Delhi District Court
Bses vs . Keshav Dev & Anr., Cc No. 415/11 Page No. ... on 2 December, 2014
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 415/11
Division : Tughlakabad
U/s : 135 r/w/section 150 of Electricity Act, 2003
Unique ID No. : 02406 RO024192012
BSES Rajdhani Power Ltd.
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
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Keshav Dev (Registered Consumer)
S/o Shri Mohd. Gaffar
2. Mukhtar @ Mukarram (User)
S/o Shri Brij Mohan Sharma
...Accused
Appearances AR with Sh.Rajesh Kr., counsel for complainant
Accused Keshav Dev and Mukhtar @ Mukarram
are present on bail along with Sh. S.Satya
Narayana, Advocate
Complaint instituted on : 21.12.2011
Judgment reserved on : 22.11.2014
Judgment pronounced on : 02.12.2014
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 1 of 30
2
JUDGMENT
1. The case of the complainant in brief is that on 18.02.2011, the officers of the complainant company namely, Shri Ritu Raj - Manager, Shri Inderjeet - Associate Engineer, Shri Priyabrata Parida - Diploma Engineer Trainee and Shri Anil Kumar - Lineman conducted inspection at premises i.e. TA185/3, Tuglakabad Extension, New Delhi and that accused Keshav Dev was found to be the registered consumer of K. No. 2510N8120274 and that at the time of inspection, one single phase meter bearing no. 21119763 with reading 16159 KHW was found installed at the site and that it was found by them that as per records of the complainant, the said meter was not installed in the abovesaid premises. It is further mentioned in the complaint that meter bearing no. 21119763 was seized in bag no. 415187 with seal no. 14221 and same was replaced with a new meter bearing no. 21343102. It is further mentioned in the complaint that inspection team assessed the total connected load, which was found to be 27.600 KWs for nondomestic purpose. It is further mentioned in the complaint that inspection team prepared the inspection report, seizure memo and load report and same were offered to the accused, but he refused to accept the same. It is BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 2 of 30 3 further mentioned in the complaint that necessary videography was also conducted at the spot.
2. It is further mentioned in the complaint that as the meter bearing no. 21119763 was not punched in the Electronic Billing System (EBS) of the complainant, a show cause notice dated 23.02.2011 was issued to the accused to file reply of the same and to attend personal hearing on 23.03.2011, however, accused did not appear for personal hearing and a final show cause notice was issued to accused to attend personal hearing on 08.04.2011, but again accused did not appear for personal hearing. It is further mentioned in the complaint that Shri Anuj Kumar, Assessing Officer after considering all the fact and documents, passed the Speaking Order dated 11.04.2011. It is further mentioned that the Assessing Officer found that meter no. 2119763 was installed in the name of Shri H.S. Bedi, which was stolen from his premises and an FIR dated 28.01.2011 was also got registered in this regard and that the said meter was unauthorisedly used by the accused being the stolen meter.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 3 of 30 4
3. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.11,12,648/ with due date as 19.05.2011 and was served upon the accused but they failed to pay the said theft bill.
4. The case was fixed for presummoning evidence and vide order dated 31.01.2012 summons were issued to the accused and both the accused had appeared.
5. Vide order dated 12.04.2012 my Ld. Predecessor framed notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 r/w/section 150 of the Electricity Act, against accused Keshav Dev, who pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity and that he had rented out the premises to the accused Mukhtar @ Mukarram for commercial purpose with a valid meter and electricity connection. Accused further answered that he was living at Agra at the relevant time. Notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the electricity was framed against accused Mukhtar @ Mukarram, to which he also pleaded not guilty BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 4 of 30 5 and claimed trial on the ground that he had taken the premises on rent from accused Keshav Dev with a valid meter and electricity connection and that the officials of BSES replaced the meter and also issued a meter change report to him and that the meter, which was removed from the site was not fake meter. Both the accused further answered that the false and fabricated case has been framed against them and that they are not liable to pay any loss or damage to the complainant company as alleged.
6. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
7. The statements of both the accused were recorded u/s. 313 Cr.P.C. Accused Kehsav Dev denied the evidence as false and answered that he was not aware as to whether any inspection was carried out at the premises in question on 18.02.2011 and that he did not abate accused Mukhtar for commission of theft of electricity and that the load report is incorrect and that he had let out the premises in question to accused Mukhtar with legal electricity connection. Accused further answered that he had no knowledge about the preparation of the exhibited documents and that the inspection was BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 5 of 30 6 not conducted in his presence and that he is not liable to pay any amount as alleged by the complainant company.
8. Accused Mohd. Mukhtar also denied the evidence as false and answered that he was not aware as to whether any inspection was conducted at the premises in question on 18.02.2011 as he was not present there initially and that he had been called at the spot by the workers because there was some fluctuation in the electricity and some employees from the electricity department were doing something with the meter. Accused further answered that he did not commit any theft of electricity and that he was using the electricity through meter within the sanctioned limit and that the official of the complainant company high handedly prepared exorbitant load report and that he was not using electricity through alleged fake meter and that he had no knowledge of the preparation of the exhibited documents. Accused further answered that he was not committing any theft of electricity at the premises in question on the date of inspection and when he came to the spot, he found that Shri Ritu Raj was holding a meter in his hands and asked me to come to Alaknanada for negotiations and that he immediately telephoned to PCR, who reached at the spot and he informed the PCR regarding BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 6 of 30 7 highhandedness of Shri Ritu Raj and that PCR further informed the matter to local police and after reaching of the local police, they took his signatures and signatures of Shri Ritu Raj and thereafter, meter was installed again. Accused further answered that he is not liable to pay any amount as alleged by the complainant company. However, both the accused opted to lead defence evidence and produced six defence witnesses, which has been discussed below.
9. I have heard the counsel for the complainant, counsel for both the accused Shri S. Satyanaraya, Advocate. I have also perused the record including the CD of videography/ photography displayed on the computer screen of the court.
10. PW1 Sh.Ritu Raj was the Manager in complainant company, who deposed that on 18.02.2011 at around 1.55 p.m., he along with Sh.Inderjeet, Sh.Priyabrat, Sh.Ajay Kumar, Sh.Harish videographer, visited and inspected the premises bearing No. TA185/3, Basement, G/F & F/F, Tughalkabad Extension, New Delhi and on reaching the premises in question, they found that supply of the premises was running through the single phase electronic meter bearing no.21119763 and the inspection team called their office to confirm BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 7 of 30 8 and ascertain the veracity of the meter bearing no.21119763 and as per BSES billing records, the meter above referred was never installed in the premises by BSES and that the connection sanctioned for the premises i.e. K number was 2510 N 8120274, against which another meter was sanctioned and they concluded that supply to the premises was being fed through a fake meter. The inspection team further checked the connected load of the premises running through the fake meter and that the total connected load of the premises was 27.6 KW for nondomestic purpose. PW1 proved the inspection report including meter details, load report & Seizure memo which were already exhibited as Ex.CW2/1, Ex.CW2/2 & Ex.CW2/4 respectively and that the consumer could not produce BSES installation report of the meter bearing no.21119763 and that the meter bearing no.21119763 was removed by them, at that time accused Mukhtiar (present in court, correctly identified) reached the spot and started objecting to removal of the meter and the inspection team asked the accused to show them the installation report and other documents to establish the authenticity of the meter and that he could not produce any documents, however, snatched their identity cards. PW1 further deposed that the meter was seized vide a seizure memo Ex.CW2/4 and he had identified the BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 8 of 30 9 case property i.e. a plastic bag with broken seal and it contained another cloth bag with a transparent plastic sheet, through which the contents could be seen and that the bag was in torn condition with intact plastic seal bearing No.14221 BRPLPS. PW1 also proved one carbon copy of the seizure memo which was already exhibited as Ex.P1 and the meter as Ex.P2. PW1 also proved the videography of the proceedings which was carried out by Sh. Harish - Photographer from M/s Arora Photo Studio and he identified the videography conducted by Sh. Harish as the same which was conducted at the spot during the inspection.
11. In his cross examination on behalf of the accused, PW1 answered that he had prior information regarding the usage of the electricity at the premises in question through fake meter and that the said information was received by him from DGM (Enforcement) in the morning on 18.02.2011, however, the said information had not been given in writing. PW1 also admitted it as correct that the said meter belonged to BSES and he could not admit or deny whether the subject meter had been installed in the name of H.S.Bedi and that he knew that the subject meter was of a stolen one. PW1 voluntarily admitted that he did not remember whether any FIR had been BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 9 of 30 10 registered with regard to the stolen meter. PW1 answered that in cases of involving fake meters, consumers were given a chance to explain the existence of meters in their premises, however, as a matter of general practice, where direct theft was being committed with or without the meter, meters were removed as evidence. PW1 also admitted that in the instant case, the consumer had also been afforded an opportunity to explain the existence of the meter in question and that no bill had been shown for the meter bearing No. 21119763. PW1 did not recollect as to the exact point when the knowledge of the fact of the meter bearing No.21119763 being stolen dawned upon him, however, the same was within his knowledge on 18.02.2011. PW1 in his cross examination admitted that the documents Ex.CW2/4 did not bear the signature of the user/ consumer and the altercation which ensued between the accused and the inspection team members could not be focussed in the videography and that no formal FIR had been registered in the concerned police station about the factum of snatching of the ID cards of the entire inspection team. PW1 admitted that the factum of snatching of ID card had not been intimated in writing to their office. BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 10 of 30 11
12. PW2 Sh. Inderjeet was the Diploma Engineer who also deposed, in his examination in chief, that the inspection was conducted on 18.02.2011 along with Sh.Ritu Raj, Sh.Priya Bratt, Sh.Ajay Kumar and Sh.Harish and that on reaching the premises in question, a single phase electronic meter had been installed at the premises in question. PW2 also proved the inspection report including meter details, load report & Seizure memo which were already exhibited as Ex.CW2/1, Ex.CW2/2 & Ex.CW2/3 respectively and after preparation of all the documents at site, they offered the same to sign and receive to the Mukhtar but he had refused the same and after refusal by accused Mukhtar, they had submitted all the documents to their office to send the same by post to the accused. PW2 had also proved the seizure memo which had been exhibited as Ex.P2.
13. In his cross examination, PW2 admitted that the meter in question belonged to BSES RPL and none from the Division Office or from the MMG Group accompanied the inspection team and on running of load of about 27 KWs in a single phase meter, the terminals might have been burnt or blackened because of the heavy load besides showing the higher MDI and the record of previous MDI BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 11 of 30 12 of the meter in question had not been ascertained before the inspection. PW2 volunteered that from the spot, telephone call was made to the enforcement office to confirm about the details of the registered consumer and again it was said that the call had been made by Sh.Ritu Raj, Manager. PW2 did not remember as to how he had ascertained the load of the various gadgets attached to the connected load and he also did not remember if another meter had been found installed in the premises. PW2 further deposed that they had not made efforts to paste the inspection report or other documents on the walls of the premises inspected and at the time of inspection, a call had been made to the PCR by the accused Mukhtar as well as Sh.Ritu Raj - Manager, as resistance had been created by the accused in removal and seizure of the meter and PW2 also did not remember the PCR call number made by Sh.Ritu Raj.
14. PW3 Sh.Priyabrata Parida was Diploma Engineer in the complainant company who also deposed on the same lines on which PW2 had already deposed in his deposition. PW3 also identified the accused Mukhtar, who was present in the court on the day of his deposition. PW3 identified and proved the seized meter as Ex.P2. In his cross examination, PW3 could not say that the meter Ex.P2 BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 12 of 30 13 had been issued by BSES in the name of one H.S.Bedi and he did not know if a record is maintained by the company of the meters which were stolen from various sites and that there was no other meter found installed at the inspected premises and that he also could not say if load of 7 KWs were running through the meter bearing No. 02143102 at the premises in question or that the said meter had been issued in the name of accused Keshav Dev. PW3 admitted that a PCR was present at the inspected premises at the time of inspection. He denied the suggestion that PCR was called by accused and he volunteered that the PCR was called by the team leader and that the accused persons had shown several bills to the team leader but he did not know the details of those bills as he was outside the premises and the team leader, Shri Inderjeet who was Associate Engineer, accused Mukhtiar and the police officials were inside the premises and rest of the team members had been asked to wait outside. PW3 also answered that accused Mukhtiar had snatched the Icard of team leader and Inderjeet and he did not know if an FIR had been lodged by the police regarding snatching of Icards and obstruction in discharge of duty by the accused persons. He replied that the snatching of Icard or obstruction by accused Mukhtiar could not be covered in videography because large crowd had been gathered and BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 13 of 30 14 they were scared. PW3 volunteered that it was only with team leader that he had been misbehaved by the accused Mukhtiar and his neighbours and the documents were prepared while outside the gate of the premises and were offered to accused Mukhtiar and his workers, who refused to receive the same. PW3 also answered that they had not attempted to paste the documents at the premises, as the crowd was still present at that time.
15. PW4 Sh.Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. CW1/2 and he also proved the complaint Ex.CW1/1 and he deposed that he had no personal knowledge of the facts of the case and had deposed as per records. In his cross examination on behalf of both the the accused, he replied that he did not visit the premises in question and that he deposed on the basis of documents on record.
16. PW5 Sh.Anuj Kumar was the DGM who deposed in his examination in chief that on the basis of inspection report, load report and seizure memo already exhibited as Ex.CW2/1, Ex.CW2/2 & Ex.CW2/4 respectively, the show cause notices Ex.CW2/6 & BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 14 of 30 15 Ex.CW2/7 respectively were issued to explain but the accused did not appear on respective two dates i.e. on 23.03.2011 and 08.04.2011 despite the said opportunities given. The seized meter from the spot was analysed by him which had been stolen from a premises at Pushp Vihar, New Delhi and the same was found installed in the premises in question which was seized from the spot and that the original meter issued to the accused was not found installed at the premises and thereafter, the assessment of the connected load was made which came to be 27.6 KWs used for non domestic purpose and that he passed the order to that effect which is Ex.CW2/8.
17. In his cross examination, PW5 volunteered that he passed the speaking order on the basis of the documents handed over to him by the inspection team and that no receipt or document showing the mode by which, the show cause notice to the accused was sent is on the judicial record. PW5 also answered that in his speaking order, he analysed that meter and he meant that he confirmed the circumstances from where, the meter in question was earlier stolen and was found at the inspected site of the present case by the inspection team and the meter which was actually issued to the accused, was not found at the spot of the inspection by the raiding BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 15 of 30 16 team and this was the meaning of the words 'analysing the meter'. PW5 also admitted that he had placed the details of the stolen meter on the judicial record along with his speaking order (after going through the file, the witness cold not point out any such data or detail or information of the meter stolen previously which was found on the inspection site).
18. PW6 Sh.Harish was the videographer, who deposed that on 18.02.2011 he conducted the videography of inspection on the direction of Sh.Ritu Raj. PW6 also proved the said videography as Ex.CW2/3. In his cross examination on behalf of the accused, PW6 replied that he was employee of M/s Arora Photo Studio.
19. DW1 Sh.Vinod Kumar, Junior Supervisor deposed that he was the summoned witness and brought the computer generated record i.e. consumption bill for the billing month of December, 2013 issued against CA No.101716561 in the name of Sh. Keshav Dev, copy of same is Ex.DW1/A, reading chart from 18.05.2010 to 23.12.2013 is Ex.DW1/B, consumption details is Ex.DW1/C, payment details is Ex.DW1/D, meter replacement details is Ex.DW1/E and old reading details from February 2002 to November, 2010 is Ex.DW1/F. In his BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 16 of 30 17 cross examination, DW1 answered that he had no personal knowledge of the present case and deposed as per records only.
20. DW2 Sh.Rakesh Kumar Maurya, Record Clerk who deposed that he was the summoned witness and brought the summoned record i.e. proof of serving notice dt. 04.03.2011 at Sr.No.35 and final notice dt. 01.04.2011 at Sr. No.52 and the same as Ex.DW2/A and Ex.DW2/B respectively. In his cross examination, DW2 answered that he had no personal knowledge of the present case and deposed as per records only.
21. DW3 SI Sh. Vijay Pal Singh deposed that on 18.02.2011 he was posted at PS Govind Puri and was working as Duty Officer from 08.00 a.m. to 12 midnight and that he recorded DD No.15A, which is Ex.DW3/A and also recorded DD no.16A, which is Ex.DW3/B.
22. DW4 Sh.Vinay Kumar, official of the complainant company, deposed that he was the summoned witness and brought the computer generated record i.e. computer generated acknowledgement for new connection dated 24.04.2009, application of new connection, test report, pay slip of registered consumer BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 17 of 30 18 Harpal Singh Bedi, Identity card of Harpal Singh Bedi, copy of allotment of quarter to Harpal Singh Bedi, consumer details in respect of CRN No.2520193419 and proved all the aforesaid documents as Ex.DW4/1 to Ex.DW4/7 respectively. In his cross examination, DW4 answered that he had no personal knowledge and deposed on the basis of summoned documents brought by him.
23. DW5 Sh.Vinod Gupta, in his examination in chief, deposed that he was the summoned witness and he was residing at TA184/3, Tughalakabad Extension, New Delhi and he knew accused Mukhtiyar, who was running the factory in front of his residence i.e. TA185/3 Tughalkabad Ext., New Delhi and that in the year 2011, some officials from Electricity Department came to the premises bearing No. TA185/3, Tughalkabad Extension and that he was present at that point of time. PW5 also deposed that one of the person was holding the meter in his hand and was tampering the electricity service line at TA185/3 and that there was some altercation took place between Mukhtiyar and the person who was holding the meter in his hand and that Mukhtiyar immediately called the police and thereafter police had reached the spot. In his cross examination, DW5 answered that he knew the accused Mukhtiyar BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 18 of 30 19 because he used to run the factory of sewing works and that he did not visit inside the factory of Mukhtiyar at any point of time and that the electricity meter was installed at the gate of the said factory. DW5 further deposed that he did not know as to who was the registered consumer of the electricity meter which was installed for the said factory and that he did not know the number of the said meter and he did not know as to whether the said meter was being run at the time of inspection or not and that he did not know as to who was paying the electricity bill for the said meter and how much and as to whether the electricity bill was coming or not for the said meter and that he did not know the date of visit of the officials of BSES but it was the winter season and afternoon time. DW5 also deposed that when the police reached at the spot he was present there and he did not sign any document which was prepared by the police officials. DW5 volunteered that the Police did not ask him to sign on the same and that he was not confirmed about the colour of the meter which was brought by the BSES officials and that he did not see any document relating to the electricity meter which was installed for the factory on the gate of the factory and the premises in question was consisted of Basement, Ground, First and half second floor with tin shed and answered that the abovesaid factory was BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 19 of 30 20 running in the basement of the premises in question and that he did not know as to whether meter installed in the premises in question was a fake meter and which was sanctioned in the name of H. S. Bedi.
24. DW6 Sh.Mohd. Osama, Supervisor of the complainant company, in his examination in chief, deposed that he was also a summoned witness and brought the summoned record in respect of meter bearing No.23690814 installed at TA185/3, Basement, Tughalakabad Extension, New Delhi from MMG department and proved the copy of the same as Ex.DW6/A. In his cross examination, DW6 answered that he had no personal knowledge and had deposed as per the documents brought by him.
25. From the said evidence, it has been established on record that a meter No.21119763 was found installed at the premises in question through which, the electricity was being used. It is further in evidence on the record that there was a sanctioned meter bearing No.26690814 at the premises in question in the name of accused Keshav Dev but same was not found installed at the premises on the date of inspection i.e. 18.02.2011.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 20 of 30 21
26. It is in evidence of the witnesses of the complainant that meter No.21119763 was allotted to one Sh.H.S.Bedi on 30.04.2009 at CRN No.2520193419 at Qr. No.12, Block2, Sector1, Pushp Vihar, M.B.Road, New Delhi and this fact has also been confirmed by the witness produced on behalf of the accused i.e. DW4 vide documents Ex.DW4/1, Ex.DW4/2 and Ex.DW4/7. It is further the case of the complainant as per speaking order Ex.CW2/8 that the said meter was stolen from the premises of Sh.H.S.Bedi and he has registered the FIR on 28.01.2011 at PS Saket, New Delhi. The fact that meter No. 23690814 was actually installed at the premises in question in the name of accused Keshav Dev was also proved by the deposition of the witness of the accused DW6 as reproduced above.
27. Question arises as to what is the legal nature of the said meter which was stolen or was found fake and was found installed at the premises in question. In the 3rd proviso to Section 135 of the Electricity Act, it is provided that if it is proved that any artificial means or means not authorised by the Board or Licensee or Supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 21 of 30 22 proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
28. No doubt, the meter No.21119763 was admittedly a meter belonging to the complainant but it was not installed or authorised to be used at the premises in question and as such, in my considered opinion the said meter is covered in the expression "means not authorised by the Board or Licensee or Supplier" as provided in the said Proviso to Section 135 of the said Act. It may also be taken as artificial means because the expression "artificial" has not been defined as such in the said Act. The said word simply means a thing which is not natural. The natural process is to get a valid meter installed in the premises as is the case with the meter No.26690814 in the present case which was installed in the name of accused Keshav Dev in the natural course of things but the same was not found at the spot.
29. The accused, in his cross examination of PW1, suggested that the said fake meter was to be installed at the instance of said PW and it was with this purpose that PW1 had already sent four persons with the fake meter and this suggestion was denied by PW1 as wrong. It BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 22 of 30 23 was further suggested to the said PW1 that it was the accused who had informed the PCR which the witness denied as wrong. I have gone through the said PCR call on behalf of the accused vide DD No. 15A dated 18.02.2011 Ex.DW3/A wherein it is recorded that at 02.24 p.m., it was informed to the PCR that at H.No.185, Gali No.3, Tughalakabad Extension, New Delhi, there was a forcible removal of the meter. Nowhere it is mentioned that four persons sent by PW1 were installing the fake meter or there was any demand of illegal gratification by PW1 and upon refusal, a false and fabricated case has been booked against the accused as was suggested to PW1 in the last of his deposition. This report Ex.PW3/A to the PCR in itself proves that a meter was being removed from the premises and not installed "forcibly" as is the cross examination of the accused.
30. The said cross examination was not put to PW2, to whom it was suggested that the said fake meter Ex.P2 was planted one which the PW2 has denied. If the said PW1 & PW2 were trying to plant a fake meter, it should have been reported to the Police on behalf of the accused.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 23 of 30 24
31. To PW3, it was suggested on behalf of the accused in his cross examination that the inspection team attempted to plant meter Ex.P2 at the premises of the accused or that the team was caught by accused Mukhtiar in the process of planting fake meter Ex.P2 or that he also called PCR intimating that BSES Officials were planting a fake meter on his premises which the PW3 denied as wrong. This is a suggestion not put to PW1 and PW2 in the form and manner in which, it has been put to PW3 on behalf of the accused. This was also not found recorded in the call to the PCR vide Ex.PW3/A in the manner in which, it has been suggested to PW3.
32. In view of the said position, I am of the considered opinion that the deposition of PW1, PW2 and PW3 that a fake meter No. 21119763 was found at the spot on the day of inspection through which the electricity was being consumed and the sanctioned meter for the premises in question bearing No.26690814 was not found in the premises in question, has remained almost unrebutted on the record and the presumption as provided under the said 3rd Proviso to Section 135 of the Electricity Act has certainly arisen against the accused to be rebutted by them.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 24 of 30 25
33. Let me turn to the defence of the accused, it has been vehemently argued that till 09.02.2011, the meter No.21119763 was in the house of said Sh.H.S.Bedi and thus, liability of the present accused is only for 9 days because the alleged date of inspection is 18.02.2011. In the second limb of the same argument, it has been contended that in the speaking order Ex.CW2/8, at page 2, the FIR of the said meter was registered by Sh.H.S.Bedi on 28.01.2011 and in that eventuality also, liability of the accused is limited w.e.f. 28.01.2011 to 18.02.2011.
34. The said argument presupposes that the meter No.21119763 was actually installed at the premises in question and that was why, the contention is with regard to said limited liability of the accused for the said period. This is nothing but an admission on the part of the accused with regard to existence of the said fake meter at the premises in question and the said admission uprootes the story of PW1 planting the fake meter Ex.P2 at the spot when his demand of illegal gratification was allegedly not fulfilled by the accused, as suggested by the accused in his cross examination. BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 25 of 30 26
35. Although, both the parties have not proved on record the actual report lodged by Sh.H.S.Bedi with the PS Saket, New Delhi on 28.01.2011 so as to come to a conclusion as to when the said fake meter was found stolen/ missing from the premises of Sh.H.S.Bedi to whom it was allotted but it does not mean that reporting a matter on 28.01.2011 to the police means that the alleged act in the report was actually done on 28.01.2011 itself by someone. The meter may have been stolen or may be missing even prior to 28.01.2011 regarding which, Sh.H.S.Bedi may have come to know on 28.01.2011 when he reported the matter to the police. It may be otherwise also. Hence, the said contention raised on behalf of the accused does not hold much water and does not absolve the accused from explaining as to how the said fake meter came to be installed at the premises in question.
36. It has been further contended on behalf of the accused that the meter reader used to visit every month for noting the reading of the meter who did not notice either the fake meter at the premises in question or missing of the authorised meter No.23690814 from the premises.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 26 of 30 27
37. If the said contention is to be accepted, then the meter reader should have reported the consumption recorded by the fake meter but the accused totally failed to prove any bill of the relevant period on the record that he was paying the said bill even against the consumption recorded by the fake meter. The meter reader should have been summoned by the accused in order to prove the said fact but same was not done. Even otherwise, if anything gets unnoticed by any person, it does not mean that accused can shift his liability upon the meter reader because under the law, it is for the accused to rebut the presumption. Thus, the said contention is meritless and is rejected hereby.
38. It has been further contended on behalf of the accused that in Ex.DW1/D, there are payment details of the consumption charges of the electricity in the premises in question. I have gone through the same and the said payment details start from 08.06.2011 and ends on 22.11.2013 and these details are subsequent to the date of inspection i.e. 18.02.2011. Admittedly, the fake meter was removed and a new meter bearing No.21343102 was installed in the place of the said fake meter.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 27 of 30 28
39. Next is the contention based upon Ex.DW1/F which is a meter reading chart but same is again for the period subsequent to the date of inspection and it does not come to the help of the accused. It has been further argued on behalf of the accused that in the meter reading chart Ex.DW1/B, the authorised meter No.23690814 was found installed upto 17.02.2011. I think this contention is based upon reading the said document in part only. There is a "X" mark against the said authorised meter on 17.02.2011 which shows that the said meter was not in existence at the date of inspection and this has so argued also on behalf of the complainant and I am in agreement with the counsel for the complainant on this account.
40. It has been further argued on behalf of the accused that no case was registered against the accused U/sec. 411 IPC when the said alleged fake meter was found installed at the premises in question regarding which, a report was already there lodged by its original allottee Sh.H.S.Bedi or why the complainant did not report the matter to the police with regard to recovery of the said stolen meter from the premises in question.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 28 of 30 29
41. The said contention is again misconceived because in this case, I am considering the conduct of the accused and allegations against him and it is for the accused to rebut the presumption raised against him from a "prudent man's test" and make believe the court, the probability of existence of his defence. It is for the accused to explain his conduct and not the conduct of the complainant or Sh.H.S.Bedi who are not the accused before me. Merely, an action in the law is not taken by a person who was supposed to take the same, it does not mean that accused can shift his liability upon the conduct of the complainant or Sh.H.S.Bedi. It was exclusively for the accused to explain as to how the said fake meter came to the premises in question or as to how the said authorised meter in the name of accused Keshav Dev disappeared from the premises in question. Moreover, it was the prime duty of accused Keshav Dev to keep the authorised meter allotted to him bearing No.26690814 in safe custody and if anything wrong, had happened with the said meter, it was for the accused to take action under the law with regard to said authorised meter. Famous is the saying that it is good to preach others rather than following the same. Hence, the said contention is also hereby rejected.
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 29 of 30 30
42. In view of my said discussion, I am of the considered opinion that the accused has miserably failed to rebut the presumption as raised against him in the said Proviso to Section 135 of the said Act and rather the defence witnesses have proved the case against the accused as discussed above.
43. In the circumstances, in my considered opinion, complainant has been successful in bringing home the guilt of the accused beyond reasonable doubt and as such, the accused Keshav Dev stands convicted and held guilty U/sec. 135 r/w Section 150 of the Electricity Act, 2003 and accused Mukhtar @ Mukaram stands convicted and held guilty U/sec. 135 of the Electricity Act. Their PB and SB, if any, are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 02.12.2014 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Keshav Dev & Anr., CC No. 415/11 Page no. 30 of 30