Delhi District Court
State vs . Parmod Rathee on 8 April, 2019
IN THE COURT OF SH. MUKESH KUMAR : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 424322/2016
U/s 135/138 of Electricity Act
In the matter of :
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell,
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting Through its Authorized Officer
Sh. Ashutosh Kumar
.... Complainant
Versus
Sh. Parmod Rathee
S/o Sh. D.S. Rathee
R/o D103, Gopal Nagar,
Gali No. 4, Najafgarh, New Delhi.
.... Accused
Date of institution : 25.01.2014
Arguments heard on : 08.04.2019
Judgment delivered on : 08.04.2019
JUDGMENT:
1. The brief facts of the case are that on 09.05.2013, at Cc No. 424322/2016 Page No. 1 of 20 State Vs. Parmod Rathee 02:30 PM as per the directions of the authorised officers, a Joint Inspection Team Comprising of Sh. Ajeet KumarAssistant Manager, Sh. SandeepEngineer, Sh. RaviTechnician and Sh. Mukesh Videographer from M/s Arora Photo Studio inspected the premises of the accused i.e Plot No. 103, Gopal Nagar, west Block, Najafgarh, New Delhi110043 (hereinafter referred to as premises in question) which falls within the distribution area of the complainant. It is stated that at the time of inspection of the premises in question, one single phase electronic meter was found in totally burnt condition and hence its CR and MDI could not be noted and ashes of the meter found at the site. It is further stated that supply of the premises found running direct and one illegal hole found at the back side of base plate. It is further stated that the residue/ashes of the meter seized and sent to the lab for further testing and analysis. It is further stated that there was a connected load of 10.554 KW found in the premises for domestic purpose against the sanction load of 5 KW under domestic use. It is further stated that the supply of consumer was restored through a new electronic meter and the videography was done at site by Sh. Mukesh, Videographer from M/s Arora Photo Studio. It is further stated that the raiding team members seized and sealed the ashes of the tempered meter in a bag bearing no. 549245 with seal no. 0272755 BRPL and sent to the meter testing lab for further testing and analysis under intimation to Cc No. 424322/2016 Page No. 2 of 20 State Vs. Parmod Rathee the consumer that the same will be tested in the lab for further testing and anlaysis under intimation to the consumer. It is further stated that the meter was sent to the meter testing lab in the bag in sealed condition and the meter was tested by Sh. Nikhil KumarEngineer and Sh. Mustufa Barbhaiwala, Assistant Manager in the Lab. It is further stated that as per lab report dated 21.05.2013, plastic and hologram seals of the meter burnt, meter found abnormal burnt, LCD and LED of the meter not OK and the accuracy and Data of the meter could not be downloaded.
2. Sh. Tanmay Mohanty, Assessing Officer after examining the facts of the matter and material evidence on record, consumption pattern, lab report with downloaded date of the meter passed a detailed speaking order dated 18.07.2013.
3. The Inspection report, Load Report and Seizure memo were prepared at site. It is stated that the aforesaid illegal act, the accused has caused and was found to be causing wrongful loss to the Complainant Company and wrongful gain to himself and was thus acting dishonestly, thus, it is a case of dishonest abstraction of electricity and a theft bill as per the DERC regulations and tariff order was raised by the complainant company for a Sum of Rs. 67,031/ with due date as 08.08.2013 but the accused had failed and neglected to make the payment of the theft bill amount.
Cc No. 424322/2016 Page No. 3 of 204. The complainant company has filed a criminal complaint before this Court and the same has been registered as criminal complaint against the accused. The accused was duly served and copies of documents were supplied to him. Notice for the offence under Section 135/138 of Electricity Act was framed against the accused on 31.03.2015 by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
5. In order to prove its case complainant has examined the following witnesses, the details of which are as follows:
6. PW 1 Sh. Sandeep Sharma, DET, Hari Nagar, BSES RPL, New Delhi, who deposed that on 09.05.2013, at around 02:30 PM, he along with Sh. Ajeet KumarAssistant Manager, sh. Ravi KumarTechnician and Sh. MukeshVideographer from M/s Arora Photo Studio inspected the premises in question and during inspection the said premises was being used by accused Parmod Rathee. He further deposed that they had inspected the premises as per the division complaint and there was a totally burnt meter found at the site which was installed in the name of the accused Parmod Rathee. He further deposed that they removed and seized the said meter from the site and installed a new meter at site. PW 1 further deposed that the videography of the premises was done by Sh. Mukesh Kumar Videographer and he correctly identified the contents of the CD and proved the inspection report, load report and seizure Cc No. 424322/2016 Page No. 4 of 20 State Vs. Parmod Rathee memo at site as Ex.CW1/A, ExCW1/B and ExCW1/C. He further deposed that after preparation of the report they offered the same to the accused, present at the site of inspection but he refused to receive and has not put his signatures on the same. PW 1 further identified the burnt meter as Ex.P1 and plastic seal 0272755 as Ex.P2.
In his cross examination by Ld. Counsel for accused, PW 1 deposed that they prepared the inspection report, load report and seizure memo at site and no other document was prepared at site. He further deposed that the totally burnt part of the meter and some ashes were sent to the laboratory and the condition of service line was perfectly OK. He further deposed that there was no input and output of the meter found at the time of inspection and they have not seized the service line. PW 1 denied the suggestion that present meter Ex.P1 was not seized from the site. PW 1 further deposed to the effect that the premises consist of ground floor and first floor and he can not say the total load was running at the time of inspection. He further deposed that he had taken the connected load. PW 1 further deposed to the effect that the accused was present at the site during inspection but he do not recollect if any other family member was present there. He further deposed that they have not seen any evidence of tampering in the meter. He further denied the suggestion that the meter was not sealed and seized at the site.
Cc No. 424322/2016 Page No. 5 of 207. PW 2 Sh. Tanmay Mohanty, Assessing Officer, BSES RPL, Hari Nagar, Enforcement, New Delhi deposed that there was an inspection of the premises of the accused on 09.05.2013 and the meter was found totally burnt and the inspection team sent the meter to the laboratory for further testing/analysis and the laboratory has given report on 21.05.2013. He further deposed that in view of the laboratory report, the plastic seal and hologram seal were found burnt and the meter was also found burnt. He further deposed that the consumer was served with the show cause notice to attend the personal hearing on 27.06.2013. He further deposed that however, the consumer did not attend the personal hearing and again the consumer was given second and last opportunity and the final show cause notice was issued to attend the personal hearing on 17.07.2013. PW 2 further deposed that the consumer did not attend the personal hearing in this case and proved the show cause notice and final notice as Ex.PW2/A and Ex.PW2/B, both bearing his signatures at point A. PW 2 further depose that the case was analyzed and he had considered the inspection report, load report, laboratory report, consumption pattern and passed the detailed speaking order on 18.07.2013 and proved the same as Ex.PW2/C. In his cross examination by Ld. Counsel for accused, PW 2 deposed that he had not consulted with the raiding team members while passing the speaking order and have not Cc No. 424322/2016 Page No. 6 of 20 State Vs. Parmod Rathee placed on record the proof of delivery of show cause notices. He voluntarily stated that he can produce the same, if required. He denied the suggestion that the show cause notices were not served upon the accused. PW 2 further deposed in his cross examination that he had mentioned in the speaking order that after replacement of the meter the consumption has been increased drastically.
He further deposed that they have not checked the consumption pattern of the previous meter. He denied the suggestion that there was no increased in the consumption after replacement of the meter. PW 2 further deposed that he do not recollect the MDI of the new meter and he can not say the MDI of the new meter was within the sanctioned limited. He further deposed that he can not say the MDI of the new meter was within the sanctioned limit. He further deposed that if the meter was tampered the MDI will not record properly in the previous meter also. PW 2 further deposed in his cross examination that they have not analyzed the consumption patter and MDI of the previous meter and the meter can be tempered even if the LCD and LED of the meter are OK. PW 1 further deposed in his cross examination that he can not say whether there was foreign element inside the meter as the meter was totally burnt and he can not provide any text or reference today to prove that if LCD and LED are not OK, the meter was assumed to be tampered. PW 2 further deposed in Cc No. 424322/2016 Page No. 7 of 20 State Vs. Parmod Rathee his cross examination that the connected load was observed at the time of inspection at the premises of the accused and out of the above connected load few appliances may be connected with the electrical system other may be existed in the premises which can be cross checked from the raiding team member. He denied the suggestion that the connected load was always within the sanctioned limit.
8. PW 3 Sh. Nikhil Kumar, Diploma Engineer (DET), BRPL Laboratory, Pushp Vihar, New Delhi deposed that on 21.05.2013, he has received a sealed gunny bag bearing no. 549245 with seal no. 0272755 from BRPL Laboratory for testing the meter. He further deposed that he had opened the said bag and found a burnt single phase electronic meter and its plastic and hologram seals were found in burnt condition. PW 3 further deposed to the effect that said gunny bag was opened and found to contain one meter bearing serial number as 24361715 and accuracy of the meter could not be done due to the fact that meter was in burnt condition. He further deposed that data of the meter could not be downloaded due to meter not powered up through rated voltage or 5 volt DC supply. PW 3 further deposed that he came to the conclusion that meter was abnormal burnt and the lab report was prepared by him and report approved by Sh. Mustafa Barbhaiwala, AM and proved the same as Ex.CW3/A which bears his signatures at point A. He further deposed to the effect that on the process of Cc No. 424322/2016 Page No. 8 of 20 State Vs. Parmod Rathee testing photographs taken by him and proved the same as Mark Y. He further deposed that after testing the meter, he resealed the gunny bag bearing No. 549245 with new seal no. 0237936 and sent the same to the concerned department. He proved the meter and the seals as Ex.P1, Ex.P2 and Ex.P3.
In his cross examination PW 3 has deposed that he had not given any receipt at the time of receiving the meter and the seals mentioned above are the seals of the bag not of meter. He further deposed that the meter was in burnt condition, it was not capable of being tested. He further deposed in his cross examination that the report was prepared by him. He further deposed that on seeing the condition of the meter, it can be safely said that it was not burnt because of any error in the meter but it was burnt deliberately. He further deposed that because of sparking only, the terminal part is burnt and not the entire meter. He further deposed that the condition of the meter in itself suggest that it was burnt deliberately. He further deposed that even in the case of the meter is burnt and deformed which suggest that it was deliberately burnt and it was not burnt with any error and sparking. He further deposed in his cross examination that because of technical reason whenever there is parking it is the terminal that gets disconnected on being burnt, the entire meter will not burnt completely. PW 3 further deposed in his cross examination that he gave the report of abnormal burnt on the Cc No. 424322/2016 Page No. 9 of 20 State Vs. Parmod Rathee basis of experience and on seeing the meter condition.
9. PW 2 Sh. Ashutosh Kumar, Sr. Manager (Legal) BSES Rajdhani Power Ltd., proved the present complaint and exhibited the same as Ex. CW1/C and exhibited his Authority letter/GPA as Ex. CW4/A.
10. Thereafter, the PE was closed.
11. After recording the evidence of these witnesses, statement of the accused under Section 313 Cr.P.C. was recorded wherein accused denied all the allegations of the complainant.
12. In his defence, accused has examined himself as DW 1 who deposed that his meter got burnt due to sparking in the night and accordingly, he lodge a complaint with the BSES telephonically and they came in the morning and by pass the meter. He further deposed that on 05.05.2013 BSES people came and changed the meter and they also made some videography by their Mobile phone and took the half burnt meter with them and his consumption pattern prior to the inspection and after the inspection is more or less same. He proved the copy of the electricity Bills (29 in numbers) from the period 2012 to 2015 as Ex. DW1/A (Colly.). He further deposed that his meter was not tempered. He further deposed that he never indulged in any theft of electricity and he had not received any show cause notice and legal notice or any other documents pertaining to inspection. DW 1 further deposed to Cc No. 424322/2016 Page No. 10 of 20 State Vs. Parmod Rathee the effect that he came to know about the alleged case after receiving the summons from this Hon'ble Court and his sanctioned load is 5 Kw and they are only two members residing at the premises including him and his wife. He further deposed that his son is residing abroad since last 4 years and whenever he visits his home consumption of little bit load may increase. He further deposed that The load mentioned in the load report is wrong and arbitrary.
In his cross examination by Ld. Counsel for complainant DW 1 has deposed that the meter was burnt in the night of 2nd or 3rd May 2013 at around 11 or 12 mid night. He denied the suggestion that the meter was complete burnt. He volantarily stated that the meter shown in the videography is his meter but the meter produced before the Court does not seem to be of his meter. He denied that suggestion that the meter produced before the court is the same which was seized from his premises. DW 1 further deposed that he has not placed on record any burnt complaint receipts or any other documents as he had not made any complaint regarding the burning of his meter. He voluntarily stated that the complaint was lodged telephonically. DW 1 further deposed that the BSES officials had not given any report/ receipts regarding by pass of the meter after burnt complaint. He denied the suggestion that no such receipt is issued to him as he had not made any complaint regarding burning of the meter. DW 1 further deposed that the Cc No. 424322/2016 Page No. 11 of 20 State Vs. Parmod Rathee meter was half burnt as shown in the CD and he had not made any call to the Fire brigade. He further denied the suggestion that the load shown in the load report is correct. He also denied the suggestion that there was a connected load of 10.55 KW found at site at the time of inspection or that the meter was tempered and hence, it was deliberately burnt. He also deposed that it is correct that the consumption record for the period 16.04.2012 to 16.04.2013 shows an average recorded consumption of 147 units per month.
13. DW 2 Sh. Jagdish Kumar, DGM, Sub Division CRPF, Division Jaffarur, New Delhi deposed that he is a summoned witness and brought the complaint register maintained at the office of the complainant and proved the complaint of the accused dated 04.05.2013 as Ex.DW2/A.
14. I have heard the arguments and have perused the record carefully.
15. Ld. Counsel for the accused has argued that the accused has been falsely implicated in this case and there is no reliable evidence on record to prove that the accused was committing the alleged offence and also to prove that the said premises of the accused was inspected by the raiding team. It is further submitted that there are material contradictions in the testimonies of the prosecution witnesses. It is further submitted that evidence and witnesses produced by the complainant on record is not reliable.
Cc No. 424322/2016 Page No. 12 of 2016. On the other hand, Ld. Counsel for the complainant has argued that from the evidence on record, the complainant has proved its case against the accused.
17. Before coming to the final conclusion, I deem it appropriate to go through the relevant provision of law i.e Section 135 of Indian Electricity Act, which reads as under :
Section 135. (Theft of Electricity): 1[(1) Whoever dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use (I) does not exceed 10 kilowatt, the fine imposed Cc No. 424322/2016 Page No. 13 of 20 State Vs. Parmod Rathee on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (2) Any officer authorised in this behalf by the State Government may
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being,] used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the Cc No. 424322/2016 Page No. 14 of 20 State Vs. Parmod Rathee person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
18. Counsel for the complainant submitted that accused was found indulging in dishonestly abstraction of electricity by removing the meter at the time of inspection and the connected load was found to be assessed as 10.554 KW for domestic purposes. It is also submitted that the meter was abnormally burnt and as per the lab testing report there were two holes found in the back side of the meter. Counsel for complainant further submitted that they collected the burnt meter and the same was sent for inspection in the laboratory and in the lab testing the Technician/Engineer came to the conclusion that the meter was abnormally burnt and after lab testing, the meter was sealed. Counsel for the complainant has submitted that accused was found in dishonest abstraction of electricity by illegal means and after change of meter there was a drastic Cc No. 424322/2016 Page No. 15 of 20 State Vs. Parmod Rathee change in the consumption pattern, which was increased at higher side and thereby accused was abstracting the electricity by illegal means and thereby he has committed offence for which the notice was framed by this Court and prayed for conviction of the accused.
19. On the other hand, counsel for the accused has submitted that accused has been falsely implicated in this case and the meter was removed at the site and a new meter was installed and the witnesses so examined by the complainant has been duly cross examined at length and in his cross examination PW 1 has admitted that the condition of the service line was properly OK and there was no input or output of the meter found at the time of inspection. It is further submitted that PW 1 has also admitted that they have not seized the service line. It is further submitted by Ld. Defence counsel that though the CD was prepared at the site but the total electricity appliances are not covered and recorded and the connected load was not 10 KW.
20. I have gone through the record. Four witnesses have been examined by the complainant but there are major contradictions in their statements. Even PW 3 Sh. Nikhil Kumar, Diploma Engineer has deposed in his cross examination that he gave the report of abnormal burnt on the basis of experience and on seeing the meter condition. No scientific report or examination has been brought on record to Cc No. 424322/2016 Page No. 16 of 20 State Vs. Parmod Rathee establish that the meter was abnormally burnt or their was any foreign object inserted in the meter. Even PW 1 in his cross examination has clearly deposed that they have not seen any object of tempering in the meter. PW 3 also admits in his examination that accuracy of the meter could not be done due to the fact that meter was in burnt condition. Even no such data was downloaded to compare the MDI
21. Accused has also examined himself as DW 1 and produced the previous bills to establish the MDI which appears to be consistent and there was slight change in the MDI but it can not be said that there was a drastic change in the MDI which goes to the higher side.
22. It is also established on record by the accused that he lodged a report regarding burning of his meter on 04.05.2015 vide Ex.DW2/A wherein the report regarding burnt meter is shown to be recorded at serial no. 4 vide complaint no. 179898 lodged by the accused Parmod Rathee. Even PW 2 in his cross examination has admitted that they have not analyzed the consumption pattern and MDI of the previous meter. Therefore, it can not be believed that there was drastic increase in the consumption of electricity by the accused, after the change of new meter, when they have not analyze the same with the previous one. The accused has filed on record the paid bills for the year 2014 which shows the consistency in the MDI. There was a argument of Ld. counsel that there was drastic change in Cc No. 424322/2016 Page No. 17 of 20 State Vs. Parmod Rathee the consumption pattern and there was increase at higher side is having no force.
23. Vide Ex. DW2/A accused has proved that he has written an application which was received on 04.05.2013. Ex.PW2/A is the status of consumer complaint which mentions about the complaint. No reason or explanation in response to the aforesaid complaint of the accused given by the complainant. It was incumbent upon the complainant to install the new meter within three days from the date of removal of the meter which the complainant failed to do so. This is not a case of direct theft of electricity but the case of assessment of the electricity consumed by the accused from the date of burnt meter till the date of inspection. I have also perused the speaking order which clearly shows that the alleged tampered meter was not produced before the assessing officer, so speaking order was passed without observing this meter. As alleged, the meter was found abnormally burnt and consumption of the meter remained low. This fact was required to be proved in the court by positive evidence that there was tampering in the meter committed at the behest of accused. It was not proved as to how alleged tampering with the internal mechanism of the meter could slow down the consumption without considering the past or later consumption pattern. PW 2 did not consider the consumption pattern of the consumer before concluding that the case of DAE was made out clearly Cc No. 424322/2016 Page No. 18 of 20 State Vs. Parmod Rathee violating the regulation 26 (ii) of the Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulations, 2002. A bare and simple non speaking pre determined kind of order is totally violative of principle of natural justice.
24. Accordingly in view of the submissions made by counsel for parties and taking into consideration the facts and circumstances that the accused himself has report with the complainant for the burnt meter and he has also produced the bills prior to the date of inspection and after the date of inspection and there is no major changes seen in the MDI.
25. In such circumstances, I am of the considered opinion that complainant has failed to prove its case beyond reasonable doubt, rather the accused has proved the pattern of consumption by proving on record the bills, even after the inspection. In such circumstances, it is safely to say that accused was not involved in dishonest abstraction of energy by tempering in the meter.
26. In view of the above discussion, I am of the opinion that from the evidence on record, the complainant has failed to prove its case beyound reasonable doubt that it was the accused who has committed the theft of electricity at the premises in question. Accordingly, the accused Parmod Rathee is acquitted for the offence punishable under Section 135/138 of Electricity Act. Amount if any, deposited at the time Cc No. 424322/2016 Page No. 19 of 20 State Vs. Parmod Rathee of granting bail to the accused shall be refunded to the accused within one month along with interest @ 6% per annum from the date of deposit. File be consigned to Record Room.
Digitally signed by Announced in the open MUKESH MUKESH KUMAR Court on dated 08.04.2019 KUMAR Date: 2019.04.25 16:24:40 +0530 (Mukesh Kumar) ASJ: Special Electricity Court South West District : Dwarka Courts New Delhi. Cc No. 424322/2016 Page No. 20 of 20 State Vs. Parmod Rathee