Delhi District Court
Bses vs . Suresh Chand Marwah Page 1 Of Page 13 on 23 February, 2013
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IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDL SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 05.09.2009
Judgment reserved on : 16.02.2013
Judgment pronounced on : 23.02.2013
Complaint Case No.512/09
PS Hauz Khas, New Delhi
Unique ID 02403R0297402009
BSES Rajdhani Power Limited
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
Through Sh.Ashutosh Kumar
(Authorized Representative) ...Complainant
Versus
1 Suresh Chand Marwah (User/ RC)
2 Nikhil Marwah (User)
A12, Ground Floor, South Extension,
PartII, New Delhi110049 ...Accused persons
Appearances: AR for the complainant
Sh. Sandeep Kumar, counsel for complainant
Accused persons on bail with Sh.V.N.Sharma, advocate
JUDGMENT
1 Complaint u/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 & 138 of the Act and also praying for determination of their civil liability. 2 It is the case of complainant that on 05.03.2009, its team inspected premises bearing No.A12, Ground Floor, South Extension, PartII, New Delhi110049. Accused no.1 was found to be registered consumer as well as user of the electricity BSES Vs. Suresh Chand Marwah Page 1 of page 13 2 connection, whereas accused no.2 was found to be user of electricity connection. Meter No.23907766 was found installed vide K.No.2551L1020033 and that recorded a reading of 1954 Kwh. The use of Accu check indicated that meter was running slow by 78.14%. Both plastic seals and hologram seals of the meter were found tampered and refixed. Meter was segregated at site and two illegal resistances were found connected, one in each CT at CT terminal of the PCB for suppressing recording of consumption. IR No.192203 dt. 05.03.2009 was pasted on the meter to maintain status quo. Inspection report was prepared. Connected load was assessed at 29.935 KWs for domestic category. The tampered meter was seized vide seizure memo. Visual footage of the inspection was carried out and converted into CD. Inspection report, meter details & load report were prepared at site and tendered to accused no.1 under his signature and acknowledgement. A show cause notice was also issued calling upon the accused to file reply and appear for personal hearing before the complainant on 20.03.2009. Accused no.1 accordingly appeared before Ritu Raj Sinha - Assessing Officer for personal hearing. However, after examining the facts, speaking order dt. 25.02.2009 was passed, holding it to be a case of DAE. On the basis of applicable tariff and load report, theft bill of Rs.1,42,461/ was raised. On failure of the accused to pay the same, present complaint was filed.
3 Cognizance of the complaint was taken by the ld. Predecessor court on 05.09.2009. After recording presummoning evidence, accused persons were summoned to face trial on 11.11.2009. Accused persons entered appearance and were admitted to bail, vide order dt. 20.05.2010 with direction to deposit 25% of the theft bill with the complainant. Accused persons accordingly deposited an amount of Rs.28,000/.
BSES Vs. Suresh Chand Marwah Page 2 of page 13 3 4 Notice U/sec. 251 Cr.P.C. for accusation of offences punishable U/sec. 135
and 138 of the Act was framed against both accused persons. They pleaded not guilty and claimed trial. Tampering of the meter was denied. It was pleaded that they had paid excess amount for bill wrongly raised since 2002, which had not been refunded so far. Liablity to pay civil liability was also denied. 5.1 Complainant, in support of its case, examined five witnesses. Ashutosh Kumar (PW1) is the authorised representative of the complainant company. He proved filing of the complaint by previous AR Sh.Binay Kumar and proved his authority to file the complaint and pursue the same. Sunil Bisht (PW4) had visited the premises on 18.02.2009, when the premises could not be inspected. Radhey Shyam (PW2) was a member of the raiding team, which was accompanied by Parveen Kumar (PW5), who videographed the connected load on the date of inspection i.e. 05.03.2009. Ritu Raj Sinha (PW3) was Assessing Officer. He proved his speaking order Ex.CW2/8.
5.2 Radhey Shyam (PW2) has deposed that the team segregated the meter at site and found two illegal resistances inside the meter. Meter was seized at the spot. He proved the connected load to be approximately 29 KWs. The electricity supply was restored through a new meter provided by MMG department. The witness also identified contents of the CD, which was videography of the connected load. He identified accused Suresh Chand Marwah. He also identified the meter, which was produced in a court and exhibited as Ex.P2 and carbon copy of the seizure memo was exhibited as Ex.P1. On being cross examined, he admitted that seizure memo did not bear signatures of all members of the BSES Vs. Suresh Chand Marwah Page 3 of page 13 4 inspecting team also that there were no independent witnesses to the inspection. He admitted that a plastic seal affixed on the meter was removed at site and the same was not seized. He, however, volunteered that the said seal was tampered and refixed. The seal was not sent to laboratory to ascertain whether the same was tampered and refixed. He admitted that at the time of inspection, NABL accredited laboratory had come into operation.
5.3 Parveen Kumar (PW5) proved the CD of videography. On being cross examined, he deposed that videography was not done as one continuous footage. It was recorded after pauses, as and when, required. Ritu Raj Sinha (PW3) proved his speaking order Ex.CW2/8. On being cross examined, he deposed that he did not remember if he had played the CD of inspection proceedings, while passing the speaking order. He did not remember the contents of videography. He admitted that accused had submitted a written representative at the time of personal hearing, which was not on judicial record.
6 Incriminating evidence was put to accused persons. Removal or segregation of the meter in presence of the accused persons was denied. Presence of illegal resistances or refixation of the seal was denied. They stated that they had two meters installed in their premises. The company raised exorbitant bills for both the meters for the period 1994 to 2002. On account of non payment of these two bills, supply of electricity was disconnected. Accused persons moved a petition before the Hon'ble High Court challenging the bills and seeking restoration of electricity. The Hon'ble High Court directed them to deposit Rs. 2,00,000/ subject to adjustment, with direction for restoration of supply. In the rendition of accounts before the Hon'ble High Court, it transpired that accused BSES Vs. Suresh Chand Marwah Page 4 of page 13 5 owed approx. Rs.55,000/ against which, the accused persons had paid an amount of Rs.2,00,000/. The Hon'ble High Court relegated their petition to the consumer forum, where the accused persons deposited amount of Rs.4.5 lacs. Both accused persons further submitted that the matter was finally settled out of the court, at the instance of BSES and the settlement was accepted in the final order of consumer forum. On the basis of settlement arrived at, the company had to refund excess amount to accused persons, which had been paid on the direction of various courts. Instead of giving details of the amount and refunding the amount, the complainant filed the present complaint on the basis of inspection dt. 15.05.2009. The complainant did not comply with the settlement arrived at, which was made a part of final order of the consumer forum. Accused persons also stated that they were not committing any theft of electricity at the premises in question. There was no tampering with the meter. Accused persons submitted that they are not liable to pay any amount, as allegedly claimed by the complainant against them. 7 Accused persons sought opportunity to lead defence and examined Suresh Chand Marwah, accused no.1 as the sole witness. Witness explained in detail about previous dispute with the complainant company and filing of various petitions by the accused before the Hon'ble High Court, civil courts and consumer forum. On being cross examined, he admitted that meter in question was removed and replaced by new meter on the date of inspection and the old meter was seized. 8 Sh.Sandeep Kumar, counsel for complainant has argued that premises was initially visited on 18.02.2009, when the inspection was not permitted, therefore, a notice under section 163 of the Act was issued. Accused no.1 responded to the notice and permitted inspection of the premises on 05.03.2009. The inspection BSES Vs. Suresh Chand Marwah Page 5 of page 13 6 and the proceedings conducted therein are not disputed as the documents prepared at site bear the signature of accused no.1 Suresh Chand Marwah, who had received the same. Said accused also appeared for personal hearing and speaking order was passed after considering the submissions made by him. Tampering of meter is established in the testimony of Radhey Shyam (PW2). He has proved that the seals were broken and refixed. Moreover, CT terminals were found connected with illegal resistances. It is, therefore, argued that complainant has proved its case beyond reasonable doubt.
9.1 Sh.V.N.Sharma, ld. defence counsel has argued that the authority letter of Ashutosh Kumar (PW1) to pursue the present complaint is not proved, as the witness, despite opportunity, has not placed on record the power of attorney in his favour. Seizure memo Ex.CW2/5 was not given to the accused persons at the time of inspection. It also does not bear their signatures, therefore, the same cannot be read in evidence. Segregation of meter at site is illegal. Despite the laboratory having come into operation, meter was not sent to laboratory for its analysis. The procedure followed is contrary to Regulation 52 of Delhi Electricity Supply Code and Performance Standard Regulations, 2007 (hereinafter called the Regulation of 2007). It is further submitted that parties are in dispute since 2000 and the meter in question was installed on 20.11.2007. At the time of installation of the meter, accused persons had protested and sought its verification, which was not done by the officials of complainant. It is, therefore, argued that if the meter is held to be tampered with, the same is attributable to the officials of complainant and not to accused persons.
BSES Vs. Suresh Chand Marwah Page 6 of page 13
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9.2 In rebuttal, Sh.Sandeep Kumar has argued that Regulation of 2007 are
directing and not mandatory. Violation of Regulation calls for imposition of fine by DERC & is not fatal to prosecution.
10 I have heard the ld. counsels and with their assistance gone through the evidence and material placed on record by the parties.
11 The identity of the accused persons and the premises is not disputed. It is also not disputed that the accused no.1 is the registered consumer and both the accused persons are users of the premises. On the basis of evidence & arguments raised, controversy in the present case can be split into following heads:
(a) Whether the officials of complainant company followed the correct procedure for booking case of Dishonest Abstraction of Electricity?
(b) Whether meter bearing No.23907766, installed at the premises of the accused, was tampered with?
ISSUE NO.1 Whether the officials of complainant company followed the correct procedure for booking case of Dishonest Abstraction of Electricity?
(i) Section 50 of the Act provides for state electricity regulatory commissions to specify an Electricity Supply Code to provide for inter alia, measures for preventing tempering of meter, removal of meters, etc. For ready reference Section 50 of the Act is reproduced herein below: "Section 50:The Electricity Supply Code:The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity BSES Vs. Suresh Chand Marwah Page 7 of page 13 8 for nonpayment thereof, restoration of supply of electricity, measures for preventing tampering, distress of damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters."
(ii) The Regulations of 2007 are, thus, enacted under this provision of the Act and as subsequently discussed derive force of law from this provision. Regulations of 2007 were formulated by the DERC in consultation and discussion with the distribution companies. Regulations were thereafter tabled before the State Lagislature as required u/sec.182 of the Act and then notified. The complainant and its officials are estopped from taking a plea that Regulations were not brought to their notice or were not to the knowledge of the inspection team. It is established principle of law that Regulations have the force of law and are statutorily enforcible. Regulations being subordinate legislation fill in gaps which the principle legislation misses out. The definition and punishment for the offence of Dishonest Abstraction Electricity is provided in 135 (1) (b) (d) r/w/sec.138 of the Act. However, the Act is silent as regards the manner in which inspection is to be conducted and the parameters to be adopted for arriving at a conclusion of DAE, by the officers of complainant company. To fill in the gap on these aspects Section 50 of the Act provides for subordinate legislation. Regulations of 2007, which are, thus, envisaged under the Act, itself can not be lightly brushed aside by the complainant, claiming the provisions to be directory and not mandatory. Scope and ambit of subordinate legislation has been enunciated by the Hon'ble Supreme Court of India in St.Johns Teachers Training Institute Vs. Regional Director National Council For Teacher Education & Anr. reported as (2003) Volume 3 SCC 321. The relevant portion is reproduced herein below:
BSES Vs. Suresh Chand Marwah Page 8 of page 13
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10 "A regulation is a rule or order prescribed by a superior for the
management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within th limits of authority conferred by the Act. Rules can not be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statues to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the stature. The process of legislation by departmental regulations saves time and is intended to deal with local departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern day society being complex, it can not possibly foresee every administrative difficulty that may arise after the stature has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (Emphasis supplied) 11 It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (8th Edn., 2000, at p.839) BSES Vs. Suresh Chand Marwah Page 9 of page 13 10 Administrative legislation is traditionally looked upon as a necessary evid, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (at it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them in some particular situation."
(iii) Regulation of 2007 are thus mandatory to be followed and have force of law. Segregation of meter at site is not envisaged in Regulations of 2007. Instead Regulation 52 (viii) of Regulations of 2007 specifically mandates the old meter to be tested in an NABL accredited laboratory. Pasting of IRs on the meter is a procedure provided for in repealed Regulations of 2002. Complainant, thus, followed the said discarded practice in this case. Other violations of Regulations of 2007 noticed are, as contained in Regulations 52 (iv), (vi), (ix), (xi) & (xii) & Regulation 53. Consumption pattern for corroboration of theft of electricity was not looked into before booking the case of DAE or even at the stage of filing the complaint before the court. Another major violation of the Regulations is that the meter was segregated at site and not sent to the laboratory for testing and analysis. Explanation tendered, by Sh.Sandeep, ld. counsel for the complainant, is that there was apparent tampering of the meter, which was visible to naked eye. I find no merits in this argument, as there was no procedure ever prescribed of segregating the meter at the site. A consumer can not be made to suffer on account of lapse of the complainant in not sending the meter to NABL accredited lab. The BSES Vs. Suresh Chand Marwah Page 10 of page 13 11 transparency and detachment expected from an accredited laboratory was deprived to the accused in the present case. Analysis of meter data downloaded by the third party authorised laboratory as provided in Regulation 52 (xii) is another piece of corroborative evidence envisaged in the Regulations. On the basis of findings as noticed above, I am of the considered opinion that the Regulations of 2007, which were effective on the date of inspection were given a total gobye by the complainant's officials. In such facts & circumstances, the inspection is held to be vitiated. Inspection team reached the confusion of DAE on the basis of procedure which is not envisaged in the governing regulations.
(iv) The cardinal principle of procedures being laid down is to ensure that the consumer is protected at the hands of a mighty organisation. For the reasons discussed above, I have no hesitation in holding that the procedure adopted by the complainant for booking the case under DAE was totally violative of the Regulations then inforce. The entire inspection is, thus, vitiated and held to be void. The transparency and detachment expected from an accredited laboratory was deprived to the accused in the present case.
ISSUE No.2 Whether meter bearing No.23907766, installed at the premises of the accused, was tampered with?
12.1 In support of this question, complainant's case is based on the testimony of Radhey Shyam (PW2), who is member of the raiding team, who had segregated the meter at site and detected presence of two illegal resistances. He has also deposed that the meter seals were tampered with. In support of his oral testimony, BSES Vs. Suresh Chand Marwah Page 11 of page 13 12 complainant has relied upon some videography, which it claims contains the image of illegal resistances also. The challenge to this evidence is ofcourse to the procedure adopted as discussed in para above. It is also submitted by Sh.Sharma that the segregation was not conducted in the presence of consumer. Moreover, the same is not covered in videography. It is also argued that the meter was not seized and even the alleged illegal resistances were not removed, seized & produced before the court.
12.2 Admittedly, videography in support of the testimony of PW1 is not continuous. There is no videography to establish continuity of proceedings i.e. detection of missing seals and segregation of the meter at the site. The alleged resistances were not removed at the time of inspection, seized & produced in court to establish that the same were actually employed in the meter to suppress recording of consumption. As discussed in para above, there is no evidence of an independent laboratory to support the contention that meter was actually tampered with. Meter even if held to be tampered with, tampering can not be attributable to accused. I also find merit in the argument of Sh.Sharma that the meter which had been installed by the complainant, in 2007, without verification & satisfaction of accused persons; could be already defective/tampered with. This argument becomes very pertinent in the face of tumultuous dispute between the parties, pending since 2000. I am, therefore, of the opinion that there is no sufficient material before this court to record a conclusive finding that the meter at the premises of the accused was tampered with or deliberately tampered with by account persons. Accused persons are, therefore, afforded benefit of doubt on this count.
BSES Vs. Suresh Chand Marwah Page 12 of page 13
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13 For the aforesaid reasons as contained, I am of the opinion that
complainant has failed to establish beyond reasonable doubt that the meter was deliberately tampered with or that the accused persons were illegally and unauthorisedly abstracting electricity from a tampered meter. The charge of offence punishable u/sec.135 & 138 framed against the accused persons has failed. They are accordingly acquitted. Bail bonds are cancelled & sureties are discharged.
14 Accused persons are entitled to refund of the amount deposited by them. It is, therefore, directed that amount of Rs.28,000/ deposited by the accused persons towards theft bill, be refunded to them with interest @ 8% from the date of deposit, till the date of refund. The amount be sent to accused persons at their address, within a period of one month from the date of expiry of limitation period to file appeal.
File be consigned to record room.
Announced in the open ( NAROTTAM KAUSHAL)
court on 23.02.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
BSES Vs. Suresh Chand Marwah Page 13 of page 13