Delhi District Court
Complainant vs Prashant Mudgal ... on 19 February, 2013
Page 1 of 16
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 01/10
ID No. R0637632008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Prashant Mudgal ......................... Accused
2. Sanjay Gupta ......................... PO
Both at:
Godown at 487/84,
Ground Floor,Peera Garhi,
Nangloi, New Delhi.
Date of institution: ........................ 11.08.2008
Arguments heard on: ........................ 11.02.2013
Judgment passed on : ........................ 19.02.2013
CC No. 01/10
Page 2 of 16
JUDGMENT:
1. The brief facts of the case are like this. A three phase electronic meter no.27064531 with K number 26300D110042 was installed at 487/84, Ground floor, Peera Garhi, Nangloi, New Delhi (hereinafter referred to as inspected premises). On 28.05.2007 the meter no. 27064531 was replaced with new electronic meter no. 27095885 by MMG group of the complainant company. The meter in the sealed condition was sent to meter testing lab for testing under intimation to the consumer that he may witness the testing of meter. On 13.06.2007 the meter was tested in the laboratory which was found tampered.
2. On 19.06.2007 a joint inspection team headed by Sh. Manish visited the inspected premises on the basis of lab report. Accused were found users of the inspected premises. The accused no. 1 is also the registered consumer of the electricity connection. A connected load of 27.96 KW was found for industrial purposes against a sanctioned load of 21 KW for NX category. The photographs were taken. Meter details report and load report were prepared and offered to the accused who refused to receive and sign the same. A show cause notice dated 19.06.07 was issued to the accused to file the reply by 26.06.07 and to attend the personal hearing on 03.07.07. The CC No. 01/10 Page 3 of 16 accused no.2 filed the reply. On 26.06.07 the personal hearing was attended by both the accused who submitted that initially it was a single phase connection which was converted into three phase connection by enhancing the load to 21 KW in JulyAugust, 2006. Initially, lamination job work was carried out with small machines and presently the premises is used for a moulding job. The interference in the meter was denied by the accused. Accused no.1 also submitted that meter was installed in March, 2006 and thereafter premises was lying vacant. The premises was used as godown for paper. The meter was on single phase load. He came to know that the three phase supply is not coming to the premises when moulding machines were installed. On 31.03.07 a complaint no. 401096 was made to the BSES and three phase supply was energized from the pole. A speaking order dated 28.04.07 was passed by Assessing Officer. An assessment bill for theft of electricity (tampering of meter) was raised against the accused which remained unpaid. Hence, this complaint.
3. The complainant examined two witnesses in pre summoning evidence. Accused were summoned for the offence U/s 135/138 of Electricity Act,2003 (herein after referred to as Act). Accused no.2 did not put his appearance. On 15.01.2011 accused no.2 CC No. 01/10 Page 4 of 16 was declared proclaimed absconder by my Ld. Predecessor. Copy of complaint and documents were supplied to the accused no.1. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
4. The complainant examined five witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that there was no tampering in the meter. There was a fault in the pole of the complainant. A complaint was given to the complainant upon which electrician came to the premises and connected the wires to restore the supply. However, accused has examined four witnesses in defence evidence.
5. PW1 Manish Mittal stated that on 19.06.07 he along with other officials of the complainant visited the inspected premises on the basis of lab report. The accused Prashant was found user and registered consumer of the electricity connection installed in the inspected premises. They assessed the connected load of the inspected premises. A connected load of 27 KW for industrial purposes was found. Photographs (17 in number) Ex.CW2/G were taken which are duly identified by him. CD Ex.CW2/H was also prepared. The photographs in CD are duly identified by him as same were clicked at the spot. Meter report, load report and show cause notice Ex.CW2/D CC No. 01/10 Page 5 of 16 F were prepared and offered to the persons present at the spot who refused to receive and sign the same. He cannot identify the accused due to lapse of time. PW2 Ranvir Singh has corroborated the version of PW1 in his examination in chief.
6. During cross examination, PW1 has denied the suggestion that load of injection moulding machine was 15 HP which has been wrongly recorded as 23.66 KW or connected load was 13 KW or photographs do not pertain to the inspected premises. The load was tested with tong tester but this fact is not mentioned in the inspection report. The MDI of the meter was not recorded. The tong tester in not reflected in the photographs. The reports were not pasted at site. He does not know whether reports were sent by post to the accused or not.
7. During cross examination, PW2 stated that he does not know who has checked the connected load of the inspected premises. The load was checked with the help of tong tester but load was also mentioned on the machines. The lighting load was checked on the basis of specific mentioned on the equipments. The tong tester is not visible in any of the photographs. The load of injection moulding machine was checked on the basis of specification plate affixed on the machines. It is admitted that specification plate is not visible in the CC No. 01/10 Page 6 of 16 photographs. The photographs were taken by Sajjan Kumar Electrician. The suggestion is denied that the load of injection moulding machine was 15 HP or load of the premises was 13 KW.
8. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
9. PW4 Nikhil Kumar stated that he has worked with Sh. Rajeev and Manish Jain in the laboratory. Both of them have left the services of the complainant company whose whereabouts are not known. He has seen them while writing and signing during the course of employment as such he can identify their hand writing and signatures. Lab report Ex.CW2/C bears their signatures at point A and B.
10. PW5 Sudip Bhattacharya is Assessing Officer of the complainant company. He stated that personal hearing was granted to both the accused on the basis of show cause notice dated 19.06.2007 Ex.CW2/F. They admitted that earlier the connection was single phase which was converted into three phase in JulyAugust, 2006. The premises was used for small lamination machines. On 01.04.07 the premises was given on rent to Sanjay Gupta and it came to their CC No. 01/10 Page 7 of 16 notice that three phase supply is not coming to the meter. He has also placed reliance on lab report and CMRI data and passed the speaking order Ex.CW2/I which bears his signature at point A.
11. During cross examination, he admitted that accused Sanjay Gupta was user of the inspected premises as per record. On 19.02.06 three phase meter was installed. He cannot admit or deny that there was single phase supply in the electricity connection upto March, 07. He admitted that Sanjay Gupta disclosed that there was single phase supply and three phase supply was started on his complaint but he did not verify this fact from the record. He tried to ascertain from CMRI data whether there was single phase supply or not but he could not confirm it from the data. He has considered the bills, technical specification and VAT challan submitted by the consumer. He is confronted with speaking order Ex.CW2/I where there is no such finding. He did not verify that on 29.04.07 there was a blast in the supply line and a complaint no.401643 dated 30.04.07 was given by the consumer. He has not placed on record the reply of the consumer. The suggestion is denied that reply is not placed as complainant wants to conceal the submissions made by the consumer. He admitted that speaking order shows that meter number 27078859 was running from the same pole. He admitted that meter no. 27078859 was not running CC No. 01/10 Page 8 of 16 from the same pole (voluntarily stated that they were running from the same power line but through different poles). He has not placed any document on record to show that these two meters were running from same power line. The MDI of the meter was to the tune of 1314 KW in April,07 and it was around 10 KW prior to April,07. The suggestion is denied that power off mode occurres in CMRI data when the electricity is not at all used through meter or meter will record power failure and not power off when there is no supply in the terminals. On 30.04.07 the meter recorded power off in CMRI data from 00 hours till 12 hours. It is correct that in case there was a theft of electricity through meter then it was for a period from 00 hours till 12 hours on 30.04.07. It is correct that CMRI data was downloaded in laboratory. He has taken out the print out of CMRI data after its transmission to him from Centralized system. It is correct that CMRI data was neither downloaded or analyzed by third party laboratory.
12. The accused has led defence evidence. DW1 Vinod Hurria is partner of M/s Hurria Moulds and Tools, Manesar, Gurgaon. He stated that on 28.03.07 he has sold one injection moulding machine of 1520 HP to Sh.Sanjay Singh of M/s Deepak Traders vide invoice no. 400 which is Ex.DW1/1. The machine was transported through vehicle no.DL1LE4453. The payment was made by purchaser at the CC No. 01/10 Page 9 of 16 time of purchase.
13. During cross examination, he admitted that Ex.DW1/1 is not in the name of Sanjay Singh but it is in the name of M/s Deepak Traders which is signed by Sanjay Singh as purchaser. The payment received from Sanjay Singh has been reflected in accounts books as well as in VAT. The suggestion is denied that Ex DW1/1 is a forged document. He has brought ledger of account of M/s Deepak Traders, cash book of March, 07 and file containing the bills. The cash received from M/S Deepak Traders is reflected in cash book.
14. DW2 Anil Kaushik, Asstt. Manager of the complainant company stated that they are maintaining manual and computerized records of the complaints made by the consumers. He has not brought the record pertaining to complaint number 401643 dated 30.04.07 and complaint dated 31.03.07 and repairs carried out in respect of K number 26300D110042 as the records are very old and could not be traced out. The computer has not reflected the complaint though complaint number was put in the computer. They have not lodged any FIR for misplacement of register. He cannot recognize the signature and hand writing of Mr. Mehta at Point A of mark X1. Sh S S Saini, AM was working in the same office. He has not seen him while writing and signing. The stamp on mark X2 at point A is that CC No. 01/10 Page 10 of 16 of Asstt. Manager, O & M.
15. DW3 S P Mehta, Technical Officer, O & M stated that he was foreman (Electricals) in 2007. Report Ex.DW3/1 was given by him on the basis of record of the complaint centre which bears his signature at point A. During cross examination, he stated that the complaint was attended by lineman who tightened the jumper from the pole.
16. DW4 S S Saini, Retired Sr. Manager stated that he was working as Asstt. Manager (O & M) Nangloi Division in 2007. Report on Ex.DW4/1 from point X to Y was given by him on the basis of complaint register which bears his signature at point B. On 31.03.2007 at 12.40 p.m., the lineman, as per record, tightened the jumper from the pole against complaint no. 40/096 of Prashant Mudgal.
17. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for consumption of electricity through tampered meter.
18. Regulation 2 (m) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) CC No. 01/10 Page 11 of 16 Regulations, 2002 says that dishonest abstraction of energy shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by the consumer to cause the meter to stop or to run slow.
19. To prove the factum of dishonest abstraction of energy, the complainant has examined five witnesses. The accused has examined four witnesses in defence evidence in order to advance his defence. I have perused the record of the case. It is admitted fact that accused is owner of inspected premises where a three phase electronic meter No. 27064531 was installed in his name. It is admitted by the accused that on 28.5.2007 the said meter was replaced with a new electronic meter No. 27095885 vide MCR Ex. CW2/A. The meter was sent to the laboratory for testing on 11.6.07. It is admitted by the accused that on 11.06.07 he had gone to the laboratory to witness the testing of the meter. It is admitted fact that on 11.06.07 the meter was not tested. On 13.06.07 the meter was tested and lab report Ex. CW2/C was issued. The meter was not tested in the presence of the accused. It is admitted fact that on 19.06.07 the connected load of the CC No. 01/10 Page 12 of 16 premises was taken by raiding team headed by PW2 Manish Mittal.
20. Ld counsel for the accused contended that there was no three phase supply in the meter in question as three phase supply was restored on his complaints dated 31.03.07 and 30.04.2007 as apparent from letters Ex. DW3/1 and Ex. DW4/1. Ld counsel for the complainant contended that there was three phase supply in the meter and only the jumper from the pole was tightened by the lineman on the complaint given by the accused. Heard and perused the record. The accused has himself admitted before Assessing Officer that three phase has been started from JulyAugust, 2006 though the complainant has alleged that three phase connection has been installed on 19.02.2006. The plea of the accused is that he came to know that there is no three phase supply in the meter when three phase machine was installed on 31.3.2007 and accordingly complaint was made to the complainant. A plea was also raised by accused before Assessing Officer that premises was lying vacant and thereafter it was given on rent for godown for papers. No such plea has been taken by the accused before this court for the reasons best known to him. Moreover, it does not appeal to common sense that accused has failed to detect three phase supply in the meter. It is correct that a jumper was tightened from the pole on the complaint of the accused but it CC No. 01/10 Page 13 of 16 does not signify that three phase supply was started from the date of tightening of the jumper i.e 31.3.2007. There is no merit in the arguments of ld defence counsel that there was no three phase supply in the meter since the day of installation of three phase meter.
21. Ld counsel for the accused contended that the connected load especially of hand moulding machine has not been rightly recorded by the complainant though ld counsel for the complainant has urged to the contrary. Heard and perused the record. The testimony of PW1 that load was checked with tong tester is not corroborated by PW2 who stated that load was recorded as per the specifications plate affixed on the machine as well as the load reflected on the machines. The testimony of DW1 shows that on 28.3.2007 one old injection moulding machine of 1520 HP was sold to Sanjay Singh of M/s Deepak Trader vide invoice Ex DW1/1. The sale of the machine and receipt of payment from Sanjay Singh is duly reflected in the cash book. It is clear that hand moulding machine was installed in the inspected premises after its purchase by Sanjay Singh of M/s Deepak Traders from DW1. The load report shows that moulding machine is of 23.666 KW. The testimony of DW1 shows that moulding machine is of 1520 HP. The photographs placed on record nowhere shows the specification period of the machines. In CC No. 01/10 Page 14 of 16 the absence of any concrete evidence from the side of the complainant, the version of DW1 is relied upon. The machine of 20 HP is equal to 14.92 KW. I find force in the argument of the ld counsel for the accused that load of hand moulding machine was not rightly recorded.
22. Ld counsel for the complainant contended that PW5, while passing the speaking order Ex CW2/I, has duly considered the entire documents on record including the submissions made by the accused. Ld counsel for the accused contended that lab report is not duly proved by the complainant and speaking order cannot be relied up on because reply as well as documents placed on record by the accused were not considered by the Assessing Officer. He further contended that CMRI data cannot be relied upon as complainant has failed to prove as to who has downloaded the data from the meter. Heard and perused the record. PW5 is an Assessing Officer. He has considered the lab report as well as CMRI data. The lab report is not duly proved by the complainant. PW5 has admitted that he has not downloaded CMRI data. CMRI data was sent by email to the centralized system of the complainant from where it was transmitted to him. The complainant has failed to prove that common meter reading instrument was in perfect condition at the time of loading the CC No. 01/10 Page 15 of 16 data. The complainant has failed to prove that as to who has down loaded the data as the lab report Ex. CW2/C nowhere reflects that data was downloaded at the time of testing of the meter. Further, reply to the show cause notice was given by the accused to Assessing Officer. The same is not placed on record by the complainant. The bills, technical specifications and VAT challan were submitted by the consumer at the time of personal hearing. The testimony of PW5 shows that the same were considered but speaking order Ex. CW2/1 is silent to this effect. There is no explanation why reply of the consumer, bills, technical specifications and VAT challan filed by the consumer find reflection in the speaking order in case they were duly considered. All of them should have been considered and duly reflected in the speaking order and the absence of the same puts a question mark on the speaking order.
23. The meter in question was tested in lab by Sh Rajeev and Sh Manish Jain. Both of them have issued the lab report Ex. CW2/C. Neither PW4 has tested the meter nor it was tested in his presence. The observations made in the lab report could only be proved by the examination of the officials who have tested the meter. Their examination was essential to prove the lab report. Their non examination calls for an adverse inference against the complainant. CC No. 01/10 Page 16 of 16 The lab report is not a public document. It has to be proved like any other document in accordance with law. The case of the complainant rests upon the lab report which is not duly proved by the complainant in accordance with law as such no capital can be drawn by the complainant out of lab report.
24. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and accordingly accused Prashant Mudgal is acquitted of the offence charged. The amount, if any, deposited by accused be returned back to them with an interest of 6 % from the date of deposit of the amount till its return. Accused Sanjay Gupta is PO. File against him will be revived as and when he is arrested. File on completion be consigned to record room.
Announced in the open
Court on dated 19.02.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 01/10