Delhi District Court
Bses vs . Smt. Ruby Minocha & Anr., Cc No.95/13 ... on 8 October, 2016
IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No.: : 95/13
Police Station : Hauz Khas, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02406 RO097962013
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.Smt. Ruby Minocha (User)
2. Sh. Sanjay Minocha (R/C) At: 106B, Ground Floor, L/S, Village Humayun Pur, New Delhi.
...Accused
Complaint instituted on : 23.03.2013
Judgment reserved on : 05.10.2016
Judgment pronounced on : 08.10.2016
BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 1 of page 21
JUDGMENT
1. The case of the complainant in brief is that on 25.09.2012, the officers of the complainant company namely, Shri Umesh Chand Tyagi - Assistant Manager, Sh. Shlok Singh- GET, Sh. M. M. SiddiqueD.Engineer and Sh. Sanju- videographer alongwith police official inspected the premises of the accused persons i.e. 106B, Ground Floor, Left Side, Village Humayun Pur, New Delhi and it was found that accused Ruby Minocha was the user whereas accused Sanjay Minocha was the registered consumer of the electricity. It is further mentioned in the complaint that at the time of inspection one single phase electronic meter no. 21362443 was found installed against K.No. 2551 L238 2055. It is further mentioned that the connected load was found as 18.381 KW for nondomestic purpose against the sanctioned load of 1.00 KW under domestic category. It is further mentioned that illegal shunt wire was found connected between the phase to phase and neutral to neutral and on checking the accuracy of the meter with duly calibrated standard accucheck instrument, it was also found that the said meter was running slow by 78.75% and thus in view of the said irregularity, the meter in question was removed and seized vide seizure memo dated 25.09.2012 at site and sent to the NABL accredited meter testing laboratory in sealed condition for further testing/analysis of the meter BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 2 of page 21 and supply of the premises was restored through the new meter. It is further mentioned that the inspection report including meter/load details were prepared by the raiding team members and necessary videography of inspection was also done at site. It is further mentioned in the complaint that as per meter testing/ analysis report No.BRPL/12/26029 dated 04.10.2012, the lab observed that meter was bypassed by using two illegal copper wire on terminal block and as such the laboratory declared the meter as tampered meter.
2. It is further mentioned that in view of the lab report, show cause notice dated 23.10.2012 was issued to the consumer by requesting the consumer to file reply by 06.11.2012 and to attend personal hearing on 08.11.2012 and in reply to the show cause notice dated 08.11.2012, accused Ruby Minocha submitted that inspection was forcibly done by break open the lock as no male members were allowed to enter the premises in question i.e. parlour. She further submitted that she had already applied for the commercial connection vide dated 10.09.2012 prior to the date of inspection. It is further mentioned in the complaint that as the illegal shunt wires found connected between phase to phase and neutral to neutral, the meter was found slow by 78.75% as confirmed by the lab and as the consumption was BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 3 of page 21 found to be on lower side i.e. for the period from 16.09.2011 to 04.09.2012 which shows an average recorded consumption of 264 units per month i.e. 14% of the assessed consumption as such speaking order dated 03.12.2012 was passed, thus, accused persons were causing wrongful loss to the complainant and wrongful gain to themselves and was thus acting dishonestly.
3. It is also mentioned in the complaint that as accused persons were using electricity illegally, by drawing the same dishonestly from the complainant's system and theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs.3,58,590/ with a due date as 19.12.2012 and was served upon the accused but failed to pay the said theft bill, hence the present complaint.
4. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by ld. predecessor of this Court vide order dt. 18.04.2013. Both accused appeared alongwith counsel. Vide order dt. 27.08.2013, notice U/sec. 251 Cr.P.C. was framed separately against both the accused to which they pleaded not guilty and claimed trial on the ground that they had applied for commercial connection on 10.09.2012 prior to the BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 4 of page 21 date of inspection i.e. 25.09.2012 and further submitted that the meter was intentionally and deliberately declared tampered by the lab, hence they are not liable to pay any loss or damage to the complainant company and claimed trial.
5. The complainant has produced 8 witnesses in order to prove its case, the relevant extract of which have been discussed below.
6. The statement of both the accused was recorded U/sec. 313 Cr.P.C., wherein they pleaded their innocence and denied the evidence as false and answered that they were not present at the spot at the time of alleged inspection nor they were committing any theft of electricity by tampering the same. Both accused further answered that a false and fabricated case of DAE made out against them as the terminal cover of the meter was intentionally and deliberately opened by the inspection team. They further answered that the bill of the DAE has been raised on the basis of commercial category and they have already applied an application before the competent authority for the change of category of the supply on dated 10.09.2012, which is as Ex.D1, but the category is not changed till date and misuse of the same is implosed on the supply of the accused, hence they were not BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 5 of page 21 committing any theft of electricity. Accused persons further did not opt to lead defence evidence.
7. I have heard the counsel for both parties and also perused the record including the videography displayed on the computer screen of the court.
8. PW1 Sh. Shlok Singh was one of the membr of raiding team who deposed that on 10.09.2012, he along with Sh. Umesh Chand Tyagi- Assistant Manager, Mohd. Mobashshir- DET, Shri Rajesh KumarLineman and Shri SanjuVideographer visited the premises bearing no. 106B, Ground Floor, Left side, Humayunpur, New Delhi29 on account of vigilance lead and on reaching the premises the consumer refused and denied for conducting inspection in the said premises. Thereafter, again on 25.09.2012 at about 12.50 p.m. complainant officials alongwith delhi police officials visited the premises and conducted inspection wherein they found that there was one single phase meter found installed however PW1 could not tell the number of said meter. PW1 further deposed that they checked the accuracy of the meter in question with the help of standard accucheck and it was found that the meter in question was slow beyond the limit thereafter, officials from the MMG Department were called to change the meter in BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 6 of page 21 question and the same was replaced with the new meter. PW1 further deposed that they assessed the connected load of the premises in question i.e. left portion of ground floor and basement which was runing through the meter in question at the time of inspection. He further deposed that on the ground floor of the premises, one beauty parlour in the name and style of Ruby Sequence Beauty Parlour was running and in the basement of the premises in question a storecumgodown was running in the name and style of westcon group. He further deposed that the registered consumer of the meter in question was Shri Sanjay Minocha and the user of the premises in question was Smt. Ruby Minocha at the time of inspection. He further deposed that the total connected load of the premises in question was approximately 18 KW for commercial purpose being used by the said accused at the time of inspection. He further deposed that after removal of the meter, it was observed that two copper shunt wires found connected from phase to phase and neutral to neutral terminal points and thus the said meter in question was sealed and seized for further analysis in the laboratory. He further deposed that inspection report including load report and seizure memo were prepared at site and proved the same as Ex.CW2/A and Ex.CW2/B. PW1 identified the videography of inspection as Ex.CW2/J and also proved the case property i.e. one single phase electronic meter BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 7 of page 21 bearing no. 21362443 with connected red colour copper wire at incoming and outgoing terminals and further shunt wire made of copper fixed at phase to phase and neutral to neutral terminal points, as Ex.P2.
9. In his cross examination on behalf of the accused, PW1 admitted that the copy of the mail to the company regarding arranging of the police officials for inspection is not placed on record and the MDI of the meter was found as 1.46 KW at the time of inspection. He further admitted that in the inspection report Ex.CW2/A, it is mentioned that it was a case of unauthorised use of electricity and also the case of dishonest abstraction of energy. He further replied that the meter was not segregated at the site. He further replied that accused Rubi Minocha and Sanjay Minocha were not preset at the time of inspection. He denied the suggestion that meter Ex.P2 was deliberately tampered by them in order to falsely implicate the accused in the present case. PW1 could not say if a load of 18 KW would have run on the meter Ex.P2 then it would have burnt the alleged shunt wire or the tape. He further replied that the shunt wire can be inserted only after removing the cover of the meter and admitted that there was no terminal cover of the meter i.e. Ex.P2 at the time of inspection. BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 8 of page 21
10. PW2 Shri Umesh Chand Tyagi was the Assistant Manager of the complainant company, who deposed almost on the same lines on which PW1 has deposed and as mentioned in the complaint. PW2 also identified the videography as Ex.CW2/J and case property as Ex.P2. During his crossexamination, he admitted that copy of mail regarding arranging of police officials to the company is not on judicial record. He also admitted that the MDI of the meter in question was 1.46 KW at the time of inspection. He further admitted that in order to install the shunt wire to the terminal of the meter, the terminal cover should be open and submitted that there is a seal on terminal cover on every meter. He further replied that there is no terminal cover in the seized meter i.e. Ex.P2. He admitted that the terminal cover of the meter was opened by them and the seal of the terminal cover was also opened by them and volunteered that he did not remember whether there was seal of the meter cover or not. He could not remember if the seal of the meter cover was seized or not. He further replied that at the time of inspection, it was found that the meter was being used for commercial purpose instead the bills against the premises were against domestic purpose and hence opinion as regards unauthorised use of electricity was given. He further admitted that the seal of the terminal box was removed/opened by the inspecting team and also admitted that the terminal cover was not resealed at BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 9 of page 21 the time of its seizure. He also admitted that photocopy/carbon copy of seizure memo was not found in the sealed bag.
11. PW3 Shri Mohd. Mobashshir Siddique was the Diploma Engineer of the complainant company, who also deposed same facts as deposed by PW1 as well as PW2 and during crossexamination admitted the facts i.e. there was no terminal cover in the seized meter Ex.P2, that the terminal cover of the meter was opened by them, that the seal of the terminal cover was also opened by them. He could not remember if the seal of the meter cover was seized or not. He further replied that at the time of inspection, it was found that the meter was being used for commercial purpose instead the bills against the premises were against domestic purpose and hence opinion as regards unauthorised use of electricity was given. He also admitted that the seal of the terminal box was removed/opened by the inspecting team and also admitted that the terminal cover was not resealed at the time of its seizure. He also admitted that photocopy/carbon copy of seizure memo was not found in the sealed bag.
12. PW4 Shri Nikhil Kumar was the Diploma Engineer of the complainant company who deposed that meter in question was tested by him BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 10 of page 21 and proved the lab report as Ex.CW2/C and the said report was approved by Shri Mustafa Barbhaiwala. He further deposed that on visual observation of the meter it was found that the meter was bypassed by using two illegal copper wires on terminal block of the meter. He further replied that the accuracy of the meter was done which was found to be ()79.3% slow and thus it was concluded that the meter was tampered and data was also downloaded alongwith photographs of the meter which he proved as Ex.PW 4/A (Colly). The witness correctly identified the Ex.P2 i.e. meter in question.
13. In his cross examination on behalf of the accused, PW4 replied that when the meter/Ex.P2 was received by him in the laboratory, the meter terminal cover was affixed on the same. He further replied that it might be possible that after testing the meter in question, the terminal cover alongwith plastic seal were left at the place of testing of the meter. He further replied that the material (copper) of the illegal shunt was checked during testing after opening the terminal cover screw and meter terminal screw of the meter. He further replied that none of the accused was present at the time of testing of the meter in question in the laboratory. He had no knowledge as to whether any show cause notice was given to the accused person to appear at the time BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 11 of page 21 of testing of the meter.
14. PW5 Shri Rama Shankar was the Assistant Manager of the complainant company who passed the speaking order dated 03.12.2012 after considering the inspection report alongwith meter details, lab report, consumption pattern and billing data report and proved the same as Ex.CW2/G. During his crossexamination, he replied that the connected load was rectified in the speaking order from 18.3 KW to 14.7 KW. He admitted that the MDI was 1.4 KW at the time of checking the meter. He admitted that the consumption pattern of the meter in question considered prior to passing the speaking order. He further replied that in the inspection report it is mentioned in inspection report that it was a case of UUE (Unauthorised Use of electricity for a different purpose/category for which meter was installed) also since a beauty parlour was running on the meter which was sanctioned for domestic purpose/category.
15. PW6 Sh. Amit KumarSenior Manager of the complainant company, who prepared the theft bill after considering inspection report, load report and speaking order and proved the theft bill as Ex. CW2/H (colly). BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 12 of page 21
16. PW 7 is the formal witness, being the AR of the company who proved the signatures on the complaint of the previous AR which is Ex.CW1/A and his authority letter.
17. PW8 Sh. Komal Sharma Lineman of the complainant company was a summoned witness and examined under Section 311 Cr.P.C. He proved the summoned record i.e. copy of acknowledgment of DSS Request order regarding the changing of category of electricity connection from domestic to commercial dated 10.09.2012 as Ex.PW8/A, copy of requisition for supply of energy as Ex.PW8/B, copy of verification of site as Ex. PW8/D alongwith supporting affidavit, copy of pan card and copy of NOC, the electricity bill with due date 05.06.2012 as Ex.PW8/D, copy of sale deed alongwith copy of voter I card of accused Sanjay Minocha and site plan as Ex. PW8/E, the copy of electricity bill dated 13.07.2012 as Ex.PW8/F and the copy of electricity bill dated 15.11.2012 as Ex. PW8/G.
18. It is argued by Ld. Counsel for complainant company that on 25.09.2012, the officials of the complainant company inspected the premises of accused persons bearing No. 106B, Ground Floor, Left side, Humanyun Pur, New Delhi wherein accused Ruby Minocha was found to be user of the BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 13 of page 21 premises and her husband namely Sanjay Minocha was the registered consumer of the meter in question bearing no. 21362443 with CRN No. 2551126462. It is further argued that the abovesaid meter was sanctioned for 1 KW under domestic category and it was a single phase electronic meter. It is further argued that at the time of inspection illegal shunt wires were found between the phase to phase and neutral to neutral and the connected load was 18.381 KW for nondomestic use. It is further argued that on performing accuracy checkup of the meter with duly calibrated standard accucheck instrument, meter was found running slow by 78.75% and the meter was seized at site and other proceedings were conducted and videographed. It is further argued that the supply at the premises was restored through new electronic meter and the old meter was sent to the laboratory for testing the same. The meter was tested in the laboratory on 04.10.2012 and as per the laboratory report meter found by passed by using two illegal copper wires on terminal block of the meter and accordingly, the laboratory declared the meter tampered. It is further argued that the recorded consumption found to be on the lower side. It is further argued that the consumption recorded for the period i.e. 16.09.2011 to 04.09.2012 showed an average recorded consumption of 264 units per month which has been found only 14% of the assessed consumption. Ld. Counsel BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 14 of page 21 for the complainant company further argued that in support of its case, the complainant has examined eight witnesses to prove the case.
19. On the other hand, Ld. Defence counsel has argued the case on the following points: (I) That unlawfull inspection was carried out by complainant company on 25.09.2012 which happened to be Tuesday and which is a weekly off in the market concerned where the premises in question is situated. However, in rebuttal, it was argued by the counsel for complainant company that there is no bar to the complainant company to conduct the raid on 25.09.2012 i.e. Tudesday if it happens to be weekly off in the market where the premises is situated.
I find no merit in the submission of counsel for accused that the inspection cannot be conducted on a weekly off day since it is an admitted fact that when the inspection was conducted the staff of the accused was very much available in the premises in question.
20. The next contention of the Ld. Counsel for accused is that on one hand the complainant company says that the meter was sanctioned for domestic connection with the sanctioned load of 1 KW and the present case is a case BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 15 of page 21 of unlawful use of electricity then how at the same time it may be the case of DAE (Dishonest Abstraction of Energy). In rebuttal, it was argued by the counsel for complainant company that a case of unauthorised use of electricity may also be a case of direct theft or DAE (Dishonest abstraction of energy). It is further argued that if accused is by passing the meter installed in the premises in question and is using the meter as a tool or weapon to steal the electricity in a manner as in this particular case, then these are the cases booked by the complaint company under DAE (Dishonest abstraction of energy). Hence, in view of said discussion, even this contention of the Ld. Counsel for accused does not hold good as there is always unlawful use even in the case of DAE (Dishonest absraction of energy) and DT (Direct theft).
21. The next contention of the Ld. Counsel for accused is that there is no service line coming to the meter and in case of absence of service line to the meter a case of DAE cannot be registered by the complainant company. In rebuttal it was submitted by counsel for complainant company that service line is very much depicted in the videography alongwith the meter and further submits that in the videography, the meter in question is shown blinking and the meter cannot blink in the absence of service line in question. BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 16 of page 21 The CD was played in the Court and admittedly the light of meter is shown blinking and the service line is also seeing in the videography. Hence, in view of the said discussion, this contention of the counsel for accused has no relevance.
22. The next contention of the Ld. Counsel for accused is that it is the officials of the complainant company who at the time of inspection had opened the terminal box and meter at site and placed the shunt in the meter question in order to make a false and fabricated case against the accused. In rebuttal, it was argued that it is a mere allegation by the accused that officials of the complainant company put the shunt wires in the meter in question as the said contention of the accused is not substantiated by any proof, documentary or otherwise. Since the accused had not entered in the defence evidence to substantiate this contention and even it is an admitted case that the inspection was carried out in the presence of the staff of the accused and there is no motive of the company to do such kind of illegal act. Moreover, if the meter would have been tampered by the complainant company at site then the accused might have called the police at spot and thus in the absence of any oral or documentary evidence to substantiate this argument by the Ld. Counsel for accused, it is merely a bald accusition.
BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 17 of page 21
23. The next contention of the accused is that the cable used for service line is of aluminium then how in this particular case, the copper wires are removed from the meter in question as the copper wire cannot exist and the case of DAE (Dishonest Abstraction of Energy) cannot be made out. In rebuttal it was submitted that "shunt" may be of anything including an illegal wire and during inspection it was found and also duly reported in the inspection report that in this case the shunt used by the accused was an illegal copper wire. It is also argued by counsel for complainant company that the service cable in this case is of aluminium and counsel for accused is showing the copper wire in the meter which is actually the "shunt" used by the accused for by passing the meter in question.
24. The next contention of the Ld. Counsel for accused is that no show cause notice was given to the accused however it was argued in rebuttal that if the show cause notice was not issued to the accused then how can reply to show cause notice dated 06.11.2012 is filed by the accused Ruby Minocha and moreover the accused Ruby Minocha herself attended the personal hearing on 08.11.2012.
25. The next contention of the Ld. Counsel for accused is that copper BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 18 of page 21 shunt wire as alleged to be used in the meter is not produced and the said shunt must be a part of seizure memo and it must be produced before the Court to make a case of DAE against the accused. In rebuttal, it was argued by the complainant company that when the meter was produced before the Court, the Ld. counsel for accused himself shown the copper wire inserted in the meter in question so once the copper wire/shunt is already inserted in the meter so there is no need to produce the said shunt wire separately. In view of said discussion, this point has no relevance.
26. The next contention of the accused is that it is reported by the team that the seal and terminal box of the meter was OK and the witnesses of the complainant company have submitted that without opening of the terminal box of the meter, the shunt wire cannot be put in the meter so, if the seal of the meter and terminal box are not opened then there is no question arose using of any shunt by the accused. In rebuttal, it was argued on behalf of the complaint company that in the meter there is a space for insertion of wire and there is no need to open the terminal box to insert the shunt wire as there is always space where wire can be inserted. It was also argued that even in the CD there is depicton of 'burning marks created by flux of energy' on the meter in question which shows that when both the open wires will touch each BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 19 of page 21 other it will spark in order to steal the electricity by using shunt and accordingly there are burnt marks on the meter.
27. The next contention of the Ld. Counsel for accused is that there is a difference between the connected load and the actual used load however in rebuttal it was argued that as per DERC regulations, the connected load means the load found at site whether it is switch on or off. It is further submitted that the connected load as found at the site is taken as it is and thereafter the theft bill is prepared as per using formula i.e. as per hours in question and not for 24 hours. It was argued by the counsel for complainant company that by examining the witnesses and the documents placed on record, the company has discharged its onus and now the burden shifts upon the accused to show that the accused was not using the electricity for non doemstic purposes with the help of shunt which is duly proved by the witnesses. Moreover, the witnesses of complainant company have deposed that earlier on 10.09.2012 the officials of the complainant company went to conduct the inspection in the premises in question but they were refused and denied and again on 25.09.2012 they visited the premises in question alongwith delhi police officials. It is also argued that accused had applied for change of cateogory of meter vide application dated 10.09.2012 which is a BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 20 of page 21 afterthought as officials of the complainant company were not allowed to conduct the inspection in the premises in question.
28. I have given my thoughtful consideration to the arguments rendered by both the counsels and seen the CD in question and documents perused. Thus, in view of the discussion above, I am of the considered opinion that the complainant has been successful in bringing home the guilt of the accused beyond reasonable doubt and accordingly, the accused no.1 namely Smt. Ruby Minocha is held guilty and convicted for the offence u/s. 135 & 138 of the Electricity Act and accused Sh. Sanjay Minocha is held guilty u/s. 135 & 138 r/w Section 150 of the Electricity Act, 2003. The file be consigned to the record room .
Announced in the open ( NEELAM SINGH)
court on 08.10.2016 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES VS. Smt. Ruby Minocha & Anr., CC No.95/13 Page 21 of page 21