Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 15 April, 2011
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No.905/06
PS Okhla Industrial Area , New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, Andrews Ganj,
New Delhi110049
Acting through Mr. Binay Kumar,
(Authorised Representative)
...Complainant
Versus
1 Sh. Lalit Gupta
A1, D.D.A. Sheds,
Okhla Industrial Area PhaseII, New Delhi.
2 M/s. Chamana Enterprises
Through its Prop./ Partner Sh. Harish Jawa
A1, D.D.A. Sheds,
Okhla Industrial Area PhaseII, New Delhi. ...Accused
COMPLAINT INSTITUTION ON : 28.10.2006
JUDGMENT RESERVED ON : 08.04.2011
JUDGMENT PRONOUNCED ON : 15.04.2011
JUDGEMENT
1 The complainant company filed the present complaint u/s 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused committed an offence punishable u/sec. 135 of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act.
22 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer. 3 The accused were summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 20.11.2006 after recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and were granted bail on furnishing personal bond in the sum of Rs. 75,000/ each with one surety of the like amount subject to the condition that the accused shall deposit Rs.1,00,000/ each with the complainant. Separate notices u/sec. 251 Cr.P.C were framed against the accused to which they pleaded not guilty and claimed trial.
4 The complainant company examined Binay Kumar - Legal Officer & AR as PW1, Sachin Gupta - Manager as PW2, Sudip Bhattacharya, Assessing Officer as PW3 and Sh. Vivek Arora - Proprieter of M/s. Arora Photo Studio as PW4. The statements of the accused were recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against them. The accused were given opportunity to lead evidence in their defence. The accused neither produced nor examined any witness in support of their defence evidence, therefore, the counsel for both the accused, by way of separate statements, closed their defence evidence. 5 I have heard the Ld. counsel for accused represented by Sh.V.K.Goel & Sh.O.P.Madan and prosecution represented by Sh.S.S.Mittal, counsel/ deemed P.P and have perused the entire records.
36 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd. 157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that 4 Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC.
Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.' 7 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this subsection, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to rehear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, 5 should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
8 After taking cognizance of the offence on the complaint, the accused were summoned to face the present complaint case. Accused appeared and were granted bail on furnishing personal bond in the sum of Rs.75,000/ each with one surety of the like amount. The notices u/sec. 251 Cr.P.C. were framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statements of the accused were recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 9 Admittedly, the accused are now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against them. A criminal charge could be proved on the basis of circumstantial evidence and 6 the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
10 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. The AR examined himself as PW1 and tendered his evidence by way of 7 affidavit already exhibited as Ex.PX. PW1 in his affidavit deposed that the present complaint has been filed by Sh. Pankaj Tandon - Aurthorised Representative of the complainant company and he identified his sign at point A and the complaint exhibited as Ex.CW1/A. Sh. Lalit Jalan, the then CEO BSES has authorised Mr. Pankaj Tandon to file the present complaint vide authorization letter dated 14.07.2006 and copy of the same was also exhibited as Ex.CW1/B. He has also been duly authorised by the complainant company vide authorization letter dated 23.10.2006 and its copy was exhibited as Ex.CW1/C. During cross examination, PW1 deposed that Sh.Pankaj Tandon, the previous AR filed the complaint who is now the AR of the complainant company before the other special court constituted for Delhi under the Electricity Act, 2003. PW1 denied the suggestion that he was deposing on behalf of Sh.Pankaj Tandon. PW1 further denied the suggestion that Sh.Pankaj Tandon should have come to depose as the best evidence. The complainant company did not pass any resolution of its board of directors directly in his favour. PW1 volunteered that the same was passed in favour of Sh.Lalit Jalan who further deligated his power in his favour. PW1 also denied the suggestion that he has got no proper authority to prosecute the present complaint. PW1 denied the suggestion that even Sh.Pankaj Tandon was not authorised in any way to file the present complaint. PW1 deposed that he was not present at the spot at the time of alleged inspection nor he was a member of the inspection team nor he ever visited the premises in question. PW1 has no personal knowledge of any show cause notice issued to the accused nor he was present at the time of personal hearing given to the accused nor he passed the speaking order Ex.CW2/K. PW1 denied the suggestion that all the documents on the record were illegal, falsely prepared and that there was no theft of electricity in 8 any manner whatsoever either by the accused or in the premises in question. Perusal of Ex.CW1/B dt. 14.07.2006 and Ex.CW1/C dt. 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorised Pankaj Tandon, Senior Legal Officer and Binay Kumar, legal officer respectively to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/B & Ex.CW1/C. The counsel for the accused argued that Sh.Pankaj Tandon and Sh.Binay Kumar are not duly authorised persons since no resolution was passed by the Board of Directors of the complainant company authorising them to file and represent in the proceedings of this case on behalf of the complainant company. The counsel for the accused, in support of their arguments, have relied upon the judgment reported in M/s Nibro Limited Vs National Insurance Co. Ltd AIR 1991 DELHI 25. The complainant, to my considered opinion, is rendering services for distribution of electricity to the public and all the complaint cases by the company are being filed through the authorised representatives on its behalf. It is relevant to mention here that it is not the case where a different companies have been filing the complaints but only one company i.e. BSES Rajdhani Power Ltd. is filing all the complaint cases for theft of electricity in this specially constituted Electricity Court and PW1 in his cross examination volunteered that the resolution was passed by the Board of Directors of the complainant company in favour of Sh.Lalit Jalan who further delegated his power in his favour. PW1 not only identified the signatures of Sh.Pankaj 9 Tandon in the complaint Ex.CW1/A but also proved the authority letter Ex.CW1/B in favour of Sh.Pankaj Tandon and also the authority letter Ex.CW1/C in his favour. Thus, I hold that Sh.Pankaj Tandon, Senior Legal Officer & Sh.Binay Kumar, Legal Officer of the complainant company are duly authorised and competent persons to file and represent the present complaint case on behalf of the complainant company.
11 Now, let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. Sh.Sachin Gupta - Manager examined himself as PW2 and deposed that on 24.04.2006, he along with Sh. Manish Widhani - Engineer, Sh. S.P.Singh - Trainee Engineer & Sh. Om Vir Singh - Trainee Engineer along with Sh. Satender videographer and Sh. Manjeet - electrician visited the premises bearing No., A1, DDA Shed, Okhla PhaseII, New Delhi. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of Section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of 10 Delhi. In view of the above notification and foregoing discussions, I hold that Sachin Gupta - Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 24.04.2006.
12 The issue involved in the present criminal complaint case is on the point of detection of theft of electricity which is the crucial aspect. Let us finally examine whether the accused has committed the offence u/sec. 135 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant through its witnesses has tried to prove the case against the accused that the accused were dishonestly abstracting the energy (DAE) at the premises in question. This case is on the point of detection of dishonest abstraction of electricity(DAE)and how inference is to be drawn for DAE. Regulation 2 (i) and 2 (m) of the Regulations define "direct theft" and "dishonest abstraction of energy" which are as under :
"2(i) 'Direct theft' shall mean abstraction of electrical energy either through by passing the meter by some arrangement external to it or through unauthorized tapping of the supply from licensee's distribution network."
"2 (m) 'Dishonest Abstraction of Energy (DAE)' 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 the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as reversing the polarity of one phase of poly phase meters, changes in CT or PT, etc. ).
In this context, a reliance can be had upon the judgement in WP (C) No.17063/2006 and CM No.14064/2006 decided on 17.11.2006 = 2006(135) DLT 198 entitled Harvinder Motors Vs. BSES Rajdhani Power Ltd., it was held by 11 the Hon'ble High Court of Delhi that mere irregularity in meter seals, breakage of glass etc. do not authorize license to show cause notice. Assessing officer to observe consumption pattern before granting personal hearing. In the WP(C) No.2291/2005 decided on 24.04.2007 reported as J.K. Steelomelt(P) Ltd. Vs. Rajdhani Power Ltd. 2007(140) DLT 563, it was held that fact that upper side and lower side were found missing in inspection does not lead to an inference of DAE since obviously no abnormality found in consumption pattern or any evidence of tempering with the internal mechanism of the meter. It was further held that in order to establish DAE through conclusive evidence, it is incumbent on the respondent to show, not merely with the reference to the consumption pattern, but by some other tangible evidence that there has been the tempering with or access by the petitioner to the internal mechanism of the meter in manner that would slow down the consumption. This could be, for instance, in the form of an accu check instrument being used to detect if the meter was recording lesser consumption than it should. It was further held that merely because, the connected load is more than the sanctioned load, can not lead to an automatic presumption that the entire connected load is being used by the consumer throughout the period. It was also held that apart from the fact that the two seals were found missing there is no tangible evidence in the instant case to show that there has been a tempering with the internal mechanism of the meter by the consumer to make the meter recording lesser consumption of electricity. No accu check instrument has been employed to detect if the meter was recording lesser units. Fact that the disc was moving in the right direction, in the absence of any accu check instrument being used, should have actually led the respondent to conclude that the case of DAE had not been established. In the case of Jagannath Singh Vs. B.S. Ramaswamy 12 (1966)1 SCR 885, the Hon'ble Supreme Court observed that a meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and can not be regarded as an artificial means of its abstraction. To make it such an artificial means, the tempering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy methods of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. Applying the above test, the Hon'ble High Court of Delhi held in the case of J.K. Steelomelt (Supra) that an automatic presumption of DAE on the basis of the external symptoms of tempering together with the analyses of the consumption pattern would not be a safe and error free method. Some other tangible evidence must be shown to exist. In the WP (C) 18328/2004 and CMs 13865/04, 914/06, 4123/06 decided on 21.05.2007 entitled Bhasin Motors (I) P. Ltd. Vs. N.D.P.L., it was held by the Hon'ble High Court of Delhi that an automatic presumption of DAE on the basis of the external symptoms of tempering together with the analyses of the consumption pattern would not be a safe and error free method. Some other tangible evidence must be shown to exist. An accu check meter can be deployed to find out if the meter is infact recording lesser units. It was further held that inspection report could at best have only led to an suspicion of DAE which was thereafter required to be established through conclusive evidence. In Udham Singh Vs. BSES Rajdhani Power Ltd. 2007(136) DLT 500, it was held that mere existence of an irregular seal could not have led to a conclusive proof of tempering. In Jagdish Narayan (Smt.) Vs. North Delhi Power Limited 2007(140) DLT 307, it was held by the Hon'ble High Court of Delhi that no indication from inspection report for using 13 any device or film or a shunt to slow down the meter no accu check operatus was used to determine if the meter was in fact recording lesser energy than it should. No photographs of the condition of the meter at the time of inspection have been shown although that by itself could not constitute proof. Penalty formula used by respondent itself can not supply proof of DAE. Application of LDHF formula also not constitute "conclusive proof" of DAE. Denial of show cause notice and refusal to accept inspection report by the petitionersmeter not installed in temper proof condition and outside reach of any mischievous third party. In such circumstance not reasonable to draw inference of DAE merely on discovery of some signs of tempering. It was also held that an inference of DAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. No case of DAE was made out in the aforesaid case.
13 In the present case, PW2 was partly examined. The complainant was given ample opportunities to produce PW2 for his remaining cross examination but PW2 did not appear. In this context, a reliance can be had upon the judgment reported in Kuldip Kumar & Ors. Vs. State of H.P.(DB) 1993 (1) HC 454, it was held that testimony of a witness includes examinationin chief and crossexamination u/sec. 137 and 138 of Indian Evidence Act. Statement of a witness who is not tendered for crossexamination by the opposite party is no evidence in the eye of law. Principles of natural Justice and fair for just & trial it also requires that a witness must be tendered for cross examination of the opposite party failing which his statement cannot be relied upon. It was further held that if a witness is not tendered for crossexamination by the opposite party, the evidence given by him is no evidence in the eye of 14 law. Further, in the case reported in Anand Gupta & Ors. Vs Shri J.S.Grover, Inspector customs 2006 VII AD (DELHI) 529, it was held by the Hon'ble High Court of Delhi that the testmony of PW3 was incomplete. In such circumstances, in view of the Ripen Kumar Vs Department of customs 2001 CLJ 1288, it cannot be recorded as evidence, the testimony of PW3 cannot be regarded as evidence at all and there is no question of testimony being taken as proof of anything. This is so because neither his examination in chief was complete nor was he subjected to any cross examination. No credibility attached to this statment which had been recorded till 14.10.1999 and the same has to be discarded in toto. In the present complaint case, the testimony of PW2 is also not complete, therefore, the examination in chief of PW2 cannot be read in evidence and the same is discarded.
14 PW3/ Sh.Sudip Bhattacharya deposed in his examinationinchief that he was working as Assessing officer with the complainant company when he passed the speaking order dated 29.05.2006 which bears his signature at point A. Speaking order was passed in relation to inspection dated 24.04.2006 at premises bearing No. A1, DDA, Shed, Okhla Industrial Area, PhaseII, New Delhi. Inspection team issued show cause notice asking the consumer to file reply and also attend personal hearing on 09.05.2006. On 28.04.2006, Sh. Deepak Gupta and Sh. Sudhir Gupta attended personal hearing and filed reply to show cause notice. Record of personal hearing already exhibited as Ex.CW2/H. During the hearing, they submitted that they have taken the premises on rent and paying electricity bills. They were asked to file rent agreement. On 09.05.2006, the copy of the rent agreement was filed. On considering the facts of the case, he have passed speaking order establishing 15 DAE i.e. dishonest abstraction of energy already exhibited as Ex.CW2/K. It is strange that on the one hand PW3 deposed in his crossexamination that he has perused all the documents before passing the speaking order. On the other hand, PW3 in his crossexamination is admitting that he did not see the CD before passing the speaking order, PW3 can not say as to what type of tampering was there in the box seals. PW3 does not remember as to how many seals were there on the box. PW3 further deposed in his crossexamination that he can not comment on the suggestion that CT or meter box seals are not being shown in the CD. PW3 can not say as to how many terminals were there in the terminal in the present case. It is not mentioned in the report as to how many pulses were passed for accuracy test of the meter. The data of load survey was downloaded only for last two months prior to inspections. PW3 admitted in his crossexamination that there is no tampering during the assessed period as per CMRI data. The CMRI data has not recorded any tampering with the CT terminal. As per inspection report, there is no tampering in the potential terminal. PW3 further admitted that electronic meter may malfunction. PW3 also admitted that phenomena could be due to malfunctioning of the meter. PW3 further admitted that CMRI data has not been discussed in the speaking order. The consumption pattern has not been discussed in the speaking order. PW3 categorically deposed that he did not study consumption pattern after the inspection. PW3 admitted that in the bill, the days and hours have not been taken as per DERC regulations. PW3 further admitted that RC (accused No.2) is not the user of the electricity. The name of the accused No.2 was added as it was presumed that he was involved in the meter tampering. Further, PW3 does not have any record to prove his actual involvement in the theft. Therefore, it can be said that PW3 passed the speaking order without application of mind. 16 15 PW4/ Sh. Vivek Arora - Proprietor of M/s. Arora Photo Studio deposed in his examination in chief that he is the proprietor of M/s. Arora Photo Studio Add. C133, Gautam Nagar, New Delhi. Mr. Satender was his employee and he left his studio. In the present case, Mr. Satender conducted the videography on 24.04.2006 with inspection team Sh. Sachin Gupta and ors. He had sent his employee Mr. Satender to conduct the videography with the inspection team in the present case. He conducted the videography in the present case and handed over cassettes and camera in the evening on 24.04.2006 at his office and same data was transferred into office computer. One CD of photographs and videography displayed on the computer screen in the court to which the witness deposed that he identified the same data of the CD exhibited as Ex.PW4/A and this is the same CD which he had downloaded regarding this present case. Sh. Satender - the videographer has not been examined since he has already left the studio of PW4. PW4 neither visited nor conducted the videography at the premises in question on 24.04.2006, therefore, the testimony of PW4 also does not support the case of the complainant against the accused. 16 The accused No.1 stated at the time of framing of notice u/sec. 251 Cr.P.C. that he has not tampered the meter and he has not misappropriated the electric energy in any manner whatsoever and he had consumed the energy through the meter and that the inspection and the speaking order passed are illegal and the allegations are false. Whereas, the accused No.2 stated at the time of framing of notice u/sec.251 Cr.P.C. that he is totally innocent and that the premises in question have been let out to the tenants and there was a rent agreement and he have no knowledge of the inspection and that he came to 17 know of the same on 29.05.2006 when the speaking order was already passed and he had come to know that on the date of inspection the officials of the complainant company came to the premises in question for installing the modem and they removed the seals of the meter and that he has not misappropriated the electric energy in any manner whatsoever nor he tampered the meter. At the time of statement u/sec. 313 Cr.P.C., the accused No.1 stated that he was the tenant of the premises in question on 24.04.2006. He was not present at site at the time of inspection, therefore, he have no knowlege about the alleged inspection as carried out by the officers of the complainant on 24.04.2006. The bills against the electricity consumption through the meter installed at the premises were being regularly paid. He was not committing any theft of electricity at the premises in question. He was occupying two floors out of four floors in the building i.e. the premises in question. The load which has been mentioned in the load report Ex.CW2/C would have been noted for the whole building at the premises in question but he is not admitting the said load mentioned in the load report even assessed against him by the inspection team since he was neither committing any theft of electricity nor he was tempering with the meter in question on the date of inspection. The load report Ex.CW2/C is not only exorbitant but the excessive. Therefore, he was not committing any theft of electricity at the premises in question. The accused No.1 does not know if the inspection report Ex.CW2/A, inspection report (meter details) Ex.CW2/B, load report Ex.CW2/C, Show cause notice for DAE Ex.CW2/D and photographs Ex.CW2/E & CD of photographs & videography Ex.CW2/F were prepared by the team members on the date of inspection at site. Whereas, the accused No.2 stated at the time of statement u/sec. 313 Cr.P.C. that he is the owner of the premises in question. The premises 18 in question was rented out to Sh. Lalit Gupta/ accused No.1 and he was the user of the premises in question i.e. two floors out of four floors in the building. One floor was vacant and the other floor out of two floors except the two floors occupied by Lalit Gupta was rented out to some other person namely, Sudhir. He was not present at site at the time of inspection, therefore, he have no knowledge about the alleged inspection as carried out by the aforesaid officers of the complainant on 24.04.2006. The bills against the electricity consumption through the meter installed at the premises were being regularly paid. He was not committing any theft of electricity at the premises in question. He was not using the premises in question on the date of inspection. The aforesaid load report is not only exorbitant but the excessive. The premises in question i.e. three floors out of four floors were being used by the tenants and one floor in the building in the premises in question was vacant on 24.04.2006. Therefore, he was not using the premises in question on the date of inspection. Therefore, he was not committing any theft of electricity at the premises in question. The accused were given an opportunity to lead evidence in their defence. However, the counsel for the accused by way of separate statement stated that they do not want to examine any witness, therefore, they closed the defence evidence on behalf of the accused nos.1 & 2.
17 Perusal of the inspection reports reveals that the marks of adhesive were found at the meter but no adhesive seen in the CD Ex. CW2/F. Meaning thereby, the illegal material was not found. As per section 135 of the Act, artificial means should have been found. According to the inspection report Ex.CW2/A, the team members checked the accuracy of meter with standard accuracy check machine and found meter slow by ( ) 19.21 %, meter terminal plastic 19 seal No. D429627 tampered and refixed with some adhesive and meter terminal strip not found in its proper slot, R phase CT terminal scrues were loosened deliberately, photographs and videography also taken, show cause notice for DAE served to the consumer, IRs pasted on the meter terminal and meter box to maintain the status quo. The complainant neither produced nor examined any of the inspection team members in support of its case who could be the star witnesses since they visited and inspected the premises as per the inspection reports filed on record. In view of the above referred judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi, mere irregularity of meter terminal plastic seal, meter terminal strip and R phase CT terminal screws found loosened do not authorise the complainant herein to show cause notice. Further, neither any witness/ team member has been examined except the assessing officer and the employer of the photographer nor any tangible evidence proved on record to show that there was a meter tampering at the premises in question. Moreover, one another user i.e. M/s. Eagle was there at the premises but how M/s. Eagle was left by the team members, reasons are best known to them. The CMRI data was calculated for 2 months instead of 6 months. Load inbalancing can not be considered as meter tampering and the same case would be in power failure. There is nothing in cumulating report except the load inbalancing and power failure. The copy of the deed of lease executed on 31.05.2005 between Harish Kumar Jawa and M/s. Ankita Communication through its proprietor Sh. Lalit Gupta was also filed on record to reveal and prove that the accused No.2 was neither the user nor the beneficiary or the partner of the accused No.1. Even otherwise, the accused No.2 is neither the R/c nor the user of the premises. The counsel for the accused, in support of their case also relied upon the judgment reported in the 20 case of D.D.Chadha Vs. State (NCT, Delhi) 81(1999) DLT 338. The accused have taken the defence at the time of statement 251 Cr.P.C. and 313 Cr.P.C. that they were regularly paying the electricity bill amount. To establish the case of DAE, the conclusive and tangible evidence has to be proved by the complainant which the complainant has failed to do so. Meaning thereby, the complainant has miserably failed to prove that the accused were tempering with the meter in question and dishonestly abstracting the electricity through the meter. Thus, the speaking order dated 29.05.2006 Ex.CW2/K passed by the assessing officer is set aside.
18 In view of the aforesaid judgments & the foregoing reasons discussed above in details, the circumstances and evidence proved by the complainant company, to my considered opinion, do not establish the involvement of the accused in the offence of dishonest abstraction of energy U/sec. 135 (1) & Section 138 of the Act. The complainant has not proved its case against the accused beyond reasonable doubt. The present complaint case is not squarely covered within the provisions of section 135 (1) & 138 of the Act. Thus, I acquit the accused Lalit Gupta and M/s. Chamana Enterprises through its proprietor/ partner Harish Jawa U/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 15.04.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
21
CC No. 905/06
15.04.2011
Present AR for the complainant
Sh. V.K.Goel, counsel for the accused No.1 with
accused No.1 in person
Sh. O.P.Madan, counsel for the accused No.2 with
accused No.2 in person
Vide separate judgment of the day, the accused are acquitted u/sec. 135 of the Electricity Act, 2003. Sureties discharged. The amount if any already deposited with the complainant shall be returned to the accused/ consumer within one month from today. The copy of the judgment be made available to the complainant and the accused immediately.
File be consigned to record room.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 15.04.2011