Delhi District Court
Cc No. 424439/16, Bses vs . Pardeep Kumar Page No. 1 Of 27. on 25 February, 2021
IN THE COURT OF SHRI MUKESH KUMAR : ADDITIONAL
SESSIONS JUDGE : SPECIAL ELECTRICITY COURT :
SOUTH WEST DISTRICT, DWARKA COURTS : DELHI.
Complaint Case No. 424439/2016
U/s 135/138 of Electricity Act, 2003
In the matter of :
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell,
Andrews Ganj, New Delhi110049
Acting Through its Authorized Officer
Sh. Ashutosh Kumar
.... Complainant
Versus
1. Pardeep Kumar (User)
Plot No. 323, Khasra No. 195/2,
Industrial Area, Village Nangli,
Sakrawati Najafgarh, New Delhi110043.
2. M/s Aryan Flour Mills,
Through Proprietor
Plot No.323, Khasra No. 195/2,
Industrial Area, Village Nangli,
Sakrawati Najafgarh, New Delhi110043.
(Through accused No. 1 being owner)
...... Accused
Date of Institution : 06.11.2013
Judgment Reserved for : 20.02.2021
Judgment Passed on : 25.02.2021
JUDGMENT
1. Brief facts of the case are that complainant company BSES Rajdhani Power Limited Power Ltd. has filed the present CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 1 of 27.
complaint case under Section 135/138 read with Section 150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') against the accused praying that accused person be summoned, tried and punished as per law and further determine the civil liability as per Section 154 (5) of the Act. The case of the complainant company is that on 28.05.2013 at 01:43 PM, as per the directions of the DGM, Enforcement, a Joint Inspection Team comprising Sh. Anil Kumar (Assistant Manager), Sh. Deepak Kumar (Engineer) and Sh. Pawan Kumar (L/M), inspected the premises i.e M/s Aryan Flour Mill Plot No. 323, Khasra No. 195/2, Industrial Area, Village Nangli, Sakrawati Najafgarh, New Delhi110043 (hereinafter referred as 'premises') which falls within the distribution area of the complainant.
2. It is stated that at the time of inspection of the premises in question, the premises had meter supply bearing No. 29506368. and different parameters showing in the meter. Meter was segregated at the site and sent to MMG Lab for further analysis. PVC tape seems to be wound on CT wiring of old meter. New CT meter bearing No. 29014744 installed at site. Pardeep Kumar was the user and M/s Arya Flour Mill was the registered consumer of the electricity supplied at the premises. Connected load of 67.551 KW/NX was assessed for non domestic use. Inspection report & load report were prepared at the site. Photographs & visual footage of the inspection were taken and CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 2 of 27.
the same were converted into CD subsequently. Show cause notice was sent to the accused for dishonest abstraction of electricity, requesting him to reply by 26.06.2013 and to attend the personal hearing on 03.07.2013, as per provisions of DERC. Accused did not file any reply to the show cause notice. However, the Assessing Officer concluded it to be a case of DAE vide his speaking order dated 07.08.2013. On the basis of connected load and applicable tariff, a theft bill of Rs. 14,05,399/ was raised. On failure of the accused to deposit the same, present complaint was filed by complainant company and determination of civil liability was also prepared for. The accused was duly served and put his appearance before the Court.
3. The accused was summoned under section 135/138 of the Act. Notice under Section 251 of Cr.P.C was given to the accused to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution has examined five witnesses.
4. PW 1 Sh. Anil Kumar, Manager, Division Mundka BSES RPL, New Delhi deposed that accused Pradeep Kumar was present at the spot at the time of inspection and he correctly identified the accused in the Court and deposed that he is the same person who was present at the time of inspection. PW 1 further deposed that accused Pardeep Kumar stated to them that he is the owner of M/s Aryan Flour Mills. PW 1 further deposed that on 28.05.2013, he was posted at Hari Nagar, Enforcement as AM and on that day at around 01:43 PM, he along with Sh.
CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 3 of 27.
Deepak KumarEr, Sh. Pawan KumarLineman, Sh. Jai Prakash videographer from M/s Arora Photo Studio inspected the premises I.e Plot No. 323, Khasra No. 195/2, Industrial Area, Village Nangli Sakrawati, Najafgarh, New Delhi110043. PW 1 further deposed that during inspection the said premises was being used and owned by accused Pradeep Kumar son of Nasib Singh and there was a flour mill running at the time of inspection by the said accused Pradeep Kumar and the inspection was conducted as per the email received from energy management group CT reversal event was found logged. PW 1 further deposed that at the time of inspection one CT meter bearing No. 29506368 with current reading 24280.1 KWH and 25021.1 KVAH was found at site wherein different parameter was showing in the said meter and different parameters showing in the meter was MDI in KW=1.60 KW in KVA=1.84KVA VI=225.4, V2=227.4, V3=228.9, II=0.19A, 12=0.189, 13=0.150A. PW 1 further deposed that the said meter was seized by joint inspection team and same was sent to MMG laboratory for further analysis and the new CT meter bearing No. 29014744 has been installed at site in place of the old meter. PW 1 further deposed that they have assessed the total connected load of the premises which was found to be around 67.551 KW for non domestic purposes i.e for running flour mill and the entire inspection was done by Sh. Jai Prakashvideographer and he can identify the same, if shown to him. PW 1 identified the contents of CD and proved the same.
CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 4 of 27.
PW 1 further proved the inspection report, load report and seizure memo and proved the same vide Ex.CW1/A to Ex.CW1/C bearing his signatures at point A. PW 1 further deposed that the said reports were prepared at site were offered to the accused Pradeep Kumar who received and signed over the documents.
During cross examination by counsel for accused, PW 1 deposed that it is correct that email allegedly received from Energy Management Group has not been placed on record. PW 1 further deposed during cross examination that the said email was received by the concerned DGM and he had forwarded to him and the same on 28.05.2013 I.e the date of inspection. PW 1 further deposed during his cross examination that during inspection they have taken the accu check, CMRI, piler along with them. PW 1 further deposed during cross examination that it is correct that he did not file any calibration certificate of accu check machine and CMRI instrument and he himself checked the different parameters showing in the meter. PW 1 denied the suggestion that he himself checked the different parameters showing in the meter or that no said email has been received by him from the DGM or that the accu check and CMRI instrument are defective ones and thereby no calibration certificate of accu check and CMRI has been filed in the court record. PW 1 further deposed during cross examination that he is not aware about the employee Chander Prakash from BSES and he is not aware whether the subject meter was checked by Chander Prakash CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 5 of 27.
engineer (Testing) on 17.05.2013. PW 1 further deposed during cross examination that he can not admit or deny the contents of document ExPW1/D1. PW 1 denied the suggestion that the subject meter was perfectly alright on 17.05.2013 as well as on 28.05.2013. PW 1 further deposed during cross examination that it is correct that the connected load found at site on 28.05.2013 was less than the sanctioned load of 74 KW. PW 1 further deposed that all the documents including inspection report, load report, seizure memo were prepared at the spot at the time of inspection.
PW 1 further deposed during his cross examination that the meter in question was replaced with another meter on the same day of inspection. PW 1 further deposed during his cross examination that it is correct that as per procedure after seizing and seal the meter they give requisition to the consumer thereby asking him to visit the laboratory for witnessing the testing analyzing. PW 1 further deposed during his cross examination that after removing the meter from the site they have deposited the sealed meter in their office on the same day and he was not aware whether the consumer had given any information to appear before the laboratory at the time of testing of meter. PW 1 denied the suggestion that the accused was not given any opportunity to witness the meter testing analyzing before the lab or that the meter was perfectly alright and showing the healthy consumption prior to inspection and thereafter the usage of appliance. PW 1 CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 6 of 27.
also denied the suggestion that there was no CT reversal event was found logged or that he is deposing falsely being an employee of the complainant company.
5. PW 2 Sh. Nikhil Kumar, Diploma Engineer, BRPL Laboratory, Pushp Vihar, New Delhi deposed that on 05.06.2013, he had received a three phase meter with meter box in poly bag and after opening the said poly bag containing the meter box where in the meter bearing No. 29506368 was found. PW 2 further deposed that after the visual inspection insulation tape wrapped on left side was found damaged in the CT Box. The accuracy of the meter was found correct with the CT Box and also without CT Box as after inspection, insulation tape was opened where in black and yellow colour wires of Y phase current wire (input and output) were found cut and resoldered and illegal resoldering was found on left side of CT Box, Y phase current wire(input and output). PW 2 further deposed during examination in chief that during examining accuracy of the meter downloaded by him and as per the downloaded data, R Phase CT Reversal event occurred for 607 days 22 hours 1 minute (cumulative) and Y Phase CT Reversal event occurred for 607 days 20 hours 5 minutes (cumulative). PW 2 further deposed during examination in chief that Y Phase CT Reversal event occurred for 608 days 15 hours 15 minutes (cumulative) and after that he came to the conclusion that the meter was found tempered with the CT Box and after the lab report prepared by him, the same was approved CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 7 of 27.
by Sh. Mustafa Barbhaiwala and PW 2 proved the lab report as Ex.CW2/A bearing his signatures at point A. PW 2 further deposed during examination in chief that after the testing the meter with CT Box sent to the concerned department with reseal number 0238942 BRPL PS. PW identify the CT Box containing the meter and proved the same as Ex.P1.
During cross examination of PW 2 deposed that he did not sent any notice to the consumer through BRPL Laboratory before opening the meter in the BRPL Laboratory and meter in question was received by him in poly bag. PW 2 further deposed during cross examination that it is correct that no one from the consumer side was available in the lab on the date of testing the meter. PW 2 further deposed during cross examination that he took the photographs of the CT Box from outside and after opening the CT Box, he took the photographs of the meter. PW 2 further deposed during cross examination that apart from the photographs Mark Y collectively, there might be some other photographs also lying in the office of the BSES and as far as the requirement of the case, the photographs filed in the judicial file are enough to come to the conclusion. PW 2 further deposed during cross examination that it is correct that the accuracy test of the meter with CT Box and without CT Box is mentioned in the lab report which is mentioned in the report Ex.CW2/A which are within the limits. PW 2 further deposed during cross examination that he did not aware whether the meter in question was checked CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 8 of 27.
by the BSES officials during the periodical check on 17.05.2013 and he has filed the tamper summary report at page no. 43 for calculating the sheet. PW 2 further deposed during cross examination that they did not provide the said tamper summary to the consumer. PW 2 denied the suggestion that the meter in question was perfectly alright or there was no tampering in the meter by the consumer or that on 17.05.2013, when the BSES officials removed the meter for checked and put the same as it is. PW 2 also denied the suggestions that the consumption recorded in the meter prior to the alleged inspection and thereafter, are similar or that a false case of theft of electricity has been booked against the consumer or that there was no cut at R phase and Y phase of the meter of the CT Box or that he is deposing falsely being the official of the complainant company.
6. PW 3 Sh. Tanmay Mohanty, Assessing Officer, BSES RPL, Hari Nagar, New Delhi deposed that on 28.05.2013 an inspection team observed that the left side of the CT meter was found covered with the insulation tape as a result the meter was replaced with the new meter and the said meter was sent to the laboratory for its analysis. PW 3 further deposed during his cross examination that on 05.06.2013, the said meter was tested in the laboratory and it was observed that the meter was found on the left side of the CT Box wire Y Phase current to cover up there was an insulation tape on the left side of the CT Box Wire. PW 3 further deposed during his cross examination that it was also CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 9 of 27.
observed that R Phase CT Reversal, B Phase CT Reversal and Y Phase CT Reversal event occurred for greater than 600 days and also the black and yellow colour wire of the Y Phase Current is found and resolded. PW 3 further deposed during his cross examination that on the basis of the above observation, the laboratory declared the meter as tempered and proved the lab report as Ex.CW2/A. PW 3 further deposed during his cross examination that on going with the lab reports it was observed that w.e.f 30.09.2011 to 28.05.2013 (i.e greater than 600 days) and R Phase CT Reversal was observed which indicates that the meter was disturbed by some external means. PW 3 further deposed during his cross examination that thereafter on 18.06.2013 a show cause notice was issued to the consumer to attend the personal hearing on 03.07.2013, however, consumer did not attend the said hearing. Again said on dated 04.07.2017 a final notice was served to the consumer and he was requested to attend the personal hearing on 23.07.2017. PW 3 further deposed during his cross examination that this time also consumer did not attend the personal hearing, neither he submitted any representation regarding this case. PW 3 further deposed during his cross examination that the case was analyze and on dated 07.08.2013, speaking order was passed based on the facts and observation. PW 3 also proved the speaking order as Ex.PW3/A bearing his signatures at point A. PW 3 has been cross examined by counsel for accused and CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 10 of 27.
during his cross examination, PW 3 deposed that it is correct that he was not the member of the inspecting team and it is correct that he deposed today in the Court based on the documents supplied to him. PW 3 further deposed during cross examination that it is correct that he was not present on the day when the meter in question was tested in the laboratory. PW 3 further deposed during cross examination that he did not go to the site before he passed the speaking order and they give in writing to the consumer to attend the lab analysis during the process of testing the meter in the lab on the day when the meter was replaced. PW 3 further deposed during cross examination that he do not know whether the requisition for attending the testing of meter was given to the consumer in the present case or not as he was not part of the inspection team. PW 3 further deposed during cross examination that he is not aware whether the show cause notice was served upon the consumer on both the occasions. PW 3 voluntarily stated that proof of delivery of the said sow cause notice is with the concerned Enforcement Biling Department.
During cross examination certain question has been put to the witness as follows :
Ques. : Can you produce the delivery report of the said show cause notices?
Ans. : I have been transferred from the said Enforcement Department to Surveillance Department, the same proof of delivery may be produced from the concerned Enforcement CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 11 of 27.
Department from Hari Nagar.
PW 3 denied the suggestion that no such show cause notices were ever given to the accused or received by him. PW 3 further deposed during cross examination that in the present case at the time of passing of speaking order, he was in possession of inspection report and lab report. PW 3 further deposed during cross examination that he is not aware whether there was a periodic meter testing was done on 17.05.2013 before he passed the speaking order and PW 3 marked the copy of periodic testing report as Mark A. PW 3 further deposed during cross examination that he is not aware of the document Mark A as he has seen it for the first time in the count. Ques. : Can you show the requisition allegedly sent to the consumer to attend the Lab Analysis of the meter? Ans. : I was not part of the inspecting team thus, I am not aware it has been delivered or not.
PW 3 denied the suggestion that the accused did not interfere/resolded the CT Box wire Y Phase Current, as alleged or that the earlier Testing Team inspected the meter in question on 17.05.2013 wound the PVC Tape on CT Wiring after they tested the meter. PW 3 further deposed during cross examination that it is correct that when the inspection was conducted on 28.05.2013 no external device was found in and around the meter as per the observation of the inspecting team and in the present case the connected load was less than the CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 12 of 27.
sanctioned loan. PW 3 further deposed during cross examination that he did not bring the consumption patter of the said meter for the period w.e.f. 30.09.2011 to 28.05.2013 and the case of B Phase, R Phase and Y Phase CT Reversal no consumption could be recorded in the meter provided some external element was present inside the meter. PW 3 voluntarily stated that the CT Reversal can be possible only when some External element is inserted in the meter and once the said element is removed the meter show normal consumption and if the consumer make illegal re soldering on the CT Box the external element could be inserted and removed.
PW 3 denied the suggestion that until and unless the seals on the meter are disturbed, no external element could be inserted or removed. PW 3 further deposed during cross examination that it is correct that as per the lab report Ex.CW2/A no such mention about the external element has been found. PW 3 voluntarily stated that however, symptoms for inserting the external elements is clearly exhibited in the said case. PW 3 further deposed during cross examination that it is correct that as per DERC Regulations, if the computed consumption is matching with the 65% of the assessed consumption no case of DAE can be made. PW 3 voluntarily stated that it is only in dubious cases where the department is not sure and all the documents were supplied to the consumer along with the show cause notice and the data was downloaded by the laboratory and not at the time of CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 13 of 27.
inspection. PW 3 denied the suggestion that a false and fabricated data have been placed on record without producing the actual consumption pattern recorded in the meter prior to the alleged inspection. PW 3 further deposed during cross examination that he can not admit or deny whether the earlier testing team after completing the testing of the meter on 17.05.2013, resoldered the CT wiring if any. PW 3 denied the suggestion that the accused did not interfere with the meter or re soldered as alleged or that being the officials of BSES, he has passed the speaking order against the accused or that he is deposing falsely being an official of the complainant company
7. PW 4 Sh. Ashutosh Kumar, Sr. Manager (Legal), BSES has been examined being complainant in the present case and exhibited his authority letter as Ex. CW3/A and also the complaint as Ex. CW3/D has been filed by him. In his cross examination, PW 4 deposed that it is correct that he has never visited the premises in question and he has no personal knowledge of the case. PW 4 denied the suggestion that case has been filed on the basis of false and fabricated documents or the case has been filed by Sh. Pankaj Tandon on the basis of false and fabricated documents. Thereafter complainant evidence was closed.
8. Statement of accused under Section 313 Cr.P.C. was recorded wherein he stated that he is innocent and no personal hearing was given to him and the speaking order passed by the officer of BSES without appreciating the actual consumption CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 14 of 27.
pattern and factual position at site. The meter in question was tested on 17.05.2013 by one Sh. Chandra Prakash stated to be the officials of BSES and also issued meter testing report vide No. 008731 dated 17.05.2013 wherein made a remarks that meter tested and found within limits.
9. Accused has examined two witnesses in his defence.
Accused has examined himself in his defence. DW 1 has deposed that he has purchased the property in question in April, 2012 and the premises in question was feeding with an electricity meter sanctioned by the BSES RPL with the sanctioned load of 66 KW and after purchasing the premises in question BSES officials enhanced the sanctioned load from 66 KW to 74 KW and further to 77 KW. DW 1 further deposed that he has been using the electricity through meter installed in the premises in question and used to deposit the consumption charges for the energy consumed through meter from time to time and proved the copy of consumption bills prior to the inspection and exhibited the same as Ex.DW1/A (colly). DW 1 also deposed that the original bills are kept in CS No. 08/13 and the meter installed in the premises in question was inspected by the officials of BSES on 17.05.2013 and after inspection meter testing report no. 008731 dated 17.05.20213 and proved the same as ExDW1/B and the same is kept in CS no. 08/13 DW 1 further deposed that the BSES officials again came to the premises in question and inspected the meter and booked the present false and fabricated CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 15 of 27.
suspected theft of electricity case against the subject connection. DW 1 further deposed that on 28.05.2013, the existing meter was replaced with another meter. DW 1 further deposed that he did not interfere with the meter in question and the meter was running in perfect condition and the connected load was found on 28.05.2013 was less than the sanctioned load. DW 1 further deposed that he did not make any cut reshouldering as alleged by the BSES officials on RBY phase and he did not receive any notice from BSES officials to witness the meter analyze in the lab and he also did not give any opportunity of personal hearing by BSES and he came to know regarding present case only, he has been issued with the impugned bill by the BSES officials and thereafter he has filed the civil suit against the BSES for challenging the speaking order, impugned bill etc. DW 1 further deposed that he did not commited theft of electricity and as false case has been framed against him to extort illegal demand and he is innocent.
During his cross examination, DW 1 deposed that when he purchased the premises in question, the electricity meter was already installed and he do not know for which purpose the meter in question got installed by the earlier owner and the BSES officials enhanced the sanctioned load automatically on the basis of the consumption bills at that relevant time and he has been using the electricity through meter for running Atta Chakki. DW 1 further deposed during his cross examination that it is correct that CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 16 of 27.
he is the owner of M/s Aryan Flour Mill and he was not present on the date of inspection I.e 28.05.2013. Again said that he joined later on during the inspection. DW 1 further deposed during his cross examination that it is correct that he has not placed the bill before and after the date of inspection I.e for the month of April, 2013 and June, 2013. DW 1 denied the suggestion that he has not placed the aforesaid bills deliberately. DW 1 further deposed during his cross examination that the document Mark A is the meter testing report dated 17.05.2013 is a periodic meter testing and not a complete inspection of the meter in question that is why there is no inspection report and load report placed on record and he used to visit the premises in question every day but he had never checked up the meter installed in the premises for feeding the electricity for the Aryan Flour Mills. DW 1 has shown the videography of the CD and DW 1 correctly identified the videography. DW 1 further deposed during his cross examination that the meter displaying in the videography is the same meeter which is installed in his name for running the Arya Flour Mills. DW 1 has also seen the photographs wherein the insulation tape is showing wrapped on left side of the CT Box wire, the witness denied the same.
DW 1 denied the suggestion that the insulation tape was found wrapped on the left side of CT Box Wire in order to disrupt the recording of the consumption of electricity in the meter. DW 1 further deposed during his cross examination that he is not aware CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 17 of 27.
how this covered tape was found damaged inside the CT Box. DW 1 further deposed during his cross examination that he is not aware of said covered tape was found damaged inside the CT Box because he never checked the meter during his visit. DW 1 denied the suggestion that on 28.05.2013 at 12:18 AM, he had recovered the CT Face and tempered the meter in order to disturb the recording of the consumption of electricity. DW 1 further denied the suggestion that two times show cause notices were received by him to attend the personal hearing but deliberately he did not attend the same or he had also intimated for the meter to be tested in the laboratory. DW 1 further denied the suggestion that the case in hand is not the case of suspected theft of electricity rather it is a case of meter tampering or that he he is deposing falsely in order to save himself from the case.
10. DW 2 Sh. Chandra Prakash, Engineer BSES, deposed that on 17.05.2013 he was posted as an Engineer with BSES Rajdhani Power Limited and the document Ex.PW 1/C was prepared by him in his handwriting and upon the instruction received by him from KCC department of BSES, he visited Arya Flour Mill Plot No. 323, Khasra No. 195/2, Industrial Area Village, Nangli Sakrawati, New Delhi. DW 2 further deposed that on 17.05.2013, he tested the meter bearing no. 29506368 installed at the premises in question and during periodical meter check, the meter was found to be within limit and he has checked the meter seals before he tested the meter. DW 2 further deposed CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 18 of 27.
that it is correct that on 17.05.2013 all the meter seals were found intact before he tested the meter and at that point of time there was no any abnormality found with the meter and based on the testing of the meter he has prepared meter testing report vide number 008731 dated 17.05.2013 and issued the carbon copy of the same to the consumer Pardeep Kumar and also obtained his signatures. He proved the meter testing report as Ex.PW1/C bearing his signatures at point A. DW 2 further deposed that all the parameters of the meter were found intact and the same were opened by him and after testing the meter he resealed the meter with two new seals bearing no. V088402, 403.
DW 2 has been cross examined by counsel for complainant and in his cross examination, he has deposed that he do not have any personal knowledge of the case and he is deposing based on the document i.e Ex.PW1/C. Thereafter, D.E was closed.
11. I have heard the arguments of Ld. Counsels for parties and have perused the record carefully.
12. In order to prove the case against the accused the complainant is required to establish that the theft of electricity was being committed at the premises inspected by the raiding party. The complainant is further required to link the accused to the premises and prove that the accused was responsible for the commission of theft of electricity.
13. Before coming to the final conclusion, I deem it appropriate to go through the relevant provision of law i.e Section 135 and CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 19 of 27.
138 of Indian Electricity Act, which reads as under :
Section 135. (Theft of Electricity): 1[(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, 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:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use (I) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 20 of 27.
conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(2) Any officer authorised in this behalf by the State Government may
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being,] used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 21 of 27.
course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
14. In the instant matter, so as to prove its case, complainant has examined four witnesses in all. PW4 is a formal witness, who has filed the present complaint vide Ex. CW3/D. PW1 Sh. Anil Kumar, Assistant Manager was the leader of the inspection team, which inspected the premises in question on 28.05.2013 for assessing the connected load. As per PW1 accused was found indulged in dishonest abstraction of energy for commercial purpose as the work of flour mill was going on.
He also stated that they assessed the connected load to the tune of 67.551 KW for non domestic purposes i.e for running flour mill. They also took videography of the new meter installed at the premises and CD of the same was also prepared vide Mark X and inspection report, load report and seizure memo Ex.CW1/A to Ex.CW1/C. Thereafter the inspection team seized the meter bearing No. 29506368. Admittedly, in this case there were four members in the inspection team i.e. PW1 Sh. Anil Kumar, Sh. Deepak Kumar (Er.), Sh. Pawan Kumar (Lineman) and Sh. Jai Prakash (Videographer). Perusal of the inspection report CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 22 of 27.
Ex.CW1/A and connected load report Ex.CW1/B (colly.) and seizure memo Ex.CW1/C stated to be prepared at the time of inspection on 28.05.2013 shows that the said reports were signed by PW1 and other members of the inspection team. The complainant company has examined only one member of the inspection team i.e PW 1 Sh. Anil Kumar, Assistant Manager. No explanation has been assigned for the non examination of these witnesses.
15. The testimony of PW 1 shows that on 28.05.2013 at 01:43 PM an inspection was carried out in the inspected premises. His testimony to this effect has gone unrebutted meaning thereby that inspection stands admitted. The testimony of PW 1 shows that on 28.05.2013 they had gone for the inspection of premises on the basis of email received from Energy Management Group. The basic reason to go for the inspection in the inspected premises is that one e mail was received. The copy of e mail is not placed on record. The examination of Business Manager was essential in order to unfold the real facts. The copy of e mail could have thrown light on the fact that it was received from Energy Management Group. PW 1 admitted in his cross examination that it is correct that e mail allegedly received from energy management group has not been placed on record and the said e mail was received by the concerned DGM and he had forwarded to him the same on 28.05.2013 i.e the date of inspection. The non examination of Business Manager and non placing the copy CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 23 of 27.
of e mail on record calls for an adverse inference against the complainant.
16. I have perused the Speaking Order Ex.PW3/A which clearly shows that the alleged tampered meter and CT Box were not produced before the Assessing Officer and order Ex.PW3/A was passed without observing the meter and CT Box. It is mentioned in the speaking order that the insulation tape found wrapped on left side of CT Box wire and covered tap found damaged inside the CT Box wire (right side and left side) and illegal re soldering found on left of CT Box wire Yphase current (input and output). After segregation of the meter, accuracy check with accucheck instrument and CMRI data of the meter was downloaded. There is no reference as to when Assessing Officer had examined the member of raiding team. The speaking order fails to specify as to how the reading of accuchek meter were observed by the assessing officer as it was never mentioned that he had perused the accuchek meter. Further, the accuchek meter was also not produced in the court. The speaking order also failed to mention that PW3 has gone through the videography taken by the inspecting team on this aspect. The tampering in the meter can be proved by testing the meter in the laboratory. The meter in question was tested in the laboratory. The laboratory report Ex.CW2/A does not corroborate the visual observations of PW1. PW 3 deposed during his cross examination that it is correct that when the inspection was conducted on 28.05.2013, no external CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 24 of 27.
device was found in and around the meter as per the observation of the inspecting team. PW 3 also deposed during is cross examination that in the present case the connected load was less than the sanctioned load. DW 2 also deposed that all the parameters of the meter were found intact and the same have been shown against the test results. DW 2 also deposed that the meter box seals were found intact and the same were opened by him and after testing the meter he resealed the meter with two new seals. DW 2 also deposed that he tested the meter bearing No. 29506368 installed at the premises in question and during periodical meter check, the meter was found to be within limit. DW 2 also deposed that he has checked the meter seals before he tested the meter and it is correct that on 17.05.2013 all the meter seals were intact before he tested the meter and at that point of time there was no any abnormality found with the meter.
17. The consumption pattern and which would have corroborated the lab testing report, if would have been proved, is also missing in the present case. PW 3 who was the Assessing Officer and passed the Speaking Order Ex. PW3/A admitted in his cross examination that he did not bring the consumption pattern of the said meter for the period w.e.f 30.09.2011 to 28.05.2013. Further, no evidence is on record showing the meter seals were tampered or refixed. There is no finding of Assessing Officer on the aspect that inspecting team was not carrying any sample monogram.
CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 25 of 27.
18. In the bill as raised by the complainant the total units assessed for electricity charges are around 1,46,520, which the consumption pattern seen in the paid bills filed by accused is similar to that of the assessed units. The connected load was found less then the sanctioned load and it is not established by the complainant company that accused was dishonestly abstracting the electricity by tempering in the meter.
19. Although a conviction can be safely based on the testimony of a single witness which seems trustworthy and reliable. In the present case, there are material contradictions in the testimony of PW1, PW 2 and PW 3. In order to connect the accused with the offence reliable evidence is required to be led by the company which show that the accused was involved in some overt act of tampering. No public persons at the site have been cited or examined as a witness when the meter was segregated. No other independent evidence has been examined in this case to prove that the accused was committing theft of electricity. There is nothing on record to suggest that public persons were not available at the premises as there is no mention in the inspection report or in the testimony of PW 1. Thus, the complainant company has failed to show any tangible evidence of dishonest abstraction of electricity against the accused persons. Moreover, the reports and other documents as prepared by the inspection team were not pasted at the site of the premises as prescribed in The provision of regulation 52 (ix) Delhi Electricity Supply Code CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 26 of 27.
and Performance Standards Regulation, 2007. Further, it is clear from the records that the inspection team has not pasted the reports and documents as stated to be prepared at the site, at the premises in question during inspection. PW 1 Sh. Anil Kumar has not shown any reason for nonpasting of the reports. PW 1 has also failed to explain as to why the reports and other documents were not pasted at the inspected premises.
20. In view of the foregoing reasons, as the company has failed to prove the theft of electricity against the accused beyond reasonable doubt in the present case. The accused is accordingly acquitted. Bail bond of the accused stands canceled and surety discharged. Amount, if any, deposited by the accused as a condition for bail or in pursuance to interim order of any court qua the theft bill raised by the company on the basis of inspection dated 28.05.2013 be released by the complainant company within one month along with interest @ 6% per annum from the date of deposit. Accused Pardeep Kumar is directed to furnish bail bonds under Section 437 Cr.P.C within 15 days. File be consigned to Record Room, after due compliance.
Digitally signed byAnnounced in the open MUKESH MUKESH KUMAR
Court on dated 25.02.2021. KUMAR Date: 2021.03.20
10:46:18 +0530
(Mukesh Kumar)
ASJ: Special Electricity Court
South West District : Dwarka
Courts, New Delhi.
CC No. 424439/16, BSES Vs. Pardeep Kumar Page No. 27 of 27.