Delhi District Court
Bses vs . Jai Ram Kushwaha & Anr., Cc No. 323/12 ... on 31 July, 2015
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. : 323/12
Police Station : Badarpur, New Delhi
U/s : 135 &138 of Electricity Act, 2003
Unique ID No. : 02406 RO006382013
BSES Rajdhani Power Ltd.
A company duly incorporated
under the Companies Act, 1956
having its Registered Officer
at BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Sh. Jai Ram Kushwaha
2. Ms. Ram Beti
House No. B93, Gali No. 3,
Jaitpur Extensin Part I, near Gyan
Mandir, New Delhi
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant.
Accused on bail with Shri N.K. Nagar, Advocate.
Complaint instituted on : 09.11.2012
Judgment reserved on : 27.07.2015
Judgment pronounced on : 31.07.2015
BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 1 of page 16
JUDGMENT
1. The case of the complainant in brief is that the meter installed at the premises of accused i.e. H. No. B 93, Gali No.3, Jatpur Extension Part I, Near Gyan Mandir, New Delhi was replaced by the Meter Management Group (MMG) with the new electronic meter on 11.04.2012 and that upon investigation of the removed meter bearing no. 21304651, the meter plastic and hologram seals found burnt, meter body found illegally cut from backside and in abnormal burnt condition, meter LCD and LED were not found Ok and meter ID could not be identified and that in pursuance to the meter found tampered, on 29.05.2012, the officers of complainant company namely Shri Ritu RajManager, Shri SandeepEngineer, Shri Rajesh KumarTechnician and Shri Abid AliPhotographer from M/s. Arora Photo Studio visited and conducted inspection at the said premises whereby accused Jai Ram Kushwaha was found to be the user of the electricity while accused Ms. Ram Beti was found to be the registered consumer of electricity. It is further mentioned in the complaint that at the time of inspection the total connected load of 6.870 KW for nondomestic purpose was illegally found connected and used by the accused against the sanction load of 3 KW and the raiding team prepared inspection report, meter details report and load BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 2 of page 16 report. It is further mentioned in the complaint that the inspection team seized one single phase electronic meter bearing no. 21304651 It is further mentioned in the complaint that a show cause notice dated 08.06.2012 for suspected theft of electricity was also issued to the accused persons requesting them to file reply by 29.06.2012 and to attend personal hearing on 03.07.2012, but there was no response received from the consumer as such final show cause notice dated 04.07.2012 was issued to the consumer to attend the personal hearing on 16.07.2012 but again there was no response from the consumer and as such Speaking Order was passed by Assessing Officer on 18.07.2012.
2. It is further mentioned in the complaint that accused were using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.1,53,442/ was payable to the complainant by the accused and same was computed as per DERC Regulations and as per applicable tariff and that the due date of the said theft bill was given as 17.08.2012 and same was served upon the accused but they failed to pay the said theft bill.
BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 3 of page 16
3. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my ld. predecessor vide his order dated 11.12.2012. Vide order dt. 10.04.2013 framed notice u/s. 251 Cr.P.C. for the offence u/s. 135 & 138 of the Electricity Act, 2003 against the accused Jai Ram Kushwaha and for the offence u/s. 135 & 138 r/w Section 150 of the Electricity Act, 2003 against the accused Ram Beti to which both accused pleaded not guilty and claimed trial on the ground that they were not committing any theft of electricity and that they had not tampered the meter in question and that they both were permanently residing at B41, Aali Extension, Sarita Vihar, New Delhi. Accused Smt. Ram Beti also answered that she is the registered consumer and that the premises in question was rented out to one Sh. Ram Vilas and that the meter was burnt due to fluctuation of high voltage as such they were not liable to pay any damage or loss to the complainant company as alleged.
4. In order to prove the case of the complainant, eight witnesses were produced, which have been discussed below.
BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 4 of page 16
5. The statement of the accused were recorded U/sec. 313 Cr.P.C., wherein they pleaded their innocence and denied the evidence as false and they answered that they were not committing any theft of electricity or tampering of the meter and same was got burnt due to fluctuation of electricity and a complaint was also lodged to this effect. It was further answered that the MDI was never crossed above the sanctioned load. Accused further answered that they both are residing at B41, Aali Extension, Sarita Vihar, New Delhi and the premises in question was rented out to one Ram Vilas and as per consumption pattern, MDI of the meter in question was also within the limit of the sanctioned load. Thereafter, accused opted to lead defence evidence and produced only one witness in his defence, which has been discussed below.
6. I have heard the counsel for the complainant and counsel for the accused Shri N.K. Nagar, Advocate, and perused the record including the videography/photography displayed on the computer screen of the court.
7. PW1 Shri Ritu Raj, Senior manager in the complainant company, deposed that on 30.05.2012 at about 2.50 p.m., he along BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 5 of page 16 with Shri SandeepDiploma Engineer, Shri RajeshLineman, Shri Abid AliVideographer visited and inspected the premises bearing H.No.B93, Gali No. 3, Jaitpur Extension, Part I, New Delhi. PW1 further deposed that they assessed the connected load of the premises, which was found to be 6.87 KW for non domestic purpose i.e. for stitching/sewing machine work, which was being run and used by accused Jai Ram Kushwaha during the inspection. PW1 further proved the inspection report including meter details alongwith load report and seizure memo and videography as Ex.CW2/C (Colly), Ex.CW2/D and Ex.CW2/J.
8. In his cross examination on behalf of the accused, PW1 answered that the inspection was carried out on the basis of lab report, which was provided by the complainant company before visiting the premises in question and there was no other written permission to conduct the raid. He further answered that as per lab report, meter body was found illegally cut from backside and meter was found in abnormally burnt condition and finally the lab concluded that meter was tampered. He further answered that at the time of inspection few workers were working on the sewing machines. He further answered that he did not remember the MDI BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 6 of page 16 mentioned in the said bill. He further admitted that the said electricity bill was not placed on the judicial file. He further answered that there were total 10 sewing machines at the spot and identified that 9 sewing machines were depicted in the videography. He further admitted that no instrument was there to check the connected load of a room or premises. He also admitted that refusal of receiving the documents by the person present at site was not depicted in the videography. He further answered he could not verify regarding any complaint made by the consumer with respect to burning of meter.
9. PW2 Shri Gaurav Bajaj, Engineer deposed that on 18.05.2012 he received the meter in question in the sealed bag and he had tested the meter in question. He further deposed that on visual observation, meter was found in abnormal burnt condition and the hologram seals and plastic seal of the meter found burnt and the LCD and LED of the meter were found not Ok. He further deposed that due to burnt condition, data of the meter could not be downloaded and accuracy of the meter could not be done and on observation it was found that meter body was found illegally cut from back side. He further deposed that meter ID could not be BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 7 of page 16 identified due to burnt condition and as such he came to the conclusion that meter was found tampered and after that lab report was prepared bearing no. BRPL/12/21177 dated 18.05.2012 which is as Ex.CW2/B.
10. In his cross examination on behalf of the accused, PW2 answered that meter was in abnormal burnt condition and the percentage of burn was not mentioned by him and the meter appeared to have have been cut by some instruments such as blade and the shape in which the burnt meter was produced in the court was after the burning consequent upon cutting of the same. He further answered that the part of the meter by melting cannot fall down. He further submitted that plastic is a melting substance on heating but in this meter, the plastic of the same if would have been melted, would have covered the entire meter at the base of the meter and melted plastic would extend towards the base of the meter and as such, the meter will appear as expanded. He further denied the suggestion that plastic melts in a particular way and will fall down after coming into liquid form. He volunteered that since the meter was having a thick plastic walls, melting of the same would first cover the entire base and would expand below the base of the meter. BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 8 of page 16 He further admitted that no wire was found coming from the base (back) of the meter and the data of the meter could not be downloaded due to burn.
11. PW3 Sh. Sukhpreet Singh Pannu was the Assessing Officer who proved his show cause notices passed by him as Ex.CW2/E and Ex.CW2/F respectively. He further deposed that the consumption records for the period 23.03.2011 to 19.03.2012 which had shown an average recorded consumption of 159 units per month was found 15.32% of the assessed consumption, which corroborated the conclusion drawn by the laboratory. He also proved his speaking order Ex.CW2/H which was passed by him on 18.07.2012.
12. In his crossexamination on behalf of the accused, the PW3 admitted that no bill amount had been mentioned in the speaking order. He volunteered that theft bill was prepared after passing the speaking order. He further admitted that he did not visit the premises in question before passing the speaking order. He further admitted that the reading of the meter in question was not written in the speaking order. He further admitted that the reading of the new meter installed was also not mentioned in the speaking order. BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 9 of page 16 He also admitted that as per the lab report, the plastic seals and hologram seals were found burnt. He further answered that the meter body found in abnormal burnt condition and meter body found illegally cut from back side. He further answered that the LCD and LED were not OK. He further admitted that the postal receipts were not on record but two show cause notices were sent to the consumer. He further admitted that no CMRI data was downloaded by the lab technician. He further answered that as per consumption pattern Ex.CW2/G, MDI is upto 3 KWs which did not exceed the connected load i.e. 6.87 KWs for commercial purpose. He further admitted that after installation of the new meter, he did not check the consumption pattern.
13. PW4 Sh. Abid was the videographer who conducted the videography of the inspection and proved the same as Ex.CW2/J and in his crossexamination on behalf of the accused, he admitted that at the time of videography conducted by him, the allegedly tampered meter was not in existence at the spot. He further answered that videography was conducted with the help of handi cam.
BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 10 of page 16
14. PW5 Shri Sandeep Kumar, Engineer in the complainant company who deposed almost on the same lines on which PW1 has deposed and as mentioned in the complaint. He also correctly identified the videography of the inspection as Ex.CW2/J.
15. In his cross examination on behalf of the accused, PW5 answered that as per the lab report, meter body was found illegally cut from backside and meter was found in abnormally burnt condition and finally the lab concluded that the meter was tampered. He further answered that at the time of inspection few workers were working on the sewing machines. He further answered that at the time of inspection, they already had lab report and one electricity bill of the electricity connection. He further answered that he did not remember the MDI mentioned in the said bill. He also admitted that the said electricity bill was not placed on the judicial file. He further answered that there were total 10 sewing machines at the spot and 9 sewing machines were depicted in the videography. He further answered that no instrument was there to check the connected load of a room or premises. He further answered that the refusal of receiving documents by the person present at site had not been depicted in the videography. He further answered that he did BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 11 of page 16 not verify regarding any complaint made by the consumer with respect to burning of meter. He also answered that he was carrying the accucheck machine but he did not check the MDI of the new meter.
16. PW6 Sh. Mushtufa Barbhaiwal, Assistant Manager in the complainant company deposed that the meter in question was tested in lab on 18.05.2012 under his supervision by Sh. Gaurav Bajaj and the report as Ex.CW2/B. He further deposed that he had seen him signing and writing in the official discharge of his duties and his signatures are at point C.
17. In his cross examination on behalf of the accused, PW6 admitted that meter was not tested on the day which was informed to the accused as mentioned on the intimation letter as Ex.CW2/A. He further answered that meter number could not be retrieved along with data as well and as the meter number was not visible, it seemed that identity of the meter was hidden deliberately by the burning. He further answered that there was no illegal resistance found in the meter. He also answered that he did not notice any wire going inside the meter from the backside of the same. He further answered that BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 12 of page 16 the meter was physically seen and opened also. He further submitted that it is the natural consequence of the process of burning that the shape of the meter gets deformed.
18. PW7 Sh. G. B. Barapatre is the Deputy Finance Officer of the complainant company, who prepared the theft bill after considering inspection report and, load report and he proved the theft bill as Ex. CW2/I. In his cross examination on behalf of the accused, PW7 replied that he had no personal knowledge of the alleged theft in the present case.
19. PW8 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. CW1/B and complaint Ex. CW1/A. In his cross examination on behalf of the accused, he replied that he did not visit the site and that he had no personal knowledge of the case.
20. DW1 Shri Gaya Lal from the office of the complainant company was summoned on behalf of the accused and he brought the summoned record of meter in question i.e. meter bearing number 21304651 for which there was a complaint that same was BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 13 of page 16 burnt on 09.04.2012. He deposed that Shri Ajay, Lineman attended the said complaint against the meter in question on the same day and endorsed the report in the register maintained by complainant company and proved the endorsement as Ex.DW1/A at serial no. 12.
21. That In his cross examination on behalf of the complainant company, DW1 answered that he had no personal knowledge of the present case and he was deposing as per the documents brought by him from the office of the complainant company.
22. In this case, the investigation/testing of removed meter report from the MMG department Ex.CW2/A whereby the meter in question was removed, it is mentioned that meter number is not visible and the said meter was removed on 11.04.2012 and date of its testing in the laboratory was given as 26.04.2012 and as per meter testing report Ex.CW2/B, the meter was tested on 18.05.2012, which go to establish that the meter was never tested in the presence of the accused and on the date given to him for testing i.e. 26.04.2012.
23. The meter was tested by PW2, who although claimed that it was abnormally burnt but percentage of burn was not mentioned by BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 14 of page 16 him and he admitted that no wire was found coming from the back of the meter and data of the meter could not be downloaded due to burn as the meter in question was extremely burnt. In the said circumstances, this Court is without any downloaded data of the meter to compare it with the alleged consumption pattern as Ex.CW2/G so as to come to a definite conclusion with regard to dishonest abstraction of energy.
24. The defence of the accused is that the meter was burnt and they reported the matter to the complainant company on 09.04.2012 vide the entry no. 12 of the document as Ex.DW1/A and they have also placed the bills on record which are Ex.D1 to Ex.D15.
25. I found that in almost all the said bills of earlier consumption, the Maximum Demand Index never went beyond 3 KWs and the sanctioned load in the bills Ex.D2 to Ex.D15 was also 3 KWs and if compared with the alleged consumption pattern the MDI for the period from 23.03.2011 to 19.03.2012 never exceeded 3 KWs. In these circumstances, I am of considered opinion that accused have been successful in establishing their defence as highly probable from prudent men's test as is the requirement of the law laid down in the BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 15 of page 16 judgment of the Hon'ble Supreme Court in case titled as Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16.
26. In the said circumstances, I am of considered opinion that the complainant has miserably failed to bring home the offence u/s. 135/138 of the Electricity Act, 2003 against the accused Jai Ram Kushwaha and offence u/s. 135/138 r/w Section 150 of the Electricity Act, 2003 against accused Ram Beti. Hence, the accused are entitled to the benefit of doubt and they are acquitted of the said offences alleged against them. Their PB and SB are cancelled and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 31.07.2015 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Jai Ram Kushwaha & Anr., CC No. 323/12 Page 16 of page 16