Delhi District Court
Cc No. 138/08 ( Ndpl vs Phool Singh Etc) Page No.......1/18 on 31 October, 2012
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: ASJ
(ELECTRICITY) : NORTHWEST DISTRICT: ROHINI
COURTS:DELHI
CC no. 138/08
Unique ID no. 02404R0083342008
North Delhi Power Limited
office at Grid Sub Station Building
Hudson Lines, Kingsway Camp, Delhi110009
Also At:
North Delhi Power Limited
Enforcement Assessment Cell,
Opposite C2 Block, Keshavpuram,
Lawrence Road, Delhi35.
.....Complainant Company
V E R S U S
1) Shri Phool Singh
H. no. 246A, Rampura, Delhi. (died)
2) Shri Mahinder Singh S/o Shri Vishwanath Singh
H. no. 246A, Rampura, Delhi
...........accused persons
Date of institution: 29/07/2005
Date of hearing arguments: 01/10/2012
Date of decision: 31/10/2012
JUDGMENT
1) The present complaint was instituted by the North Delhi Power Limited (NDPL) through its attorney Shri A.K. Gupta interaila alleging that accused no.1 is the registered CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......1/18 consumer of the complainant company vide K. no. 32401126252 whereas accused no.2 is the user of the electricity at the house no. 246A, Rampura, Delhi (hereinafter referred as the premises). On 13/10/2004 a joint inspection team of the complainant company inspected the aforesaid premises for use and consumption of electricity. During the course of inspection of the premises occupied by the accused persons the inspection team observed the following irregularities: "Both half seals of meter found tampered. Disc found moving in right direction. IR no. 46671 dated 13/10/04 duly signed & pasted on meter & Board.
Establishment type Industrial Manufacturing of Lamination Machine"
2) The inspection team further found a connected total load of 15.46 KW against a sanctioned load of 8.00KW, the details as under: Sl. no. Connected Consumer Durables Load i. LAITH M/C (6X2 HP) 12HP ii. T/GRINDER (1X 1/2HP) 1/2HP iii. HAKSAW (1X1/2HP) 1/2HP iv. COMPRESSOR (1X1 HP) 1HP CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......2/18 v. WELDING SET (1X3 KVA) 3KVA vi. DRILL M/C(1X1 HP) 1HP vii. O/LAMP (3X100W) 300W viii. F/TUBE(12X40W) 480W ix. C/FAN (7X60W) 420W x. EX.FAN(3X120W) 360W xi. PD/FAN (2X80W) 160W
3) The inspection team prepared the report dated 13/10/2004 and delivered the same to the representative of the accused after obtaining his signature on the same. Along with the inspection report the accused persons were also served a show cause notice dt. 13/10/2004, calling upon them to show cause as to why they should not be booked for dishonest abstraction of energy. Accused persons were granted opportunity for personal hearing on 16/10/2004. After considering the submissions of the representative of the accused a speaking order dt. 29/10/2004 was passed establishing the case of dishonest abstraction of energy against the accused persons. On the basis of inspection dt.
13/10/2004 the company raised a provisional bill dt. 16/10/2004 which was duly received by accused Mahender Singh on 16/10/2004. On 16/10/2004 Shri Mahender Singh appeared and attended the personal hearing at the Enforcement Assessment CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......3/18 Cell and submitted his written representation in reply to the Show Cause notice dt. 13/10/2004. The final assessment bill dt. 08/11/2004 for a sum of Rs.3,57,831/ was raised against the accused payable by on or before 19/11/2004. Accused persons failed to make the payment of the said bill and accordingly the present complaint was instituted against them for the offence punishable u/s 151 read with section 135 & 138 of the Electricity Act, 2003.
4) Complainant examined CW1 Shri Ashok Kumar Gupta and CW2 Shri Kapil Kumar in support of its pre summoning evidence.
5) On 12/10/2006, the Ld Predecessor summoned the accused persons for the offence punishable u/s 135 read with section 150 of the Electricity Act, 2003 has taken the cognizance of the offence accordingly.
6) Accused no. 1 had died and accordingly the complaint was dropped against him being abated on 13/04/2007. Accused no. 2 Mahender Singh has appeared and was heard on point of the charge on 10/12/2008. Charge for the offence u/s 135 of the Electricity Act, 2003 was framed against him to which he pleaded not guilty and claimed trial.
7) In support of its case complainant has examined three witnesses. PW1 Shri Naveen Kumar is the member of the raiding CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......4/18 team and deposed that during inspection meter was found tampered and one person namely Devender Kumar was found present with labourers. He further deposed that Devender Kumar informed them that the users of the premises are Mahender Singh and Phool Singh. The show cause notice as well as inspection report was served upon Devender Kumar. He has proved the inspection report Ex. CW2/1, Copy of Show cause notice Ex.CW2/3.
8) PW2 Shri Ashok Kumar Gupta is the Authorized Representative of the complainant company who instituted the present complaint on the basis of power of attorney dt. 20/09/2004 as Ex.CW1/1. He has proved the speaking order passed against the accused persons as Ex. CW1/4 and final assessment bill as Ex. CW1/5.
9) PW3 Shri Manish Goyal is another member of raiding party. He has described the tampering of half seals of the meter as under: "The monogram on the seals were found to be different from the original monogram. The seals were not found broken. We have matched the monogram on the half seals with the original monogram. The said monogram was procured from the office of MMG. The same was deposited CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......5/18 back with the said office. "
He has also identified the removed meter from the spot as Ex. P1.
10) Accused was examined u/s 313 CrPC in which he has denied the allegations and claimed himself to be innocent and falsely implicated and desired to lead evidence. However, he did not lead any evidence in defence.
11) I have heard Ld counsel for accused Shri V.K.Goyal and Shri K. B. Chaudhary Ld counsel for the complainant.
12) Shri V.K. Goyal, Ld counsel for accused who argued that the complainant has failed to prove its case against the accused because of the following reasons: i. complaint was not instituted validly as no Board Resolution produced or proved;
ii. the inspecting team did not have written authority in terms of regulation 25 (i) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and billing Regulations, 2002);
iii. there was no person at the rank of Manager or above or even Assistant Manager as mandatory requirement of law as per Government notifications;
CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......6/18 iv. no artificial means were found and disc was found moving in right direction. Thus working of the meter was all right and there was no abnormality in the meter except that the half seals were allegedly found tampered;
v. The witnesses confirmed that the working of the meter was all right and there were no artificial means in the meter.
vi. complainant failed to produce the original monogram despite directions;
vii. no inference of DAE can be drawn on the basis of stickiness of the meter as it is not an uncommon phenomenon in Electromechanical meter when the meter is not in working condition for long and the meter in this case was tested by the directions of the court on 18/09/2007 and it remained disconnected for 23 years and was lying in open condition.
viii. Units recorded not subtracted from assessed units in terms of regulation 30 (i) and the DAE bill is prima facie wrong.
ix. the speaking order/consumption pattern not proved by any of the witness and witnesses CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......7/18 confirmed that working of the meter was all right and there was no artificial means in the meter.
13) In support of his arguments Ld counsel has referred and relied upon the following judgments: i. Ramesh Chander VS State of Delhi, 68 (1997) DLT 257, ii. Devi Charan Gupta Vs State, 80 (1999) DLT 801 iii. Harbhajan Singh Vs State, 2000 (1) JCC, 284 iv. Col. R.K. Nayar Vs BSES RPL, 140 (2007) DLT 257 v. Jagdish Narayan VS NDPL, 140 (2007) DLT 307 vi. J.K. Stellomelt VS BSES RPL, 140 (2007) DLT 563 vii.Bhasin Motors (I) P. Ltd VS NDPL, 142 (2007) DLT 116 viii. Gulshan Rai Jain VS State of Anr, I (2007) DLT (CRL) 1051
14) Ld counsel Shri K. B. Chaudhary on behalf of NDPL has argued that the accused was found present at the site and at the time of inspection meter has been tampered as meter terminal seal was not existing and both the half seals of the meter were found tampered and disc was found moving in right direction. In these circumstances, presumption is to be raised regarding tampering of the meter. It is further argued that as per consumption pattern analysis placed on record there was less consumption than the assessed consumption and a case of CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......8/18 dishonest abstraction of energy has been established against the accused. It is further argued that all the witnesses are consistent in their deposition and the complainant has proved its case against the accused beyond reasonable doubts. Ld counsel therefore prayed for conviction.
15) Ld counsel for the complainant has referred and relied upon following citation in support of his arguments: i. In Mukesh Rastogi Vs North Delhi Power Ltd in criminal appeal no. 531/07 decided on 23/10/2007 ii. In Sushil Sharma VS BSES Rajdhani Power, 2011 [1] JCC 665.
16) Ld counsel for the complainant has argued that case of the complainant cannot be thrown out solely on the ground that the officer who carried out the inspection were not authorised in writing or that the complaint was not instituted on behalf of complainant on the basis of valid authority of the Authorized Representative by the Board of Director.
17) I have considered the rival submissions and the citations referred and relied upon by the Ld counsel for the complainant and counsel for the accused. It is necessary to discuss the law laid down by the Hon'ble Court and the cases relied and referred by the accused. The brief analysis is as CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......9/18 under: i. In J.K. Steelomelt (P) Ltd Vs BSES Rajdhani Power Ltd, 140 (2007) DLT 563, Hon'ble High Court of Delhi, wherein it was held that: "22. In reiteration of the above judgments, it is 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 tampering with or access by the petitioner to the internal mechanism of the meter in a 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."
23. In the present case, the formula for levying penalty in the case of confirmed DAE in terms of Regulation 26 (ii) has been used to infer DAE. As already mentioned in the above judgments, that formula can be applied only after the two seals were found missing there is no tangible evidence in the instant case to show that there has been a tampering with the internal mechanism of the meter by the consumer to make the meter recording lesser consumption of electricity. In this case as well no accu check instrument has been employed to detect if the meter was recording lesser units. On the other hand, both the inspection reports dated 2.3.2002 and 13.12.2004 indicate that the disc was moving in the right direction on all three phases. The 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 CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......10/18 the case of DAE had not been established. In the 13.12.2004 cannot lead to an inference of DAE at all. Thus the every basis of the impugned speaking order stands vitiated.
26...........It is one thing to plead that the connected load is more than the sanctioned load but is another to say that in fact the connected load has been used throughout by the petitioner. This could be only verified by the actual consumption recorded in the meter. If, as is indicated in the inspection report, the meter wiring is OK and the disc is moving in the right direction then the actual units recorded will reflect how much of the connected load is in fact being used. Therefore, merely because the connected load is more than the sanctioned load, cannot lead to an automatic presumption that the entire connected load is being used by the consumer throughout the period."
ii. In Jagdish Narayan VS North Delhi Power Ltd & Anr , 140 (2007) DLT 307 wherein it was held that : "24. The decision of the Hon'ble Supreme Court in Jagannath Singh Vs B.S. Ramaswamy, [ 1966] 1 SCR 885 in illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Section 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In this case, it was contended that the existence of an open studhole on the meter was CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......11/18 sufficient proof that dishonest abstraction of energy had been taken place. In answer to that contention, the Hon'ble Supreme Court observed as under: "A meter with an exposed studhole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering 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 method 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. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
25. Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method. Some other tangible evidence must been shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh Vs BSES Rajdhani Power Ltd, 136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with Regulation 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft. "
CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......12/18 iii. In Modern Terry Towels Ltd, VS Gujarat Electricity Board, Vadohara and Others, AIR 2003 GUJARAT 63, it was held that merely because from the exposure of a stud hole without more, a presumption cannot be raised against the consumer that there was unauthorised user of energy by employing artificial means.
iv. In Bhasin Motors (I) P. Ltd Vs NDPL, 142 (2007) DLT 116, it was held as under: "18. In the instant case the inspection report could at best have only led to an suspicion of DAE which was thereafter required to be established through 'conclusive evidence'. However, apart from the computed assessment determined by using the LDHF formula, there is no material to establish DAE. In the circumstances, this Court holds that the impugned Speaking Order has clearly erred in declining the request of the petitioner for ascertaining the consumption pattern of the meter by installing a parallel meter. DAE has, therefore, not been established in this case. "
v. In Col. R. K. Nayar (Retd) VS BSES Rajdhani Power Ltd, 140 (2007) DLT 257 wherein it was held that: "15. ......................................................................... g. The Second proviso to Section 135 (1) of the Act enables the shifting of the burden of proof only on the initial burden being discharged by the respondent. That initial burden is on the respondent to prove that "any artificial means or means not authorised by the Board or Licencee exist ". Unless it is so proved, the presumption of CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......13/18 dishonest abstraction does not get attracted.
21. ........................................................................... The only other ground on which the inference of FAE is sought to be made is the pattern of consumption and comparing the computed consumption with the recorded consumption. As already held, the consumption pattern by itself again cannot lead to an inference of FAE it would have to corroborate what is detected on a physical examination. An accu check meter could have been used to detect if the meter was recording lesser energy than it should. That, however, was not done in the instant case. Since it is not shown that there was some device or even any technique used to slow down the meter to make it record lesser energy, the consumption pattern cannot by itself constitute the substantial evidence of FAE........................................................................"
18) Accused has been charged for dishonest abstraction of energy on the allegations that the meter terminal seal was not existing and both the half seals of the meter were found tampered and disc was found moving in right direction. In order to establish its case complainant has examined three witnesses and their examination in chief was already discussed by me.
19) PW1 Shri Naveen Kumar deposed that at the time of inspection one person namely Devender Kumar was found available at the inspected premises with labourers who told them that the users of the premises were Mahender Singh and Phool Singh. He further deposed that photographs were not taken at the CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......14/18 time of inspection. In his crossexamination he has stated that there was no photographer or the police force with them and manger enforcement had directed them to do the inspection and there was verbal direction and there was no written direction. It is further stated that he did not know what was the relation between Shri Devender Kumar and the registered consumer. In a court question as to why Devender Kumar was not made as accused in this case, he has stated as under: "We booked the case on the basis of information received from Devender Kumar that user of the premises is Mahender. "
20) He further deposed that the disc of the meter was moving in the right direction and the working of the meter was alright and there were no artificial means found in the meter and there was no stickiness in the movement of the disc when load was put on it. He further stated that he did not analyze the consumption pattern and he did not know who has passed the speaking order.
21) PW2 Shri Ashok Kumar Gupta is the Authorised Representative who has instituted the complaint and was not the witness of the inspection.
22) PW3 Shri Manish Goyal is another member of the CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......15/18 raiding team who has deposed that both the half seals were found tampered and meter was found used for industrial purpose. In a court question put to him that in what manner the half seals were found tampered he has stated as under: "The monogram on the seals were found to be different from the original monogram. The seals were not found broken. We have matched the monogram on the half seals with the original monogram. The said monogram was procured from the office of MMG. The same was deposited back with the said office. "
23) His examination in chief was deferred for production of original monogram with which the monogram on half seals on the meter Ex. P1 were tallied. On the next date of hearing the said monogram was not produced. In his crossexamination he has stated that he could not say if the accused Phool Singh and Mahender were present at the time of inspection or not. He further stated in his crossexamination that the disc of the meter was rotating in the right direction and the condition of the meter was found alright and there were no artificial/foreign means in the meter and there was no stickiness in the movement of the disc when the load was put on it. He further stated that they did not seize the meter from the site and did not know as to when the CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......16/18 meter was disconnected from the circuit. He further stated that there was no adverse report about the meter prior to inspection. The seals on the meter terminal is fixed by the person who installed the meter. He further deposed that he has not analyzed the consumption pattern and they did not use the clipon meter to measure the load despite availability with them.
24) Admittedly, the monogram with which the tampered monogram was compared was deposited in the back office and was never produced in evidence and no photographs of the site showing the theft of electricity by tampering the seals etc were taken and there is no explanation in that regard. Both the witnesses are consistent in their deposition and in their cross examination they have stated that they did not find any artificial means being used for stopping the meter and disc of the meter was also found moving in the right direction.
25) In the light of this evidence the reliance placed by the Ld counsel for the complainant on the consumption pattern analysis alone is not sufficient to establish the case of dishonest abstraction of energy against the accused in the absence of other evidence to establish that consumer was involved in dishonest abstraction of energy. Reliance can safely be placed upon the judgments in "J.K. Steelomelt (P) Ltd Vs BSES Rajdhani Power Ltd" and "Jagdish Narayan VS North Delhi Power Ltd & Anr"
CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......17/18 referred Supra.
26) The cases relied upon by the Ld counsel for the complainant related to the direct theft of electricity and none of the case is having facts regarding dishonest abstraction of energy as is the case in hand. The said judgments are therefore not relevant for the facts in this case.
27) From the above discussion, I am of the opinion that complainant has failed to establish the charges as leveled against the accused beyond any reasonable doubt. In these facts and circumstances, the accused is entitled to be acquitted. Bail bonds cancelled and surety bonds discharged.
28) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 31st OCTOBER, 2012..
(RAJ KUMAR CHAUHAN)
ASJ(ELECTRICITY)
(NORTH WEST DISTRICT)
ROHINI COURT:DELHI
CC no. 138/08 ( NDPL VS PHOOL SINGH ETC) PAGE NO.......18/18