Delhi District Court
Bses vs . Ritu Chauhan Page 1 Of 10 on 19 January, 2013
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint instituted on : 22.05.2009
Judgment reserved on : 17.01.2013
Judgment pronounced on : 19.01.2013
Complaint Case No.333/09
PS Saket, New Delhi
U/s 135 & 138 of Electricity Act, 2003
Unique ID 02403RO316022009
BSES Rajdhani Power Limited
A company duly incorporated
under the Companies Act, 1956
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 Sh.Ashutosh Kumar
(Substituted Authorized Representative)
...Complainant
Versus
Ms. Ritu Chauhan @ Smt. Rita Chauhan (User/ RC)
J77, Second Floor,
Saket, New Delhi17
...Accused
Appearances: AR for the complainant
Sh. P.M.Bhatt, counsel for complainant
Accused on bail
JUDGMENT
1 Complaint u/sec. 151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company against accused Ritu Chauhan seeking to summon, try and convict her for the offence punishable U/sec. 135 (1) (a) r/w/sec. 138 of the Act and also praying for determination of her civil liability.
BSES Vs. Ritu Chauhan Page 1 of 10 2 2.1 It is the case of complainant that on 08.10.2008, on the directions of DGM (Enf.), a joint inspection team inspected the premises bearing no. J77, second floor, Saket, New Delhi. A notice u/sec.163 of the Act had been served upon the user on 01.10.2008. On the said date, the premises was found locked. Thereafter, on the consent of consumer, communicated vide letter dated 07.10.2008, the premises was inspected on 08.10.2008. Connection bearing no.2520 G 1040855 with a sanctioned load of 1 KW for nondomestic category was provided in the premises. On the inspection, it was found that meter terminal seals, meter half seals, ultrasonic welding hologram seal of the meter were found tampered with. On performing accuracy check, meter was found to be 81.40 % slow. The meter was segregated at site in the presence of consumer. Two illegal resistance were found connected across phase CT & neutral CT. Connected load was assessed at 13.005 KW for domestic use & 1 KW for nondomestic use. Inspection report, Meter Details, Load report & Seizure memo were prepared at the site. Show cause notice was also served upon the accused to submit her reply by 03.10.2008 and attend personal hearing on 30.10.2008. The accused did not respond to the show cause notice & failed to appear before the assessing officer for personal hearing. Assessing officer, vide speaking order dated 01.12.2008, held it to be a case of dishonest abstraction of electricity.
2.2 A theft bill of Rs.1,91,098/ was raised, on the basis of connected load & applicable tariff. On failure of the accused to pay the amount, present complainant was filed. Cognizance was taken on 22.05.2009 by the ld. BSES Vs. Ritu Chauhan Page 2 of 10 3 predecessor. On the basis of presummoning evidence, accused was summoned to face trial. She entered appearance through the counsel & was admitted to bail with directions to deposit 15 % of the theft bill. Notice of accusation u/sec.251 Cr.P.C. was framed on 04.10.2010. Accused pleaded not guilty & claimed trial.
3.1 Complainant, in support of its case, examined five witnesses. Ashok Kumar (PW1) & Gagandeep (PW5) were both members of the raiding team. Both the witnesses have proved the inspection and deposed that the single phase electronic meter was found tampered with. On testing with the standard Accu check meter, it was found to be slow by 81.4%. All seals were tampered and refixed. Meter was segregated at site. Illegal resistance was found connected, REV LED was found short circuited by additional soldering. They also proved the documents prepared at the site and the connected load. 3.2 Ashok Kumar (PW1) was sought to be reexamined and on re examination conducted on 12.03.2012, he identified the meter seized & also the seizure memo. He also pointed out the illegal resistances soldered un authorisedly on the PCB inside the meter. He also pointed out the second LED, which had additional soldering, between the two legs. On being cross examined, by Sh.Rajesh Aanand, ld. defence counsel Ashok Kumar (PW1) denied any knowledge that 3 separate single phase meters for each floor were installed in the premises. He further deposed that at the time of inspection, in the meter box only seized meter was installed. He denied the suggestion that BSES Vs. Ritu Chauhan Page 3 of 10 4 there was no lock & key, to the meter box. He had no knowledge that relations between the accused and her husband Madho Singh were strained or that they were living separately on ground and the second floor respectively. He was not aware if accused Ritu Chauhan has filed several complains in 2006, intimating the complainant company & local police regarding illegal abstraction of electricity by Madho Singh from her meter, which was installed on ground floor. He, however, admitted that accused had herself made complaint to the company and requested for inspection of the premises to stop illegal abstraction of electricity. He also admitted that it was complained by the accused that her husband Madho Singh was committing theft of electricity from her meter. He also admitted that company did not have any other reason for inspection of this premises. On being further crossexamined on 12.03.2012, he admitted that inspection dated 08.10.2008 was conducted only on account of complaint by the accused. He admitted that no enquiry was made from the occupants of ground & first floor. No witness had come up during or subsequent to the inspection to depose that accused had tampered with the meter. He also admitted that all the 3 meters pertaining to each floors were installed at the ground floor at one place. On playing the CD, it was pointed out to the witness that meter box contained four meters and that there was no lock or latch to put in the lock. He explained that at the time of opening the meter box, bolt of the meter box had come off. He admitted that in videography lock & key and the bolt getting dismembered were not covered. He admitted that accused explained to him at the time of inspection about her complaint regarding theft of electricity. He admitted that the certificate by BSES Vs. Ritu Chauhan Page 4 of 10 5 ERDA for accuracy of Accu check meter was not on the court record. He denied that the meter was not tampered with or that no unauthorised soldering was detected.
3.3 Gagandeep (PW5) was not crossexamined despite opportunities. Sudeep Bhattacharya (PW3) proved his speaking order Ex.CW1/H. Praveen - Videographer (PW4) proved the CD Ex.CW1/G. 4 Incriminating evidence was put to the accused and her statement u/sec.313 Cr.P.C. was recorded. She admitted her presence at the time of inspection and denied any theft of electricity. She denied any deliberate tampering with the meter and stated that resident of ground floor had been illegally drawing electricity from her meter & she had complained to DESU as well as BRPL. She admitted removal of the meter in her presence and denied sealing thereof. She denied service of show cause notice for personal hearing. She stated that findings of Accu meter to be selfserving statement against her. She sought opportunity to lead defence evidence, but closed her evidence without examining any witness.
5.1 Sh.Rajesh Kumar, ld. proxy counsel for the complainant has argued that the seizure, removal & segregation of the meter was conducted at the site in the presence of the accused which is covered in videography. Presence of illegal resistance and unauthorized soldering is depicted in the videography and also proved by Ashok Kumar (PW1). Meter was found to be BSES Vs. Ritu Chauhan Page 5 of 10 6 slow by 81 % as indicated by the Accu check meter, used at the time of inspection, in the presence of the accused. There is no dispute as regards the accused being user and registered consumer with respect to the inspected premises and meter in question. The speaking order Ex.CW2/4 has been proved by the assessing officer himself, which also holds it to be a case of dishonest abstraction of electricity. Sh.Rajesh, therefore, submitted that the complainant's case is proved beyond reasonable doubt.
5.2 Sh.Rajesh Anand, ld.defence counsel has extensively read the crossexamination of PW1. He has submitted that the witness has admited that it was only on the complaint of the accused that the premises was inspected. It is argued that crossexamination of PW1 conducted on two different dates, brought forth different responses on similar questions. On being crossexamined, for the first time witness denied existence of 3 meters, in the same premises. However, when being crossexamined second time, on being confronted with the videography, he admitted that there were three meters and 1 submeter in the same meter box. Witnesses was also unable to explain that the meter was under the lock & key of the accused. He admitted that inspection was conducted only on the instance of the accused. It is argued that the inspection and the conduct of witnesses indicates it to be biased inspection. The complainant, who had been crying hoarse about theft of electricity from her meter, has been implicated as an accused, whereas the other persons, against whom she had made complaint, were totally spared. Despite having explained in detail to Ashok Kumar (PW1), the manner in BSES Vs. Ritu Chauhan Page 6 of 10 7 which occupants of ground & second floor were committing theft, the matter was not investigated from that angle. It is next argued that the calibration of the Accu check meter has not been proved. There is no explanation as to why the meter was segregated at the site, despite NABL accredited laboratory having been existence since June2008. The raiding team performed the role of accuser, investigator and the arbitrator. Proof of service of show cause notice for personal hearing is not established. There is no evidence on record that the accused had any dishonest intention for illegal abstraction of electricity. There is no consumption pattern on record to corroborate the evidence of tampering of the meter. It is further argued that accused has been falsely implicated at the instance of her husband with whom she has estranged relations, in connivance with the officials of the complainant company. 6.1 I have heard the ld. counsels and with their assistance perused the records and the documents relied upon.
6.2 There is ofcourse no dispute to the fact that accused Ritu Chauhan @ Rita Chauhan was the registered consumer of the meter in question and user of the inspected premises.
6.3 The defence raised is primarily that the whistle blower had been indicted. She was the victim herself, who has been further harassed, on account of the lopsided inspection and apparent connivance with the actual offender. A conspectus of the evidence indicates force in this contention of the BSES Vs. Ritu Chauhan Page 7 of 10 8 defence. The complaint is absolutely silent as regards the reason for inspection. However, during the crossexamination of star witness Ashok Kumar (PW1), it came up that the inspection was conducted on the request of accused herself that she suspected her estranged husband Madho Singh (Occupant of first floor) to be illegally abstracting electricity from her meter. In the videography, Ex.CW1/G, accused is seen explaining the mode of theft being committed by the other occupants of the premises on different floors from her meter. There, ofcourse, is no inspection or investigation on those lines. There is also no explanation as to why the complaint made by the accused has not been made a part of the court record and as to what action was taken there on by the complainant company. There is no pleading or evidence as regards the load connected through the said meter on other floors of the building. On that score, the inspection and consequential proceed same to be bias & dishonest. 7.1 There again is no justifiable explanation as to why the meter was not sent to the laboratory, despite NABL accredited laboratory having been set up in June2008, whereas the inspection was conducted in October2008. There is no evidence to indicate that the inspection team had the authority to segregate the meter at the site. Though, it is submitted, on behalf of the complainant, that meter was segregated at the site but the process of segregation is not covered in videography. It is neither pleaded nor proved that members of the raiding team, were competent and trained to segregate the meter. The alleged resistance found connected to the terminals or short circuiting of some other part of the meter is not proved to be deliberate act of BSES Vs. Ritu Chauhan Page 8 of 10 9 the accused to tamper the meter. The possibility can not be ruled out that the same was integral part of the original meter. I find merit in the submission that inspection team can not be accuser, investigator and the arbitrator rolled in one.
7.2 The calibration certificate of the Accu check meter has not been placed on record, in support of the averment that accu check meter found the installed meter to be 81 % slow. I also find merit in the argument that accused had no dishonest intention of tampering with the meter or committing theft of electricity; if she had the knowledge of the meter being tampered with or if she had willfully tampered with the meter; she would not stick her neck out and complain about the suspected theft to the complainant company. 7.3 The allegations that meter was in the control of the accused is also not established. Admittedly the accused occupied, the second floor of the premises and meter was installed at the ground floor. The meter box is not proved to have been under the lock & key of the accused. Though, it was alleged that there was a latch, board & lock but there is no evidence to this effect. The fact that meter box had 3 other meters installed in it and also that all the occupants of the ground floor, who was nonelse but the estranged husband of the accused, against whom, she had been complaining; indicates that the meter was not under the exclusive control of the accused. BSES Vs. Ritu Chauhan Page 9 of 10 10 8 There is also no comparison of consumption pattern of the suspected meter with the newly installed meter, there is thus, no corroboration to the averment that meter was tampered with. In the aforesaid facts and circumstances, I am of the considered opinion that complainant has failed to prove its case. Investigation is apparently biased. The Accused is, thus, entitled to honourable acquittal and is accordingly acquitted. Bail bonds are cancelled and surety is discharged. File be consigned to record room.
Announced in the open (NAROTTAM KAUSHAL)
court on 19.01.2013 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
BSES Vs. Ritu Chauhan Page 10 of 10
11
CC No.333/09
19.01.2013
Present AR for the complainant with
Sh.P.M.Bhatt, counsel for the complainant
Accused on bail
Vide separate judgment announced today, accused Ritu Chauhan @ Rita Chauhan has been acquitted from the charges u/sec.135 (1) (a) r/w/sec.138 of the Electricity Act.
Bail bonds are cancelled and surety is discharged.
File be consigned to record room.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/19.01.2013 BSES Vs. Ritu Chauhan Page 11 of 10