, 2009 is not placed on record. The consumption pattern is in possession of the complainant and same could have been easily placed on record by the complainant. The withholding of consumption pattern calls for an adverse inference against the complainant. The consumption pattern of the old and new meter is not compared for the reasons best known to Assessing Officer. PW5 has recorded in speaking order that meter was subjected to external disturbances such as ESD/HF. No such observation was given by PW2 in his laboratory report Ex.CW3/A . The complainant has failed to explain how such findings are recorded in the speaking order when it does not find support from laboratory CC No.38/12 Page 15 of 15 report. Further, the speaking order shows that meter number in the number plate and memory is different but PW5 has not reflected the different meter number, if any, recorded in the memory of the meter. There is no explanation to this effect. All these facts bring the speaking order into zone of doubt on which no reliance can be placed.
26. Hence, the evidence adduced by the complainant is not enough to prove that there was tampering in the meter which has affected the consumption pattern of the meter or slow down the recording of the consumption of units recorded by the meter.
27. In the light of my aforesaid discussion, I have 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. File on completion be consigned to record room.
Announced in the open
Court on dated 21.04.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.38/12