Delhi District Court
State vs Kaushal Kaushik on 25 April, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.325/2021
FIR No.100/2021
U/s 135/138 of Electricity Act
PS Jyoti Nagar
State versus Kaushal Kaushik
W/o Subhash Kaushik
R/o C-38, Khasra No.659, Main Road,
Amar /colony East Gokalpuri,
New Ashok Nagar, Jyoti Nagar, Delhi
Date of institution 27.08.2021
Arguments heard 25.04.2023
Date of judgment 25.04.2023
JUDGMENT
1. Accused Kaushal Kaushik has been facing trial upon the allegations that she was found indulged in direct theft of electricity and thereby committed an offence under the relevant provisions of Electricity Act 2003 (hereinafter referred to as 'the Act').
Brief facts of the prosecution case
2. On 10.01.2019, the officials of Meter Management Group (MMG) removed the meter No.11299995 which was installed in the name of accused at his premises i.e. C-38, Khasra No.659, Main Raod, Amar Colony, East Goklpuri, near Ashok Nagar, Pole No.NNG-G-982, Delhi- 110093. The supply of electricity was restored by installing new meter No.70107185. The removed meter was sent to lab for testing. The FIR No.100/2021 State vs Kaushal Kaushik 1 of 22 removed meter was tested in lab vide lab report No.BCS/EM/TPT/19/392 dated 04.02.202, and as per this report, the removed meter was having (i) cut grooves marks on meter terminal blocks and extra material was found pasted on meter block (ii) Earth load and neutral miss events found occurred number of times and (iii) Meter data found corrupted (iv) Meter date & time found disturbed.
3. Thereafter, complainant company, on the premise of lab report, carried out an inspection on 05.02.2020, at about 12.41 pm, at the premises of accused. The inspection team comprised of Sh. Tara Chandra (Assistant Manager), Sh. Anuj Kumar Varshney (DET), Sh. Shriom Raghav (Lineman). At the time of inspection, new meter no.70107185 was found installed and the user/accused was using the electricity through the said meter. Total connected load was found to the tune of 3.984 KW which was being used for domestic purposes. Inspection Report, Load Report and Seizure Memo were prepared at the site and meter no.11299995 was seized during inspection. Necessary videography of the inspection proceedings was done by videographer Sh. Sunil. Entire set of documents prepared at site was tendered to the accused/user for signature but she refused to sign and accept the same. Thereafter, on 12.02.2020, on the basis of Inspection Report and Lab Report, a Speaking Order was passed by Sh. Ravinder Yadav, Assessing Officer (Enforcement Department) who gave finding that it was a case of Dishonest Abstraction of Energy (DAE).
4. On the basis of connected load and applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to FIR No.100/2021 State vs Kaushal Kaushik 2 of 22 the tune of Rs.1,66,349/-. Accordingly, a theft bill was raised and sent to accused but he did not deposit the said amount. On failure to pay the bill amount, the complainant company through its Authorised Officer/Assistant Manager Sh. Tara Chandra, lodged a complaint with the SHO, PS Jyoti Nagar, upon whose direction FIR No.100/2021 was registered and investigation was marked to ASI Yogesh Kumar, the IO of the case.
5. After completion of investigation, charge-sheet was filed against the accused.
NOTICE
6. Notice U/s 251 Cr.P.C. for the commission of offence U/s 135 and 138 of the Act was served upon the accused to which she pleaded not guilty and claimed trial.
7. Matter was then listed for prosecution evidence. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first.
PROSECUTION EVIDENCE
8. PW2 Sh. Anuj Kumar Varshney is the Diploma Trainee Engineer (DET), who deposed that Meter No.11299995 installed against CA No. 150277091 in the name of accused at premises No.C-38, Khasra No. 659, Main Road, Amar Colony, East Gokalpur, Near Ashok Nagr, Delhi- 110043, was removed on 10.01.2019 by MMG Department vide letter Ex.PW2/1 and the meter was sent for meter testing. Through the letter FIR No.100/2021 State vs Kaushal Kaushik 3 of 22 Ex.PW2/1, accused was also was asked to remain present before the Meter Testing Lab to witness the testing process. On 03.02.2020, the meter was tested vide lab report dated 04.02.2020/Ex.PW2/2. PW2 further deposed that on the basis of lab report, an inspection was conducted on 05.02.2020 at about 12.41 pm by Enforcement Team of BSES YPL at the premises of accused. At the time of inspection, one single phase electronic meter no.70107185 with reading 3292 KWH of units was found installed in place of earlier meter no.11299995 and electricity supply was being used from the said meter for commercial purposes i.e. making of seat-cover at ground floor. At the time of inspection, connected load was found to the tune of 3.984 KW which was being used for commercial purpose at ground floor at the premises of accused. Necessary videography of the inspection proceedings was captured by Sh. Sunil (videographer) on the instruction of team leader Sh. Tara Chandra, Assistant Manager. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/3. During evidence, the CD was played on the laptop and PW2 identified the video which was captured by videographer Sh. Sunil. During inspection, the inspection report Ex.PW2/4 and the load report Ex.PW2/5 were prepared at the spot. The meter no.11299995 was seized vide seizure memo Ex.PW2/6. Entire inspection documents were prepared at site during inspection and the same were tendered to the user/accused for signature but he refused to sign and accept the same. Thereafter, on 27.10.2020, a complaint (PW2/7) was lodged by Sh. Tara Chandra (Assistant Manager) with the SHO, PS Jyoti Nagar for FIR No.100/2021 State vs Kaushal Kaushik 4 of 22 registration of FIR against the accused. During evidence, the case property i.e. meter no.11299995 was produced and shown to the witness, who identified the meter as the same which was seized at spot. The said meter is Ex.P-1.
9. PW3 Sh. Shriom Raghav is the Lineman, who was one of the member of the inspection team, deposed on the similar lines as testified by PW2.
10.PW5 Sh. Ankush Kumar Verma is the Executive Engineer, who deposed that on 03.02.2020, he tested meter no.11299995 in the lab. During testing, the meter body was having cut grooves marks on terminal block and extra material was also found pasted on meter terminal block. The data of meter was also downloaded from the meter and after analyzing the data, it was further found that earth load and neutral miss-event and date and time were also disturbed. The downloaded data/photograph of the meter is Ex.PW4/1 (colly). After testing of meter, lab report Ex.PW2/2 was prepared on 04.02.2020.
11.PW5 Sh. Ravinder Yadav being Assessing Officer of Enforcement Department of BSES YPL at relevant time, deposed that in the month of February, 2020, he received a file pertaining to accused comprising of meter removal letter Ex.PW2/1, lab report Ex.PW2/2, inspection report Ex.PW2/3, data of meter Ex.PW2/4, inspection report Ex.PW2/4, load report Ex.PW2/5, seizure memo Ex.PW2/6 and CD containing videography of the inspection proceedings Ex.PW2/3, for passing Speaking Order. After analyzing all the documents and the consumption patter alongwith reading chart Ex.PW5/1 (colly), he reached at the FIR No.100/2021 State vs Kaushal Kaushik 5 of 22 conclusion that the meter was downloaded with inconsistent and erratic consumption from the period 30.01.2019 and not in consonance with the maximum demand recorded by the meter. The consumption pattern as per computer module worked out out to 37.59% which was less than the prescribed limit of DERC. Accordingly, PW5 passed the Speaking Order Ex.PW5/2. On the basis of Speaking Order, a theft bill of Rs.1,66,349/- (Ex.PW5/3) was raised and sent to the accused.
12.PW1 ASI Yogesh Kumar is the IO of the case, who deposed that after registration of FIR, investigation of the case was marked to him. The copy of the FIR is Ex.PW1/1. Thereafter, he visited the inspected premises, served the accused with the notice u/s 41.1(A) of the Cr.P.C (Ex.PW1/2) upon which accused joined the investigation. He interrogated the accused and prepared interrogation report Ex.PW1/3. During interrogation, accused produced copy of his Aadhar Card as well as copies of ownership documents Mark A (colly). IO bound down the accused vide Pabandinama Ex.PW1/4. After completion of investigation, charge-sheet was filed.
13.Thereafter, prosecution evidence was then concluded and matter was listed for recording of statement of accused persons U/s 313 Cr.P.C.
STATEMENT OF ACCUSED
14.All the incriminating material was put to the accused persons while recording statement of accused U/s 313 Cr.P.C. Accused did not deny that meter no.11299995 was lying installed in her name at the inspected premises and on 10.01.2019, the said meter was removed by he MMG FIR No.100/2021 State vs Kaushal Kaushik 6 of 22 Department and sent to Lab for testing. Accused simply denied the Lab Report without attempting to explain as to how it is false and incorrect. Accused denied the material allegations and stated she has never tampered the meter nor committed any theft of electricity. However, accused also stated that she has settled the dispute and NOC has been issued. Accused opted to lead evidence in her defence but chose not to produce any defence evidence. Accordingly, opportunity to lead defence evidence was closed and matter was posted for final arguments.
FINAL ARGUMENTS
15.Final arguments were advanced by the Ld. Addl. PP for the State as well as Ld. Counsel for accused.
16.Ld. Addl. PP for the State with the assistance of AR the complainant company argued that accused was involved in dishonest abstraction of energy by tampering the meter installed at the inspected premises. It is further submitted that meter No.11299995 was replaced by the MMG Department which was sent to Lab for its testing. The removed meter was tested in lab vide report Ex.PW2/2, and as per this report, the meter was found tampered. It is further argued that the complainant company has proved its case against the accused beyond reasonable doubt through the testimonies of prosecution witnesses.
17.On the other hand, Ld. Counsel for accused argued that accused has neither tampered meter nor has she committed dishonest abstraction of energy. It is further argued that the lab report and Speaking Order are false and fabricated one. It is also submitted that accused has no concern FIR No.100/2021 State vs Kaushal Kaushik 7 of 22 with alleged offence. It is emphasized that accused is innocent and has been falsely implicated in this case, thus, ought to be acquitted in this matter.
DISCUSSION
18.Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provision of the Act which is required to be gone into for appropriate disposal of the case. The present case pertains to Sections 135 and 138 of the Act. The provisions of Sections 135 & 138 of the Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Section 138. Interference with meters or works of licensee. - (1) Whoever, -
(a) unauthorisedly connects any meter, indicator or apparatus with any electronic line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or FIR No.100/2021 State vs Kaushal Kaushik 8 of 22
(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering;
shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
19.As per prosecution case, the accused/user was found indulged in dishonest abstraction of electricity by tampering the meter no.11299995 which was installed in the name of accused at the inspected premises. As per lab report, the said meter was having cut grooves marks on terminal blocks and extra material was found pasted on meter block. Earth load and neutral miss events found occurred number of times. Meter data was found corrupted. Meter date & time were found not in order. On the basis of lab report, an inspection was carried out on the aforesaid date and time at the inspected premises and the connected load in the replaced meter i.e. meter no.70107185 was found to be 3.984 KW whereas average consumption pattern was found to be 39.59% which is less than the prescribed limit of DERC. The onus is on the prosecution FIR No.100/2021 State vs Kaushal Kaushik 9 of 22 to prove these allegations against the accused persons beyond reasonable doubt to establish commission of offence under the Act.
20.Case of 'suspected theft' is governed by Regulation 64 of Delhi Electricity Regularity Commission (Supply Code and Performance Standards) Regulations, 2017, which came into force w.e.f. 01.09.2017 (hereinafter referred to as "Regulations") which is reproduced as under:-
"64. Suspected Theft:-
(1) In all such cases where theft cannot be established on inspection but the theft is suspected based on the consumption pattern, etc., the Authorized officer may remove the old meter under a seizure memo and seal it in the presence of the consumer or his representative which shall be signed by both the parties, and shall restore the supply to the consumer with a new meter:
Provided that if the consumption pattern for last 1 (one) year is reasonably uniform and is not less than 75% of the assessed consumption, no further proceedings shall be taken and the decision shall be communicated to the consumer within 3 (three) days:
Provided further that if the consumption pattern is uniform as above, the existing meter shall not be sent for any further testing. (2) The meter shall be tested as per sub-regulation (8) of Regulation 32. (3) If the Assessing officer, on the basis of Inspection Report, consumption pattern, results of meter testing, comes to conclusion that it is prima facie a case of theft of electricity, procedure as specified in the Regulation 62 & Regulation 63 shall be followed:
Provided that the Assessing officer shall pass a Speaking Order substantiating the case of theft of electricity within 7 (seven) days of meter testing report."
21.Accused stated that lab report is incorrect and fabricated as meter was not tested in her presence. It is not disputed that accused did not approach the lab on the date of meter testing which took place on 03.02.2020. Accused has not stated that she did not receive the meter removal letter Ex.PW2/1, which clearly noted the date of 22.01.2019 on FIR No.100/2021 State vs Kaushal Kaushik 10 of 22 which meter was to be tested. Meter was eventually got tested in the Lab on 03.02.2020 in place of 22.01.2019. Accused has, however, not raised any objection that meter was not tested in any accredited laboratory or same was not received properly sealed or same was not kept sealed and kept in safe and secure custody prior to its handing over to the laboratory. Moreso, it is not claimed by accused that she visited the lab on 22.01.2019 which was date noted on Meter Removal Letter Ex.PW2/1 at the time of testing of meter or any time thereafter to see details or meter testing after its removal from her place.
22.Testing of false meter is governed by Regulation 32(8) of the Regulations, which is reproduced as hereunder :-
"(8) Testing of tampered meter:-
(i) If the Licensee suspects a case of unauthorised use of electricity and theft of electricity through a tampered meter, the meter shall be tested in an accredited laboratory notified by the Commission for that purpose:
Provided further that in the absence of an accredited laboratory notified by the Commission, the meter shall be tested in any accredited laboratory other than that of the Licensee.
(ii) The Licensee shall remove the meter from site/consumer's premises and seal it in the presence of the consumer or his representative in a container affixing thereon paper seals which shall be signed by both the parties. In case the consumer refuses to sign the paper seal, the same shall be photographed and videographed.
(iii) The Licensee shall schedule a date and time for the testing of meters with the accredited laboratory notified by the Commission and shall give at-least 3 (three) days prior notice to the consumer, intimating the date and time of testing so that the consumer or his authorized representative, if so desires, can be present during such testing.
(iv) The Licensee shall keep the sealed container with the meter under safe and secure custody, and hand over the same to the accredited laboratory notified by the Commission for testing on the scheduled FIR No.100/2021 State vs Kaushal Kaushik 11 of 22 date.
(v) f at the time of handing over the sealed container with the meter for testing to the accredited laboratory notified by the Commission, it is found that the seal of the container is damaged or tampered or missing, in all such cases the licensee shall replace the meter at its own cost and shall not carry out any further proceedings or actions against the consumer on account of tampering or suspected tampering of the meter.
(vi) The accredited laboratory notified by the Commission shall test the meter on the scheduled date.
(vii) If as a result of testing, it is established that:
a. the meter was not tampered, the licensee shall replace the meter free of charge, and it shall neither charge any fee for testing, nor initiate any action against the consumer.
b. the meter was tampered, the licensee shall initiate action against the consumer, as per the provisions of the Act and applicable regulations for theft of electricity or unauthorized use of electricity, as the case may be, and shall also recover the cost of meter and the testing fee as notified in the Commission's Orders from the consumer."
23.There is no dictum either in the Act or in the Regulations which mandates the presence of accused, being user or owner or registered consumer at the time of testing of meter. Moreover, accused was notified vide Meter Removal Report about the date and time of its testing in the lab. The observations made by Hon'ble Delhi High Curt in case titled as Kanta Sharma vs. BSES Rajdhani Power Ltd. [WP(C) 17121/2011 : DoD; 16.03.2011] are pertinent in this respect, which are reproduced as under :-
"......Once the Regulations are not found to impose any obligation on the respondent to test the meter in the presence of the consumer and the consumer fails to avail the opportunity on the date given for testing, the process cannot be made cumbersome and the condition that no testing can be carried out without the presence of the petitioner and which may lead to delays cannot be imposed.......".
24.Meter bearing No.11299995 was duly tested by accredited lab called Baroda Calibration Services on 03.02.2020. Although not specifically FIR No.100/2021 State vs Kaushal Kaushik 12 of 22 testified/mentioned in the testimony or mentioned in Lab Report, it was explained/clarified by AR of complainant during course of arguments, when enquired, that Baroda Calibration Services was accredited Laboratory notified by Commission which is why suspected theft meter was sent there for testing. As per lab report, the meter in question was having (i) cut grooves marks on meter terminal blocks and extra material was found pasted on meter block (ii) Earth load and neutral miss events found occurred number of times and (iii) Meter data found corrupted.
(iv) Meter date & time found disturbed. Tampered meter was duly identified by PW2 as Ex.P1. No suggestion was put to the witnesses by the Ld. Defence Counsel that meter was not tampered and was tested in mechanical manner in their absence.
25.Meter Ex.P1 was physically produced before the court during evidence and at that time also, AR of complainant company, in the presence of Ld. counsel for accused, pointed to the cut grooves marks on meter terminal blocks and how extra material was visibly pasted on meter block the purpose of which was not explained by the Ld. Counsel for accused. It is note worthy that meter appears perfectly normal from front with its plastic seals and hologram seals intact. It was pointed that cut groove marks was found on meter terminal block and and extra material was also found pasted on meter terminal block, the purport of which was to interfere with the actual metering of electrical energy used by the accused. It was also suggested that single phase normal electronic meter must, in ordinary course, be able to store/record data for at least past few months but in this case meter data was found disturbed and meter date FIR No.100/2021 State vs Kaushal Kaushik 13 of 22 and time found disturbed.
26.AR of complainant was enquired as to whether actual extent of interference with the metering can be deciphered to which he denied that it was not possible to ascertain as to the duration for which it was applied and how much did it interfere and in what manner precisely it interfered with the recording of consumed electrical energy, specially in the absence of correct data as meter date and time found disturbed, however it has to be read and interpreted in conjunction with the energy consumption pattern of the consumer. As per 'applicable Regulations' also, meter testing ought not to be done if the consumption pattern is uniform and is not less than 75% of the assessed consumption.
27.The consumption pattern of the consumer placed on record as Ex.PW5/1 analyzed for one year prior to the removal of meter no.11299995 suggests that MDI (Maximum Demand Indicator) varies, rather swings between 0.00 KW to 3.22 KW for past 12 months against sanctioned load of 4 KW. This indicates wide spectrum of variance and cannot be called to be uniform consumption pattern. It is noted that in the month of March 2018, the MDI depicted as 0.00 KW while the monthly consumption unit was reflecting as 277 units which clearly shows that the meter was not recording correct consumption of electricity. After meter was concluded to be 'tampered' as also supported with consumption pattern as per billed units that an inspection to assess connected load was carried out just a day subsequent to the date of Lab Testing Report. The total load connected was calculated to be 3.984 KW FIR No.100/2021 State vs Kaushal Kaushik 14 of 22 as per load report proved as Ex.PW2/5. It was argued by AR of complainant company that the billed units as well as MDI both did not commensurate with even the connected load as per the load report Ex. PW2/5. Detailed Speaking Order Ex.PW5/2 was passed after analysis of consumption pattern Ex.PW5/1 read in conjunction with the Lab Testing Report Ex.PW2/2 and Connected Load Report Ex.PW2/5. Speaking Order made thorough analysis of consumption pattern, relevant portion of which is reproduced herein for ready reference : "Analysis of Electronic Billing Data reveals that meter is downloaded with Inconsistent & erratic consumption (from 02.01.2018 to 03.10.2019 - 324, 207, 277, 274, 258, 356, 308, 348, 351, 327, 391, 239, 300 and 51) and not in consonance with maximum demand recorded by the meter. Analysis of lab report reveals that :- Cut grooves mark found on meter terminal block, Extra material found pasted on meter terminal block. Earth Load and Neutral Miss Events found occurred number of times as per data. Meter Data found corrupted. Meter date and time found disturbed. Lab report concluded mater found tampered. Further average consumption pattern as per computer module work out to 37.59% which is less than the prescribed limit of DERC and also corroborates the finding of lab report. The consumption recorded prior meter replacement has inconsistent MD & Readings corresponding to MD recorded not in consonance. The reading & consumption recorded after meter change has increased substantially with respect to the corresponding period which confirms that low recording of reading prior to meter change was due to the reason of usage of tampering methods by consumer/user. Therefore, the observations of inspecting team & lab are considered in order because the case has been well videographed with respect to connected load, meter & metering position, as per the circumstances. Hence a DAE case to be processed against the consumer."
28.Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied in deducing the difference in recorded and assessed consumption pattern. Speaking Order has been proved as Ex.PW5/2 which also noted FIR No.100/2021 State vs Kaushal Kaushik 15 of 22 that average consumption assessed pattern corroborated the Lab Report.
29.Consumption was assessed for the total connected load of 3.984 KW comparing average actual consumption with average LDHF assessed consumption, as per which, average consumption was computed to be 37.59% which was evidently less than 75% as requisite under Regulation 64. Following calculations were made as part of assessment of consumption pattern to arrive at conclusion of 37.59% :
"Calculations:
Total Units 3686 Average Consumption for 1 day KVAH Average Consumption for 1 day KWH 9.884 Summer Days (SD) 183 Winter Days (WD) 190 SEnf Rate Summer Inter Petty Hr & Petty Hrs Summer Winter Petty LDHF Average rType Category Load Load App. Factor & Factor LDHF (SL) LDHF (WL) (PL) LDHF (A) (B) Load (F1) (F2) (AxSDxF1) (BxWDxF1) (Cx(SD+WD (SL+WL+P (C) (HxF) (HxF) ) x F2) L)/ (SD+WD)
1NDOM- NDLT 3.984 3.984 0.000 11x0.60 1x1 4811.875 4995.936 0. 26.294 GN-
MT<10 kw Average Consumption for 1 day (CP) 9.884 Total Average LDHF (Cons) 26.294 Average % (CP/CONS)x100) 37.59
30.Broadly and generally speaking, unauthorized fiddling with meter or its wire by consumers for registering less energy is also called meter tampering. Registration of less than actual usage of electrical energy would allow consumer in easy evasion of actual payable amount. Dishonest intention is innate to any deliberation or interference with the work of licensee. Tampering of meter can broadly be classified as FIR No.100/2021 State vs Kaushal Kaushik 16 of 22 internal tampering and external tampering. Electricity theft done by changing the metering system after opening the meter is called an "internal tampering". Soldering of resistance on PCB, internally bye pass (PP, NN) etc. may be some known modes of internal tampering. External Tampering broadly can be divided in four parts i.e. (i) Abnormal Magnetic Influences (ii) External Circuit Inside (iii) Neutral Disturbance and (iv) Meter Burnt.
31.In the present case, accused physically interfered with the meter to record less energy consumption and thus, deliberately interfered in the metering system. The said act of accused thus qualifies to fall in the category of 'tampering' of meter.
32.Prosecution has thus proved on the basis of testimony of witnesses and all proved documentations that electricity meter bearing No.11299995 installed at the premises of accused in his house as registered consumer was deliberately tampered with. Prosecution has proved that means were found to be employed willfully to injure or alter the electricity recording meter installed by licensee in the name of registered consumer. Not only this, it is proved that electricity meter was altered so that it interferes with metering of electric current and results in theft of electricity, which would ultimately be dishonest abstraction/consumption/usage of electricity.
33.Having so deliberated, now, onus shifts to accused both under Section 138 of Electricity Act and Section 135 of Electricity Act to prove that it FIR No.100/2021 State vs Kaushal Kaushik 17 of 22 was not done or indulged willfully or knowingly by him or on his behalf or that he had no fraudulent/dishonest/malicious intention behind such an act. At this stage, before proceedings further, it is important to underline distinction between Section 138 and 135 of Electricity Act with respect to facts of the present case.
34.In M/s Mohit Paper Mills Ltd. & Ors. vs. PVVNL & Ors. (DoD :
14.10.2011), Hon'ble Allahabad High Court has observed as under :
"144. ............. Clause (d) relates to an act on the part of a person by causing damage to meter, indicator or apparatus belonging to a licensee or intentionally altering the index of any such meter, indicator or apparatus or preventing any such meter, indicator or apparatus from duly recording or registering energy.
Distinction between Clause (d) of Section 138 and Section 135 is that the former deals with mere damage or alteration and even if there is no actual withdrawal of energy, that would not make any difference while the later deals with the situation where the energy has been abstracted or consumed or used. A case covered under Section 138 is punishable in the manner provided therein but it would not be covered by terms "unauthorized use of electricity" as defined in Explanation (b) of Section 126 and, therefore, the scheme of the Act shows that an offence under Section 138 is such which is not within the mischief of Section 126 and for that purpose the assessment is not permissible".
35.The onus thus shifts to the accused to show and prove that he never indulged in employing any artificial means either to interfere or alter the metering pattern amounting to tampering of meter and also never dishonestly used/consumed/abstracted energy by indulging in such meter tampering.
36.Section 138 raises a presumption in favour of licensee that existence of any means for alteration of electricity meter under custody or control of consumer would raise presumption that such an improper use has been FIR No.100/2021 State vs Kaushal Kaushik 18 of 22 knowingly and willingly caused by such consumer, until proved to the contrary. Similarly, there is a proviso attached with Section 135 of the Act that employing any artificial means not authoirzed by licensee would be presumed to be caused dishonestly by consumer, until contrary is proved.
37.The Hon'be Supreme Court in case reported as 2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee has laid down the law related to the rebuttal of presumption. Relevant portion of the para no.16 is reproduced as under: "...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
38.In view of the law laid down by the Hon'ble Supreme Court in the aforesaid case, now it is to be seen if the accused has taken any defence or produce any evidence which may disprove accused having willfully resorted to tampering of meter and indulged in dishonest abstraction of energy.
39. It is clear from the record that the accused simply denied the lab report and claimed that she did not do any tampering, however, she failed to lead any evidence in her defence. It is not disputed by the accused that the meter number No.11299995 was removed. Accused did not dispute that new meter No.70107185 was installed after removing meter No.11299995. It is clear from the lab report as well as Speaking Order duly proved by prosecution witnesses that meter No.11299995 was FIR No.100/2021 State vs Kaushal Kaushik 19 of 22 tampered for committing Dishonest Abstraction of Energy as a groove cut mark was found on the meter terminal and extra material was also found pasted on the meter terminal which facts are evident from the testimony of PW4. Accused has not explained throughout the case as to and why there was a groove cut mark was available on the meter terminal block and why extra material was pasted on meter terminal. It is not the case of the accused that the said groove cut mark and extra material on the terminal were already existing, she did not prefer a complaint in this regard to the concerned authority but no action was taken. The consumption pattern Ex.PW5/1 further shows variations in consumption of energy.
40. Mere mechanical formal denial without even assigning any reason for such denial cannot make up for rebutting the presumption. Lab Report as well as Speaking Order have merely been stated to be fabricated. No reason for terming those to be fabricated has been assigned by accused person. Removal of Meter as well as inspection has not been denied. No reason has been assigned of any innocent understanding of having groove cut mark and extra material pasted on meter terminal. It was not even suggested that accused was not aware of the same or that meter was not in her control or custody or premises was not being put to use for making seatcover, or meter was simply faulty at one point of time and that she being an honest consumer just kept paying the bills. Nothing substantial was led to discredit the testimony of prosecution witnesses or to draw any conclusion other than deduced above. Mere FIR No.100/2021 State vs Kaushal Kaushik 20 of 22 denials without actually stating as to why officials having no previous enmity in their line of duty would prepare false reports against accused. There is nothing stated which would show that analysis drawn or contentions were not as per applicable parameters or Regulations were overlooked so any such conclusion is not acceptable. Accused has simply stated in her statement recorded U/s 313 Cr.P.C that she has already settled the dispute and settlement amount has been paid by her. Accused has not led any evidence in her defence. Accused has miserably failed to discredit or disprove or create any dent in the case of prosecution.
41.It can thus be concluded that accused has not been able to rebut presumption in favour of complainant company that electricity meter was maliciously injured and electric energy was dishonestly consumed/abstracted.
42.All the documents relied by prosecution have been duly proved by prosecution witnesses. All prosecution witnesses have been duly cross examined by Ld. Counsel for accused. The testimony of witnesses has remained unshattered. There is nothing on record to show that witnesses have not supported the prosecution version or have made inconsistent submissions.
43.In this case, accused has been served with the notice U/s 251 Cr.P.C for the commission of offence punishable U/s 135 as well as 138 of the Act. However, on conjoint reading of both these section, it appears that the act of the accused is squarely covered under clause (b) & (d) of Section FIR No.100/2021 State vs Kaushal Kaushik 21 of 22 135 of the Electricity Act as there was dishonest abstraction of energy from a tampered meter which amount to direct theft of electricity.
44.From the above discussion, I am of the considered view that accused has miserably failed to show a reasonable probability of her defence that the meter in question was not tampered and that she is not liable for any alleged theft. The prosecution has thus established its case beyond any reasonable doubt that accused was indulged in dishonest abstraction of energy by tampering the meter and therefore, accused is convicted for commission of offence punishable u/s 135 of the Indian Electricity Act, Digitally signed 2003. Ordered accordingly.
by SHELLY SHELLY ARORA ARORA Date:
2023.04.25 16:51:19 -0400 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in the open court on this 25th April, 2023 FIR No.100/2021 State vs Kaushal Kaushik 22 of 22