Delhi District Court
Brpl vs . Emamuddin Cis No.641623/16 Page No. 1 ... on 3 February, 2018
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IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE,
THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 18/14
Police Station : Khanpur, New Delhi
U/s : 135 & 138 of Electricity Act, 2003
Unique ID No. : 02406 RO012962014
CIS No. : 641623/16
BSES Rajdhani Power Ltd.
A company duly incorporated under the
Companies Act, 1956 having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement
Cell at Andrews Ganj,
Near Andrews Ganj Market,
New Delhi110049.
Acting through Sh. Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
d
Emamuddin (User/Regd. Consumer/Owner)
C1/53, Sunder lal Park,
Near masjid,
Near Pole No. KPR/E349,
Khanpur,
New Delhi110062
...Accused
Complaint instituted on : 03.01.2014
Judgment reserved on : 01.02.2018
Judgment pronounced on : 03.02.2018
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 1 of 32
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JUDGMENT
1. A complaint U/sec. 151 r/w/sec. 154 (3) of the Electricity Act, 2003
(hereinafter referred to as the 'Act') for offence punishable U/sec. 135 &
138 of the Act was filed against the accused Emamuddin.
Determination of civil liability against accused has also been prayed for.
2. Brief facts of the case as per complaint filed on behalf of complainant
company are that on 06.03.2013, the officials of the MMG (Meter
Management Group) department of the complainant replaced a burnt
electronic meter bearing no. 23863532 (hereinafter referred as meter in
question) from the premises of accused with a new electronic meter
bearing no. 21604684 on the same day. The removed meter was seized
at site vide bag no. 503459 with bag seal no.0261766 and sent to the
meter testing laboratory for further testing of meter with an intimation
letter (vide no. 1356) dated 06.03.2013 to the accused that he may
witness the testing/analysis of meter in laboratory on 20.03.2013. The
removed meter was tested in laboratory on 05.04.2013 and as per meter
testing/analysis report no. BRPL/13/18024 dated 05.04.2013, the meter
hologram seal and top cover found refixed, illegal resoldering found at
input supply location, phase CT output location, neutral CT output
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 2 of 32
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location, transformer output location and power CT output location,
meter ID found different, Active evergy current got zero and MD history
date found corrupted, thus, it was concluded that meter was tampered.
3. It is the case of the complainant company that on the basis of said lab
report, an inspection team comprising of officials of complainant
company inspected the premises of accused on 24.07.2013 at 12.10 p.m.
During inspection, it was found that the premises in question was being
used and occupied by the accused namely Emamuddin (user/Regd.
Consumer). The inspection team prepared the inspection report, load
report, seizure memo as per lab report at site. Videography was also
conducted by the joint inspection team contained in the form of
Compact disc. At the time of inspection, total connected load was found
to be 14.084 KW for nondomestic purpose. A showcause notice dated
31.07.2013 was issued to the accused requesting him to file reply by
20.08.2013 and to attend the personal hearing on 22.08.2013 at
11.00 a.m. before the Assessing officer of the complainant company.
Accused attended the personal hearing and vide note sheet dated
22.08.2013 he submitted that the premises in question is a 100 sq. yard
plot which is used for furniture work and the supply of whole premises
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 3 of 32
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was through the meter in question. He further submitted that in the
month of March 2013, the supply in meter went off on which he called
the local electrician who told that the meter needs replacement and
thereafter meter in question was changed by the BSES staff. Accused
further submitted that he did not know about any tampering in the meter.
After taking into consideration all the facts and circumstances, the
Speaking Order was passed on 26.08.2013 by Assessing Officer
recording the findings of a conclusive evidence of DAE.
4. On the basis of connected load & applicable tariff, theft bill of
Rs.3,59,084/ was raised. On failure of accused to pay the same, present
complaint was filed.
5. Ld. Predecessor of this Court took cognizance of the offence punishable
u/sec. 135 & 138 of the Electricity Act on 03.01.2014. The complainant
examined two witnesses in presummoning evidence. Accused was
summoned for the offence U/s 135 & 138 of the Electricity Act
(hereinafter referred to as Act).
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 4 of 32
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6. Notice of accusation u/sec. 251 Cr.P.C. for the offence punishable u/s
135 & 138 of the Electricity Act was put to accused Emamuddin to
which he pleaded not guilty and claimed trial on the ground that he had
not tampered with the meter and false & fabricated case has been made
out against him by the complainant company.
7. In order to prove the case of the complainant, ten (10) witnesses were
examined by the complainant company.
8. Incriminating evidence was put to the accused Emamuddin and his
statement U/sec. 313 Cr.P.C. was recorded separately. He denied the
evidence as false and answered that meter in question was removed by
the MMG on 06.03.2013 and the inspection was carried out on
24.07.2013 violating the DERC regulations. He further answered that
excess and exhorbitant load was taken by the inspecting team. He
further answered that meter in question was declared tampered by the
lab officer intentionally and deliberately and that no notice was issued to
him to attend the lab when it was tested in the lab. He further answered
that there is no variation in pre and post consumption. Thus, he had not
tampered with the meter in question.
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 5 of 32
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9. The accused has examined one witness in his defence who has been
discussed below.
10. PW1 Shri Ram Pal Singh, Assistant Manager in the complainant
company who deposed that on 24.07.2013 at about 12.10 p.m. he
alongwith Sh. Deepak RathoreDiploma Holder, Sh. Brij Bihari
Lineman and Sh. Sundar LalVideographer inspected the premises
bearing house no. C1/53, Raju Park, Khanpur, New Delhi on the basis
of lab report in order to assess total connnected load of the premises
which was found to be 14.082 KW for nondomestic purposes i.e. for
running a furniture workshop. PW1 further deposed that inspection
report, load report and seizure memo were prepared at site and proved
the same as Ex. CW2/C, Ex.CW2/D and Ex.CW2/E. He identified
the videogoraphy as contained in the CD Ex.CW2/F. PW1 identified
the accused Emamuddin, who was present in the Court, on the day of his
deposition. He further deposed that there were two meters installed in
the premises in question. The first meter was catering the electricity to
the ground floor and first floor, whereas the second meter was feeding
the electricity to second floor only. He further deposed that the
inspection team had assessed the total connected load of the meter
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 6 of 32
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which was feeding the electricity to the ground and first floors of the
premises in question.
11. In his crossexamination on behalf of accused, PW1 further answered
that he was not aware if any complaint was made to the BSES by the
accused with respect to the meter in question. PW1 further answered
that they had only assessed the connected load of the premises found at
the time of inspection. PW1 denied the suggestion that the AC as
mentioned in the load report does not belong to the accused or same
belongs to one Shri Rahisuddin. PW1 further replied that he did not
know if any other case of DAE was registered in the premises in
question. PW1 further answered that the preparation of documents was
not covered in the videography. He denied the suggestion that accused
has been falsely implicated in the present case.
12. PW2 Shri Pankaj Tandon, A.R. of the complainant company proved his
General Power of Attorney as Ex. PW2/A. Complainant's evidence
was closed by the statement of the AR. In his cross examination on
behalf of the accused, PW2 replied that he did not visit the site and that
he had no personal knowledge of the case.
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13. PW3 Shri Brij Bihari, Lineman in the complainant company, deposed
in his examination in chief the facts almost on the similar lines on which
the PW1 had deposed. However, in his cross examination on behalf of
the accused, he answered that he assessed the load with the help of
rating plates on the equipments and also with the tong testor. He
admitted that load mentioned in the load report pertains to ground and
first floor of the premises in question. He denied the suggestion that
load had been wrongly mentioned in the load report since there were
two separate meters of the said floors. He further answered that 34
labourers were working inside the premises in question at the time of
inspection.
14. PW4 Shri Krishan Kumar, Diploma Engineer in the complainant
company, has deposed almost same facts in his examination in chief as
deposed by PW1 and PW3. However, in his cross examination on
behalf of the accused, he replied that there were two electricity meters of
single phase at site. He further answered that load of ground floor and
first floor was assessed on the date of inspection.
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15. PW5 Sh. Sundar Lal videographer who deposed that he conducted the
videography in the present case and identified the videography
contained in CD as Ex.CW2/F.
16. PW6 Shri G. B. Barapatre, who deposed that he prepared the theft bill
Ex. CW2/C (Colly), after considering all the documents i.e. inspection
report, load report, lab report and speaking order and he also proved the
said theft bill. In his crossexamination he, denied the suggestion that
theft bill was prepared as per the own policy of the complainant
company.
17. PW7 Sh. Mustafa Barbhaiwala is the official from the laboratory under
whose supervision, the meter in question was tested by one Sh. Yogesh
Ray. In his crossexamination on behalf of accused, he answered that he
had only approved the lab report and denied the suggestion that all the
findings of the Testing officer as mentioned in the lab report are false
and fabricated.
18. PW8 Sh. Yogesh Ray, GET from the laboratory, who deposed that on
05.04.2013, he received a bag bearing no. 503459 with seal no. 0261766
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 9 of 32
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containing an electronic meter bearing no. 23863532. He further
deposed that he desealed the bag on the instructions of Mr. Mustafa
Barbhaiwala and visually inspected the meter, took its photograph,
downloaded the data and checked the error of the meter in question.
He further deposed that on visual observation, it was found that the
plastic seal of the meter was not on the meter and hologram seals were
refixed. He further deposed that on opening the meter it was found that
meter top cover was also refixed. He further deposed that on testing the
meter Ex.P1 in the laboratory, it was observed that there was an illegal
resoldering at input supply location, phase CT output location, Neutral
CT output location, Transformer output location and power CT output
location. He further deposed that on the basis of meter data, meter ID
was different and active energy (KWH) got zero. The MD history date
was also found corrupted, on the basis of said analysis, the meter was
declared as tampered. PW8 deposed that after testing the meter in
question, he prepared the lab report which he proved as Ex.CW2/B.
PW8 identified the meter Ex.P1 as the same tested by him in the
laboratory.
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 10 of 32
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19. In his crossexamination on behalf of accused, PW8 admitted that
meter in question had no terminal cover when he received the same in
the lab. He answered that the resoldering of the meter was
photographed. He further admitted that meter in question is of Kaifa
make. He further admitted that the top cover of the Kaifa make can be
put on any other meter as well. He denied the suggestion that the lab
report is false and fabricated. He further denied the suggestion that the
tampering and resoldering in the meter was done by him at the instance
of the company. He admitted that he has not mentioned the
manufacturing date of the meter and also the fact that the warranty of
meter was expired in the year 2011. He further answered that consumer
was not present at the time of testing of meter in question. He admitted
that he has not mentioned in the lab report about the period of
downloading the data and about the voltage and volunteered that data
was downloaded on 240 voltage. He denied the suggestion that if the
voltage would have been 110, all the parameters of the meter would
have changed. He admitted that the column of MDI in the lab report is
blank. He denied the suggestion that the column of MDI was
intentionally and deliberately left blank.
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 11 of 32
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20. PW9 Shri Umesh Chand Tyagi, Assessing Officer in the complainant
company, had proved the Speaking Order Ex. CW2/I (Colly) passed by
him on the basis of lab report, inspection report, load report,
consumption pattern of meter in question as well as new meter. PW9
deposed that as per lab report, the resoldering at the input terminals,
hologram seals were refixed, meter body was found refixed and thus
the laboratory declared meter as tampered. He further deposed that on
the basis of lab report, an inspection was carried out and connected load
was taken by the inspection team. He further deposed that on the basis
of lab report and inspection report, show cause notice was served to the
consumer and consumer attended the personal hearing and made his
submissions vide notesheet Ex.CW2/H. He further deposed that
consumer at the time of attending personal hearing could not give
satisfactory reasons regarding tampering of meter in question and also
regarding increase in consumption after meter replacement.
21. In his cross examination on behalf of the accused, PW9 replied that he
never visited the site. He further deposed that he had no knowledge
regarding the fact that meter in question was an expired meter. He
admitted that the average reading of the meter in question was 687 units
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 12 of 32
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per month. He further answered that period of assessment is one year
before the date of replacement. He further answered that 14 months
have been taken for the assessment instead of 12 months since the
nearby date from the reading was taken. He denied the suggestion that
the consumption for 14 months was taken in order to show the lower
consumption pattern. He denied the suggestion that since the warranty
of the meter was expired in the year 2011 so no speaking order can be
passed on such meter.
22. PW10 Sh. Hari SinghEngineer from Pal Mohan Electronics (a concern
of KAIFA), who was examined to depose regarding KAIFA make
electricity meter. He has deposed that he has been working with KAIFA
company for last five years and has no personal knowledge of this case.
He further deposed that if the meter is tampered then the data will
remain for six months. He further deposed that meter is tampered if
there is reverse condition i.e. if the reverse icon appears on the display,
it means the meter is tampered and also the date and time be occurred on
the screen of the meter that at this particular time, the meter was
tampered. He further deposed that the accuracy of the meter be slowed
if the meter is tampered.
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23. During his crossexamination on behalf of accused, PW10 admitted that
he had not brought his office identity card issued by the KAIFA
company. He denied the suggestion that he is not expert in his field and
do not possess even the basic knowledge. He further denied that
KAIFA make meters are of inferior quality meters. He further denied
that the covers of the meter can be easily exchanged and volunteered
that meters have different moulds. He answered that the warranty of the
meter can be increased for 10 years if it is mentioned in tender.
24. DW1 Mohd. Sajid Khan Office Associate from Khanpur Division,
BRPL was examined by accused in his defence who brought the
summoned record pertaining to connection energization i.e. copies of
application form, verification report, ration card, G.P.A., Indemnity
Bond as Ex.DW1/A and also the consumption pattern w.e.f. 12.05.2003
to 19.03.2014 as Ex.DW1/B. DW1 has also brought the record i.e.
consumption pattern of meter bearing no. 40574688 installed at the
premsies i.e. Shop in H. No. C1/53A, Raju Park in the name of
Rahisuddin and proved the copy of electricity bill as Ex.DW1/C and the
consumption pattern of said meter for the period 13.12.2010 to
12.12.2017 as Ex.DW1/B.
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25. Ld. counsel for complainant company has submitted that on 06.03.2013,
the authorised officers of the MMG department visited the premises of
the accused and they removed the meter bearing no. 23863532 as the
same was burnt and the old meter was replaced with the electronic meter
bearing no. 21604684 on the same day. It is further submitted that it
appears primafacie that the meter was abnormally burnt and there
appears to be a dishonest abstraction of energy and the meter bearing no.
23863532 was sent to the laboratory for analysis and as per lab report,
the meter was found tampered. It is further submitted that thereafter on
24.07.2013 under the leadership of Sh. Rampal Singh, the team was
constituted for visiting and inspecting the premises of the accused and
on visiting the premises in question, the team found one single phase
electronic meter bearing no. 21604684 with current reading of 6703
Kwh with an MDI of 7.180 KW. It is further submitted that during
inspection one another electronic meter bearing no. 21442862 with
current reading 8456 KWH was also found installed at the site. The
connected load was taken as 14.084 KW for nondomestic purposes and
necessary videography was also conducted. It is further submitted that
the show cause notice was issued upon the accused and he attended
personal hearing on 22.08.2013 before the assessing officer. Thereafter,
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on the basis of lab report, the connected load and consumption history,
speaking order was passed by the assessing officer namely Sh. Umesh
Chand Tyagi on 26.08.2013 and the consumption record for the period
30.01.2012 to 04.03.2013 showed an average recorded consumption of
687 units per month which has been found to be only 34.07% of the
assessed consumption and it was finally held by the assessing offcier
that a case of dishonest abstraction of energy be registered against the
accused and accordingly, a theft bill was also raised on the basis of
connected load to the tune of Rs. 3,59,084/ but accused failed to make
said payment hence the present case.
26. It is further submitted by ld. counsel for complainant company that in
order to bring home the guilt of the accused, complainant company has
examined ten (10) witnesses who have duly proved the connected load
at the premises in question and also that the meter in question was
tampered at the hands of the accused by inside illegal resoldering in the
meter. It is further submitted that the consumption pattern placed on
record even in the defence evidence by the accused has duly proved the
fact that the meter at the premises of accused was tampered and accused
was indulged in dishonest abstraction of energy.
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27. Ld. counsel for complainant company has taken me to the notice dated
06.03.2013 at page 17 of the documents and submits that accused has
duly signed this notice and he was having full information to appear
before the laboratory on 20.03.2013. It is further submitted that since
accused failed to appear before the laboratory so the meter in question
was tested in the laboratory and vide its report dated 19.07.2013 as
Ex.CW2/B, it has been verified in the lab report that the meter top
cover found refixed, LCD & LED of the meter was not found Ok,
plastic seals on the meter were also not found alongwith specific
observation that illegal resoldering found at input supply location, phase
CT output locaton, neutral CT output location, transformer output
location and power CT output location. It is further reported in the lab
report that meter ID found different and active energy current got zero
alongwith MD history date found corrupted. On these basis, the
laboratory has declared that meter in question was found tampered. Ld.
counsel for complainant company has further taken me to page no. 20 of
the documents i.e. a photograph showing internal side of meter in
question.
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28. It is further submitted by counsel for the complainant company that as
per document at page no. 21, it shows that meter ID number is different
and entire data was corrupted and both these facts are only possible
when high frequency gadgets were used in the meter and it is further
submitted that during testing the meter in the laboratory, it was found
that illegal resoldering was there in the meter which is a conclusive
proof of tampering the meter and dishonest abstraction of energy (DAE)
by the accused.
29. Ld. counsel for the complainant company has further taken me to the
notesheet Ex.CW2/H at page no. 29 of the documents and submitted
that it is duly admitted by the accused that the premises in question
belonged to him and the meter in question was supplying the electricity
to the whole premises coupled with the fact that 1012 peoples were
working in his premises and in the month of March 2013 the supply in
meter went off and when the electrician was called to check the meter,
he stated that there was a need of replacement of meter and accordingly,
the meter in question was changed by the BSES staff. Ld. counsel for
complainant company has argued that since the accused on attending the
personal hearing on 22.08.2013 was duly aware about the factum that as
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meter was disconnected by the team of MMG and a proper notice was
given to the accused for attending the laboratory for the purpose of
inspection of the alleged meter in question.
30. Ld. counsel for the complainant company has further taken me to the
consumption pattern at page no. 43 of the documents and it is submitted
that the consumption record for the period 30.01.2012 to 04.03.2013
shows an average recorded consumption of 687 units per minute which
has been found to be 34.07% of the assessed consumption which
corroborates the report of the laboratory.
31. Lastly it is argued on behalf of complainant company that complainant
is successful in discharging its onus and now the burden shifts upon the
accused to prove his defence, if any.
32. On the other hand, it is argued by ld. counsel for the accused Mr. A. A.
Khan, that the team of MMG has removed the meter in question from
the premises of the accused on 06.03.2013 and a new meter was
installed and thereafter the removed meter was sent to the laboratory for
testing but as per the mandatory guidelines of DERC, no notice of
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appearance of accused before the laboratory had been given to the
accused.
33. Ld. counsel for accused has further argued that the meter in question
was removed by the MMG from the premises on 06.03.2013 and
admittedly, the same was tested in the laboratory on 19.07.2013 i.e. four
months after the removal of meter by MMG which is a clear cut
violation of guidelines mentioned in DERC regulations.
34. Ld. counsel for accused has taken me to the consumption pattern at page
no. 34 of the documents placed on record by the complainant company
and submitted that, in the column of reading details, the MDI is already
mentioned but on the other hand, it is the case of the complainant
company that the entire data got corrupted and even the MDI history
could also not be recorded, is a conclusive proof of fact that either the
lab report Ex.CW2/B(colly) is false and fabricated or the consumption
pattern placed on record by the complainant company at page no. 34 of
the record is false and fabricated.
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35. Ld. counsel for the accused has further argued that the complainant
company has indulged in a cheap practice by purchasing the meters
from KAIFA company which is a chinese company and the warranty of
meter normally expires within 5 years from the date of manufacturing of
these meter but still the complainant company used to purchase these
meters from the KAIFA company and spending a very little amount on
such imported gadgets, the reason best known to the complainant
company. It is further submitted that in the present case it has been duly
admitted by PW8 Yogesh Ray that the warranty of meter in question
was expired in the year 2011. It is further argued by ld. counsel for
accused that it is an established fact as has also been mentioned by the
complainant company in its complaint that there were two meters
installed at site but at the time of recording the consumption pattern
these facts have not been considered. It is further argued by ld. counsel
for accused that it has been held in Bhasin Motors by Hon'ble High
Court that complainant company has to stand on its own legs in order to
prove that the accused was indulged in dishonest abstraction of energy
and is responsible for the tampering of meter. It is further argued that it
has been held in many cases that failure of RTC and failure of recording
data by the meter is not in any way indicative of the fact that
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meter in question has been tampered. It is further argued on behalf of
ld. counsel for accused that if the testimony of PWs be seen in detail it
would established that complainant company has taken a very casual
approach towards the present case and failed to prove the tampering
allegedly done by the accused. It is further submitted that PW1 in his
examination in chief has submitted that there were two meters installed
at the time of inspection. The first meter was catering the electricity to
the ground floor and the first floor whereas the second meter was
feeding the electricity to second floor only but at the time of preparing
consumption report these facts have not been taken into consideration.
36. It is further argued by ld. counsel for accused that PW6 has admitted
during his crossexamaintion that he is not aware about the guidelines,
rules and regulations mentioned under the DERC under which the theft
bill is raised. It is further argued by ld. counsel for accused that once the
official concerned who has raised the theft bill is not even aware about
the rules and regulations under which the theft bill is prepared, his
testimony must not be taken into consideration and also the theft bill.
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37. It is further submitted by ld. counsel for accused that PW7 Mustafa
Barbhaiwala has been examined by the complainant company who has
no personal knowledge of the facts of present case and he admitted the
fact that he has approved the lab report and he had not tested the meter
in question. It is further argued by ld. counsel for accused that PW7
had verified the lab report without application of his mind.
38. Ld. counsel for accused has further argued that usually the meter is
installed at the premises with the terminal cover but when the same is
produced in the laboratory or before the court, the terminal cover of the
meter is always missing and this missing of terminal cover on behalf of
the complainant company is a suggestive of the fact that meter in
question was either been tampered by the complainant company in the
laboratory or in the office of the complainant company and for that
reason the terminal cover is not produced alongwith meter in the Court
and also in the laboratory.
39. It is further argued by ld. counsel for accused that complainant company
is only interested in collection of money and is never bothered for
change of meters once their warranty is expired. It is submitted that
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after expiration of warranty, meters start default in functioning and a
poor consumer is made liable for the negligence of the complainant
company for not changing the meter in time.
40. Ld. counsel for accused has further submitted that there were two meters
installed at the premises of accused with permissive load of 10 KW and
7 KW and admittedly, the MDI is always as 7 KW or below 7 KW and
in order to exaggerate in the load report and to create a false and
fabricated theft bill, the connected load of 14 KW has been taken in this
case against the accused.
41. Ld. counsel for accused has further submitted that accused is an illiterate
person and has not mentioned in the personal hearing any of the facts
written by the Assessing officer and he simply signed without being not
aware about the fact what has been written in the notesheet. It is further
argued that accused has duly submitted before assessing officer that he
has been paying the due bills as raised by the complainant company.
42. It is further argued by ld. counsel for accused that normally a period of
12 months is taken for assessing the consumption pattern but in the
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present case 14 months have been taken in order to show the lower
consumption pattern.
43. Ld. counsel for the accused has further submitted that complainant
company has examined a person from KAIFA company and testimony
of this witness cannot be relied upon as he was not carrying any
document to show that he is in any manner related with the said
company or he is having knowledge of his field.
44. I have heard the counsel for the complainant Sh. Rishabh Raj Jain and
counsel for accused Sh. A. A. Khan and also perused the record
including the CD of videography displayed on the computer screen of
the Court.
45. In the present case, there is no dispute as regards identity of accused and
the connection of the accused with the premises in question. The only
question which has to be decided is that whether meter in question was
tampered by the accused in order to dishonestly abstracted the energy .
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46. The first contention raised on behalf of the accused is that the no notice
was given to the accused for attending the proceedings of testing the
meter in question before the laboratory. But from the record, it is
apparently clear that notice dated 06.03.2013 was duly served to the
accused to appear on 20.03.2013 before the laboratory to witness the
investigation/testing process either in person or through the authorized
representative. Moreover, accused has attended the personal hearing on
22.08.2013 before the assessing officer, a proof of which has been
placed on record as a notesheet duly signed by accused is on record. It
has been observed in number of cases that if accused did not come at
scheduled date to witness the proceedings of investigation/testing meter
in question before the laboratory, in such circumstances, the meter is
examined without waiting further for the accused. In this regard, the
Hon'ble High of Delhi has in W.P. (C) 17121/2011 decided on
16.03.2011 titled Kanta Sharma Vs. BSES Rajdhani Power Ltd., held
that:
"......Once the Regulations are not found to impose
any obligation on the respondent to test the meter in
the presence of the consumer and the consumer fails to avail the opportunity on the date given for tesing, the process cannot be made cumbersome and the condition that no testing can be carried out without the presence of the petitioner and which may lead to delays cannot be imposed......."
BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 26 of 32 27
47. Next contention raised on behalf of the accused is that the warranty of meter in question was expired as it has duly come in the deposition of PW8 Yogesh Ray. It is submitted by AR of the complainant company that expiry of warranty of any gadget does not ipsofacto make the same faulty and they are used successfully. However, the stand taken on behalf of complainant is that normally the electronic gadgets come up with the warranty but the gadgets used after the warranty period it does not mean that those gadgets are faulty and not in working condition.
48. Next contention raised on behalf of the accused is that it has come in the deposition of PW6 that he is not aware about the guidelines, rules and regulations mentioned under the DERC Act. However, the stand taken on behalf of complainant is that theft bill Ex.CW2/5 has been prepared as per DERC guidelines and there is no hidden formula of the complainant company. Further, the Hon'ble High Court in para 8 of NDPL Vs. Bhasin Motors Pvt. Ltd has made it clear about the preparation of theft bill.
49. Next contention raised on behalf of accused is that the terminal cover of the meter in question was removed at the instance of complainant BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 27 of 32 28 company. However, the stand taken on behalf of complainant is that there is no such cause/reason that complainant company shall remove the terminal cover as it has been duly proved that when the meter was tested in the laboratory, illegal resoldering was found in the meter, photograph of showing the said resoldering is also placed on record.
50. Next contention raised on behalf of accused is that the pre and post consumption is almost same. I have considered the consumption pattern as Ex.DW1/B (colly) placed on record in defence evidence and as per this document, the consumption with new meter is 13,153 units approximately for 11.5 months which comes out to be 1150 units per month, however, the consumption pattern with meter in question/removed meter is taken from 22.03.2012 to 06.03.2013 which comes out to be 8294 for approximately 11.5 months units i.e. 721 units per month, thus, there has been a variation in pre and post consumption as consumption by the accused enhanced after the installation of new meter and no explaination for said enhancement has been given by the accused. Thus, the abovesaid contention raised on behalf of accused is merely a bald assertion without any documentary evidence and in this regard reliance can be placed on judgment titled as NDPL Vs. Bhasin BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 28 of 32 29 Motors Pvt. Ltd, wherein the Hon'ble High of Delhi has in LPA No. 1082/2007 & CM 9601/2007, held that: "8. In view of the provisions contained in Regulation 17 (iv), even after conclusive evidence substantiating DAE in terms of Regulation 17 (iii) is found, no case can be booked only on the ground of one seal on the meter missing or tampered or brokage of glass window unless it is corroborated by the consumption pattern of the consumer in terms of Regulation 26(ii). During the course of hearing, in terms of Section 26(ii), it is upon the consumer to satisfy the officer of the licensee, on the basis of record available with him, that his actual consumption could not have been more than what was recorded by the meter. The appellant has applied LDHF formula for the purpose of analyzing of the consumption pattern of the respondent. This is the only methodology prescribed in the tariff. Such formula assumes working only for ten hours, in 25 days of the month, utilizing 60% of the existing load. It was very much upon the respondent to produce the evidence available with it to show that it was working for less than 10 hours a day or 25 days a month or was utilizing less than 60% of the existing load. The evidence could have, inter alia, been in the form of details, including power consumption of the gadgets installed in the premises of the resondent, the number of persons employed during the relevant period, the hours during which the equipment were used and the employees were working, and the number of working days in the establishment. No such attempt, however, was made by the respondent. Since the actual evidence with respect to working hours of the factory, the days on which the work was done in the factory and the load which was connected at that time are the facts which are only in the knowledge of the consumer, if the consumer withholds such evidence, the licensee would be justified in assessing the consumption of the consumer in terms of LDHF formula. In any case, the formula applied by the appellant does not take into account the whole of the installed load, all the days of the month and two shifts in a day.
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51. Next contention raised on behalf of accused is that in consumption pattern at page 34 of the documents placed by the complainant company, under the column of reading details, the MDI is already mentioned however, on the other hand, it is the case of the complainant company that the entire data got corrupted and even the MDI history could also not be recorded, which is a conclusive proof of fact that either the lab report Ex.CW2/B (colly) is false or the consumption pattern is false. In rebuttal, it was submitted by counsel of the complainant company that said argument rendered by accused is wholly eroneous and baseless as the MDI reflected is only an indicator of use of electricity at the particular point of time by the accused, however, at the time of testing the meter in the laboratory, it was faulty and no MDI could have been recorded at that time in the laboratory but Ex.CW2/B shows that MDI recorded before the meter was sent to the lab and of old consumption.
52. Now, coming to the case of the complainant company, PW8 has been examined in order to prove the tampering in the meter by the accused. With the deposition of said witness, it has been duly proved that at the time of testing the meter was found tampered as it has been observed, BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 30 of 32 31 the plastic seals and hologram seals were found refixed, meter top cover also found refixed and that an illegal resoldering found at the input supply location, Phase CT output location, Neutral CT output location, Transformer output location and power CT out put location in the meter in question which is clearly depicted in the photograph annexed with the lab report Ex.CW2/B (colly). Moreover, nothing in rebuttal has been placed on record by accused in order to show that meter in question was not tampered by him. In the regard, the Hon'ble High Court in case titled as NDPL Vs. Bhasin Motors Pvt. Ltd (supra), has held: "6. The seal of a meter can be tampered with only by intervention of a human being and not otherwise. Similarly, the seals cannot go missing of their own and are necessarily removed by a human being. Likewise, there can be no scratches on the dial unless an attempt is made to interfere with the functioning of the meter. Since as per SubRegulation 17(iv) the responsibility of keeping the meter under safe custody lie with the consumer and as per Regulation (vii) during any inspectin or on consumer comlaint or suo moto, the licensee is required to ensure that the meter is not tampered/bypassed, it was for the respondent to explain how the meter box seal got tampered, cover seal went missing and scratches came on the dial plate.
9. ...In our opinion, the tampering of the seals and/or the meter by itself would be conclusive evidence substantiating unlawful abstraction of energy in a case where no acceptable explanation is given by the consumer for the seals and/or the meter having been found tampered with. Taking any other view would make it extremely difficult to establish unlawful abstraction of energy by dishonest consumers. BRPL VS . EMAMUDDIN CIS No.641623/16 Page no. 31 of 32 32 During the Course of arguments, we specifically asked the learned counsel for the appellant as to how unlawful abstraction of energy was possible in a case of this natiure and he explained that if the seals are tampered in the manner found in this case, it is possible for the consumer to temporarily stop running of the meter so as to avoid recording of consumption of electricity, during the period the meter does not run. According to the learned counsel, the consumer can, as and when he so desires, resume running of meter so that at the time of inspection by the officials of the licensee, the meter is found running. We, therefore, need to take interpretation which would discourage such dishonest practices on the part of the unscrupulous consumers of electricity."
53. Thus, in view of the testimony of complainant's witnesses, detailed arguments rendered by both the counsels, documents placed on record as well as judgments on which reliance has been placed, I am of the considered opinion that accused Emamuddin has miserably failed to show a reasonable probability of his defence that the meter in question was not tampered and that he is not liable for any alleged theft since he has miserably failed to uproot or shake the testimony of PW8 (Sh. Yogesh Ray) in his respective crossexamination qua the tampering of meter. Accordingly, he is held guilty for the offence under section 135 & 138 of the Electricity Act, 2003. Now, to come up for arguments on sentence and civil liability on 06.02.2018.
Announced in the open ( NEELAM SINGH)
court on this 03rd February, 2018 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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