Delhi District Court
Brpl vs . Harvinder Motors Cc No. 326054/16 Page ... on 28 November, 2018
IN THE COURT OF MS REKHA
ADDITIONAL SESSIONS JUDGE, (SPECIAL COURT)
ELECTRICITY, CENTRAL, TIS HAZARI COURT, DELHI
CC No. 310/09
New Case No.326054/16
BSES Rajdhani Power Ltd.,
Having its Registered office at:
BSES Bhawan, Nehru Place,
New Delhi - 110019.
And its Corporate, Legal and Enforcement Cell:
Near Andrews Ganj Market, New Delhi-110049.
Acting through: Sh. Ashutosh Kumar
(Authorized Representative) ........ Complainant
Verses
M/s Harvinder Motors (User) (R/C) ........Accused
At: A-38 Mayapuri Phase-II,
New Delhi-41
Date of Institution : 31.08.2009
Date of Judgment : 28.11.2018
Final Order : Acquitted.
JUDGMENT
1). The complainant company i.e. BSES Rajdhani Power Ltd. (in short 'BRPL') has filed the present complaint case Under Section 135, 138 and 151 and 154 (5) of the Electricity Act 2003, BRPL Vs. Harvinder Motors CC NO. 326054/16 page 1 (hereinafter referred as 'Act') against the accused praying that accused be summoned, tried and punished as per law and for determining the civil liability of the accused.
2) The brief facts in narrow compass, relevant and necessary for the disposal of the present case are that on 29.08.2006, at about 04:15 PM, an inspection was carried out at the premises bearing no.A-38 Mayapuri Phase-II, New Delhi-41, by the joint inspection team of the complainant company. The inspection team was comprised of Sh. Abdul Salam (Dy.Manager) & Sh. Omvir Singh (Trainee Engineer). It is stated that at the time of inpsection accused was found registered consumer as well as user of the three phase electronic meter bearing no.29001555 installed against electricity connection bearing K.No.225050002003 existed at the premises. It is stated that meter box seals, CT box seals, meter terminal seals and meter half seals of three phase electronic meter were found tampered and refixed. It is further stated that meter was tested with standard calibrated accuracy check and meter was found within limit. In order to determine the reason for tampered seals and to download the data with CMRI BRPL Vs. Harvinder Motors CC NO. 326054/16 page 2 box was opened and data was downloaded. It is also stated that on further checking by the inspection team, a hole was detected at back side of the meter on the terminal. Scratches were also observed on CT wire terminals by inspection team. It was further observed by inspection team that it was a clear cut case of tampering and some foreign material had been used for suppressing recording of consumption and it was deemed to be case of suspected dishonest abstraction of energy (in short DAE). It is also stated that the connected load to the inspected premises had been assessed by the inspection team as 64.510 KW/ IX. It is stated that at the time of inspection photographs showing the irregularities was taken with the help of digital camera and same was contained in compact disc. Accordingly, Inspection report, (meter details), load report were prepared at site & same were tendered to the accused which were duly accepted and acknowledged by accused-Harvinder Singh. It is also stated that show cause notice of DAE was issued to accused to file reply by 05.09.2006 and calling upon accused to appear for personal hearing before complainant's office on 12.09.2006 at 11:00 hrs as BRPL Vs. Harvinder Motors CC NO. 326054/16 page 3 to why case of Dishonest Abstraction of Energy should not be booked against him. Accordingly, accused appeared for personal hearing and tendered his submissions. Thereafter, considering the facts and documents of the matter, detailed speaking order dated 20.10.2006 was passed by the Assessing Officer thereby establishing the allegation of DAE against the accused. Hence, the theft assessment bill for DAE in the sum of Rs. 26,61,517/ has been raised by the complainant company against the accused which has not been paid by the accused.
It is stated that further opportunity of being heard was given to the accused as per direction of Hon'ble High Court of Delhi. At his request, photographs of inspection as well as CMRI data were also provided and personal hearing was rescheduled to 21.02.2007 vide letter no. BRPL Vs. Harvinder Motors CC NO. 326054/16 page 4 09.02.2017. Accordingly, accused appeared and tendered his submissions. Considering all fact and circumstances of the case, a detailed speaking order dated 09.03.2007 was passed against the accused by Assessing Officer N.K.Gupta establishing a case of DAE against the accused. As such, the bill earlier raised is therefore, payable by the consumer. It is also stated that the CMRI data downloaded from the subject meter was also annexed herewith for the ready perusal of this Court. In given fact and circumstances of the case, present complaint case has been filed U/s 151 of the electricity Act, 2003 for offences under section 135 and 138 and interalia for determination of civil liabilities under section 154(5) of the Electricity Act, 2003.
BRPL Vs. Harvinder Motors CC NO. 326054/16 page 5
3). The complainant company led the pre summoning evidence. Vide order dt. 17.11.2009, the accused was summoned for the offence alleged against him. Vide order dt. 22.09.2010, notice u/s 251 Cr.PC was served upon the accused for the offence punishable u/s 135, 138 and 150 of Electricity Act, 2003, to which accused pleaded not guilty and claimed trial.
4). In this case, the complainant company has examined only four witness, so as to prove its case, namely PW1 Sh.Abdul Salam-DGM (Enforcement), PW2-Sh. Nishi Kant Gupta- DGM, PW3-Sh.Binay Kumar-AR & PW4 Sh.Omvir Singh.
5). As per the testimony of PW1 Sh. Abdul Salam-DGM (Enforcement), on 29.08.2006 he alongwith Sh. Om Vir Singh, (Trainee Engineer) and two electricians, conducted the raid at the premises bearing no. A-38, Mayapuri Phase - II, New Delhi. At time of inspection, it was found that one CT meter bearing no. 29001555 was found installed in the premises in the name Harvinder Motors. He testified that on physical inspection of the meter it was found BRPL Vs. Harvinder Motors CC NO. 326054/16 page 6 that both the meter box seals was found tampered and re-fixed i.e. the meter box was opened earlier and it was re- fixed which means the meter as installed by BSES Rajdhani Power Ltd. was not in its original condition. They opened the meter box it was found that terminal seals of the meter tampered and re-fixed. He also testified that CMRI data was downloaded by the inspection team member with the help of Common Meter Reading Instrument (CMRI). They took out the meter from the position of installation and segregated the meter in the presence of the consumer. It was also found that ultrasonic welding of the meter was tampered and body of the meter was found opened and re-fixed. After segregation they found that scratch marks at the back of the CT point of the PCB of the meter. PCB means Pre Designed Circuit Board for installing the electronic component to make the circuit completely for registering the energy, consumption recording etc. He testified that on the basis of these observations it was found that foreign material has been removed from the meter prior to the present inspection and on the basis of all these observation the joint inspection team processed the present case as one of the BRPL Vs. Harvinder Motors CC NO. 326054/16 page 7 suspected meter tampering case. Thereafter, they prepared inspection report containing meter details, total connected load report, which are already Ex. CW 2 / 1 and CW 2/ 2 respectively which bears his signatures at point "A" on each and every page. Thereafter, they handed over these documents to the accused. (Witness correctly identifies the accused as the person who was present at site and who was handed over inspection report and load reports under his signatures which is identified by the witness has those of accused at point "B". He testified that the show cause notice already Ex.CW2/4 was prepared at site which bears his signature at point "A" and handed over to the accused which bears his signature at point "B". They conducted photography of the inspection which is contained a CD which is already Ex. CW2/3. After conducting the inspection they restored the supply through the same tampered meter by pasting the IR and KCC was requested to replace the tampered meter. CMRI data which was downloaded at site was handed over to the enforcement department for further investigation and processing. BRPL Vs. Harvinder Motors CC NO. 326054/16 page 8
6) As per the testimony of PW2 Sh. Nishi Kant Gupta- DGM (Enforcement), in the year 2007 he was the Assessing Officer in the complainant company at Andrews Ganj. He testified that an inspection of the connection number 225050002003 having electricity meter 29001555 was carried out by inspection team of thier company on 29.08.2006. As per this inspection report (Ex. CW 2/1) the meter box seals, CT box seals, meter terminal seals and holograms seals were found tampered and re-fixed. He also testified that holes and scratch marks were also observed by the team at the CT terminals. He testified that on the basis of inspection report containing meter details (Ex.CW 2/1) and load report (Ex. CW 2/2), a show cause notice was issued to the accused already (Ex. CW 2/4). In pursuance of the show cause notice Sh. Harvinder Singh appeared and on the basis of submissions and other factors a speaking order was passed by Sh. Rajender Gupta (already Ex. CW 2/5). He also testified that subsequently another show cause notice was issued by the complainant in pursuance of direction of Hon'ble High Court of Delhi (already Ex.CW2/7 and Ex.CW2/8). Since, the accused did BRPL Vs. Harvinder Motors CC NO. 326054/16 page 9 not appear and in terms of request of accused another notice for personal hearing was given (already Ex. CW 2/9). He testified that on the basis of notice above mentioned a hearing was afforded to accused who attended the personal hearing on 21.02.2007. He testified that on the basis of hearing and facts and matter as well as submissions of the accused he passed a speaking order establishing the case of dishonest abstraction of energy which is (Ex.CW2/10). He testified that since the meter seals, CT box seals, terminal seals and holograms seals were found tampered and holes and scratch marks were observed on the CT terminals and consumption of the consumer was also found to be on the lower side i.e approximately 41% of the total connected load which was below the DERC prescribed limit. CMRI data was also analyzed (Ex. CW 2 / 11). Hence, the case of dishonest abstraction of energy was established.
7) As per testimony of PW3 Sh. Binay Kumar-AR, the present case has been filed by the predecessor Authorized Representative namely Sh. Ashutosh Kumar, (Manager Legal). He BRPL Vs. Harvinder Motors CC NO. 326054/16 page 10 testified that he had been authorized by with company vide authority letter dated 18.08.2009 which was already Ex.CW1/2. He could identify his signatures at point A in the complaint Ex.CW1/1. Vide order dated 30.10.2010, he had been substituted by this court in place of previous authorized representative. He also testified that his authority letter dated 23.10.2006 which was Ex.PW3/A which bears his signatures at point A. He testified that he had no personal knowledge of the case. He had never visited the premises in question.
8) As per testimony of PW4 Sh. Omvir Singh Assistant Officer, in the year 2006 he was posted as Trainee Engineer with the complainant company ie. BRPL. He testified that on 29.08.2006 at about 04:00 pm raid/inspection was conducted in the premises bearing no- A38, phase-II,Mayapuri, Delhi, used and occupied by accused. When the inspection team consisted of himself, Sh. Abdul Salaam Deputy Manager and one electrician, inspected the premises of the accused on the aforesaid date, the meter in question installed in the inspected premises was found tampered & BRPL Vs. Harvinder Motors CC NO. 326054/16 page 11 refixed. He testified that accused Sh. Harvinder Singh was present at the time of inspection at the site. In the presence of accused, they had opened the meter box and they found that meter terminal seal was also tampered & refixed. Thereafter, the electrician was also member of the raiding team has removed the meter in question from the meter box and they physically checked the meter. After checking the meter at site, ultrasonic welding LH side and RH side were found tampered and refixed. After opening the meter, they also noticed a hole in the back side of the meter terminal on PCB. Thereafter, Sh. Abdul Salaam Deputy Manager had prepared inspection report vide already Ex. CW2/1. He also testified that he had prepared the load report already Exhibited vide Ex. CW2/2. He also prepared the meter report. He had downloaded CMRI data of the meter in question at the spot. He further tested the accuracy of the meter through accu-check instrument. After checking the meter in question the limit of the meter was found within permissible limit. They further noticed scratch in the PCB of the meter. The photographs of the meter in question as well as the machinery installed in the premises in question were also taken BRPL Vs. Harvinder Motors CC NO. 326054/16 page 12 and CD of the same was also prepared vide Ex. CW2/3. After preparing the report /documents at the site, the same was handed over to the consumer/accused at the site and accused had put his signature at point B on inspection report Ex. CW2/1 and load report EX. CW2/2. Thereafter the meter was resealed by them with the paper seal and the electricity was restored to the consumer through the same inspected meter. After that on the same day they have deposited the reports/ documents and photographs etc. in the office of the complainant company.
09). Thereafter, statement of accused U/s 313 Cr.PC had been recorded, in which accused has denied the allegations against him. Accused stated that he had no knowledge about any raid. He also stated that he had received the show cause notice EX. CW2/4, EX. CW2/7, Ex. CW2/8 and Ex. CW2/9 dated 29.08.2006, 11.12.2006, 18.01.2007 and 09.02.2007 respectively but all notices were based on false facts. He also admitted that speaking order Ex. Cw2/5 and Ex. CW2/10 were passed without any application of mind and facts involved in BRPL Vs. Harvinder Motors CC NO. 326054/16 page 13 this case. He also admitted that inspection report alongwith meter details (EX. CW2/1), Load Report (Ex. CW2/2) were prepared by team. He also stated that witnesses are interested witnesses and falsely implicated him in the present case being the official of the complainant company.
10). I have heard the arguments of Ld. Counsels for the parties, perused the material available on record as well as the relevant provisions.
The provision of DERC (Performance Standards Metering & Billing) Regulations (25), 2002, is reproduced as under:
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give BRPL Vs. Harvinder Motors CC NO. 326054/16 page 14 a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises and photographed. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
It is also relevant to pen down here that as per the testimony of the PW1, there were four members in the alleged inspection team namely Abdul Salam, Om Vir SinghTrainee Engineer and two electricians. As per the testimony of PW04Omvir Singh, there were three members namely Abdul Salaam, Omvir Singh and one electrician.
It is very relevant to pen down here that perusal of the inspection report Ex. CW2/1, it is found that only two signatures are appearing.
Here, it is said that what stopped the other two alleged members (as per PW01) or one member (as per PW04) of alleged inspection team to sign the inspection report. Here view of the Court is that in view of relevant of DERC (Performance StandardsMetering & Billing) Regulations 25 (Vii), 2002 , the inspection report should have signed by all the members. BRPL Vs. Harvinder Motors CC NO. 326054/16 page 15 Therefore, the inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company.
It is also relevant to pen down here that as per the testimony of the PW1, there were four members in the alleged inspection team namely Abdul Salam, Om Vir SinghTrainee Engineer and two electricians while as per the testimony of PW04Omvir Singh, there were three members namely Abdul Salaam, Omvir Singh and one electrician.
Here, it is said that there is material contradiction in the statements of PW01Abdul Salam and PW04Sh. Omvir Singh regarding members of the alleged inspection team. As per PW01, there were four members in the inspection team while as per PW04, there were only three members in the inspection team.
The provision of DERC (Performance Standards Metering & Billing) Regulations (25), 2002, is reproduced as BRPL Vs. Harvinder Motors CC NO. 326054/16 page 16 under:
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumer's installation, affix a numbered Johnson's paper seal on the tampered meter and shall also record the particulars of the same in the report.
(v) Where it is established that there is a case of DAE, the licensee may lodge a report with the local police alongwith the material evidence including wires/cables, meter, service lines etc. seized from the site which shall be handed over to police.
It is to note here that as per the testimony of PW 01, after conducting the inspection, they restored the supply through the same tampered meter by pasting the IR and KCC was requested to replace the tampered meter and as per the testimony of PW04, the meter was resealed by them with the paper seal and the electricity was restored to the consumer through the same inspected meter. As per the testimony of PW02, on the basis of hearing and facts and matter as well as BRPL Vs. Harvinder Motors CC NO. 326054/16 page 17 submissions of the accused, he passed a speaking order establishing the case of dishonest abstraction of energy which was Ex. CW2/10.
It is very relevant to pen down here that complainant company has examined four witness and none of them have testified regarding the seizure of the meter in view of above said provision nor relied upon any seizure memo. More so, no case property has been shown to the witnesses. Here, view of the Court in view of abovesaid provision is that subject meter should have been seized from the site after allegedly establishing the fact that present case is of Dishonest Abstraction of Energy.
It is also worthwhile to mentioned here that in the testimony of witnesses, nowhere it has been mentioned that after alleged establishing the said fact that present case is of DAE, the complainant company lodged a report with the local police alongwith the material evidence in view of abovesaid provisions.
BRPL Vs. Harvinder Motors CC NO. 326054/16 page 18
It is view of the Court that mere say is not
sufficient that meter was tampered.
Therefore, the inspection team has not complied with the abovesaid mandatory regulation which certainly goes against the complainant company.
In the judgment titled as Col. R.K.Nayyar vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257, wherein it has been observed as under : "This court is of the view that an inference of fraudulent abstraction of energy must be based on the some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that meter had been found with broken seal. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location BRPL Vs. Harvinder Motors CC NO. 326054/16 page 19 that permits any person intending to do mischief to have easy assess to the meter, than to fasten the charge of FAE on the consumer in the event of meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasis that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be opened to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of consumption pattern to infer DAE.
It is to note here that as per the testimony of PW01 Abdul Salam, on physical inspection of the meter it was found that both the meter box seals was found tampered and re-fixed i.e. the meter box was opened earlier and it was re- fixed which means the meter as installed by BSES Rajdhani Power Ltd. was not in its original condition. They opened the meter box it was found that terminal seals of the meter tampered and re-fixed. It was also found that ultrasonic welding of the meter was tampered and body of the meter was found opened and re-fixed. After segregation they found that scratch marks at the back of the CT point of the PCB of the meter. PCB means Pre Designed Circuit Board for BRPL Vs. Harvinder Motors CC NO. 326054/16 page 20 installing the electronic component to make the circuit completely for registering the energy, consumption recording etc. He testified that on the basis of these observations it was found that foreign material has been removed from the meter prior to the present inspection and on the basis of all these observation the joint inspection team processed the present case as one of the suspected meter tampering case. After conducting the inspection they restored the supply through the same tampered meter by pasting the IR and KCC was requested to replace the tampered meter.
It is to note here that no meter has not been shown to the witnesses who got examined by the complainant company. The fact that the case property had not been shown to any witnesses certainly goes against the case of the complainant company.
Here, view of the Court is that mere say is not sufficient that subject meter was found tampered at the time of inspection as alleged. As such, in the instant case, the complainant BRPL Vs. Harvinder Motors CC NO. 326054/16 page 21 company has failed to show any tangible evidence of dishonest abstraction of energy (DAE) against the accused.
It is also to note here that as per the testimony of PW 01, they conducted photography of the inspection which was contained a CD which was already Ex. CW2/3. As per testimony of PW04, the photographs of the meter in question as well as the machinery installed in the premises in question were also taken and CD of the same was also prepared vide Ex. CW2/3..Here, it is said that it is not clear that by whom the alleged photography had been done. No photographer has been examined by the complainant company in this case who allegedly did the photography.
Moreover, the complainant company has also not relied upon the requisite certificate u/s 65B of the Indian Evidence Act, so as to prove the CD Ex. CW2/3. Thus, the complainant company has failed to prove the photography in the present case in accordance with law. Therefore, the CD EX. CW2/3 is of no help BRPL Vs. Harvinder Motors CC NO. 326054/16 page 22 for the case of the complainant company.
In the present matter, as per the testimony of PW01, there were four members in the alleged inspection team and as per testimony of PW04, there were three members in the alleged inspection team. It is very relevant to pen down here that complainant company examined only two alleged members out of four members (as per testimony of PW01) or three (as per testimony of PW04) of alleged inspecting team. Here, it is said that, had the complainant company examined remaining other alleged members of the alleged inspection team, the accused persons definitely would have got the opportunity to crossexamine them.
In this case, the inspection team has not joined the independent public persons during inspection. It is relevant to mention here that PWs did not testify that if any, efforts were made by the inspection team to join the public persons in the BRPL Vs. Harvinder Motors CC NO. 326054/16 page 23 inspection. Further, in the inspection report Ex.CW2/1 also nothing has been mentioned that any efforts were made by the team to join the public persons in the inspection. Public person should have been joined in the inspection. Therefore, non joining of the public persons during inspection also goes against the complainant company.
In view of abovediscussion, the complainant company has failed to prove the offence alleged against accused namely Harvinder Singh of Harvinder Motors beyond reasonable doubt in the present case. Thus, the accused namely Harvinder Singh of Harvinder Motors is entitled for acquittal. Accordingly, accused namely Harvinder Singh of Harvinder Motors is acquitted for the offence punishable Under Section 135, 138 and 150 of the Electricity Act, 2003. Bail bond of accused stands canceled and his surety is also discharged. Amount, if any, deposited by the accused as a BRPL Vs. Harvinder Motors CC NO. 326054/16 page 24 condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of alleged inspection dated 29.08.2006 be released by the complainant company after expiry of the period of appeal. It is to note here that bail bond U/s 437 (A) Cr.P.C. of accused has been furnished and accepted. File be consigned to record room after due compliance. Digitally signed by REKHA REKHA Date:
2018.11.28 16:03:00 +0530 Announced in open court (Rekha ) on day of 28st November,2018 ASJ(Special Court) Electricity/Central Tis Hazari Courts, Delhi BRPL Vs. Harvinder Motors CC NO. 326054/16 page 25