Delhi District Court
Complainant vs Prashant Rana on 4 July, 2014
Page 1 of 15
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 01/2012
ID No. 02405R0354082011
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Prashant Rana
Son of Sh. Gurbachan
2. Dharam Biri
Both at:
Shop at RZ401,
A/1, Khasra No. 92/5
Sadh Nagar, Near Pradhan Chowk
Palam Colony,
New Delhi
......................... Accused
CC No.01/2012
Page 2 of 15
Date of institution: ........................ 07.01.2012
Arguments heard on: ........................ 01.07.2014
Judgment passed on : ........................ 04.07.2014
Final Order: ........................ Acquitted
JUDGMENT:
1. The brief facts of the case are like this. On 4.4.2011 at 3:30 pm a joint inspection team headed by Sh. A D Rai, Sr Manager (Enforcement) of the complainant company inspected the shop bearing number RZ 401, A/1, Khasra No.92/5, Sadh Nagar, Near Pradhan Chowk, Palam Colony, New Delhi (hereinafter referred to as inspected premises). The accused no.1 is user of the inspected premises where one single phase electronic meter No. 24136780 with K No.2660 W2731505 was installed in the name of accused no.2. The meter was checked. RTC of the meter was found failed. The meter was displaying current date and time as 06.03.2000 and 03:21 instead of 04.04.2011 and 15:30 hours. It was suspected that meter was subjected to ESD/HF in order to manipulate the consumption of electricity through meter. A connected load of 6.079 KW was found for commercial purposes. The video of the inspected premises was taken. The meter was removed for testing in the laboratory and the supply was restored through new meter No. 24325662. Inspection CC No.01/2012 Page 3 of 15 report, meter details report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same.
2. The meter was sent to the laboratory for testing. On 29.04.2011, the meter was tested in the laboratory. The meter was showing current date as 31.03.2000 instead of 29.04.2011. It was found that maximum demand history of the meter has occurred more than once in a month. The meter was disturbed and tampered which indicated that it was subjected to abnormal external injections such as ESD/HF. The meter test report was issued. The accused no.2 has aided and abetted the commission of offence of theft of electricity by accused no.1. A show cause notice was issued to the consumer to file the reply by 08.06.2011 and to attend the personal hearing on 15.6.2011. The accused no.1 attended the personal hearing and filed a written reply. The assessing officer considered the documents on record, consumption pattern and submissions of the accused and passed the speaking order dated 23.6.2011 whereby a case of dishonest abstraction of energy was established. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint. CC No.01/2012 Page 4 of 15
3. Accused no.1 was summoned for the offence U/s 135/138 of Electricity Act and accused no.2 was summoned for the offence u/s 135/138 read with section 150 of the Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which they pleaded not guilty and claimed trial.
4. The complainant examined six witnesses. Complainant evidence was closed. Accused were examined U/s 313 Cr.P.C wherein their defence is of denial simplicitor. However, they have examined one witness in defence evidence.
5. PW2 is head of joint inspection team. PW4 is the member of joint inspection team. PW5 has taken the video of the inspected premises. PW3 has tested the meter in question. PW1 is assessing officer who has passed the speaking order. PW6 (inadvertently recorded as PW4) is authorized representative of the complainant who has filed the complaint.
6. PW2 A D Rai stated that on 4.4.2011 at 3:30 pm he along with PW4, other officials of the complainant company and PW5 Jai Prakash photographer from M/s Arora Photo Studio inspected the CC No.01/2012 Page 5 of 15 inspected premises. The accused no.1 is user of the inspected premises where one electricity meter was installed in the name of accused no.2. The meter was checked. RTC of the meter was found failed which was showing wrong date and time. A connected load of 6.067 KW was found for nondomestic purposes. The video of the inspected premises was taken by PW5. CD Ex. CW1/4 was prepared. He has identified the video in the CD as it was recorded at the time of inspection. The meter in question was removed and taken into possession and sent to laboratory for testing. The supply was restored through a new meter. Inspection report, load report and seizure memo Ex. CW1/13 were prepared and offered to the accused who refused to receive and sign the same. He has identified the accused. One sealed bag bearing No. 85427 BRPL is produced and opened in the court. The meter No. 24136780 Ex. P1 is taken out from the bag. The meter is duly identified by him as it was removed at the time of inspection. PW4 Bharat Bhushan has corroborated the version of PW2 in his examination in chief.
7. During crossexamination by accused no.1, he stated that he did not have the written authorization and cannot produce the same in the court. All the seals of the meter were intact. The meter was not CC No.01/2012 Page 6 of 15 segregated at site. There was no physical tampering in the meter. The service line and meter terminal were O.K. The accuracy of the meter was not checked. The load was assessed on the basis of rating plates as well as by their experience. The rating plates are not covered in video. The welding machine was in operation when they reached at site for inspection but video does not show that machine is in operation. There was no resistance from the consumer. The reports were sent by courier to the accused. The meter was replaced by MMG official on the same day in his presence but meter change report does not bear his signature. He has no idea that service line was changed on 05.08.2010 as service line becomes faulty/damaged in an accident regarding which complaint was given by the accused to the department. The suggestion is denied that there was no tampering in the meter.
8. During cross examination by accused no.2, he stated that there is RTC failure in many meters.
9. During cross examination by accused no.1, PW4 stated that all the seals of the meter were found intact. The accuracy test of the meter was not checked. The entire load was found running and connected with the meter. He was not personally authorized to CC No.01/2012 Page 7 of 15 conduct the inspection in the inspected premises. The accused did not sign any document prepared at the time of inspection. The meter was replaced by MMG officials. He cannot say whether meter was tampered or not. There was no other fault in the meter except RTC failure. The suggestion is denied that RTC of the meter was not found failed or inspection was not carried out.
10. No cross examination was done by accused no.2 though opportunity was given.
11. PW 5 Jai Prakash stated that on 04.04.2011 at 3.30 p.m he along with officials of complainant company went to the inspected premises and conducted the video of the inspected premises. He has handed over the camera and cassette to Sh Vivek Arora, proprietor of M/s Arora Photo Studio, on the same day who downloaded the data in the computer and prepared CD Ex.CW1/4. He has identified the contents of CD as same were recorded at the time of inspection.
12. During cross examination by both the accused the suggestion is denied that CD is false and fabricated.
13. PW3 Nikhil Kumar stated that on 29.04.2011 he has received one single phase electronic meter no.24136780 sealed in a bag no.435760 with yellow colour seal no.38059 for the purpose of CC No.01/2012 Page 8 of 15 testing. He tested the meter. The hologram and plastic seals were found O.K. The accuracy of the meter was O.K. He downloaded the data from the meter and found that meter is showing current date as 31.03.2000 instead of 29.04.2011. The maximum demand history has occurred more than once in a month. He concluded that meter is subjected to abnormal external injections such as ESD/HF/EHV. He resealed the meter in a bag no.435760 with seal no.85427 and sent it to the concerned department. He has issued the report Ex.CW2/1 bearing his signature at point A. The report is approved by Sh Bimal Mondal which bears his signature at point B.
14. During crossexamination by accused no.1, he stated that voltage in the meter was normal. He cannot say the month in which maximum demand has occurred more than once in a month. The suggestion is denied that RTC of the meter was O.K or maximum demand was never occurred more than once in a month.
15. No cross examination was done by accused no.2 though opportunity was given.
16. PW1 Anuj Kumar is Assessing Officer. He stated that he has been working as an Assessing Officer with the complainant company since October,2010. On 15.06.2011 accused no.1 attended CC No.01/2012 Page 9 of 15 the personal hearing on the basis of show cause notice dated 09.05.2011 and submitted that he has not tampered the meter. A note sheet Ex. PW1/B was prepared. He has considered inspection report, laboratory report, consumption pattern from 04.04.2010 till 28.03. 2011, submissions of the accused no.1 and passed the speaking order Ex. PW1/A dated 23.06.2011 which bears his signature at point A. The consumption was 64 units per month which is 7% of the assessed consumption/connected load.
17. During crossexamination by both the accused, he stated that accuracy of the meter was correct. He admitted that meter was not slow. The meter was stopped through ESD device that is why the consumption was not proper. The laboratory report does not show that meter was stopped for a particular period. Letter mark A was given in reply the consumer. The consumption pattern of the new meter was not taken at the time of passing the speaking order. There was no external device with respect to the tampering of meter. There was no foreign element in the meter.
18. PW6 Pankaj Tandon (inadvertently recorded as PW4 on 24.01.2014) stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis CC No.01/2012 Page 10 of 15 of authority Ex. CW1/A given to him by the complainant.
19. The accused have led defence evidence. DW1 Prashant Rana is accused no.1. He stated that on 05.08.2010 there was an accident with a truck as a result service line of the meter in question was disconnected. He made a complaint to BSES and supply through service line was restored on the same day. MCR Ex.DW1/A (inadvertently recorded as NCR) was issued by the officials of BSES. He wrote a letter Ex.DW1/B dated 13.06.2011 to the complainant.
20. During cross examination by the complainant, he stated that meter no.24136780 was installed in the name of his mother. It is correct that he has not lodged any complaint when the truck hit against service line.
21. No cross examination was done by accused no.2 though opportunity was given.
22. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that tampering in the meter was done by the accused. The accused were consuming the electricity through tampered meter.
CC No.01/2012 Page 11 of 15
23. Ld counsel for the complainant submitted that laboratory report Ex. CW2/1 clearly shows that the meter was not showing the correct date and maximum demand history occurred more than once in a month and this can happen only if meter is subjected frequently to abnormal external injections such as ESD/EHV/HF. He further submitted that the entire evidence on the file shows that there was tampering in the meter. Ld counsel for the accused submitted that all the seals were intact and no foreign element was found inside the meter so there is no question of any tampering in the meter. He further submitted that mere RTC failure, if any, does not tentamount to tampering in the meter as it can be by way of any reason.
24. Heard and perused the record. There are certain admitted facts. It is clear from the evidence on record that accused no.1 is the user of inspected premises. Meter bearing no.24136780 was installed in the inspected premises on 05.08.2010 and MCR Ex.DW1/A was issued to this effect. This MCR is nowhere questioned by the complainant. The meter is installed in the name of accused no.2 who is the registered consumer.
25. It is clear from the the testimony of PW2, 4 and 5 that on 04.04.2011 an inspection was carried out in the inspected premises. CC No.01/2012 Page 12 of 15 The testimony of PW2 and 4 shows that real time clock of the meter was found failed as meter was showing wrong date and time. The meter was removed and taken into possession. The meter was sent to the laboratory for testing. The meter was tested by PW3 and issued the laboratory report Ex. CW2/1. The laboratory report shows that meter was not reflecting the actual date. The report is silent about the time. No explanation is forthcoming why the meter was not checked with respect to the time. The testimony of PW2 and 4 shows that all the seals were intact. The testimony of PW2 shows that there was no physical sign of tampering. The service line at meter terminals were O.K. The testimony of PW3 shows that accuracy of the meter was normal. To my mind, it is not possible to tamper with the meter once all the seals as well as meter terminals were found O.K. No foreign material was found inside the meter. It is not possible to disturb the internal mechanism of the meter if the seals are intact. No external device was found at the time of inspection or no marks were found on the meter to show that meter was subjected to external disturbances. The laboratory report that maximum demand history of the meter has occurred more than once in a month does not inspire confidence as there is nothing on record to disclose the month in which maximum CC No.01/2012 Page 13 of 15 demand history has occurred more than once. There is no evidence about the maximum demand history of the meter. The complainant could have proved this fact by producing CMRI data. The data is in possession of the complainant which has not been placed on record. The withholding of best possible evidence calls for an adverse inference against the complainant. No physical tampering was found in the meter so mere RTC failure does not signify tampering of meter as there can be plenty of other reasons for its failure. Support is drawn from writ petition Civil No. 5470/2008 titled as Mukesh Mehra Vs. BSES Yamuna Power Ltd. decided on 18.2.2010 by Hon'ble Mr Justice Sanjeev Khanna.
26. The speaking order is defective. The complainant has not placed CMRI data on record. The consumption pattern from 5.4.2010 till 28.03.2011 was taken into consideration by PW1 at the time of passing the speaking order which shows that there was consumption of 64 units per month which is 7% of the assessed consumption. The meter in question was installed on 05.08.2010. The consumption pattern of meter in question could have been considered from that day onwards. There is nothing in the speaking order that consumption pattern of the meter prior to 05.08.2010 was taken into consideration. CC No.01/2012 Page 14 of 15 The consumption pattern is not placed on record for the reason best known to the complainant as consumption pattern could have supported the findings given by PW1 in the speaking order. The consumption pattern of new meter was not taken into consideration and there is no explanation why the consumption pattern of the new meter was not considered by the Assessing Officer. The comparison of the consumption pattern of the old with new meter would have shown whether consumption pattern has changed or not. The non explanation calls for an adverse inference against the complainant. It puts a question mark on the speaking order Ex. PW1/A as such same is not relied upon.
27. The accused has taken the defence that one truck hit against the service line which got damaged. The said plea was taken by the accused no.1 before Assessing Officer by filing a letter mark A. He has also made a complaint Ex.DW1/B to the Business Manager, Andrews Ganj wherein he has reflected this fact. The letter mark A as well as complaint Ex.DW1/B does not advance the defence of the accused as accused have nowhere lodged any complainant with the Police on the date of accident i.e. 05.08.2010. The truck number is not on record. The complaint was not even immediately given to the CC No.01/2012 Page 15 of 15 complainant. There is no evidence on the record from the side of the accused that on 05.08.2010 a truck hit against the service line which got damaged as a result defence of the accused is not relied upon.
28. The complainant has failed to lead any evidence to show that how accused no.2 has aided and abetted the commission of the offence by accused no.1. There is no evidence to this effect on record.
29. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against accused beyond shadow of reasonable doubt and accordingly accused are acquitted of the offence charged. The amount deposited by accused be returned back to them with an interest of 6 % from the date of deposit of the amount till its return after the expiry of the period meant for appeal. File on completion be consigned to record room.
Announced in the open
Court on dated 04.07.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.01/2012