Delhi District Court
Bypl vs . Ravindra Tubes Ltd. on 3 August, 2013
CC No.81/07
BYPL Vs. Ravindra Tubes Ltd.
IN THE COURT OF SHRI ARUN KUMAR ARYA,
ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
(ELECTRICITY), TIS HAZARI COURT, DELHI
CC No.817/07
Unique case ID No.02402R0854522008
BSES Yamuna Power Ltd.
Having its Registered office at
Shakti Kiran Building,
Karkardooma, Delhi-110032
(Through its authorized representative
Sh.Jitender Shankar ) ............ Complainant
Vs.
1. Ravindra Tubes Ltd.
4/21-22 FF, Banerjee Building,
Asaf Ali Road, Delhi
2. Sh.M.B.Jindal
4/21-22 FF, Banerjee Building,
Asaf Ali Road, Delhi
3. Sh. P.D.Goel
4/21-22 FF, Banerjee Building,
Asaf Ali Road, Delhi
4. Sh.S.Banerjee
4/21-22 FF, Banerjee Building,
Asaf Ali Road, Delhi. ................ Accused
Date of Institution : 08.08.2006
Judgment reserved on : 19.07.2013
Date of Judgment : 03.08.2013
JUDGMENT
Page 1 of 24 (Arun Kumar Arya)
ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
1. The complainant is a company incorporated under the Companies Act, 1956 (to be referred as "company" hereinafter) having its registered office at Shakti Kiran Building, Karkardooma, Delhi - 110032 and having its branch office at different places in Delhi. The company is the licensee for supply of electricity in major parts of Delhi, including the premises of accused i.e 4/21-22 FF, Banerjee Building, Asaf Ali Road, Delhi where the offence has been allegedly committed by the accused. The present case was filed through Sh. Jitender Shankar, Authorized Officer. Later on, Sh.C.B.Sharma and thereafter Sh. Rajeev Ranjan was substituted as authorized representative by order of this court.
2. As per complaint, on 31.05.2006, a team comprising of (i) Sh. D.K.Arya (Assistant Manager), (ii) Sh. Sanjeev Kumar ( Trainee Engineer ) alongwith other team members inspected the premises bearing no. 4/21-22 FF, Banerjee Building, Asaf Ali Road, Delhi. At that time, inspecting team found that accused no.1. Ravinder Tubes Ltd. was the user of the said premises with accused no. 2 Sh. M.B.Jindal as its owner and the said premises were being used for commercial purposes. One three phase electronic meter no. 17023382 was installed there for supply of electricity to the said premises against connection bearing KCC Ref. No. 112021001082 in the name of accused no. 4, Sh. S. Banerjee. The meter box plastic and hologram seals were tampered and re- fixed. The meter half seals and meter terminal seals of the meter were tampered and re- fixed and even the ultrasonic welding was found refixed and tampered. Since the meter was found to be tampered, the officials of the company checked the accuracy of the said meter with the accu check instrument and found that the said meter was running slow by Page 2 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
61.19% i.e it was recording less energy than actually flowing through it by 61.19%. In order to know the reason for slowness of the meter, the officials of the company segregated the said meter in the presence of the representative of the accused Sh. Susheel Kumar. On opening the said meter, it was found that one CT potential wire had been disconnected deliberately which was causing the less recording of consumption. Thus it was found that accused no.1 and 2 were using, consuming and abstracting the electricity illegally through the tampered meter by tampering the same and committing dishonest abstraction of energy. The accused no. 4 who is the registered consumer of the said connection, as alleged had aided and abetted the commission of said offence of theft of electricity by causing and allowing the said meter to be tampered to such an extent.
3. The officials of the company clicked photographs at the site with the help of digital camera and also conducted videography by photographer from M/s. Arora Photo Studio. The officials of the company pasted IR on the said tampered meter and restored the supply through the said meter.
4. The total connected load which was illegally used by the accused for commercial purpose was assessed by the inspection team as 46.678 KW. A load report was also prepared at the time of inspection.
5. The official of the company gave a show cause notice to accused dated 31.05.2006 for filing reply on 06.06.2006 and to attend the personal hearing on 14.06.2006. The Page 3 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
representative of the accused refused to sign the documents i.e. inspection report, load report and show cause notice. The accused did not file any reply nor attended the personal hearing and thereafter another show cause notice dated 06.06.2006 to file reply and to attend the personal hearing on 17.06.2006 was served upon the accused.
6. The accused filed a reply through accused no. 3, Sh. P.D.Goel who being the Branch Manager was booked for the offence of theft of electricity and tampering of said electricity meter. He attended the personal hearing before the Assessing officer on 17.06.2006. The assessing officer after considering the facts and circumstances of the case, the inspection report, load report,show cause notice, reply and submission of the accused, passed a speaking order dated 02.07.06 against the accused persons whereby a case of dishonest abstraction of energy was made against the accused persons.
7. Since it was a case of dishonest abstraction of energy, a theft bill as per the DERC regulations and tariff was raised by the complainant for Rs. 13,26,884/- with due date as 25.07.2006 and was served upon the accused persons, but the accused persons have failed to pay the theft bill.
8. The accused persons were summoned U/S 135 of the Electricity Act 2003 by ld. predecessor of this Court as per order dated 10.07.2007 after recording the pre - summoning evidence. A notice u/s 251 Cr.PC was also framed against accused no. 1 (Ravindra Tubes Ltd through its director Sh.M.P.Jindal and Page 4 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
accused no. 3 Sh. P.D.Goel by ld. predecessor of this Court on 05.05.2008 to which accused persons pleaded not guilty and claimed trial. Accused no. 4 (S.Banerjee ) stated to have expired before inspection.
9. Company in support of its case examined 5 witnesses namely PW 1 Sh. Sanjeev Kumar (Diploma Engineer), PW-2 D.K.Arya (Sr. Manager), PW-3 Rajeev Ranjan (Authorized Representative), PW-4 Prahlad Singh and PW-5 Sh. Hari Sudan Semwal (DGM). However, accused examined DW-1 Sushil Kumar Singhal, DW-2 Ravi Chopra, DW-3 Babroo Bhan and DW-4 Madhusudhan Chowdhary in his defence.
10. PW-1 Sanjeev Kumar deposed that on 31.05.2006, a team comprising him and Sh. D.K.Arya (Assistant Manager) along with other team members inspected the premises bearing no. 4/21-22 FF, Banerjee Building, Asaf Ali Road, Delhi. During inspection the team found that accused no.1. Ravinder Tubes Ltd. was the user of the said premises with accused no. 2 (M.B.Jindal) as its owner and the said premises were being used for commercial purposes. One three phase electronic meter no. 17023382 was installed there for supply of electricity to the said premises against connection bearing KCC Ref. No. 112021001082 in the name of accused no. 4, Sh. S. Banerjee. The meter box plastic and hologram seals were tampered and re- fixed. The half seals and terminal seals of the meter were tampered and re-fixed and even the ultrasonic welding was found refixed and tampered. As the meter was found tampered, the officials of the company checked the accuracy of the said meter with the accuchek instrument and found Page 5 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
that the said meter was running slow by 61.19% i.e it was recording less energy than actually flowing through it by 61.19%. They segregated the said meter in the presence of the representative of the accused Sh. Susheel Kumar. On opening the said meter, it was found that one CT potential wire had been disconnected deliberately which was causing the meter to record less consumption. The accused no. 1 and 2 were using, consuming and abstracting the electricity illegally through the tampered meter by tampering the same and were committing theft of electricity. The accused no. 4 who is the registered consumer of the said connection has also aided and abetted the commission of theft of electricity by allowing the said meter to be tampered.
A photographer from M/s. Arora Photo Studio clicked photographs (Ex.PW-2/5) at the site with the help of digital camera and also conducted videography (CD Ex.PW-2/6). An IR was pasted on the said tampered meter and the supply was restored through the said meter by the member of raiding team.
The total connected load used by the accused for commercial purpose was assessed by the inspection team as 46.678 KW. A load report was also prepared at the time of inspection. The reports and documents were not signed by the accused at the spot. The accused was booked for the offence of dishonest abstraction of energy.
The officials of the company also prepared and served upon the accused a show cause notice to reply by 06.06.2006 and also to attend the personal hearing on 14.06.2006. The Page 6 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
representative of the accused refused to sign the documents i.e. inspection report, load report and show cause notice (exhibited as Ex.PW-2/1 to Ex.PW-2/3) which bore his signatures at point A Since it was a case of dishonest abstraction of energy, a theft bill (Ex.PW-2/4) as per the DERC regulations and tariff order was raised by the complainant for Rs. 13,26,884/- with due date as 25.07.2006 and was served upon the accused persons.
11. PW- 2 D.K.Arya (Sr. Manager) who was another member of raiding team deposed on the same lines as that of PW-1 Sanjeev Kumar.
12. PW-3 Sh. Rajeev Ranjan deposed that the present complaint Ex. CW 1 / 2 was filed by Sh. Jitender Shankar. He was authorized vide letter of authority in his favour Ex. CW 1/ 1.
13. PW-4 Sh. Prahlad Singh (Photographer) wanted the CD to be displayed in the court for his deposition, however when this CD was displayed on laptop it did not contain any media files.
14. PW-5 Sh.Hari Sudan Semwal, DGM (Vigilance) deposed that in the year 2006, he was posted in the office of BYPL as Sr. Manager in the Enforcement department. He was assigned the office duty of issuing show cause notice in the cases of DAE, affording personal hearing to the consumers and passing speaking orders in the said cases. The present case was marked to him. As per the allegations in the inspection report, the Page 7 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
meter of the consumer was tampered as meter box seals, meter terminal seals, meter half seals, meter ultrasonic seal were tampered and the meter was found slow about 61%. The meter was segregated at the site by the inspection team and one CT potential wire was found disconnected. During inspection, the inspecting team had issued a show cause notice to the consumer to which the consumer did not reply.
Thereafter, he issued another show cause notice (Ex.CW1/4) dated 06.06.2006 and accorded personal hearing to the consumer. A reply (Ex.CW1/6) was filed on behalf of consumer and one Mr. Purshottam Das Goel attended the personal hearing before him on 17.06.06. The letter of authority issued by the accused no.1 in favour of Purshottam Dass Goel is Ex.PW5/1. The consumer represented that the AC plant in their premises was not working since last about 6 years and also disputed the connected load as calculated by the inspection team.
He analyzed the inspection reports, reply and submissions of the consumer, and also cross checked the allegations from the inspection team members and thereafter passed the speaking order dated 02.07.2006 (Ex.CW1/7). He concluded that in the given facts and circumstances a case of DAE was made out against the consumer and directed the office to raise the DAE bill as per the tariff and regulations.
15. In his statement recorded u/s 313 Cr.P.C., accused persons had denied the allegation and pleaded that the case of the company was false and fabricated.
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16. DW-1 Sushil Kumar Singhal deposed that he was working as Account Officer with the accused no.1 Ravindra Tubes Ltd. All the seals and the meter were in the same condition as those were installed by the company and the accused no.1 or any of its official never touched or tampered the same in any manner whatsoever. The meter box seals are plastic seals, thus, cannot be tampered and even the hologram seals cannot be refixed at all. The official of the company broke open the seals to tamper the material evidence. The allegations of the CT potential wire found disconnected are false and incorrect. The load as shown was fabricated to raise an exorbitant high bill in addition to slapping a false case of theft of electricity. The accused no. 1 had reduced its operation from the said office much before the alleged date of inspection. A letter dated 22.03.2006 to the VAT department for cancellation of the registration certificate under the Central Sales Tax Act is marked as Mark A. The confirmation from the VAT department regarding the cancellation in terms of the said request letter was Mark B. The AC plant as shown in the load report was not in a working condition and also not connected to the electricity supply system.
17. DW-2 Sh. Ravi Chopra deposed that he is the proprietor of Ms. International Air Conditioning. His firm is registered with the Delhi Shops and establishment Act 1954 since 25.11.1985. He deals in repairing and maintenance of Air Conditioner and further deals with old Air conditioner. The copy of the registration certificate is DW 2/1. He contacted M/s Ravindra Tubes Ltd. at 4/21, Asaf Ali Road, Delhi 110002, for the purposes of purchasing their old A/c plants. He inspected the premises of M/s Ravindra Tubes on 07.03.2006 and found two old A/c plants of Voltas Page 9 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
Make, model 50 V6 and 50 V8. He further observed that the air conditions were not in working condition and were beyond repair. He valued the two A/cs to the tune of Rs. 25,000/- and offered M/s Ravindra Tubes to sell the same to him, vide communication of the even date, the certified copy of the same is Ex. DW 2 / 2.
18. DW-3 Sh. Babroo Bhan, Vat Inspector deposed that the accused no. 1 M/s Ravindra Tubes at 4/21, Asaf Ali Road, New Delhi was registered with the VAT Department Delhi w.e.f. 01.04.2005 and was allotted TIN Number as 07660018733. The company applied for the cancellation of its registration with the VAT Department and its registration was cancelled w.e.f 22.03.2006. The records of the same is Ex. DW 3 / 1.
19. DW-4 Madhusudhan Choudhary deposed that he was working as Operations Manager with Voltas Ltd. He had brought office copy of the letter dated 27.9.2006 written by Mr. P.D. Goel, Branch Manager, Ravindra Tubes Ltd. to M/s Voltas Ltd. and also the copy of the letter dated 28.09.2006 written by Sh. S.K. Gulati, the then area manager - Customer Care, Voltas Ltd. to M/s Ravindra Tubes Ltd. vide reference no. SS:ACBD:GO:S-120-SKG. Sh. S.K. Gulati has already retired from the services of M/s Voltas Ltd. on 31.12.2008. The letters brought by him are exhibited as Ex. DW4/1 and DW4/2 respectively. As per this communication Voltas Ltd affirmed the capacity of Air Conditioners as 7 and 5 tons.
20. Ld. Counsel for the accused argued that no raid was conducted at the premises of the accused and the case is purely based on hearsay evidence. During cross examination, PW-1 Page 10 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
Sh. Sanjeev Kumar admitted that he did not know whether D.K.Arya was having any written or oral instructions from any superior officer for conducting the inspection in question. There were 3 - 4 other meters installed adjacent to the subject meter. They inspected only the subject meter and not the other meters available. He admitted that he had noted down the details of the inspection on a rough paper but the same was not placed on record. The fact of destroying of abovesaid rough papers after incorporating the contents of inspection at the office of the consumer, did not find mention in the inspection report. It was strongly urged that the inspection report dated 31.05.2006 was totally fabricated in the absence of these rough papers prepared at the site. There is no such photograph or Video CD showing the abovesaid fact. They were not carrying the sample hologram seals at the time of inspection. 7-8 persons from consumer side were present at site, however they were not made as a witness. The inspecting team had not seized any document including bill book which shows that the unit was operational.
PW-2 Sh.D.K.Arya, admitted that he was not carrying any authority in writing from his seniors for carrying out this raid. No sample hologram seal has been placed on record. The factum of presence of two lineman at the time of inspection is not mentioned in the inspection report. He further admitted that he was not aware of any rule in which each member of the team, irrespective of the designation, was required to sign the inspection report. On specific asking the question whether the plastic seals on the meter box were intact and broken or not, the witness replied that the seals were intact but were found tampered. The witness was further asked to specify the word tampers as stated in the above stated line, to which he Page 11 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
stated that the plastic seal when fixed in the original form is removed from its lock and then re-fixed is said to be tampering. The holograms seals on the meter were not broken however re-fixed.
The witness admitted that if the hologram seals were removed from the meter box, the act of said removal leaves an impression of hologram on the meter box, however when the same is re-fixed, this can be detected only after a close scrutiny.
PW-2 admitted that no sketch of the alleged tampering of meter seals and meter box seals was prepared by team. The meter terminal seals can be opened only after breaking the same and not otherwise. No photographs and video CD were taken of any such close scrutiny as mentioned above. No such impression on the meter is proved on record.
No material (including meter) was seized by the team. There was no resistance from the consumer side. The load of the AC plant unit which was shown as 30 KW in the load report, was not running at the time of inspection. PW-2 had included the load of AC plant in the load report without checking that the same whether same was working or not. The AC plant water motor which is shown to be of 5.595 KW was also not made to run at the time of inspection. He did not check whether the same was in working condition or not.
21. During cross examination PW-5 admitted that before passing the speaking order, he had considered the inspection report, load report, photographs, CD of video, consumption details and objections of the accused. In the speaking order he had not Page 12 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
mentioned the factum of considering the video CD. He did not remember whether he had inquired the supply of said CD's to the consumer at the time of personal hearing. He admitted from the photographs filed on record mark X1 to X4 forming part of Ex.CW2/5 does not show that the accu check devise was connected to the subject meter. He had not mentioned the factum of referring or considering the MDI in the speaking order Ex.CW1/7. The past consumption pattern of the consumer had not been mentioned in the speaking order. It was further argued by defendant counsel that the accused has pleaded that the energy consumption of the accused is on lower side and the MDI recorded by the meter during the last few month is as under:-
Billing Month MDI Feb,2006 4 March, 2006 4 April,2006 4 May, 2006 4 June, 2006 3 12.06.2006 2.6
According to the accused, the MDI chart itself falsifies the allegations of the connected load of 46.678 KW as mentioned in the inspection report dated 31.05.2006. It is stated that the average monthly bills prior to the date of inspection i.e 31.05.2006 had been around Rs.5000/- to Rs.8000/- per month and that the defendants installed a new meter after 31.05.2006 and even after installation of new meter, the monthly average consumption of the accused is almost the same as compared to the previous meter reading. It is further stated that the monthly bills of the new meter are in the range Page 13 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
of Rs.5000/- to Rs.7000/- showing that there is no dishonest abstraction of energy by the accused.
Police was not called by the team. Public witness was also not called by the team at the time of raid. No material or case property was seized by the inspection team to prove the factum of alleged theft. It was requested that company had failed to prove its case so, accused was entitled to be acquitted in this case.
22. Per contra, counsel for complainant has argued that the at that time, inspecting team found that accused no.
1. Ravinder Tubes Ltd. was the user of the said premises with accused no. 2 M.B.Jindal as its owner and the said premises were being used for commercial purposes. As per depositions of PW 1 Sh. Sanjeev Kumar (Trainee Engg.), PW-2 D.K.Arya (Sr. Manager), PW-5 H.S. Semwal, the company has been above to prove its case against the accused beyond reasonable doubt. Accordingly, accused is liable to be convicted in this case.
23. I have gone through the ocular / documentary evidence adduced on record and arguments advanced at bar.
24. The name of accused Ravindra Tubes Ltd.
Proprietor M.B. Jindal is given in the inspection report as the registered consumer as well as the user of the electricity. The name of accused no.3 ( P.D.Goel ) is nowhere mentioned in any of the inspection reports. The accused no. 4 (S.Banerjee) is stated to have expired before the date of inspection.
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25. As per Regulation 25 (vii) Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002, the report must be signed by each member of the joint team. It is seen that the reports were not signed by photographer and other team members. PW-2 admitted that only he and PW-1 Sanjeev Kumar signed the inspection report. The non signing of the inspection report by all the members of raiding team clearly shows the non compliance of aforesaid rule.
26. This inspection was carried out on 31.05.2006, the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25 (i) of the Delhi Electricity Regulatory Commission ( Performance Standards - Metering and Billing ) Regulations, 2002, which they failed to do and no such authority was placed on record either.
27. The company has violated the regulation 25
(vi) of the Delhi Electricity Regulatory Commission ( Performance Standards - Metering and Billing ) Regulations, 2002, by non installation of new meter. It is admitted case of company that subject meter was segregated at the spot and later on electricity supply was restored through alleged tampered meter. This meter was not sent to any independent laboratory for checking. As per judgment of R.E.S.B.Vs. M/s. Deepk Oils, AIR 1998 Rajasthan 176 it was held that where meter was never sent to laboratory for checking and without testing by any independent laboratory, no case of DAE can be booked and accordingly the impugned bill was quashed.
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Admittedly, the case property i.e tampered meter was not seized by PW 1 (Sanjeev Kumar) and PW-2 D.K.Arya. It was the case of company that accused had tampered the meter in a such a way that it interfered with the accuracy, of the meter. This tampering is the main stay of the case of the company, so, its non seizure by PW1 and PW-2 clearly shows that inspection was done in violation of the above noted regulation. As per the recent judgment of Hon'ble High Court in BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., the non seizure of case property was held to be fatal to the case of the company.
28. As per notification dated 17.05.2005 technical officer not below the rank of Executive Engineer / Manager could search, seize or remove all such devices used for unauthorized use of electricity. This nomination is to be complied under section 135 (2)(b) of the Indian Electricity Act. It is not brought on record as to who was the Authorized officer associated in the inspection / raid as per the above noted notification. No such explanation has been put forth by the company in this respect. Sh. D.K.Arya Pw-2 was the Assistant Manager at the time of raid. This clearly implies that no such authorized officer was associated to seize the illegal material as per section 135(2) of Electricity Act.
29. This court has perused the speaking order which clearly shows that the alleged tampered meter was not produced before the assessing officer clearly suggesting that speaking order was passed without observing this meter. The tampered meter which was subject matter of theft was not produced Page 16 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
in the court for perusal also. It is mentioned in the speaking order that meter seals have been found tampered. On segregation of the meter, internal circuitry of the meter was found tampered causing the meter to be slow by 61.19%. This fact was required to be proved in the court by positive evidence as it was this fact only which could have proved that there was tampering in the meter perpetrated at the behest of accused.
It was not proved as to how alleged tampering with the internal mechanism of the meter would slow down the consumption without considering the past or later consumption pattern. There is no reference to the fact that PW-5 considered the aspect that consumption pattern of the consumer before concluding that the case of DAE was made out.
There is no reference as to when he 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 accu chek meter. This accuchek meter was also not produced in the court.
PW-5 did not provide any opportunity to the accused to prove on record that infact electrical gadgets were completely closed down or the past consumption pattern. The speaking order failed to mention that he has gone through the photographs taken by the inspecting team on this aspect. The speaking order has failed to take into account that the monthly billing of the accused did not exceed to Rs. 8940/-... for 4 to 5 years prior to date of inspection. The copy of bills are placed on record. It was admitted by PW-2 that ultrasonic seals has to be broken for assessing the meter. No Page 17 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
photographs were filed on record showing the meter seals were tampered or refixed. There is no finding on the aspect that inspecting team was not carrying any sample monogram, so, how they could conclude that the seals of the meter were tampered.
30. As per recent judgment of Hon'ble High Court of Delhi in case of J.K.Steelomelt (P) Ltd. vs. BRPL WP(C) No.2291/2005 decided on 24.04.2007 it was held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tampering with or access by the petitioner to the internal mechanism of the meter in a matter that would slow down the consumption.
As per judgment of the Supreme Court in Transmission Corporation of A.P. Ltd. and Ors. Vs. M/s. Sri Rama Krishna Rice Mills, II (2206) SLT 723=11 (2006) CLT 75 (SC)= AIR 2006 SC, 1445 it was held that in case of theft and pilferage of electricity, the service provider is under an obligation to provide reasonable opportunity which may extend to granting opportunity of cross examination of the officials who level the allegation. No such opportunity was granted by the assessing officer to the accused to examine or cross examine the member of raiding team.
31. The Hon'ble Supreme Court in Jagannath Singh vs. B.S.Ramaswamy (1996) 1 SCR 885 has held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for Page 18 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
such tampering,
32. I have perused the show cause notices dated 31.05.2006 and 06.06.2006 issued by Sh. D.K.Arya and Sh. H. S. Semwal. The contents of both these notices are identical and instead of incorporating the exact allegations against the accused in the inspection reports, different possibilities / situations were given and accused was called to show cause and filed a reply.
Notice is not a ritualistic formality, the persons requiring to show cause has to be precisely informed, may be briefly the allegation upon which action is proposed. Thus, precise and unambiguous facts of allegations have to be mentioned in the notice. These notices clearly manifest non - application of mind by the officers of the company.
33. Ld. counsel for the accused has filed a certified copy of the judgment dated 27.05.2009 in Suit No.85/2006, titled Ravindra Tubes Ltd. Vs. BYPL, in which it held that plaintiff (i.e. accused) has not committed any theft of electricity through connection bearing K.No. 12400278235H and the theft demand raised on the basis of the inspection report dated 31.5.2006 to the tune of Rs.13,25,884/- was illegal, null and void. The suit was based on the same cause of action and was decreed against the defendant. It was stressed by the counsel for accused that a civil court of competent jurisdiction has already determined the right of parties conclusively after appreciating the testimony of same set of witnesses and it was established that accused/ plaintiff was not involved in theft of electricity.
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34. At the time of inspection, the officers of the defendant were not carrying any original monogram sample seals to compare with the seals affixed on the meter of the accused. There has been no tampering of the plastic / hologram seals and the meter box plastic seals No. D-213824 and D-213825 were not found in broken condition. The terminal seals were not found in broken condition and the said terminal seals can be opened only after breaking the same and not otherwise. The ultrasonic welding seals were not found in a broken condition and no photographs of ultrasonic seals have been taken to show its condition.
The hologram seals were found to be intact at the time of inspection. The said seals had been removed from one side and pasted on the other side and DW-1 has admitted that the sticker which is in the fingers visible in photographs Ex.DW1/60 and 1/61 was removed from the left side of meter as visible in Ex.PW-1/8 and it appeared to have been removed for comparing the same. The fact of this kind of removal should have been mentioned on the inspection report, however the same has not been mentioned. Once the witness has deposed that the seals have not been found in the original position then this becomes necessary to prove the original positions of the said seals. On segregation of the meter the CT potential wire was found disconnected but they have not placed on record any video recording of the same. The said meter could have been produced in the court which has not been done in this case.
35. No certification of Accuchek meter was proved in court to show the authenticity of this instrument. PW-2 D.K.Arya admitted that if the hologram seals were removed from the meter Page 20 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
box, the act of said removal leaves an impression of hologram on the meter box, however when the same is re-fixed this can be detected only after a close scrutiny. However no photographs and video CD were taken of any close scrutiny.
The CD filed on record could not be displayed on computer or laptop, the said CD was blank and does not contain any media files to be displayed. On 05.09.2000 an inspection was carried out by DVB on which the connected load was found 35.672 KW.
36. Alleged tampered meter was not seized by the team despite the fact that there was no resistance at the site at the time of inspection. No sketch of the alleged tampering of meter seals and meter box seals was prepared by team. The meter terminal seals can be opened only after breaking the same and not otherwise. The main allegation of the company is that t he meter box plastic and hologram seals were tampered and re- fixed. The half seals and terminal seals of the meter were tampered and re-fixed and even the ultrasonic welding was found refixed and tampered. However as per judgment of Dr.C.D.Sukhija & Anr. vs. BSES Yamuna Power Ltd. in WP(C) no. 5569/08 by the Hon'ble High Court of Delhi it was held that refixed seals does not mean that those are fake, so it was incumbent upon the company to prove that seals of the meter in question were fake.
The load of the AC plant unit which is shown as 30 KW in the load report, was not running at the time of inspection. AC units were closed down at the time of inspection, however the said fact was not mentioned in the speaking order. PW-2 had included the load of AC plant in the load report without checking that the same whether Page 21 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
same was working or not. The AC plant water motor which is shown to be of 5.595 KW was also not made to run at the time of inspection. He did not check whether the same was in working condition or not.
37. PW-5 admitted that photographs filed on record mark X1 to X4 forming part of Ex.CW2/5 did not show the accuchek devise connected to the subject meter. The factum of referring or considering the Maximum Demand Indicator ( MDI ) in the speaking order Ex.CW1/7 was not mentioned which was much less than the alleged connected load installed at site. It is the case of accused that connected load as recorded in inspection dated 30.05.2006 was never used. DW-1 Shri Sushil Kumar Singhal, the Account Officer of M/s. Ravinder Tubes has placed on record letter dated 22.03.2006 for cancellation of the registration with the VAT Department NCR. DW-3 Shri Babroo Bhan, VAT Inspector, Sales Tax Department, Delhi has proved on record letter Ex.DW-3/1 showing that registration of M/s. Ravinder Tubes with its department was canceled w.e.f. 22.03.2006.
DW-2 Shri Ravi Chopra has deposed that he had inspected the premises of the accused and found two old AC plants of voltas make in non-working condition. He offered Rs.25,000/- to the accused and communication in this regard is DW-2/2. Through DW-4 Shri Madhusudan Chaudhary from Voltas has proved the load of two AC Plants as 7 and 5 tons. The accused has been able to proved that in fact AC Plants were not working condition on 31.05.2006 and it had already reduced its work prior to the date of inspection. It can be safely assumed that the consumption pattern of the accused prior to alleged inspection was much less in comparison Page 22 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
to the sanctioned load.
38. 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-5 as already discussed herein before, so, it shall be highly unsafe to rely on their testimonies. Per contra accused had proved that it had already reduced its consumption of electricity before inspection.
39. 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 the meter. No public persons who were present at the site have been cited or examined as a witness while the meter was segregated. No other independent evidence has been examined in this case to prove that the accused was committing the theft. In the absence of the same it shall not be safe to connect the accused with the theft of electricity.
40. The testimony of PW 1 and PW 2, who were the member of the raiding team did not inspire confidence as they stated in their examination-in-chief that inspecting team comprised of themselves and other team members however the name of other team members were not mentioned neither in complaint nor in their statements.
41. A special Act created always have special measures to avoid its misuse by the investigating agencies, so Page 23 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
bearing in mind this principle, Delhi Electricity Supply Code and Performance Standards Regulations, 2007 were formulated. These regulations have statutory force and as per regulation 52, 53 and 54 special measures were added to protect the interest of accused / consumer in case of theft of electricity. If these regulations, are not adhered to while making a case of theft, that has a negative impact on the merit of a case.
42. As per the criminal jurisprudence, the prosecution has to prove its case beyond reasonable doubt and has to travel a long distance between 'may be true' and 'must be true' by legal, reliable and unimpeachable evidence before an accused can be convicted. The company has failed to travel this distance.
43. In view of the foregoing reasons, company has failed to prove its case against the accused persons beyond reasonable doubt, they are, accordingly, acquitted. Bail bond of the accused persons are canceled and surety discharged. Amount, if any, deposited by the accused persons as a condition for bail be released by the company after expiry of period of appeal.
File be consigned to record room.
Dictated and announced in open court (Arun Kumar Ayra) ASJ/Special Court (Elect.) Tis Hazari/Delhi/03.08.2013 Page 24 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013 CC No.81/07 BYPL Vs. Ravindra Tubes Ltd.
03.08.2013 Present: Sh. Shivendu Singh, Ld. Counsel with Sh.Mukesh Sharma, Authorized Representative for the complainant company.
Accused no.3 in person with Sh.Ashutosh Gupta, Adv Vide my separate judgment dictated and announced in the open court, accused are acquitted in the present case.
Bail bond of the accused are canceled and sureties discharged. Amount, if any, deposited by the accused persons as a condition for bail be released by the complainant company after expiry of period of appeal.
File be consigned to record room.
(Arun Kumar Arya) ASJ/Special Court (Elect.) Tis Hazari/Delhi/03.08.2013 Page 25 of 24 (Arun Kumar Arya) ASJ/Special Court (Elect.)/03.08.2013