Delhi District Court
Bses vs . Bir Singh, Cc No. 334/11 Page 1 Of Page 15 on 5 June, 2013
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. : 334/11
Police Station : Sarita Vihar, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02403 RO301612011
BSES Rajdhani Power Ltd.
Having its registered Office 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
Bir Singh
R/o House No. NIL,
Ground Floor, Haddo Mohalla,
Madanpur Khadar, Sarita Vihar,
New Delhi. ...Accused
Appearances : AR with Shri S.K. Alok, counsel for complainant.
Accused on bail with Shri A.A. Khan, Advocate.
Complaint instituted on : 14.10.2011
Judgment reserved on : 30.05.2013
Judgment pronounced on : 05.06.2013
JUDGMENT
1. The case of the complainant in brief is that on 22.12.2009 the meter installed at Ground Floor, Haddo Mohalla, Madanpur Khadar, Sarita Vihar, New Delhi i.e. the premises of the accused, was replaced BSES Vs. Bir Singh, CC No. 334/11 Page 1 of page 15 2 by the Meter Management Group (MMG) with the new meter bearing no. 21192821 and the said removed meter was sealed in the presence of accused and sent for testing / analysis to Meter Testing Lab and intimation of same was given to the accused to enable him to witness the said testing / analysis. It is further alleged in the complaint that upon investigation of the removed meter, output terminal found burnt, Meter LED (pulse indicator) was not OK, current date was shown by the meter as 49:33:2022 instead of actual date as 22.01.2010, thus, showing failure of RTC of the said meter, meter ID got different and active energy got zero and that laboratory declared the meter as tampered.
2. It is further alleged in the complaint that in pursuance of investigation of the said meter, which was found tampered, the premises of the accused was inspected on 19.04.2010 by the officers of the complainant company namely Shri C.L. Pushkar - Senior Manager, Shri Ajay Sharma - Shift Officer, Shri Shlok Singh - Graduate Engineer Trainee, Shri Vipin Kumar - Lineman and Shri Sunder Lal - Photographer and connected load was checked and assessed and total connected load was found to be 9.456 KW for domestic purpose and that the inspection report, meter details report and load report were prepared and it was further alleged that a BSES Vs. Bir Singh, CC No. 334/11 Page 2 of page 15 3 presumption has to be drawn that the accused was acting dishonestly because during the investigation of the said removed meter and inspection conducted, means not authorized by the complainant, were found to exist at the premises in question, for the abstraction, consumption or use of the electricity and that the visual footage/videography of the proceedings conducted at the spot was also recorded and CD of same was also prepared and that the Lab report BRPL/10/3651 dated 22/01/2010, copy of seizure memo alongwith Enforcement evidence material were seized and that accused was served with the show caused notice dated 19.04.2010 for suspected theft of electricity requesting him to file reply by 26.04.2010 and to attend personal hearing on 03.05.2010 at complainant's office. But there was no response from the accused in response to said show cause notice and that after considering all relevant aspects, the Assessing Officer passed the speaking order, thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
3. It is further mentioned in the complaint that accused was using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.55,334/ was payable to the complainant by the accused and same was computed as per Delhi Electricity Supply BSES Vs. Bir Singh, CC No. 334/11 Page 3 of page 15 4 Code and Performance Standards Regulations, 2007 and as per applicable tariff and that the due date of the said theft bill was given as 09.06.2010 and same was served upon the accused but he failed to pay the said theft bill.
4. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide his order dt. 15.12.2011 and the accused appeared and my ld. predecessor vide his order dt. 18.01.2012 framed notice u/s. 251 Cr.P.C. for the offence u/s. 135 & 138 of the Electricity Act, 2003, against the said accused and accused pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity nor he tampered the meter in question and that he had valid meter connection and that he had been paying the electricity bills regularly and that the false and fabricated case has been made against him and that he was not liable to pay any damage or loss to the complainant company as alleged.
5. In order to prove the case of the complainant, seven witnesses were produced, which have been discussed below.
BSES Vs. Bir Singh, CC No. 334/11 Page 4 of page 15 5
6. The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that he was not indulged in any theft or tampering of the meter and that he was having valid connection vide K. No. 2541C4052465 and that he was paying the electricity bills regularly and that the meter no. 23678842 was removed in his absence from the said premises and that he was not abstracting any energy dishonestly and that the load report was highly exaggerated and totally imaginary and that the same was not prepared in his presence and the load mentioned was not properly captured in the videography and that his MDI of the meter was lower as mentioned in the inspection report and that no document was prepared in his presence and that he was not aware of the contents of the said documents and that he did not receive any notice to attend lab when the meter was tested and that he never received any show cause notice or speaking order from the complainant and that he had not been given any opportunity to disclose the facts of the case and that he was not liable to pay any loss or damage to the complainant company. However, he had not opted to lead defence evidence.
7. I have heard the counsel for the complainant and counsel for the accused Shri A.A. Khan, advocate, and perused the record BSES Vs. Bir Singh, CC No. 334/11 Page 5 of page 15 6 including the videography displayed on the computer screen of the court.
8. PW1 Shri C.L. Pushkar, Senior Manager in the complainant company deposed that on 19.04.2010 at about 10.50 a.m., he along with Shri Shlok Singh, Shri A.K. Sharma, Shri Bipin Kumar and Shri Sunder Lal inspected the premises at Ground Floor, Haddo Mohalla, Madanpur Khadar, New Delhi and that the said inspection was conducted on the basis of lab report. He further deposed that total connected load was found to be 9.4 KW for domestic purpose and he also proved inspection report, meter details report and load report as Ex. CW2/2, CW2/3 and Ex. CW2/4 respectively and he also proved the CD of videography as Ex. CW2/5. He further deposed that inspection team issued the show cause notice Ex. CW2/7 to the accused at the spot at the time of inspection and that they offered the documents to the accused but he refused to receive and sign the same.
9. In his cross examination on behalf of the accused, he admitted that no irregularity was found in the meter and that the process of preparing inspection report, load report and show cause notice is not covered in the videography and that he had participated in the BSES Vs. Bir Singh, CC No. 334/11 Page 6 of page 15 7 inspection only as regards the assessment of connected load at site and that the entire connected load recorded in the load report Ex. CW2/4 was not covered in the videography.
10. PW2 Shri Shlok Singh deposed in his examination in chief the facts almost on the same lines on which PW1 deposed and in his cross examination on behalf of the accused he admitted that no irregularity was found in the existing meter at the time of inspection of the premises and he volunteered that the meter suspected of tampering was already removed before his visit. He further admitted that he had only assessed the connected load with respect to the meter in question and that process of preparing inspection documents was not covered in the videography.
11. PW3 Shri Anant Sharma, Assessing Officer of the complainant company had passed the speaking order Ex. CW2/8 on the basis of lab report dated 22.01.2010 and the inspection conducted on 19.04.2010. He further deposed that as per said lab report the meter ID got different, Real Time Clock (RTC) of the meter was disturbed and the active energy of the meter got zero and that the laboratory declared that meter was disturbed. He explained that it happened if meter is subjected frequently by abnormal external injections such BSES Vs. Bir Singh, CC No. 334/11 Page 7 of page 15 8 as ESD/HF/EHV. He further replied that show case notice Ex. CW2/7 was sent to accused to attend hearing on 03.05.2010 but nobody had appeared and that he passed the speaking order on the basis of inspection report, meter report, load report and lab report and that he found the case of dishonest abstraction of electricity.
12. In his cross examination on behalf of the accused, PW3 admitted that he had no personal knowledge regarding the case. He volunteered that the speaking order is based on the information provided by the inspection team, laboratory and the consumption pattern. He replied that the defects of the meter could be resolved by the application given by the consumer to complainant company and that the defective meter cannot be rectified and the same can only be replaced with the new meter as per DERC regulations. He answered that he is B. Tech (Electrical). He further replied that the RTC of meter was disturbed due to tampering of meter by the consumer and that the other defect could be explained by the lab officials and manufacturer of the meter. He answered that he was not aware of the qualification of the officials working at laboratory and that the lab officials were aware of working of the meter. He replied that before passing the speaking order, he had considered the lab report and he admitted that as per analysis of the lab report BSES Vs. Bir Singh, CC No. 334/11 Page 8 of page 15 9 "plastic seals & holograms seals are OK" and that meter bearing no. 23678842 was tested in the BRPL laboratory.
13. PW4 Shri Nikhil Kumar identified the signatures of Shri Ganesh, Testing Engineer who had tested the meter and proved the lab report as Ex. CW2/1 and he further deposed that the report was approved by Shri Bimal Mandal, Assistant Manager, whose signatures were identified by him in the said report at point D and he deposed that Shri Ganesh as well as Shri Bimal Mandal had left the services of complainant company. In his cross examination on behalf of the accused he admitted that he had no personal knowledge regarding the case.
14. PW5 Shri Sunder Lal was the videographer who deposed that on 19.04.2010 he conducted the videography at the premises in question of the inspection and connected load of the premises vide CD Ex. CW2/5. In his cross examination on behalf of the accused, he admitted that date and time of the inspection was not reflected in videography.
15. PW6 Shri A.S. Menon identified the signatures of Shri Bara Patre, A.F.O., who prepared the theft bill Ex. CW2/9 and in his cross BSES Vs. Bir Singh, CC No. 334/11 Page 9 of page 15 10 examination on behalf of the accused he admitted that he had no personal knowledge regarding the case.
16. PW7 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. CW1/2 and the complaint filed by him as Ex. CW1/1 and in his cross examination on behalf of the accused, he admitted that he had no personal knowledge of the case.
17. Ld. Counsel for the complainant has argued that in view of the deposition of PW3, the Assessing Officer who passed the speaking order Ex.CW2/8 has relied upon the lab report Ex.CW2/1 as per which, the meter ID was different, Real Time Clock of the meter was disturbed and active energy of the meter got zero and this happened if the meter is subjected frequently by abnormal external injunctions such as ESD, High Frequency or EHV and thus, the accused was responsible for tampering of the meter and ld. Counsel in this regard have relied upon the decision titled NDPL Vs Bhasin Motors Pvt. Ltd. decided on 21.01.2013 in LPA No.1082/2007 wherein the Hon'ble Division Bench came to the conclusion that it was the duty of the consumer to keep the meter under safe custody and since the consumer neither did bring any tampering of the seal of the meter BSES Vs. Bir Singh, CC No. 334/11 Page 10 of page 15 11 box, removal of seals of cover and scratches on the dial plate to the notice of the meter reader nor did it later on bring it to the notice of the electric company with a request to put fresh seals and change the dial plate, it would not be unreasonable to conclude that the purpose of removal of these seals was to indulge in unlawful abstraction of the energy. It was further held that no plausible explanation for such acts was forthcoming from the consumer and that would be sufficient evidence to conclude dishonest abstraction of energy by the consumer in terms of concerned regulations.
18. The ld. Counsel for the complainant further relied on a judgment of the Hon'ble High Court of Delhi titled Smt.Kanta Sharma Vs BSES Rajdhani Power Ltd decided on 16.03.2011 in Writ Petition (C) 1712/2011 wherein as per the documents furnished to the petitioner, the meter was tested in the laboratory on 28.10.2010 and in which report, it is stated that visual observation showed that the top cover of the meter was found refixed and IP terminal was found burnt and it was further reported that one illegal resoldering was found on PCB at 12 V AC point and another at CT 6 point and the report concluded that the burnt meter had been tampered and it was held if on such testing, the complainant company finds that the meter had been burnt to escape charge of theft, certainly a case BSES Vs. Bir Singh, CC No. 334/11 Page 11 of page 15 12 thereof can be booked. The issue that the burnt meter was not even sealed in the presence of the petitioner, was referred to be adjudicated by the Special Court. Similarly, in case titled Narender Aggarwal Vs BSES Rajdhani Power Ltd. decided on 18.03.2011 in Writ Petition (C) No.1789/2011, the questions as to whether disturbance of the Real Time Clock or whether maximum demand data to be recorded more than once in a month, were again referred to be adjudicated by the Special Court.
19. In the judgments of Smt.Kanta Sharma and Narender Aggarwal (Supra), the issues were not answered by the Hon'ble High Court but were referred to the decision of the Special Court concerned in Civil Writ Petitions and as such, the same are not of much help to the complainant company. In the judgment of Bhasin Motors case, the meter in question was never tested in a laboratory but the officials of the appellant company, on inspection found upper seal of the meter box as tampered, cover seals missing and scratches on the dial plate which were visible to the naked eye. Thus, even the said judgment is not applicable to the facts of the present case.
20. In the instant case, PW3 admitted in his cross examination that he did not have any personal knowledge about the facts of the BSES Vs. Bir Singh, CC No. 334/11 Page 12 of page 15 13 present case and he passed the speaking order based on the information provided by the inspection team, laboratory and the consumption pattern. He specifically admitted that analysis report of the laboratory mention it correctly that 'plastic seals and hologram seals were OK'. PW1 and PW2 who went to the spot after receipt of the lab report to assess the connected load have categorically admitted in their respective cross examination that no irregularity in the meter was found at the time of the inspection and PW2 further answered that the meter suspected of tampering had already been removed before his visit.
21. From the said deposition of the witnesses, there is no evidence on record as to who removed the alleged tampered meter from the spot because certainly no witness to that effect has been produced in the witness box. Similarly, there is no evidence as to whether the said meter was sealed or not and there is no witness to say that the same meter with the same seals was received in the laboratory for testing. Admittedly, there was no visible tampering of the meter proved on record. The deposition of PW3 the Assessing Officer who passed the speaking order is in the nature of secondary evidence because, admittedly his conclusions were based upon other material placed before him. The primary evidence i.e. the concerned Engineer BSES Vs. Bir Singh, CC No. 334/11 Page 13 of page 15 14 namely Ganesh who tested the meter and gave his report Ex.CW2/1 was not produced in the witness box nor the approval authority Sh.Bimal Mandal was produced for his deposition. The accused had no occasion to cross examine the said person who tested the meter so as to prove his innocence regarding the active energy of the meter being zero or tampering with the Real Time Clock. PW3 specifically answered in his cross examination that Real Time Clock of the meter is disturbed due to tampering of the meter by the consumer and the other defects of the meter can be explained by the lab officials and the manufacturer of the meter. He admitted that plastic seals and hologram seals were found intact. In the said circumstances from a prudent man's test, it cannot be presumed that RTC was also disturbed by the consumer i.e. the accused in the present case. Thus, not only important link evidence is missing which would have proved as to how the meter was removed and reached to the laboratory but there is no positive evidence of tampering of the meter has been proved on record.
22. Even otherwise, there is no documentary evidence to prove that show cause notice Ex.CW2/7 was ever sent to the accused to appear for personal hearing and by what mode. Moreover, at page no.2 of the lab testing report Ex.CW2/1, the column on right hand BSES Vs. Bir Singh, CC No. 334/11 Page 14 of page 15 15 side regarding 'MD details' has been left blank. There is no documentary evidence to the effect that the accused was given any opportunity to be present at the time of testing of the meter in the laboratory, though there is no requirement of law as such, but the complainant has miserably failed to show 'fair play in action' in the said circumstances.
23. In view of my said discussions, I am of the considered opinion that no presumption as mentioned in the 3rd Proviso to Section 135 of the Electricity Act, 2003, can be drawn against the accused shifting the onus on him to rebut the same and thus, the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Hence, I extend benefit of doubt to the accused who is acquitted of the offence alleged against him u/s. 135 & 138 of the Electricity Act, 2003. His PB and SB are cancelled and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 05.06.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Bir Singh, CC No. 334/11 Page 15 of page 15