Delhi District Court
Court Of Delhi In Bhasin Motors (I) P. ... vs Ndpl Reported As 2007 (142) Dlt on 4 January, 2013
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 12.07.2010
Judgment reserved on : 15.12.2012
Judgment pronounced on : 04.01.2013
Complaint Case No. 123/10
PS Hauz Khas, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID 02403RO233612010
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place, New Delhi19
and its Corporate, Legal and Enforcement Cell
at Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Through Sh.Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
1 Sreedhar Rajan (User)
B9, First Floor, Hauz Khas, New Delhi
2 Surender Kaur (RC)
B9, First Floor, Hauz Khas, New Delhi
...Accused Persons
Appearances: AR for the complainant
Sh. Rishab Raj Jain, counsel for the complainant
Both accused persons on bail with Sh.Navin Kumar, Adv.
JUDGMENT
1 Complaint u/sec. 135 of the Electricity Act (hereinafter called as 'the Act') was filed by the complainant company against accused Sreedhar Rajan & Surender Kaur seeking to summon, try and convict them for the offence punishable U/sec. 135, 138 & 150 of the Act. Determination of their civil liability U/sec. 154 (5) of the Act was also prayed for. Page 1 of 10 2 2 It is the case of complainant that on the direction of DGM Enforcement, its authorised officers conducted a raid on 30.09.2009 at the premises used and occupied by accused persons. One single phase electronic meter bearing No.23714592 with current reading 10018 was found installed. On inspection of the meter, it was noticed that the date and time displayed in the meter display were different than the actual date and time. Meter was removed, seized and sent to the laboratory for testing. The load connected to the meter was assessed. However, the videography of the entire load could not be carried out, because of non cooperation by accused. Inspection report, load report and intimation letter for testing of the meter were prepared at site and served upon accused persons. Connected load was assessed at 16.785 KW for domestic use. On testing of the meter at the lab on 09.10.2009, it was found to be tampered on account of frequent external disturbances. Show cause notice dt. 30.09.2009 had been issued to the accused to explain as to why action be not initiated for DAE. In response to this notice, accused no.2 had appeared before the Assessing Officer on 16.10.2009, however, on the basis of material collected, Assessing Officer vide his speaking order dt. 27.11.2009 held it to be a case of DAE. On the basis of connected load and applicable tariff, theft bill of Rs.88,308/ was raised against accused persons. On their failure to pay the same, present complaint was filed.
3 Cognizance of the complaint was taken by the ld. predecessor court on 12.07.2010. Presummoning evidence was recorded and on the basis thereof, Page 2 of 10 3 the accused persons were summoned to face trial. Accused persons entered appearance and were admitted to bail. Accused no.2 being a senior citizen and a lady was granted permanent exemption from personal presence, vide order dt. 24.11.2011.
4 Complainant, in support of its case, examined five witnesses. Ashutosh Kumar (PW1) proved filing of the complaint. M.D.Jai Prakash (PW2) and R.P.Singh (PW3) proved the inspection report and the proceedings dt. 30.09.2009. Ritu Raj Sinha (PW4) proved his speaking order holding it to be a case of DAE. Gagan Deep (PW5) proved the laboratory report, vide which the meter was analysed and reported to be tampered with.
5 Incriminating evidence was put to the accused persons. They did not dispute identity of the premises or their usage thereof. Connected load was also not disputed. It was, however, disputed that the meter was tampered with. It was also stated that testing of the meter was not in their presence. Similarly, personal hearing afforded on 23.10.2009 was stated to be perfunctory. Accused persons did not seek opportunity to lead defence evidence.
6 Sh.Rishab Raj Jain, counsel for complainant has argued that the identity of the accused persons and the premises is not in dispute. Load report is also not disputed. The guilt of accused persons is established on the basis of lab report and the consumption pattern. Relying upon the testimony Page 3 of 10 4 of Gagan Deep (PW5), it is submitted that the lab report Ex.CW2/5 records the observations as under :
(1) Current date as shown by meter is 15.04.2000 on date 09.10.2009 (2) Energy Register got disturbed.
(3) MD history data found disturbed.
On the basis of observations, noticed at the laboratory; it was concluded that the meter was disturbed, which could happen if subjected frequently to abnormal external injections, such as ESD/ EHV/ HF coil.
Reference is also made to the data downloaded at the laboratory. It is argued that the data indicates MD (Maximum Demand) to have been recorded on 02.01.2010 and 26.01.2010, that means twice within a period of one month. It is submitted that recording of MD more than once, indicates tampering with the meter. Referring to the speaking order Ex.CW2/7, it is contended that the consumption record for the period 04.08.2008 to 03.08.2009 shows average recorded consumption of 451 units per month, which was 57.9% of the assessed consumption. The consumption record Ex.PW4/DA is relied upon in support of the finding so recorded in the speaking order. 7 Sh.Navin Kumar, ld. defence counsel has strongly contended that the present case is an abuse of power by the complainant company. Case was booked on mere suspicion with preconceived notion of DAE. The officials of the complainant company failed to install a check meter at the time of inspection, to test the variation, if any, in the consumption recorded by the old meter. Occurrence of MD more than once in a month is not a defined Page 4 of 10 5 parameter for a meter to be declared tampered. The downloaded data Ex.CW2/5 cannot be read against accused persons, as the witness, who allegedly downloaded the same, has not been examined. Referring to the testimony of Gagan Deep (PW5), it is argued that the occurrence of MD more than once can invariably happen with failure of RTC. Issuance of show cause notice for attending personal hearing before the Assessing Officer, prior to the meter having been tested at lab, is argued to be in violation of Regulation 52 (XII). Reliance is placed upon the law laid down in Mukesh Mehra 168 (2010) DLT (6), Bhasin Motors 2007 (142) DLT 116 and Narender Aggarwal WPC 1782/11 dt. 18.03.2011.
8 Sh.Rishab Raj Jain, counsel for complainant, in rebuttal argument, has submitted that there was no requirement of installing the pilot meter, as it was a case of use of external injection, which causes the meter to stop recording energy, only when external device is used.
9 I have heard the ld. counsels and with their assistance perused the evidence on record and the documents relied upon.
10.1 The identity of the premises, usage of the same by the accused persons and the inspection dt. 30.09.2009 are not disputed. I, therefore, need not record any finding on these issues.
Page 5 of 10 6 10.2 The issue, which requires adjudication in the present case is whether complainant has established the meter to be tampered with, for dishonest abstraction of electricity. The only tangible evidence on record is date and time on the display of meter to be different than the actual date and time. This observation was noticed by the inspecting team at the spot on 30.09.2009 itself. To corroborate this observation and for authentic evidence of it being tampered with, meter was seized, sealed and sent to the laboratory. However, the witness from the laboratory, who has analysed the meter was not available. Instead, Gagan Deep (PW5) was examined, who has identified the signatures of the scientist, who had analysed the meter. The analysis report of the meter being tampered with is thus not duly proved.
10.3 However, for academic interest, the credibility of report shall be discussed. Perusal of the report Ex.CW2/5 does not indicate any test to have been performed on the meter or the same to have been segregated to detect presence of any foreign material. The conclusion has been arrived at, on the basis of observation that the current time shown by the meter was disturbed. The second observation that energy registration was disturbed is apparently not based on any tangible material. The examiner of meter, of course, was not before the court to explain the basis for this observation. The third observation of MD history being disturbed is based on the data downloaded, which forms a part of the report Ex.CW2/5. However, the person, who had downloaded the data has not been examined. Neither Gagan Deep (PW5) has made any avernment in his testimony, as regards this downloaded data. The Page 6 of 10 7 same, therefore, does not have any evidentiary value. Nevertheless, recording of MD more than once in the month of January2010, as indicated in the downloaded data, cannot be held to be sufficient evidence of deliberate tampering of the meter. The disturbed time and date or the disturbed MD are only symptoms of faulty functioning of a meter. An electronic device may fail for hundreds of reasons. Unless, it is established that it was a deliberate act attributable to the accused persons; there can be no criminality attached to it. 10.4 Moreover, mere display of wrong date or recording of MD more than once in a particular month would not necessarily mean that the energy consumption was also not being recorded properly by the meter. An example can be taken of a digital camera, whose primary function is to take photographs; but the digital clock thereon may show a different date, if not properly synchronised. The primary function of taking the photographs is still being correctly carried out by the camera. Similarly, a digital watch on a music system may also not be correctly synchronized; but the primary function of playing music or tuning to the correct frequency is still performed by the transistor or music system. Thus, in order to establish that the function of recording energy consumption was also disturbed; complainant ought to have relied upon better evidence. Reliance upon consumption pattern Ex.PW4/DA is totally misplaced. Ex.PW4/DA, which had come up on record during cross examination of Assessing Officer Ritu Raj Sinha (PW4) was never served upon accused persons along with the documents of reliance at the time of filing complaint. Moreover, this is only an average consumption Page 7 of 10 8 for a period of one year, which cannot be termed as consumption pattern. The consumption pattern would indicate comparison of consumption on month to month basis, alternatively, consumption recorded by two different meters running parallel. Comparison of consumed power with the hypothetical figure of assessed consumption was rejected by the Hon'ble High Court in Bhasin Motors' case (Supra).
11.1 Thus, in my opinion, comparison of recorded consumption with the assessed load cannot be indicative of comparison of actual consumption. Assessed load is a hypothetical figure, where all connected gadgets are presumed to be running for a particular period of time on each day. This is a statutorily determined consumption, which has been permitted to be used to determine theft bill. Relying upon assessed consumption to reach at an inference of theft of electricity, is totally inconceivable. The Hon'ble High Court of Delhi in Bhasin Motors (I) P. Ltd. Vs NDPL reported as 2007 (142) DLT 116, has held as under :
''What appears to have been happening in some of these cases is that the suspicion of the DAE is leading to the respondent immediately to work out the assessed/ computed consumption by using the LDHF formula without first conclusively establishing that there is DAE. The stage for applying the LDHF formula is after it is conclusively established that there is DAE. The LDHF formula is only for determining the quantum of penalty that is required to be levied in temrs of Regulation 26 (ii) of the DERC Regulations. It would be erroneous for the Respondent to begin by applying the penalty formula, comparing the recorded units with the computed Page 8 of 10 9 units and then concluding that there is DAE on the basis of the percentage, i.e., worked out. The purpose of Regulation 26 (ii) is not for determining DAE but for determining the penalty once the DAE has been established.'' 11.2 I am thus of the considered opinion that referring to the assessed consumption is like putting the cart before the horse and is not an authentic circumstance to arrive at an inference of fall in consumption. I, therefore, reject this piece of evidence, relied upon by the complainant.
12.1 Speaking order Ex.CW2/7 relied upon by the complainant to reflect its application of mind and arriving at the finding of DAE has been passed on the premise that the lab report is a good piece of evidence and that the recorded consumption compared with assessed consumption can also be relied upon.
As discussed in para nos. 10 & 11 above, none of the two above mentioned evidences on which the speaking order has been passed has any evidentiary value. Thus the speaking order also does not help complainant in establishing the case of DAE.
12.2 Reliance has also been placed upon by ld. defence counsel law laid down in Mukesh Mehra Vs BSES Yamuna Power Ltd. reported as 168 (2010) DLT 6, wherein it was held as under :
"RTC and display failure alone do not indicate tampering or dishonest abstraction of electricity as a universal affirmative rule and are not conclusive proofs. Probabilities cannot take shape of proof itself and are not conclusions."Page 9 of 10 10
13 It is unfortunate that despite observations by the Hon'ble High Court in Mukesh Mehra's case and Bhasin Motors case, complainant company is still filing complaints on such flimsy piece of evidence and unnecessarily harassing the consumers. The court is holding its hand from imposing special costs upon the complainant company. The mind set of its officials in presuming a case of DAE to have been made out on mere failure of RTC is reflected from the fact that at the time of initial inspection on 30.09.2009 itself, the accused persons were served a show cause notice of personal hearing before the Assessing Officer. Admittedly, the meter had not even been analysed at the laboratory and it was merely a case of suspected DAE, when the notice of personal hearing before the Assessing Officer was served upon the consumers.
14 For the reasons stated above, I am of the considered opinion that complainant has failed to establish that the meter was tampered with, as regards its capabilities to record consumption correctly. The disturbances in RTC is also not established to be deliberate at the end of the accused persons, so as to hold them guilty for the offence of dishonest abstraction of electricity. Accused persons are, therefore, honourably acquitted. Ordered accordingly. Bail bonds are cancelled. Sureties are discharged.
File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 04.01.2013 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
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CC No.123/10
04012013
Present AR for the complainant with
Sh.S.K.Alok, proxy counsel for
Sh.Rishab Raj Jain, counsel for the complainant
Accused no.1 on bail
Presence of the accused no.2 is permanently exempted Vide separate judgment announced today, accused persons Sreedhar Rajan & Surender Kaur have been acquitted of the charges u/sec.135 r/w/sec.138 & 135, 138 r/w/sec.150 of the Electricity Act, 2003.
Bail bonds are cancelled & sureties are discharged.
File be consigned to record room.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/04012013 Page 11 of 10