Delhi District Court
Bses vs . Ram Kishan, Cc No. 67/10 Page 1 Of Page 15 on 6 March, 2014
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. : 67/10
Police Station : Govindpuri, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02403 RO147632010
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Ram Kishan
R/o RZ49A1T
Tuglakabad Extension,
New Delhi110019 ...Accused
Appearances : AR with Shri S.K. Alok, counsel for complainant.
Accused on bail with Shri Sunil Kumar, Advocate.
Complaint instituted on : 24.04.2010
Judgment reserved on : 25.02.2014
Judgment pronounced on : 06.03.2014
JUDGMENT
1. The case of the complainant in brief is that on 21.12.2009 at 2.40 p.m., the officials of complainant company namely Shri Hari Mohan - Sr. Manager, Shri Hemant Kumar - Diploma Engineer Trainee and BSES Vs. Ram Kishan, CC No. 67/10 Page 1 of page 15 2 Shri Shailesh Kumar - Diploma Engineer Trainee had conducted inspection of the premises i.e. R/o RZ49A1T, Tuglakabad Extension, New Delhi and accused Ram Kishan was found to be user as well as the registered consumer of the said premises. The inspection team further found that a three phase electronic meter was found installed at the site and all the PVT and hologram seals were found intact and that the RTC and internal data of the meter bearing no. 22083779 C/R 7871.1 kwh was found fail and disturbed and that meter was showing date as 22:02:06 whereas the correct date and time of inspection was 21.12.2009 and 14:4:15. It is further alleged in the complaint that the inspection team assessed the total connected load from the window in the presence of user/RC as the gate of the premises was found locked, which was found to be 6.550 KW for non domestic purpose and that the old meter was replaced by a new meter bearing no. 21194180 and the old meter was seized by the inspection team and same was sent to the laboratory for further analysis. It is further alleged in the complaint that the load report, inspection report, seizure memo and show cause notice were prepared at the site and same were offered to the accused, but he refused to receive and sign the said documents and that the necessary videography was got conducted at the spot and CD of same was also prepared.
2. It is further alleged in the complaint that a show cause notice BSES Vs. Ram Kishan, CC No. 67/10 Page 2 of page 15 3 dated 21.12.2009 was prepared at the site asking the accused to appear for personal hearing on 18.01.2010 and that the inspection team found that the meter dates and time were disturbed, therefore, they suspected the present case as of dishonest abstraction of energy (DAE) and removed the meter bearing no. 22083779 and sent it to laboratory in a sealed bag for further analysis and that the accused was intimated vide letter dated 21.12.2009 that the said meter will be desealed in presence of the accused on 05.01.2010. It is further mentioned in the complaint that accused Ram Kishan attended the personal hearing on 18.01.2010 and he submitted that the connection was sanctioned for basement and used for ironing the clothes and the said work was started only 1 ½ months ago and before that basement was lying vacant and that the premises was being used by tenants and they had never tampered the meter and that accused further requested to supply him the lab report, which was supplied to him and accused requested to file his reply by 15.02.2010 vide letter dated 06.02.2010 and that on 11.02.2010 the accused submitted that he did not want to attend any further personal hearing and that after considering all relevant aspects, the Assessing Officer passed the speaking order, thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
BSES Vs. Ram Kishan, CC No. 67/10 Page 3 of page 15 4
3. It is further mentioned in the complaint that accused was using electricity illegally by drawing the same dishonestly and theft bill amounting to Rs.1,43,233/ was payable to the complainant by the accused and same was computed as per Delhi Electricity Supply Code and Performance Standards Regulations, 2007 and as per applicable tariff and that the due date of the said theft bill was given as 24.02.2010 and same was served upon the accused but he failed to pay the said theft bill.
4. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my Ld. Predecessor vide his order dt. 06.07.2010 and the accused appeared and my Ld. Predecessor vide his order dt. 02.04.2011 framed notice u/s. 251 Cr.P.C. for the offence u/s. 135 & 138 of the Electricity Act, 2003, against the said accused and accused pleaded not guilty and claimed trial on the ground that he was not using the premises in question on the date of inspection and that the same was being used by his tenant at the relevant time and that the premises was locked and that the meter in question was not tampered and that he was regularly paying the bills as per electricity consumption used through the meter and that he was not committing any theft of electricity and that the false and fabricated case has been made against him and that he was not BSES Vs. Ram Kishan, CC No. 67/10 Page 4 of page 15 5 liable to pay any damage or loss to the complainant company as alleged.
5. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
6. The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that inspection was not carried out in his absence and that he was not indulged in any type of theft or tampering with the meter and that he was regularly paying the electricity bills and that he rented out the said premises to one Shri Sushil Kumar and he took premises saying that his factory caught fire and that he had to shift his factory for the purpose of repairing the factory and that accused rented out the said premises to said Shri Sushil Kumar and that said Sushil Kumar was using the premises just as store and he was not conducting any business at the said premises. Accused further answered that on 21.12.2009, when the raiding team visited his premises, said tenant was not present at the spot and that accused telephonically informed said tenant and he was found to be out of station and unable to reach the spot. Accused further answered that the said premises was not in use and that due to this, there was a BSES Vs. Ram Kishan, CC No. 67/10 Page 5 of page 15 6 possibility that there could be some technical fault in the meter that was completely technical and not related to any electricity theft and he also told this fact to the inspection team and that the load report was not prepared in his presence, however, he was present at the spot, but the said tenant could not reach the spot as he was out of station. Accused further answered that he was using the electricity within sanctioned load and that the videography was taken through a window and not by visiting inside the premises and that no one visited inside the premises and that none of the documents was prepared in his presence and that he was not aware of the contents of the documents prepared. Accused further answered that he was not present at the time of analysis of the meter and that the lab report was prepared by the officials of the complainant company on their own whims and fancies and that they had not disclosed that the date shown by the meter was incorrect and that the same was because of any type of theft and that they had not mentioned the reason for said disturbance of the date. Accused further replied that it might be possible that the date was disturbed due to some fluctuation of the electricity and not by him. Accused further answered that he received show cause notice from the complainant company and he also attended the personal hearing before the Assessing Officer and described all the fact to him, but the same were not mentioned in the BSES Vs. Ram Kishan, CC No. 67/10 Page 6 of page 15 7 speaking order. Accused further replied that the electricity staff was regularly inspecting his meter and they never informed him for any disturbance in the date of the meter and that they never informed him about any kind of theft or any kind of over load and that suddenly on 21.12.2009, raiding team visited the premises and started harassing him and on objection by him, they made illegal demand and threatened him to implicate him in a false case and they did not listen to him and made a false case against him. However, accused did not opt to lead defence evidence.
7. I have heard the counsel for the complainant and counsel for the accused Shri Sushil Kumar, advocate, and perused the record including the written submissions filed by ld. defence counsel and the videography displayed on the computer screen of the court.
8. PW1 Shri Ashutosh Kumar, A.R. of the complainant company proved his General Power of Attorney as Ex. PW1/1 and the complaint filed by previous A.R. Shri Binay Kumar as Ex. CW1/A and he also identified signature of previous A.R. on the said complaint. PW1 also proved letter of authority of Shri Binay Kumar as Ex. CW1/B and in his cross examination on behalf of the accused, he admitted that he had no personal knowledge of the case.
BSES Vs. Ram Kishan, CC No. 67/10 Page 7 of page 15 8
9. PW2 Shri Sudip Bhattacharya was initially examined on 09.09.2011, who was also inadvertently examined as PW7 on 08.04.2013 and he is one and the same person, who proved signatures of Shri Rakesh Gupta, Assessing Officer, on the Speaking Order Ex. CW2/I as he claimed to have seen Shri Rakesh Gupta signing and writing in the official discharge of his duties. However, in his cross examination on behalf of the accused, he admitted that said Speaking Order not passed in his presence. He further admitted that he had no personal knowledge of the present case nor saw accused Ram Kishan in the office of the complainant company, who as per record, was present before the said Assessing Officer.
10. PW3 Shri Hari Mohan was Senior Manager of the complainant company who deposed that on 21.12.2009 at about 2.40 p.m., he along with Shri Hemant, Shri Shailesh, Shri Rajesh and Shri Pramod visited and inspected the premises bearing no. RZ 49, A1 T, Tuglakabad Extension, New Delhi and on reaching the said premises they checked the electronic meter installed at the premises in question and it was observed that the actual date was wrongly reflected. PW3 further deposed that they had checked and assessed the total connected load of the premises and same was found to be 6.550 KW for commercial BSES Vs. Ram Kishan, CC No. 67/10 Page 8 of page 15 9 purpose and that some work related to garment manufacturing was being carried out there. PW3 further deposed that the said premises was found locked and accused Ram Kishan, who was present at the spot, had not provided them the key. PW3 also identified the accused Ram Kishan, who was present in the court on the day of his deposition. PW3 further deposed that they had saw inside the premises through a window and seen one sewing machine, one ordinary lamp, one iron press and CFL and that the inspection team called Meter Management Group (MMG) telephonically for replacement of the defective meter and that the said MMG reached the spot and replaced the defective meter with a new meter. PW3 further deposed that they sealed the defective meter and sent the same to laboratory for further analysis / investigation of the defective meter. PW3 further proved the inspection report and load report as Edx. CW2/A and Ex. CW2/B respectively and he also identified the videography contained in CD Ex. CW2/C. PW3 further deposed that they had seized the meter in question vide seizure memo Ex. CW2/D. PW3 proved the case property i.e. meter bearing no. 22083779 as Ex. PW3/Y.
11. In his cross examination on behalf of the accused, PW3 replied that he did not remember the exact address where they had BSES Vs. Ram Kishan, CC No. 67/10 Page 9 of page 15 10 conducted other raid apart from the premises in question. PW3 answered that there was no prior complaint regarding the defect in the meter, and that they never visited the premises in question before the raid and that the receipt for the meter replacement was not placed on record as record of the same was maintained by MMG and they had no concern with the same being the enforcement team. PW3 admitted it as correct that the sealed bag contained two meters but only one pertained to the present case and that the another meter pertains to other cases, which he could not explain. PW3 answered that the premises in question was situated in basement. PW3 did not remember as to whether the premises in question was closed or not. PW3 replied that the accused had told him that he had no key with him to open the door of the premises in question. PW3 admitted it as correct that they had not made public person as witness. PW3 answered that the reports were prepared at the spot inside the van and that the inspection report and load report were signed by three persons including him. PW3 admitted it as correct that the inspection team had not used any appliance or device to calculate the load of the premises in question.
12. PW4 Shri Saurabh Vashisht was the Testing Engineer, who deposed that during the inspection, the members of the raiding team BSES Vs. Ram Kishan, CC No. 67/10 Page 10 of page 15 11 found that meter dates & times were found disturbed and suspected DAE case was booked against the accused and that the the members of the inspection team had removed the meter bearing no.22083779 from the site and sent it to the NABL accredited laboratory vide sealed bag bearing bag no. 326515 and bag seal no. 016825 for further analysis and that the meter was tested in the laboratory and the laboratory had observed that meter showing current date as 13.03.2006 on the actual date 14.01.2010 and Battery voltage 3.2 volt. PW4 further deposed that he had prepared the meter testing/analysis report and he proved the same as Ex.CW2/G. PW4 further deposed that after preparing of the aforesaid meter testing/ analysis report, he had sent the same to the Enforcement department mentioning the conclusion, "Refer observations".
13. In his cross examination on behalf of the accused, PW4 admitted it as correct that he had not accompanied the inspection team. PW4 replied that RTC was showing date of 13.03.2006 whereas the actual date was 14.01.2010 and that the cause of difference in date could be on account of electro static discharge/ high frequency gun and that no scratch or physical damage was caused to the meter while using electro static discharge or high frequency gun and that change in RTC date can not be caused because of frequency in voltage or on BSES Vs. Ram Kishan, CC No. 67/10 Page 11 of page 15 12 account of high voltage wire passing above the premises. PW4 further answered that the battery voltage to run the RTC was found to be correct and that the battery has a warranty of ten years but he could not state exactly the time, by which the battery needs replacement.
14. PW5 Shri Vivek Arora was the proprietor of M/s. Arora Photo Studio, who deposed on behalf of Shri Pramod, who was his employee and had conducted the videography on 21.12.2009 at the premises in question on the direction of the raiding team members. PW5 further deposed that after conducting the videography of the inspection and the connected load of the premises in question, Shri Pramod had handed over video camera on same day to him and that he downloaded the data on his office computer and prepared the CD of videography and he proved the same as Ex.CW2/6 and identified the videography contained therein. In his cross examination on behalf of the accused, he admitted that he had not visited the spot.
15. PW6 Shri A.S. Menon was the Deputy Finance Officer of the complainant company who proved the theft bill as Ex. CW2/J, which was prepared after considering the inspection report including meter details, load report and speaking order on the basis of formula given under Electricity Act.
BSES Vs. Ram Kishan, CC No. 67/10 Page 12 of page 15 13
16. In the present case the meter testing report Ex. PW2/G mentions that meter was showing current date as 13.03.2006 on the actual date 14.01.2010 and battery voltage was found as 3.2 volt.
17. Now mere failure of RTC of the meter by itself is not sufficient to draw the inference of dishonest abstraction of energy.
18. PW4 who was the testing engineer of the meter, specifically admitted that physical condition of the meter was found ok and all the stickers and hologram seals were found intact. He further answered in his cross examination that cause of difference in the date of RTC could be on account of electro static discharge / high frequency gun, but no scratch or physical damage was caused to the meter while using electro static discharge or high frequency gun. He further replied that change in RTC date cannot be caused because of frequency in voltage or on account of high voltage wire passing above the premises. He further admitted that battery voltage to run the RTC was found to be correct and that battery has a warranty of ten years but he could not tell exactly the time by which the battery needs replacement.
BSES Vs. Ram Kishan, CC No. 67/10 Page 13 of page 15 14
19. In view of the said answers given by PW4 and the fact that seals and condition of the meter was found intact and the change in the date of the RTC can be for many reasons, no inference can be drawn of the dishonest abstraction of energy in the circumstances of the case.
20. The Speaking Order which is Ex. CW2/I cannot be said to have been proved because what PW2 has done is the identification of the signatures of one Shri Rakesh Gupta, the Assessing Officer, who passed the Speaking Order and said Shri Rakesh Gupta was never produced in the witness box. As such, even the consumption pattern cannot be said to have been proved in the absence of said Shri Rakesh Gupta.
21. Mere failure of RTC or consumption pattern showing a consumption on lower side are not conclusive evidence to prove the case of dishonest abstraction of energy and the complainant is required under the law to prove the same by positive evidence coupled with the accused being responsible for the same.
BSES Vs. Ram Kishan, CC No. 67/10 Page 14 of page 15 15
22. In the said circumstances, it cannot be said presumptions drawn under section 135 & 138 of the Electricity Act, 2003, have arisen against the accused so as to be rebutted by him.
23. In view of my said discussions, the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Hence, I extend benefit of doubt to the accused who is acquitted of the offence alleged against him u/s. 135 & 138 of the Electricity Act, 2003. His PB and SB are cancelled and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 06.03.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Ram Kishan, CC No. 67/10 Page 15 of page 15