Delhi District Court
471/11 (Crl Ma No. 625/11) Titled As ... vs State Of on 26 April, 2013
Page 1 of 19
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 381/11
ID No. 02405R0848672007
Section 135 of The Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Sunil Batra ......................... PO
2. Nimmi Kapoor ......................... Accused
at:
RZ110, Vishnu Garden
New Delhi.
Date of institution: ........................ 02.01.2007
Arguments heard on: ........................ 15.04.2013
Judgment passed on : ........................ 26.04.2013
CC No. 381/11
Page 2 of 19
JUDGMENT:
1. The brief facts of the case are like this. On 23.1.2006 at 1:45 pm a joint inspection team headed by Sh. Sanjeev Kumar, Deputy Manager (Enforcement) of complainant company inspected the premises No. RZ110, Vishnu Garden New Delhi. (hereinafter referred to as inspected premises). The accused No. 1 is the user whereas accused No. 2 is the registered consumer of electronic meter No. 27073584 with K No. 26410D120035 installed in the inspected premises. The inspected premises is used for industrial purposes i.e for doing plastic job work. The meter was checked. Meter box, meter terminal and meter half seals were found refixed. The meter was found slow by 29.84 % as checked with accucheck instrument. The meter was segregated at site. The black colour wire of R Phase (potential wire) was found cut for suppressing the recording of consumption by the meter. There was a connected load of 12.195 KW for industrial use against sanctioned load of 11 KW under non domestic category. The photographs of the premises were taken. Inspection reports No. 93992 and 93 were pasted on the meter box in order to maintain status quo. Inspection report, meter details, load report and show cause notice were issued at site but consumer refused to accept the same which were sent by post but CC No. 381/11 Page 3 of 19 there was no response from the consumer. The speaking order was passed on the basis of record and consumption details of the meter. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Accused No. 1 did not put his appearance as a result he was declared proclaimed absconder on 20.1.2009 by my ld Predecessor. Copy of complaint and documents were supplied to the accused No. 2. NOA U/s 251 Cr.P.C for the offence U/s 135 of the Act was put to the accused No. 2 to which she pleaded not guilty and claimed trial.
3. The complainant examined three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein she has taken the defence that she is owner of premises No. RZ101, Vishnu Garden, New Delhi and said premises has been let out to Sunil Batra in 2006 for around 1 1 ½ year. She does not know the occupier of premises No. RZ110. The meter No. 27073584 has been installed in her name. The premises is not used for industrial purposes. The case pertains to premises No. RZ110 and not against RZ101. CC No. 381/11 Page 4 of 19 However, she has examined three witnesses in defence evidence.
4. The notice of accusation was amended in terms of order dated 9.2.2012. Amended notice of accusation under section 251 Cr.P.C for the offence U/s 135/138 of the Act was put to the accused to which she pleaded not guilty and claimed trial. The witnesses were not recalled by any of the parties after amending the notice of accusation.
5. The complainant has examined three witnesses. PW1 Sudip Bhattacharya is an Assessing Officer. He stated that a joint inspection team has carried out an inspection in the inspected premises on 23.01.2006 and prepared inspection report, meter details report, load report and show cause notice Ex. CW2/AD. On 10.02.2006 the personal hearing was not attended by the consumer. He also checked the consumption pattern which was low in comparison to assess consumption and accordingly speaking order dated 21.02.2006 Ex. CW2/F was passed.
6. During cross examination, he admitted that name of user is shown as Sunil Batra in show cause notice but name of registered consumer is not shown. He admitted that no show cause notice was specifically sent to registered consumer either by post or by courier. CC No. 381/11 Page 5 of 19 The meter was not sent to laboratory for analysis as per prevailing practice.
7. PW2 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
8. PW3 Sanjay Kumar is one of the members of joint inspection team. He stated that on 23.1.2006 at 1:45 pm he along with other officials of complainant company inspected the inspected premises being used by the accused No. 1 where one three phase electronic meter No. 27073584 with K No. 26410D120035 was installed in the name of accused no.2. The meter was checked. All the meter seals were found refixed and tampered. The meter was found slow by 29.84 % as checked with accucheck instrument. The meter was segregated at site. The black colour wire of R Phase (potential wire) was found deliberately cut. The supply was restored through a new meter by pasting IR on the old meter in order to maintain status quo. Video was taken. He has identified the CD Ex.CW2/G as it was recorded at site. There was a connected load of 12.195 KW for industrial purposes. Inspection report, meter details, load report and CC No. 381/11 Page 6 of 19 show cause notice Ex.CW2/A D were prepared at site and offered to accused Sunil Batra who refused to receive and sign the same.
9. During crossexamination, he stated that permission was taken from Sh Sanjay KumarManager Enforcement prior to the raid. The permission is not placed on record. The address of inspected site is RZ110, Vishnu Garden, New Delhi. He cannot identify the accused Nimmi Kapoor as she was not present at site. The calibration certificate of accucheck is carried before checking with accucheck. The accucheck is presumed to be correct in terms of calibration certificate. The calibration certificate is not placed on record. The inspection was supervised by him. The individual role of technician is to open the meter and to assist the raiding team. The seals were not broken by inspection team as they were already tampered. The electricity connection was restored through a new meter but voluntarily stated that intimation for restoration of electricity through new meter was given to MMG but he is not sure if electricity was restored through a new meter. The consumer has refused to sign the reports. The show cause notice was issued in the name of Sunil Batra as it was prepared at site. He is not sure if show cause notice was sent by office to Nimmi Kapoor. He cannot say whether the documents CC No. 381/11 Page 7 of 19 along with DAE bill were sent to accused Nimmi Kapoor. He does not know in case the meter was burnt in a fire in the building. The suggestion is denied that electricity was restored through the same meter since it was not tampered and functioning properly.
10. The accused has led defence evidence. Accused Nimmi Kapoor has stepped into witness box as DW1. She stated that she has been residing at WZ109, Krishna Puri, Gali No. 16, Tilak Nagar, New Delhi and electricity bill Ex. DW1/A is her residential proof. She has a connection with K number 26410D120035 at RZ101 and the said premises has been let out to Sunil Batra. The electricity supply was disconnected due to non payment. Ex. DW1/C is the electricity bill. She has given a complaint mark Y1 dated 08.05.2007 regarding burnt meter to the complainant. She has also given an application regarding burnt meter and intimation to the complainant vide complaint mark Y2. Sunil Batra was her tenant at RZ101, Vishnu Garden, New Delhi. She has received a disconnection notice dated 14.12.2006 mark Y3 for non payment of dues. She has no connection with inspected premises. She has filed a complaint Ex. DW1/B regarding fire in her factory with concerned police station. There is no meter at present at premises No. RZ101, Vishnu Garden, CC No. 381/11 Page 8 of 19 New Delhi. She has no knowledge when the meter was disconnected. The disconnection receipt is mark Y4. She has no connection with the present case.
11. During crossexamination, she admitted that meter shown in Ex. DW1/A was energized on 24.03.2006. Sunil Batra was her tenant who used to pay rent of Rs. 3,000/ in cash and she used to issue rent receipt. She does not know when Sunil Batra has vacated the premises. She has no rent agreement. Sunil Batra had stopped paying the electricity bills and vacated the premises in night. She cannot say when she had paid the electricity bill against connection no. 26410D120035. She cannot admit or deny whether meter no. 27073584 was found slow by 29.84% or seals were found tampered and refixed or R phase was found cut.
12. DW2 Prem Pahwa, Section Officer, BSES stated that he has brought the summoned record. Ex. DW2/A (collectively) is the record pertaining to K number 26410D120035 installed in the name of Nimmi Kapoor at RZ55 with new number RZ101 West Block, Vishnu Garden, New Delhi. Ex. DW2/B (collectively) is the record pertaining to the installation of electricity meter in the name of Suraj Chand Gupta at RZ110, Plot No.17A, Block B, Ground Floor, West CC No. 381/11 Page 9 of 19 Block, Vishnu Garden ExtensionII, New Delhi. Ex.DW2/C (collectively) is the record pertaining to electricity meter with K number 2641T1231309 installed in the name of Nimmi Kapoor at WZ109, Second Floor, Gali no. 16, Krishna Puri, New Delhi.
13. DW3 Harbhajan Singh stated that inspected premises was let out to Sunil. He has never seen accused at premises number RZ101, Vishnu Garden, New Delhi but rent was directly given to her by tenant Sunil. She has family relations with the accused for last 1012 years.
14. During crossexamination, he stated that there is an electricity meter at RZ101,Vishnu Garden, New Delhi . He was not present at the premises of the accused when the raid was conducted by the complainant. He is not aware about the user of premises in 2006. The premises was given on rent. He is not a summoned witness. He has been called by the accused to depose in the court.
15. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for consumption of electricity through tampered meter. CC No. 381/11 Page 10 of 19
16. Ld counsel for the accused submitted that accused has no connection with the inspected premises as she has let out the premises bearing No. RZ101, Vishnu Garden, New Delhi to Sunil Batra. She further submitted that no inspection was carried out in premises No. RZ101, Vishnu Garden, New Delhi. Ld counsel for the complainant submitted that inspection was carried out in RZ101, Vishnu Garden, New Delhi as it was inadvertently written as RZ110, Vishnu Garden, New Delhi and this fact is apparent from the record itself. Heard and perused the record. It is correct that the documents Ex. CW2/AD show the address of inspected premises as RZ110, Vishnu Garden, New Delhi. The documents further show that meter No. 27073584 with K No. 26410D120035 was checked by the inspection team. It is admitted by the accused in her statement under section 313 Cr.P.C as alleged while appearing as DW1 that she is registered consumer of meter with K No. 26410D120035. The meter against said K Number has been installed in premises No. RZ101, Vishnu Garden, New Delhi. Some other meter with different K Number is installed in premises No. RZ110, Vishnu Garden, New Delhi as apparent from documents Ex. DW2/B. The inspection of meter is nowhere questioned in the crossexamination of PW1. It is the case of the CC No. 381/11 Page 11 of 19 complainant that Sunil Batra (since declared PO) was found user at the time of inspection. The accused has admitted that Sunil Batra was her tenant. All these facts show that premises No. RZ101, Vishnu Garden, New Delhi was inspected by the joint inspection team where a meter No. 27073584 with K No. 26410D120035 was installed in the name of accused Nimmi Kapoor and accused Sunil Batra (since declared PO) was found user at the time of inspection. The premises No. RZ110, Vishnu Garden, New Delhi was inadvertently recorded in the documents Ex. CW2/AD by the officials of the complainant. I find force in the arguments of Ld counsel for the complainant.
17. Ld counsel for the accused contended that accused has let out the premises to Sunil Batra who was using the premises as such she is not the user of the premises. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The testimony of PW3 shows that accused Sunil Batra was found user of inspected premises. It is for the accused Nimmi Kapoor to prove that accused Sunil Batra was her tenant. She has failed to place on record any document or rent receipt to show that she has let out the premises to Sunil Batra. Mere oral testimony of DW1 and 3 is not enough to conclude that accused Sunil Batra was tenant of the premises. CC No. 381/11 Page 12 of 19
18. Section 2 (15) of the Act defines consumer. "Consumer means any person who is supplied with electricity for his own use by a licensee or the government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of licensee, the government or such other person, as a case may be". The very definition of consumer covers both owner as well as user. Both are liable in case of illegal abstraction of electricity from the licencee's distribution network. Reliance is placed on Crl Appeals No. 470/11 (Crl MA 624/11) and 471/11 (Crl MA No. 625/11) titled as Lokesh Chandela Vs State of NCT of Delhi decided on 3.1.2012 by our own High Court. In the instant case, accused Nimmi Kapoor is the registered consumer of the electricity meter installed in the premises. She is allegedly the owner of the premises. She being the owner comes within the ambit of user. She being the user as well as registered consumer is under an obligation to keep the electricity meter in the proper condition. Reliance is placed upon Hindustan Petroleum Corporation Ltd Vs BSES RPL,138 (2007) DLT 679. The argument that accused Nimmi CC No. 381/11 Page 13 of 19 Kapoor is not the user of the inspected premises does not inspire confidence.
19. Ld counsel for the accused submitted that calibration certificate of accucheck instrument is not placed on record to show its correctness which puts a question mark over the instrument itself. Ld counsel for the complainant contended that accucheck instrument was free from error at the time of checking the meter. Heard and perused the record. The testimony of PW3 shows that meter was slow by 29.84 % as checked with accucheck instrument. His cross examination shows that accucheck is presumed to be correct in terms of calibration certificate which is not placed on record. The complainant should have placed calibration certificate on record to show that the instrument was free from error. The accuracy of the instrument cannot be presumed as law is not based upon presumptions. In the absence of calibration certificate, a doubt is created in the mind of the court regarding the accuracy of accucheck instrument. There is a force in the submission of ld defence counsel.
20. Ld counsel for the accused further submitted that meter was not sent to laboratory for analysis in terms of Regulation 52 (VIII) of Delhi Electricity Supply Code and Performance Standards CC No. 381/11 Page 14 of 19 Regulation 2007. Ld counsel for the complainant submitted that there was no procedure to send the meter to the laboratory in terms of Regulations of Delhi Electricity Regulatory Commission (Peformance StandardsMetering and Billing) Regulations 2002 and accused cannot draw any support from the Regulations which have come into force in 2007. Heard and perused the record. Regulations under Delhi Electricity Supply Code and Performance Standards Regulation 2007 have been notified and published in the Gazette on 18.4.2007. These Regulations have to be interpreted and implemented in accordance with and not at variance from any Regulations in this regard made by the Authority. The accused cannot draw any support from Regulation 52 of Delhi Electricity Supply Code and Performance Standards Regulation 2007. The Regulations framed under Delhi Electricity Regulatory Commission (Peformance StandardsMetering and Billing) Regulations 2002 have to be considered because the inspection was carried out on 23.1.2006 and Regulations under Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations 2002 were in force at that time. Regulation 25 (1VIII) nowhere says about the testing of meter from the laboratory so the argument of ld defence CC No. 381/11 Page 15 of 19 counsel does not hold water.
21. Ld counsel for the complainant submitted that there were physical signs of tampering like tampering of seals and cutting of black colour wire of R phase and these are sufficient to show the tampering in the meter. Ld counsel for the accused contended that there is no evidence on record with respect to the tampering of the meter. Heard and perused the record. The testimony of PW1 shows that all the seals were found tampered and refixed. The black colour wire of R Phase was found deliberately cut. These are some of the physical signs of tampering in the meter. The accused has failed to explain how the seals were tampered and refixed and how the black colour wire of R Phase was found deliberately cut. There is no explanation from the accused.
22. Ld counsel for the accused contended that the electricity supply of the premises was continued through the same meter which puts a question mark whether there was tampering in the meter or not. Ld counsel for the accused contended that there is no explanation why the supply was not restored through new meter. Ld counsel for the complainant submitted that directions were given to the MMG group of the complainant company to replace the meter. Heard and perused CC No. 381/11 Page 16 of 19 the record. Regulation 25 (VI) of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations 2002 says that inspection team, in case of suspected DAE, shall not remove the tampered meter but shall disconnect it and restore the supply through new meter. There is no evidence on record that supply was restored through new meter. The said meter was allegedly burnt in the fire in the premises and report qua fire was lodged by accused Nimmi Kapoor vide DD No. 37B dated
24./25.4.2007 Ex DW1/B. There is no explanation why the alleged tampered meter was not disconnected and why the supply was not restored through new meter which calls for an adverse inference against the complainant.
23. Ld counsel for the accused further submitted that personal hearing should have been given by the complainant in the suspected DAE case. Ld counsel further contended that no opportunity was granted to the accused Nimmi Kapoor to explain whether case of DAE is made out against her or not. Ld counsel for the complainant submitted that reports were prepared at the spot which were offered to accused Sunil Batra who refused to receive and sign the same and notice given to one user is sufficient compliance of the Regulations. CC No. 381/11 Page 17 of 19 Heard and perused the record. The documents Ex. CW2/AD were allegedly prepared at the spot which only reflects the name of accused Sunil Batra. It is admitted fact that documents were not pasted at site. The same should have been pasted at some conspicuous place in/outside the premises in terms of the Regulations. It is admitted fact that accused Nimmi Kapoor was not present at site who is the registered consumer.. The name of accused Nimmi Kapoor is not reflected in the documents including show cause notice Ex. CW2/D. It is admitted fact that no show cause notice was specifically sent to registered consumer either by post or by courier. The accused Nimmi Kapoor is resident of WZ109, Gali No. 16, Krishna Puri, New Delhi. The documents were not even sent at this address. One postal receipt dated 28.01.2006 is pasted on the show cause notice. The said show cause notice was sent to Sunil Batra at RZ110, Vishnu Garden New Delhi. The notice was not sent at the correct address as the address of inspected premises is RZ101, Vishnu Garden New Delhi. Admittedly, no notice has been issued at the premises bearing No. RZ101, Vishnu Garden New Delhi to accused Nimmi Kapoor. Regulation 26 of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations 2002 says CC No. 381/11 Page 18 of 19 that personal hearing of the consumer shall be arranged by the complainant and facts submitted by the consumer have to be considered. Accused Nimmi Kapoor being the registered consumer is entitled for the personal hearing. There is no service of documents i.e reports, assessment bill and show cause notice to the accused Nimmi Kapoor. No personal hearing has been given to accused Nimmi Kapoor to explain the entire circumstances. The speaking order Ex. CW2/F is also faulty on another score. The Assessing Officer has to consider the consumption pattern for the past 6 months in terms of Regulation 26 (II) of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations 2002. The speaking order shows that consumption pattern for the past 6 months was not considered by the assessing officer regarding which no explanation is coming on record. There is complete violation of Regulation 26 of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations 2002. In the absence of personal hearing, no case of DAE is made out against accused Nimmi Kapoor.
24. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home CC No. 381/11 Page 19 of 19 the guilt against accused Nimmi Kapoor beyond shadow of reasonable doubt and accordingly accused Nimmi Kapoor is acquitted of the offence charged. The file against accused Sunil Batra will be revived as and when he is arrested. File on completion be consigned to record room.
Announced in the open
Court on dated 26.04.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 381/11