Delhi District Court
State vs Ravi Arora on 23 March, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.710/2021
FIR No.445/2020
U/s 135/138 of Electricity Act
PS Laxmi Nagar
State versus Ravi Arora
S/o Sh. Jogender Pal
R/o H.No.M-66, Jagat Ram Park,
Laxmi Nagar, Delhi-110092
Date of institution 14.12.2021
Arguments heard 15.03.2022
Date of judgment 23.03.2022
JUDGMENT
1. The BSES Yamuna Power Limited (hereinafter called as complainant company) through its Authorised Officer/DGM Sh. S.K. Panchal, had filed a complaint under section 135/138 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') with the SHO PS Laxmi Nagar, against the accused Ravi Arora (registered consumer/user) with a prayer to register an FIR against the accused under section 135/138 of the Act.
2. Succinctly the facts of the case are that on 10.08.2019 the meter bearing No.35098877 was replaced by Meter Management Group (MMG) and the same was sent to Lab for its testing. Accused was intimated to the date of meter testing. Electricity supply of the inspected premises was restored by installing new meter no.55143006. The removed meter was tested in lab vide report dated 17.12.2019, and as per this report the FIR No.445/2020 State vs Ravi Arora 1 of 16 removed meter was found bypassed by using extra wires between phase to phase and neutral to neutral. The meter testing lab finally concluded that meter was tampered.
3. Thereafter, complainant company, on the basis of lab report, carried out an inspection on 26.12.2019 at 10.05 am, at the premises of accused i.e. 122, PVT Shop No.3, Ground Floor, M-Block, Jagat Ram Park, Laxmi Nagar, Delhi-110092. The inspection team was headed by Sh. S.K. Panchal, the DGM of the complainant company. At the time of inspection, connected load was found to the tune of 0.180/KW/NX/DAE. Inspection report, load report and seizure memo were prepared at the site in presence of user but the user did not sign these documents nor accepted the same. Necessary videography of the new meter and connected load was captured by videographer Sh. Ashish. Thereafter, on 16.03.2020, on the basis of inspection report and lab report, a Speaking Order was passed by Sh. Abhishek Kumar Singh, Assessing Officer and he gave a finding that it is a case of Dishonest Abstraction of Energy (DAE).
4. On the basis of connected load and applicable tariff the complainant company assessed the demand to the tune of Rs.75,780/- with due date 31.03.2020. Accordingly theft bill was raised and sent to the accused but accused did not deposit the said amount. On failure to pay the bill amount, present complaint was filed. It is further alleged in the complaint that the act of the accused falls within the provisions of section 135/138 of the Act. Thus, a prayer was made for registration of FIR against the accused under section 135/138 of the Act.
FIR No.445/2020 State vs Ravi Arora 2 of 16
5. The SHO marked the complaint (Ex.PW2/7) to Duty Officer with the direction to register an FIR and hand over the investigation of the case to HC Birender, the IO of the case. Accordingly, after registration of FIR, DO/HC Prem Singh handed over the investigation of the case to IO HC Birender. Thereafter, IO served the accused with the notice under section 41(A) Cr.P.C. IO collected copy of Adhar Card of the accused as well as copy of ownership document of the inspected premises. After completion of investigation, charge-sheet was filed against the accused under section 135/138 of the Act.
6. On 21.12.2021, a notice for the commission of offences under section 135/138 of the Act was given to accused to which he pleaded not guilty and claimed trial stating that he is innocent and he has not committed any theft.
7. In order to prove its case against the accused, the prosecution examined following seven witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first:-
(7.1) PW2 Sh. S.K. Panchal is DGM of the complainant company. This witness deposed that on 10.08.2019, meter no. 35098877 was removed by the MMG from the premises of accused i.e. M-122 Jagat Ram Park, Laxmi Nagar, Delhi-92 vide meter change report Ex.PW2/1. The said meter was sent to meter testing lab for its testing. PW2 further deposed that on 17.12.2019, the meter was tested in the lab i.e. Baroda Caliberation Services. Copy of lab report has been brought on record as FIR No.445/2020 State vs Ravi Arora 3 of 16 Ex.PW2/2. After testing, the said meter was found tampered. Thereafter, on the basis of lab report, an inspection was conducted on 26.12.2019 at about 10.05 a.m by the enforcement team comprising of himself, Sh. Rahul (DET), Sh. Charanjeet Singh (Lineman) and Sh. Ashish (Videographer) at the premises of accused i.e. shop no. 122, Private shop no.3, M Block, Ground floor, Jagat Ram Park, Laxmi Nagar, Delhi- 110092. During inspection, one meter no. 55143006 was found installed in place of earlier meter no.35098877 and the electricity supply was being used in the aforesaid shop. At the time of inspection, said shop was found vacant. The total connected load was found to the tune of 0.180 KW which was being used at the said shop situated at ground floor for commercial purpose. PW2 further deposed that during inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Ashish. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/3. During evidence, the CD was played on the laptop and after seeing the video, witness has correctly identified the video which was recorded by the videographer during inspection. The witness also identified the accused in the said video. The inspection report Ex.PW2/4 and the load report Ex.PW2/5 were prepared at the spot. The meter no. 35098877 was seized at the spot vide seizure memo Ex.PW2/6. All the documents pertaining to inspection were prepared at the site in the presence of accused and same were tendered to the accused for signature but he refused to sign and accept the same. Thereafter, on 03.10.2020, PW2 lodged a complaint (Ex.PW2/7) against the accused with SHO PS Laxmi FIR No.445/2020 State vs Ravi Arora 4 of 16 Nagar.
(7.2) PW3 Sh. Ankush Kumar Verma is the Executive Engineer. This witness deposed that on 17.12.2019, meter no.35098877 was tested by him and it was found that extra wires were fixed between phase to phase and neutral to neutral at the terminal of meter and the said meter was found tampered. The data of meter was also downloaded and photograph of the meter was captured. Copy of lab report has been brought on record as Ex.PW2/2.
(7.3) PW4 Sh. Abhishek Kumar Singh is the DGM. This witness deposed that a case file of inspection, including meter change report, lab report, downloaded data of meter, photograph of meter, consumption pattern, inspection report, load report, seizure memo alongwith CD of videography conducted at the time of inspection at the premises of accused Ravi Arora were handed over to him for analysing the same and passing an speaking order. PW4 further deposed that after considering all these documents, he passed a Speaking Order on 16.03.2020. The copy of Speaking Order has been brought on record as Ex.PW4/1. PW4 also concluded that accused was indulged in theft of electricity by way of meter tampering.
(7.4) PW1 HC Birender Singh is the IO of the case. This witness deposed that on 03.10.20220, on the direction of the SHO, a complaint lodged by Sh. S.K. Panchal, DGM of BSES YPL was handed over to Duty Officer for registration of FIR. Accordingly, Duty Officer registered FIR no. 445/2020 and marked the investigation of the case to him. The copy of FIR No.445/2020 State vs Ravi Arora 5 of 16 FIR has been brought on record as Ex.PW1/1. Thereafter, on 08.12.2020 he served the accused with the notice u/s 41.1(A) of the Cr.P.C/Ex.PW1/2. On the same day, accused joined the investigation and handed over the ownership documents i.e. copy of Sale Deed which is in the name of Joginder Pal, father of accused. The same has been brought on record Mark A. During interrogation, it was revealed that the inspected premises was in the possession of accused Ravi Arora and the tampered meter was also installed in his name. Accused also handed over the copy of his Adhar Card which has been brought on record as Mark B. Accused was bound down vide Pabandinama Ex.PW1/3.
8. After culmination of prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. Accused did not deny that on 10.08.2019, meter no.35098877 was removed by MMG Department of BSES. Accused admitted that on 26.12.2019 at about 10.05 am, on the basis of lab report, an inspection was carried out at the aforesaid shop and new meter no.55143006 was found installed there. Accused denied rest of the allegations and stated that he has been falsely implicated in the present case. In his statement, he has also stated that he has settled the dispute and an NOC has been issued to him. Accused opted not to lead any defence evidence. Accordingly, opportunity to lead defence evidence was closed and matter was posted for final arguments.
9. Final arguments were advanced by the Ld. Addl. PP for the State as well as Ld. Counsel for accused.
10. Ld. Addl. PP for the State with the assistance of AR the FIR No.445/2020 State vs Ravi Arora 6 of 16 complainant company argued that accused was involved in dishonest abstraction of energy by tampering the meter installed at his premises. It is further submitted that meter No.35098877 was replaced by Meter Management Group (MMG) and the same was sent to Lab for its testing. The removed meter was tested in lab vide report dated 17.12.2019, and as per this report the said meter was found bypassed by using extra wires between phase to phase and neutral to neutral. It is further argued that the complainant company has proved its case against the accused beyond reasonable doubt through the testimonies of witnesses prosecution witnesses.
11. On the other hand, Ld. Counsel for accused argued that accused has neither committing any tampering of meter nor he has committed dishonest abstraction of energy. Accused is innocent and he has been falsely implicated in this case and that accused has not committed any theft.
12. Before dealing with the factual aspect of the present case, it is deemed appropriate to specify the relevant provisions of the Act which are required to be gone into for appropriate disposal of the cases pertaining to section 135 and 138 of Electricity Act. The provisions of section 135 and 138 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly. -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or FIR No.445/2020 State vs Ravi Arora 7 of 16 metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized 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 proved, that any abstraction, consumption or use of electricity has been dishonestly FIR No.445/2020 State vs Ravi Arora 8 of 16 caused by such consumer.
Section 138. Interference with meters or works of licensee. - (1) Whoever, -
(a) unauthorisedly connects any meter, indicator or apparatus with any electronic line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering;
shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
13. There is a presumption under Proviso III of Section 135 (1) of the Electricity Act, 2003 which is reproduced for ready reference :-
"Provided also 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 proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
14. As per prosecution case, the accused was indulged in dishonest FIR No.445/2020 State vs Ravi Arora 9 of 16 abstraction of electricity by tampering the meter no.35098877 (meter in question) installed at the premises of the accused. As per lab report, the meter in question was found tampered. On the basis of lab report, an inspection was carried out on the aforesaid date and time at the premises of the accused and the connected load in the replaced meter i.e. meter no.55143006 was found to be 0.180 KW. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
15. PW2 Sh. S.K. Panchal, PW2 Sh. Ankush Kumar Verma (Executive Engineer) and PW3 Sh. Abhishek Kumar Singh (Assessing Officer) are the most material witnesses in this case. PW2 was heading the inspecting team. PW2 corroborated the allegations made in the complaint Ex.PW2/7 on the basis of which present FIR was registered against the accused and his testimony is in conformity with the documents i.e. meter change report Ex.PW2/1, inspection report Ex.PW2/4, load report Ex.PW2/5 and seizure memo Ex.PW/6.
16. PW3 Sh. Ankush Kumar Verma is the Executive Engineer. On 17.12.2019, PW3 tested meter no.35098877 and found that extra wires were fixed between phase to phase and neutral to neutral at the terminal of meter and the said meter was found tampered.
17. PW4 Sh. Abhishek Kumar Singh is the Assessing Officer. On the basis of lab report, data of the removed meter, inspection report, connected load report and consumption pattern of the said meter, PW4 passed the Speaking Order Ex.PW4/1 and accused has not specifically disputed the FIR No.445/2020 State vs Ravi Arora 10 of 16 correctness of the Speaking Order.
18. The inspection team carried out the inspection on the basis of lab report Ex.PW2/2. In his deposition, PW2 deposed that on receipt of lab report Ex.PW2/2, on 26.12.2019, at about 10.05 am, an inspection was carried out at the shop/premises of accused and at that time replaced meter i.e. meter no.55143006 was found installed at the premises of accused and connected load was found to be 0.180 KW. PW2 also deposed that as per lab report Ex.PW2/2, meter in question was found tampered. PW3 who tested the meter in question deposed that extra wires were found fixed between phase to phase and neutral to neutral at the terminal of meter for bypassing the meter. The entire inspection proceedings were recorded by videographer and CD of the said inspection proceedings was brought on record as Ex.PW2/3. PW2 also proved on record the relevant documents i.e. lab report (Ex.PW2/2) along with data of the meter and photograph of meter in question. PW2 has also proved on record meter replacement report as Ex.PW2/1, inspection report as Ex.PW2/4, load report as Ex.PW2/5 and seizure memo of meter in question as Ex.PW2/6. PW4 proved on record the Speaking Order Ex.PW4/1 and consumption pattern of the meter in question. PW4 deposed that after going through the inspection file, it was revealed that the consumption through meter was inconsistent and erratic for the period from 24.07.2018 to 09.08.2019 and not in consonance with maximum demand of the meter and lab declared that meter was tampered and during inspection the connected load was found to be 0.180 KW, however, as per record the highest MDI was 1.58 KW which shows that consumer intentionally removed the connected load FIR No.445/2020 State vs Ravi Arora 11 of 16 before the inspection and the average consumption pattern as per computer module is 21.58% which is less than the prescribed limit of DERC. In the cross-examination of PW4, the accused has simply denied the Speaking Order and he has not disputed the contents and correctness of the Speaking Order.
19. The only question which is to be decided here is that whether the meter in question was tampered by the accused in order to dishonestly abstract the energy and in this regard the complainant company has duly proved on record by placing on record the lab report, consumption pattern and photograph of tampered meter that the consumer has physically tampered the meter for gainful purpose. During the course of arguments, Ld. Addl. PP for the State and AR of the complainant company has drawn the attention of this court to the Speaking Order as per which the analysis of Electronic Bill Data reveals that meter is downloaded with Inconsistent & erratic consumption from (24.07.2018 to 09.08.2019 - 199, 84, 58, 41, 46, 50, 38, 33, 38, 87, 90, 78, 18) and same is not in consonance with maximum demand recorded by the meter. Analysis of inspection report/lab report reveals that Meter was found bypassed on phase to phase by using extra wires between phase to phase and neutral to neutral terminals. PW3 Sh. Abhishek Kumar Singh the then Assessing Officer who passed the Speaking Order was cross-examined on behalf of the accused but nothing material surfaced in his cross-examination. Accused has not disputed the correctness of the Speaking Order. Nothing has been placed on record by accused in order to show that the meter in question was not tampered. During the course of arguments, it was submitted by Ld. Addl. PP that FIR No.445/2020 State vs Ravi Arora 12 of 16 once the burden is discharged by the prosecution that meter in question was tampered by the accused and electricity was dishonestly consumed by the accused through illegal means then the onus gets shifted upon the accused to show that the meter in question was not tampered.
20. On the other hand, Ld. Counsel for accused argued that the lab report is not reliable as the meter in question was removed on 10.08.2019 and it was sent to lab on 05.12.2019 and it was tested on 17.12.2019. It is further argued that there is a delay of more three months in testing the removed meter. It is further submitted that the testing of the meter was not done in presence of the accused and thus, lab report is not reliable.
21 In rebuttal, AR of the complainant company submitted that the delay in sending the removed meter to lab occurred due to huge pendency and also that accused did not visit the concerned office on the fixed date for the testing of meter i.e. 27.08.2019 which was already informed to the accused. With regard to testing of removed meter in absence of accused, Ld. Counsel for complainant submitted that accused was asked to appear in lab but he failed to do so. It is also submitted that after removal and seizure of meter in question, accused was intimated the date of meter testing as 27.08.2019 but he did not visit the concerned office. Perusal of meter installation report shows that testing date has been mentioned as 27.08.2019 and the said report also bears the signature of the accused. Thus, accused aught to have to remained present in lab on the date on which meter was tested. It is not the case of the accused that on 27.08.2019, he visited the concerned office for meter testing but he was not updated about the change of date of meter testing. The accused has not FIR No.445/2020 State vs Ravi Arora 13 of 16 disputed all these facts. It is also submitted that the lab report Ex.PW2/2 remained unchallenged and correctness of the lab report has not been disputed by the accused. During evidence before the court, PW2 and PW3 have proved the lab report as Ex.PW2/2 and Ld. Counsel for the accused has not specifically disputed the lab report. Not even a single suggestion was put to PW3 during his cross-examination that the lab report is incorrect. The correctness of the lab report has not been disputed at all during entire evidence of PW3. Thus, lab report Ex.PW2/2 stands proved.
22. In the case of Kanta Sharma Vs. BSES Rajdhani Power Ltd., in W.P. (c) 17121/2011, decided on 16.03.2011, it has been held the Hon'ble Delhi High Court that once the consumer has been given an opportunity to appear at the time of testing of meter and if he fails to attend on the scheduled date then testing can be carried out to avoid delay. The relevant para of this case is reproduced as under:
"......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 testing, 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......."
23. In view of the aforesaid discussed facts and circumstances, now the onus stood shifted upon the accused to prove his innocence in view of the presumption mentioned in the third proviso of the section 135 of the Act.
24. The Hon'be Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of presumption. Relevant portion of the para FIR No.445/2020 State vs Ravi Arora 14 of 16 no.16 is reproduced as under:-
"... Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
25. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid case, now it is to be seen if the accused has taken any defence. Accused has simply stated in his statement under section 313 Cr.P.C that he has already settled the dispute and settlement amount has been paid by him and as of now no dues is pending. Accused did not lead any defence evidence to rebut the statutory presumption.
26. It is clear from the record that on 10.08.2019, the meter No.35098877 was replaced by Meter Management Group (MMG) and the same was seized. The said meter was sent for testing to the Meter Testing Lab and after testing, Lab concerned has given its report. The Energy Meter Test Analysis Report has been brought on record by PW2 as Ex.PW2/2 along with consumption pattern and copy of photograph of removed meter. The finding given by the Lab Report is reproduced as under:-
(d) Visual Observations:-
* Meter found bypassed using extra wires between phase to phase and neutral to neutral terminals
(i) Conclusion:-
* Meter found tampered.
27. It is clear from the record that the accused has simply denied the factum of inspection and claimed that he did not do any tampering, FIR No.445/2020 State vs Ravi Arora 15 of 16 however, he failed to lead any evidence in his defence. It is not disputed by the accused that the meter number No.35098877 was removed on 10.08.2019. Accused has not disputed the meter installation report Ex.PW2/1 through which meter no.55143006 was installed after removing meter no.35098877. It is clear from the lab report that this meter was found tampered for the purpose of Dishonest Abstraction of Energy. Thus, in view of these discussions, it is clear that the accused has failed to rebut the statutory presumption. Thus, it is held that accused was indulged in Dishonest Abstraction of Energy.
28. In view of aforesaid discussions, it is held that the prosecution has been able to prove its case against the accused beyond reasonable doubt that he was indulged in dishonest abstraction of energy by tampering meter No. 35098877 which is punishable under section 135 and 138 of the Electricity Act 2003. Consequently, accused is convicted for the said offences. AJAY Digitally signed by AJAY GUPTA Date: GUPTA 2022.03.23 16:55:25 +0530 (Ajay Gupta) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 23.03.2022 FIR No.445/2020 State vs Ravi Arora 16 of 16