Delhi District Court
Tpddl vs Ramesh Jindal Page 1 Of 19 on 25 November, 2021
IN THE COURT OF SH. RAJESH MALIK: ADDITIONAL
SESSIONS JUDGE, ELECTRICITY COURT, DISTT. NORTH
WEST, ROHINI COURTS, DELHI
CC No : 515360/2016
P.S. : BAWANA
U/S : 135 OF THE ELECTRICITY ACT, 2003
Tata Power Delhi Distribution Limited
Erstwhile (North Delhi Power Limited)
Regd. Office At:
Grid Sub Station Building
Hudson Lines, Kingsway Camp
Delhi-110 009
Also At:
EAC, HRDI, Sector-3, Rohini,
Delhi-110 085
Through:
Shri O.P. Sharma ....... Complainant
VERSUS
Ramesh Jindal
S/o Sh. Jaidev Prashad Jindal
Prop. M/s JP Polymers
R/o 10/1, Jaidev Park, Block-10
East Punjabi Bagh, Delhi ........ Accused
DATE OF INSTITUTION 22.05.2013
DATE OF RESERVATION 09.11.2021
DATE OF JUDGMENT 25.11.2021
TPDDL Vs Ramesh Jindal Page 1 of 19
JUDGMENT
Inspection of accused premises on 26.08.2010 by the team of TPDDL
1. A team of TPDDL (erstwhile NDPL) conducted an inspection of the premises of the present accused on 26.08.2010 to inspect the retained meter. The cable status was found disconnected. They downloaded the meter data through CMRI and noted that the case would be finalised after analyzing the data. The inspection report is Ex. CW-1/1. At the same time, the action report was also prepared. It was written in the action report that as per the directions of DGM (CEG), the premises was visited and checked by the CEG inspection team. The meter data was downloaded through CMRI. The detailed report prepared. It was recommended that the Manager back office was requested to analyse the case after analyzing data as per rules. The MDI of the meter was shown to be 42945 KW. The connected load was shown to be 54.941 KW against the sanctioned load of 40 KW. Thereafter, the data analysis report was prepared. The report concluded, based on data analysis report, that injection of high voltage and high frequency signal were given which resulted into reversing of unit (T1=0). Thereafter, the show cause notice was given for the personal hearing. On analysis of units, the recorded consumption was found to be 38.4% of the computed consumption. The data was sent to the Director (ERDA) Vadodara which reported that as per manufacturer's E-mail attached as "Annexure-II as provided by NDPL" due to extremely high voltage & high frequency signal, the internal circuit/software gets affected and junk value gets stored in the same time zone which is active at that particular instance. Hence, one or TPDDL Vs Ramesh Jindal Page 2 of 19 more time zone get affected. Based on the declaration received from the manufacturer and CMRI data analysis, the ERDA (Vadodara) concluded as follows:-
"it is evident that this phenomenon was happened due to external influence or injection of high voltage or high frequency signal etc. into the customer meter. The consumption observed in particular time zone of the meter and thereby energy value of meter data in or more time zone has been reset to zero and inspite of load running (Downloaded current is non zero in that time zone) on that time zone, there is no recording/increment of energy value in that time zone".
2. The cognizance was taken on the complaint. The accused appeared. Charge was framed against the accused u/s 135 & 138 Electricity Act.
3. Before discussing the evidence of the complainant's case, let us first discuss the legal provisions relating to the theft of the electricity:-
Legal Provisions Dealing With Theft of Electricity:-
Section 135 of the Electricity Act:
"(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 TPDDL Vs Ramesh Jindal Page 3 of 19 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 electronic 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 authorised, 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:
DERC (Supply Code and Performance Standards) Regulations, 2017:-
Regulation-60: Inspections of the premises and electrical installations by Authorized officer:-
1. The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
2. The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).TPDDL Vs Ramesh Jindal Page 4 of 19
3. Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment.
4. The Authorized officer shall prepare an inspection report as per the provisions under these Regulations.
Regulation-62: Procedure for prosecution for Theft of Electricity:-
(1) The prosecution for theft of electricity under section 135 of the Act shall be initiated only in the cases where dishonest intention is evident from the relevant facts, records and other evidence of the case.
(2) In case sufficient evidence is found to establish theft of electricity, the Authorized officer under sub-section (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, meter, service line etc., from the premises under a seizure Memo.
(3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act:
Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty four hours from time of such disconnection:
Provided further that such officer shall also send to the consumer a copy of complaint lodged in TPDDL Vs Ramesh Jindal Page 5 of 19 Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy consumed by resorting to external methods involving remote control, high voltage injection etc., committed by the consumer or his employee or any other person acting on his behalf, shall also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the Commission or by the agency authorized by the Commission in this regard.
Regulation-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:
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 TPDDL Vs Ramesh Jindal Page 6 of 19 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"
Regulation -32: Testing of meter:-
1. Periodical Testing of meters by the Licensee:-
(i) ...........
(ii) ...........
(iii) The Licensee shall, at no cost to the
consumer, conduct periodical inspection or testing or both and calibration of the meters, as notified in the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006, as amended from time to time, at site, and as per the following schedule:
Railways, DMRC At-least once in every six months HT or EHT meters At-least once in every year LT 3-phase meters At-least once in every five years single phase meters At-least once in every five years as per IS 15707: 2006- Testing, Evaluation, Installation and Maintenance of ac electricity meters-code of practice based on sampling plan as specified in IS 2500(Part-I) TPDDL Vs Ramesh Jindal Page 7 of 19
(iv) Notwithstanding anything contained in sub clause (iii), the Licensee shall arrange the periodical testing of meters in the institutions of public importance such as hospitals, airports, or in the premises of continuous process industries or in the premises where life support systems are installed, only on a mutually agreed date and time and with the minimum interruption of supply.
(v) Wherever applicable, Current Transformer (CT) and Potential Transformer (PT) and the associated wiring connections shall also be tested along with meters.
2. Testing of the meter in case of dispute or on the request of consumer:-
(i) If a consumer either disputes the result of periodical testing by the Licensee or requests the Licensee for testing of meter, the Licensee shall, arrange testing of the meter, within 15 (fifteen) days of receiving the request:
Provided that the meter shall be tested at site by an accredited laboratory notified by the Commission:
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) .............
(iii) The decision of the accredited laboratory notified by the Commission or accredited laboratory other than that of the Licensee as the case may be, shall be final and binding on the Licensee and the consumer.TPDDL Vs Ramesh Jindal Page 8 of 19
3. The Licensee shall, give at-least 3 (three) days prior notice to the consumer, intimating the date, time of testing of the meter so that the consumer or his authorized representative, if so desires, can be present during such testing of meter.
4. The consumer or his authorized representative, if so present during testing and the representative of the Licensee shall affix signature on the test report issued by the accredited laboratory notified by the Commission or the Licensee‟s laboratory, as the case may be, as a token of having witnessed the testing.
5. The Licensee shall give, a copy of the meter test report, duly signed by the Licensee and the consumer or their authorized representatives, and retain one such copy as acknowledgment
6. ........
7. ........
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 TPDDL Vs Ramesh Jindal Page 9 of 19 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) ......
(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 date.
(v) If 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 TPDDL Vs Ramesh Jindal Page 10 of 19 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.
Prosecution Evidence
4. PW-1 Ganpat deposed that on 26.08.2010, he was working as Manager in the Enforcement Department of the complainant company.
On that day, he alongwith Sh. Shyam Lal, Sh. Sumit Kumar, Sh. Anoop and technician had gone to the site at E-367, Bawana, DSIDC, Delhi. They inspected the premises of M/s J.P. Polymers. They met Mr. Santkesh. They checked in his presence. They checked the load and downloaded data of the meter. They prepared the inspection report at the site and exhibited the same as Ex. PW-1/1. They submitted the downloaded data in the back office of the company. After checking the data, they found abnormality in the metering data. According to the inspector report, high voltage and high frequency signals were injected in the meter due to which, in the meter data, the time zone T1 was recorded as Zero. The meter was showing reverse reading. Thereafter, a show cause notice was given on 31.08.2010 and exhibited the same as Ex. PW-1/2. The inspection report was given to the representative present at the site. At the time of inspection, a load of 54 KW (approx.) was found connected for running factory of PVC dana. Thereafter, necessary photographs were taken by the photographer namely Monu of M/s Dev Photo Magic.
TPDDL Vs Ramesh Jindal Page 11 of 19In his cross-examination, he deposed that the inspection was conducted on the oral orders of HOG (enforcement). He did not know whether any complaint was given by the consumer to the NDPL in respect of defect in the meter. He deposed that it is correct that when he inspected the premises, no electricity was being used through the meter in question. He volunteered and deposed that it was a retained meter but he did not know the date when it was retained. He further deposed that he did not find any other kind of tampering in the impugned meter. The current in the impugned meter was recorded more than the current shown in the clamp on meter. It is correct that no other irregularities and discrepancy was found in the meter except the current difference. He admitted that he had no knowledge about the capacity of the transformers meant for supplying electricity to consumer meter. He admitted that there were no instruments of the capacity of 42949 KW in the premises. He denied the suggestion that he did not visit the premises being unaware about the size of the premises. He deposed that he did not remember as to whether the make of the meter was L & T. He admitted that the metering data was not analyzed at the site. He did not find or recover any instrument for injecting high voltage or high frequency at the site. The impugned meter was not seized by the raiding party. He admitted that the meter was not seized as it was not found tampered. He denied the suggestion that the load installed in the premises was 35 KW and the MDI never exceeded 35 KW. He was not aware whether the meter of L & T make during the period of 2008, 2009 and 2010 were defective and the problem of time zone occurred in number of meters installed by the complainant company. He further denied the suggestion TPDDL Vs Ramesh Jindal Page 12 of 19 that he deposed falsely being an employee of the complainant company.
5. PW-2 was the member of the raiding team. He along-with the raiding team, downloaded the metering data of the meter which was installed in the name of the accused. After giving the external single phase supply to the meter, the metering data was downloaded in the CMRI. The connected load was found to be 54 KW (approx) being used for industrial purpose for running extruder machine, air compressor, water submersible and lighting load etc. He deposed that the MDI of the meter was shoot up to 42,949 KW. He exhibited the action report vide Ex. PW-2/1.
In his cross-examination, he deposed that the meter was checked by their technician, but he does not remember the name of the said technician. He denied the suggestion that as an Authorized officer, he had a duty to seize the meter. He further denied the suggestion that the MDI of the meter can shoot up due to defect in the resistors in the meter. He denied the suggestion that the MDI recorded in the meter was not 42,949 KW. He denied the suggestion that the connected load was wrongly recorded. He admitted that they did not find any kind of irregularity in the meter on injecting the said load.
6. PW-3 was the member of the inspecting team. He deposed on the same line as that of PW-2.
In his cross examination, he deposed that he is not aware of any complaint given by the consumer for defect in his meter. He admitted that on the complaint of the consumer, his meter was replaced and the TPDDL Vs Ramesh Jindal Page 13 of 19 older meter was retained at the site. At the time of his visit, the electricity supply was running through a new meter. No load was found connected against the meter in question at the time of inspection. The meter in question was lying disconnected. He denied the suggestion that he was not authorized officer u/s 135 of the Electricity Act to inspect the premises of the consumer on the date of inspection. He admitted that no physical tampering was found in the meter. He further deposed that there might be some cases, number which he does not remember in which they found abnormalities in respect of time zone in L & T meters. Only the supply was given to the retained meter and no load was applied to the said meter. There was no amperes/current in the meter when they applied single phase supply to the said meter. He admitted that the MDI recorded in the retained meter was much more than the connected load found in the premises.
7. PW-4 was the Photographer. He exhibited the photographs as Ex.PW4/A-1 to Ex.PW4/A-18. He exhibited the negatives of the said photographs as Ex. PW-4/B (colly).
8. PW-5 Mr. Subrata Kumar Das analyzed the data of the meter. He exhibited the data analysis report vide Ex. PW-5/A. He exhibited the reference letter to third party lab i.e. ERDA vide Ex. PW-5/B. The said case was sent to ERDA with all documents i.e. inspection report, action report, data analysis report, CMRI Data and CD containing CMRI data.
9. PW-6 Mr. Jagesh Kishore deposed that on the basis of the TPDDL Vs Ramesh Jindal Page 14 of 19 inspection dated 26.08.2010, he had issued the show cause notice dated 02.05.2011 to the accused for personal hearing on 16.05.2011. He exhibited the show cause notice vide Ex. PW-6/A. He exhibited the personal hearing sheet dated 16.05.2011 vide Ex. PW-6/B and personal hearing sheet dated 23.05.2011 vide Ex. PW-6/C. He exhibited the reply of the show cause notice vide Ex. PW-6/D. The analysis report of the consumption pattern of the accused from 31.07.2009 to 20.08.2010 was exhibited as Ex. PW-6/E. He further exhibited the speaking order against the accused vide Ex. PW-6/F.
10. PW-7 Sh. B.B. Gogia exhibited the power of attorney dated 23.08.2018 in his favour vide Ex. PW-7/A and the final bill for DAE against M/s J.P. Polymers vide Ex. PW-7/B. Statement of Accused U/s 313 Cr.P.C and the Defence Evidence.
11. The statement of accused under Section 313 Cr.PC was recorded, in which the accused stated that the complainant leveled false allegations against him. The meter in question was replaced by NDPL on 21.08.2010 and the old meter was retained at site. No load was connected to the meter in question on the date of inspection and the meter in question was lying idle. He further stated that there was no tampering of any kind in his meter and his consumption pattern prior to the inspection and after inspection was uniform.
TPDDL Vs Ramesh Jindal Page 15 of 19Court's Observations:-
12. The TPDDL first retained the meter and then its inspection was carried out on 26.08.2010. At the time of inspection, approximately a load of 54 KW was found connected in the given premises. The sanctioned load of the premises was 40 KW. In the inspection report, the MDI was shown to be 42949 KW. In their cross-examination, the inspection team members admitted that no other irregularity and discrepancy was found in the meter except the current difference. It was also came on record through cross-examination that one phase of the meter was recording more unit than actually passing through it.
Apparently, the actual MDI of the live meter was not recorded. The meter was retained and the current was passed through it. It recorded MDI as 42949. The MDI of the meter indicates the maximum demand to show how much maximum load was used at a particular point of time. In any case, it could not be more than the load of all the electronic appliances in the given premises. It may go up to the connected load, if all the instruments are working at the same point, but in no case, it could not be 42949 KW. It reflects that the retained meter was faulty/defective.
As per the report of data analysis, the high voltage and high frequency signal were given to the meter to reverse the unit of time zone- 1, however, the prosecution witnesses submitted that they have not found or recovered any instrument in the premises for injecting high voltage or high frequency at the site.
Further, PW-2 stated in his cross-examination that the load was injected in the meter and they did not find any kind of irregularity in the meter on injecting the said load. PW-3 in his cross-examination stated TPDDL Vs Ramesh Jindal Page 16 of 19 that he can not admit or deny if the data of one time zone will get corrupted in case the resistor of one time zone becomes defective. He submitted that they did not check the meter in the laboratory to see whether the resistor of the meter was defective or not? Further, he stated that they did not record the serial number of CMRI, in which the data was downloaded in their inspection report. He stated that there were around 15 CMRI instruments in the NDPL and all were deposited in the same place. However, he denied the suggestion that they were not aware of the instrument in which the data of a particular meter was stored as the serial number on the CMRI instrument was not mentioned in the inspection report.
Apparently, the evidence on record suggests that they did not write the serial number of the meter on the CMRI. They kept all the CMRI together. The data analysis report also does not contain any CMRI number, from which the data was collected. The downloaded data was analyzed, however, the period of data taken for analysis has not been mentioned in the data analysis report. In the data analysis report i.e. PW- 5/A, the reading has been shown as 9496729, whereas in the report of ERDA (Vadodara), the reading has been shown as 209132 with MDI detail as 25.9651 KW dated 20.03.2010. It is pertinent to note here that the electricity bill, which has been admitted by the TPDDL, the maximum MDI reached was 31 KW, meaning thereby the MDI was less than the sanctioned load. The meter was showing the average MDI. After installation of the new meter at the same premises, the status of the MDI was the same, meaning thereby, the new meter was also recorded the same MDI. The MDI of the new meter as well as the retained meter TPDDL Vs Ramesh Jindal Page 17 of 19 show that all the connected load was not being run at the same time. Had it been the case then the MDI of the new meter would have shown more MDI than the retained meter which was allegedly tampered with.
13. In the present case, the complainant, on the basis of the inspection report and consumption pattern, comes to the conclusion that there had been a prima-facie case of theft of electricity and therefore, the complainant had to proceed in accordance with DERC (Supply Code and Performance Standards) Regulations, 2017. The Regulation 62 provides that where sufficient evidence is found to establish theft of electricity, the authorized officer under sub-section (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, service line etc, from the premises under a seizure memo. In the present case, the meter was not seized despite the complainant reached to the prima-facie conclusion regarding theft of electricity. The purpose of seizure of meter is apparent from the Regulation 32 of DERC that the seized meter shall be tested at site by an accredited laboratory notified by the Commission. The meter shall be tested in any accredited laboratory other than that of licensee. In the present case, the meter was not tested. The complainant filed the ERDA (Vadodara) analysis report based on the downloaded data. The said report is not admissible u/s 293 of Cr.P.C without calling upon the person who prepared the report.
So, the case of the complainant to show that the computed consumption was less than the assessed consumption to raise suspicion about theft of electricity has not been substantiated. Further, no instrument to give external high voltage was found at the premises. So, it TPDDL Vs Ramesh Jindal Page 18 of 19 was the mere suspicion of the complainant that high frequency voltage was given. It is apposite to mention here that the meter may become defective due to various reasons. It may be due to fluctuation of power. It may be due to high voltage released by the complainant. Mere faulty meter does not give right to the complainant to book the consumer in a theft case. In view of the above said observations, no case of theft is made out. The accused stands acquitted. His previous bail bond shall remain in force for a period of six months u/s 437-A Cr.P.C.
14. File be consigned to record room.
Announced in the open court (RAJESH MALIK) today i.e. on 25.11.2021 ASJ(Electricity)/Distt. North-West Rohini Courts, Delhi 25.11.2021 TPDDL Vs Ramesh Jindal Page 19 of 19