Delhi District Court
Bses Rajdhani Power Ltd. vs Nabanita Sarkar on 23 August, 2012
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 : 08.09.2009
Judgment reserved on : 18.08.2012
Judgment pronounced on : 23.08.2012
Complaint Case No.506/09
PS Malviya Nagar, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID - 02403R0008782010
BSES RAJDHANI POWER LTD. VERSUS NABANITA SARKAR
AMENDED MEMO OF PARTIES
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place, New Delhi19
Also at :
Corporate, Legal and Enforcement Cell
Near Andrews Ganj Market,
New Delhi110049
Through Sh.Ashutosh Kumar
(Authorized Representative) ...Complainant
Versus
1 Smt. Nabanita Sarkar (User)
W/o Sh.R.K.Sarkar,
K1/46, Flaming Wak, Ground Floor,
Chitranjan Park, Alakhnanda, New Delhi
Also at
Smt.Nabanita Sarkar (User)
W/o Sh.R.K.Sarkar,
513, Asia House, K.G.Marg, New Delhi1
2 Sh. N.Banerjee (R/C) (Proceedings dropped vide order dt. 05.02.2010)
K1/46, Flaming Wak, Ground Floor,
Chitranjan Park, Alakhnanda, New Delhi
...Accused persons
Appearances: AR for the complainant
Sh. S.K.Alok, proxy counsel for
Sh. Rishab Raj Jain, counsel for the complainant
Accused on bail with Sh.M.K.Choudhary, advocate
Page 1 of 11
2
JUDGMENT
1 Complaint u/sec. 135 r/w/sec. 151 of the Electricity Act (hereinafter called as 'the Act') has been filed by the complainant company against accused persons seeking to summon, try and convict them for the offence punishable U/sec. 135 r/w/sec. 138 r/w/sec. 150 of the Act and also praying for determination of their civil liability.
2.1 It is the case of complainant that on 11.08.2008, inspection was conducted at premises bearing No.K1/46, Flaming Wok, Ground Floor, Chitranjan Park, Alakhnanda, New Delhi. The premises was occupied and used by Nabanita Sarkar and N.Banerjee was found to be the registered consumer. The premises was found consuming electricity for commercial purpose i.e. running a restaurant. Connected load of 28.490 KW was assessed against sanctioned load of 14 KW. There were three meters installed in the premises bearing nos.27070003, 27072378 & 27053212. The raiding team suspected irregularity in the meters, as the current reading had fallen to 4100 Kwh from 112000 Kwh. There were also instances, when the reading had been reset or the meter had been stopped using EHV gun. CMRI data was analyzed and it was found that user was indulging in DAE.
2.2 Videography was conducted. Load report and inspection report were prepared. Accused refused to accept the inspection report and load report. A show cause notice dt. 11.08.2008 was prepared at site, affording her a personal hearing for 26.08.2008 before the Assessing Officer. Accused and one Page 2 of 11 3 R.K.Sarkar attended the personal hearing. However, Assessing Officer was not satisfied by the explanation tendered and vide speaking order dt. 30.08.2008 concluded it to be a case of DAE. On the basis of connected load and applicable tariff, theft bill of Rs.4,20,680/ was raised. On failure of the accused persons to deposit the same, complaint was filed seeking to try and convict them. Determination of civil liability was also prepared for. 3 Cognizance of the complaint was taken by the ld. predecessor of this court on 08.09.2009. Matter was listed for presummoning evidence. On the basis of presummoning evidence, accused persons were summoned to face trial. Accused no.1 entered appearance and stated that accused no.2 was the previous owner of the premises. The proceedings qua accused no.2 were, therefore, dropped by ld. predecessor of this court, vide order dt. 05.02.2010. Accused no.1 was admitted to bail with direction to deposit 20% of the theft bill amount. Amended memo of parties was filed. Notice of accusation U/sec. 251 Cr.P.C. was framed on 17.04.2010. She pleaded not guilty and claimed trial. 4.1 Complainant, in support of its case, examined three witnesses. Sh.Binay Kumar (PW1) authorised representative of the complainant proved letter of authority in his favour. He also proved the complaint. R.V.Singh (PW2) was a member of the inspecting team. He deposed that on 11.08.2008 at about 1.30 p.m., he along with other members inspected the premises. Accused no.1 Nabanita Sarkar was found to be user of the premises. There were three meters installed in the premises. On account of a drop in current reading from 112000 Page 3 of 11 4 Kwh to 4100 Kwh, inspection team found it to be suspicious. CMRI data was analyzed and it was noticed that accused had been disturbing the recording of the meter. The irregularities were mentioned in the inspection report Ex.CW2/A. Connected load of 28.490 KW was assessed. The premises was used under the name and style of Flaming Wok Oriental Cuisine/ Chinese & Thai, restaurant. Videography of the inspection was carried out. Show cause notice Ex.CW2/E was also prepared at site and offered to the accused. She refused to acknowledge the same. Accused was identified by the witness. On being cross examined, he deposed that inspection was carried out on written direction from DGM Enforcement. He came to know of irregularities in the meter on the basis of CMRI data, which they had downloaded at the time of inspection. The CMRI data was analyzed in the office. The documents prepared at site were desired to be handed over to accused no.1, who refused to receive the same. The documents were subsequently sent through speed post. He further deposed that he did not know, whether the documents were sent or not, as it was the duty of concerned officer of the complainant. He also admitted that the inspection report did not mention categoric refusal of the accused for accepting inspection report. The show cause notice was given on the basis of previous data taken by meter reader. He came to know regarding tampering of meter from analysis done by meter reader. The fall in meter reading was due to use of Extra High Voltage (EHV) gun. He deposed that he had not seen EHV gun and did not know where it can be found and how it can function. Meter reading could or could not be disturbed due to internal irregularities in meter. He further deposed that he had given show cause notice on the basis of Page 4 of 11 5 disturbance in meter reading. He had found irregularities in the meter on the basis of CMRI data, especially at page no.35 of the Tampered Status Report. His job was limited to assessing the connected load at the time of inspection. 4.2 Sudip Bhattacharya (PW3) has identified signature of Rakesh Gupta, Assessing Officer on speaking order Ex.CW2/G. He also proved the note sheet indicating presence of the accused persons at the time of personal hearing. On being cross examined, he deposed that he could not say if Rakesh Gupta had applied mind and had gone through all the documents before passing the speaking order.
5.1 Incriminating evidence was put to the accused. She admitted her presence at the inspection. She denied any theft of electricity or tampering of meter. She denied knowledge of the documents prepared at site. She claimed the speaking order to be bad in law. She sought opportunity to lead defence evidence and examined herself partly as DW1. She neither concluded her examination in chief nor was put to cross examination. Her testimony therefore cannot be read.
5.2 Ashok Kumar (DW2) Commercial Officer from Alakhnanda Division of BRPL, New Delhi was summoned to prove the consumer details with respect to K. No.25100H070063 and CRN No.2510099656. He also proved the bill details for the period July, 2007 to July, 2008. Defence evidence was closed by statement of counsel for accused.
Page 5 of 11 6 6 Sh.Rishab Raj Jain, counsel for the complainant, has argued at length with detailed reference to records of the CMRI data Ex.CW2/B. Ld. counsel made a valiant attempt to bolster the complainant's case, which had no support of oral or documentary evidence. Referring to the Main Energy Register at page no.70 of CMRI data, it is pointed out that the history from History 1 to History 5, between the dates 01.06.2008 to 01.08.2008, the energy recording dropped from 112600 to 4115. On two dates, the reading has been recorded as '0'. Reference has also been made to Cumulative Tamper Report at page no.33. Tendering an explanation for not having sent the meter to the laboratory, it was submitted by Sh.Jain that laboratories were notified only in June2008, whereas the inspection in the present case had taken place in Aug2008 itself and till then the laboratories had not been set up. Failure in sending the meter ot the laboratory will not vitiate the inspection, as the CMRI data was downloaded scientifically and there cannot be any tampering in the data recorded in an electronic chip. It is argued that it was apparently a case of usage of Extra High Voltage gun, which interfered in recording complete energy consumed. The accused was pursuing a commercial activity of running a restaurant, was thus indulging in theft of electricity by dishonest abstraction of electricity.
7 Sh.Manish Kumar Choudhary, counsel for the accused, has blasted the case of complainant. It is argued that the main plank of complainant's case is the CMRI data, which was downloaded in contravention of the procedure. No Page 6 of 11 7 witness has stepped into the witness box to explain the CMRI data. Moreover, a copy of the same was never supplied to the accused, even till the stage of personal hearing afforded by Assessing Officer. The evidence is also deficient, as regards the stage when the CMRI data was analyzed. R.V.Singh (PW2) in his testimony has changed his stand, as regards the downloading and analysis of data, as many as, three times. The consumption pattern has not been relied upon or proved by the complainant to indicate any drastic fall in consumption. Inspection report Ex.CW2/A in column 5.55 records error in consumption recorded by meter to the extent of 1.23%, when checked by accu check instrument. Meter was not sent to any NABL accredited laboratory, as was mandatory. CMRI data was not downloaded at 3rd party laboratory but by the officials of the complainant itself. Further, drilling holes in the complainant's case, it is argued that speaking order cannot be read against accused, as assessing officer has not been examined.
8 I have heard the ld. counsels and with their assistance perused the pleadings, evidence on record and the documents relied upon. 9.1 A study of the material on record indicates that the complainant instituted the present proceedings on completely half baked suspicion and with almost no evidence. Further, compounding the shallowness of the case, it failed to produce the relevant witness. R.V.Singh (PW2), who is the star witness has contradicted himself in his testimony on material issue. He has changed colour more frequently than a chameleon, when he was asked the stage of Page 7 of 11 8 analysis of CMRI data. In examinationinchief, he seems to indicate that CMRI data was analyzed at the spot. This inference is strengthened by the fact that show cause notice Ex.CW2/E is stated to have been offered to the accused at the spot on 11.08.2008 itself. Thus, the first stand of the witness is that the CMRI data was analyzed at the spot, as it is recorded in the show cause notice Ex.CW2/E at Sr. No.3 that 'use of HV electric gun is being made to disturb the running of meter, as is evident from CMRI.' Second change of colour is highlighted in the cross examination, when he stated that CMRI data was analyzed in office. The next line indicates that tampering of the meter was indicated on the analysis of data by the meter reader. The last line of this page, in his cross examination, records that show cause notice was given on the basis of previous data taken by meter reader. The aforesaid rendering of the evidence of star witness leaves the court in a state of confusion, as regards the stage when the CMRI data was downloaded and analyzed.
9.2 Having held that complainant has failed to establish the date and stage of downloading of CMRI data; next issue arises, whether this data even if irregularly downloaded and analyzed can be read in evidence against the accused. There is no evidence on record, that this data was, ever, served upon the accused. There is no witness examined by complainant to depose that the data was downloaded by him or who could explain the criminality attached to the downloaded CMRI data. Accused, thus never got an opportunity to rebut the CMRI data, whether at the stage of inspection/ investigation or at the stage of trial. I am, thus, of the firm opinion that the CMRI data Ex.CW2/B has not Page 8 of 11 9 been proved and is not admissible evidence, therefore, cannot be read against the accused. The data was not even regularly downloaded. Regulation 52 (xii) of Delhi Electricity Supply Code of Performance Standard Regulation 2007, (hereinafter called Regulation) provides for analysis of meter data downloaded by a 3rd party authorised laboratory. The Hon'ble High Court of Delhi dealing with a situation where the data had been downloaded by the complainant's laboratory, held that reference to 3rd party authorised laboratory was to indicate a NABL accredited laboratory. For ready reference, the relevant portion of the judgment in Narinder Aggarwal Vs BRPL (WPC 1709/2011, dt. 18.03.2011) is reproduced herein below:
"In my opinion, the reference in Regulation 52 (xii) to a "third party authorized laboratory" has to necessarily mean an NABL accredited laboratory referred to in Regulation 52 (vii). I am unable to hold that though the testing in an NABL authorized laboratory can form the basis of theft under Regulation 52 (vii), for arriving at a conclusion of theft under Regulation 52 (xii), the data has to be sent to a third party laboratory. Thus, in my opinion hte reference in Regulation 52 (xii) is to an NABL accredited laboratory only."
However, in the present case, the data was downloaded by the official of the complainant company itself without having been sent to any laboratory. 10.1 I thus hold that the CMRI data relied upon by the complainant was irregularly downloaded and never supplied to the accused at the stage of inspection/ investigation. The same has not been proved before the court and thus does not carry any weight. The same is discarded and is not any better Page 9 of 11 10 than the worth of a waste paper. I will thus not engage myself in analysing the drop in recording of energy consumption, as purportedly indicated in Main Energy Register of the CMRI data.
10.2 I also find strength in the case of defence that the meter was not tampered with, as at the time of inspection use of accu check instrument indicated the meter to be recording correct energy consumption. There was only an error of 1.23% in the accuracy of meter, which is within permissible limits. The speaking order Ex.CW2/G, whereby the Assessing Officer of the complainant company held it to be a case of DAE, cannot be read in evidence, as the officer who had passed the speaking order, was not examined as witness. The substitute had failed to produce any document to show that Rakesh Gupta, who had passed the order, had left the services of BSES. He further deposed that he was unable to state if Rakesh Gupta had applied mind and had gone through various documents before passing the speaking order, I thus agree with the defence that the speaking order can also not be read against the accused.
10.3 There is also no justifiable explanation, as to why the meter was not sent to NABL accredited laboratory, when the same were notified in June2008, while the instant inspection was conducted on 11.08.2008. Failure of the complainant to prove the consumption pattern is also a factor, which has to be taken into consideration, while rejecting its case of DAE. The accused has rather proved the consumption pattern marked as Ex.DW1/D, which indicates Page 10 of 11 11 a similar pattern of consumption with corresponding months of the previous year.
10.4 Irregularity in the proceedings at spot is also indicated by the fact that the inspection report Ex.CW2/C does not bear any endorsement in the column where signatures of consumer/ representative/ user were to be obtained. R.V.Singh (PW2) in his testimony has further created a doubt as regards the proceeding at the spot, when he deposed that the documents were subsequently sent through speed post. The witness himself further deposed that he was not aware whether the documents were actually sent or not, by post. No postal receipt is proved by the complainant on record, which establishes that the documents prepared at spot were never sent to the accused.
11 For the aforesaid reasons, I am of the considered opinion that complainant had absolutely no evidence against the accused to have launched the present prosecution. It is a totally misconceived and misdirected prosecution. The accused is entitled to an honourable acquittal.
Ordered accordingly. Bail bond is cancelled. Surety is discharged. File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 23.08.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
Page 11 of 11
12
CC No. 506/09
23.08.2012
Present AR for the complainant with
Sh. S.K.Alok, proxy counsel for
Sh. Rishab Raj Jain, counsel for the complainant
Accused on bail with Sh.M.K.Choudhary, advocate
Vide a separate judgment announced today, accused is
acquitted. Bail bond is cancelled. Surety is discharged.
File be consigned to record room.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/23.08.2012 Page 12 of 11