Delhi District Court
Bses vs . Ravi Goswami, Cc No. 171/10 Page 1 Of ... on 26 October, 2013
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IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No.: 171/10
Police Station : Kalkaji, New Delhi
U/s 135 & 138 of Electricity Act, 2003
Unique ID No. 02406 R0203472010
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Shri Ravi Goswami
S/o Shri B.K. Goswami
2. Smt. Rama Kataria (Absconding)
R/o RZ2980/33, Ground Floor,
Tuglakabad Extension,
New Delhi
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant
Accused on bail with Shri S.Satyanarayana, Advocate.
Complaint instituted on : 18.10.2010
Judgment reserved on : 17.10.2010
Judgment pronounced on : 26.10.2010
BSES Vs. Ravi Goswami, CC No. 171/10 Page 1 of page 19
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JUDGMENT
1. The case of the complainant in brief is that on 26.02.2010, the officers of the complainant company namely, Shri M.C. Sharma - Senior Manager, Shri Shlok Singh - Graduate Engineer Trainee and Shri R.P. Singh - Shift Officer, inspected the premises i.e. RZ2980/33, GF, Tuglakabad Extension, New Delhi and it was found at the time of inspection that the Real Time Clock (RTC) of the single phase electronic meter no. 23410434 found failed and that the current date was shown as 26.02.2008 and time was 05:44:11, whereas the actual date was 26.02.2010 and time was 12:15 and that load of 10.488 KWs for nondomestic purpose was found against the sanctioned load of 6 KWs under nondomestic category. It is further mentioned in the said complaint that as the RTC of the meter found failed at the time of inspection and that it was suspected that the meter was subjected to external disturbance such as ESD/HF and that the consumer supply was restored through new electronic meter bearing no. 24282846 and the meter bearing no. 23410434 was sent to NABL accredited meter testing laboratory and that an intimation in this regard was also sent to the consumer that he may witness testing/analysis of BSES Vs. Ravi Goswami, CC No. 171/10 Page 2 of page 19 3 the said meter in lab. It is further mentioned in the complaint that the meter was tested in laboratory on 11.03.2010 in the presence of consumer and as per BRPL energy meter test/analysis report no. BRPL/10/7260 dated 11.03.2010, it was found that current date as shown by meter was 10.03.2008 on actual date 11.03.2010, thus showing failure of RTC of the meter, meter MD history date found to have occurred more than once in a month and it was declared by the laboratory that meter got disturbed and this happens if meter subjected frequently by abnormal external injections such as ESD/HFD done for the purpose of manipulating the consumption. It is further mentioned in the complaint that the inspection report, meter details, load report and seizure memo were prepared at the site and the showcause notice dated 26.02.2010 for suspected theft of electricity/dishonest abstraction of energy was also prepared vide which accused was requested to reply by 16.03.2010 and to attend the personal hearing on 23.03.2010 issued to the accused and that no response from accused was received and that a final notice dated 21.06.2010 to attend personal hearing on 30.06.2010 was issued but again there was no response from the consumer. It is further mentioned in the said complaint that after taking BSES Vs. Ravi Goswami, CC No. 171/10 Page 3 of page 19 4 into consideration all the facts and circumstances and further consumption record for the period 06.01.2009 to 15.01.2010, shows an average recorded consumption of 781 units per month, which was found to be 52% of the assessed consumption, the Assessing Officer of the complainant company passed a Speaking Order dated 07.07.2010.
2. It is further mentioned in the complaint that accused were using electricity illegally by drawing the same dishonestly from the complainant's system by using artificial means and by tampering the meter, the theft bill and tariff order was raised by the complainant for Rs. 1,55,135/ with a due date as 04.08.2010 and was served upon the accused but he failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide his order dated 02.11.2010. Accused Rama Kataria was declared proclaimed offender by my Ld. Predecessor vide order dated 03.01.2012. My ld. Predecessor vide his order dated 04.02.2012 framed a notice U/sec. 251 Cr.P.C. for BSES Vs. Ravi Goswami, CC No. 171/10 Page 4 of page 19 5 commission of offence u/s. 135/138 of the Electricity Act, 2003 against the said accused, to which he pleaded not guilty and claimed trial on the ground that he had not committed any theft of electricity nor tampered the meter in question and that a false and fabricated case has been made out against him and thus, he is not liable to pay any loss and damages to the complainant company.
4. In order to prove the case of the complainant, seven witnesses were produced, which have been discussed below.
5. The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that the inspection was carried out in his absence and that he was not indulged in any type of theft or tampering with the meter and that he was paying the electricity bills regularly and that meter no. 23410434 was removed in his absence from his premises and that the load report is highly exaggerated and totally imaginary and that the same was not prepared in his presence and the load as mentioned in the videography was not properly captured and BSES Vs. Ravi Goswami, CC No. 171/10 Page 5 of page 19 6 that he was using the electricity within sanctioned load and that none of the documents were prepared in his presence and that he was not aware of the contents of the said documents and that he was not present at the time of analysis of the meter and that the lab report was prepared by the complainant company on their own whims and fancies. Accused further answered that he never received any showcause notice and speaking order from the complainant company and that no opportunity was given to him to disclose the facts with regard to alleged theft. Accused opted to lead defence evidence and he produced himself as defence witness vide permission u/s. 315 Cr.P.C., which has been discussed below.
6. I have heard the counsel for the complainant and counsel for the accused Shri S. Satyanarayana, Advocate, and perused the record including the CD of videography displayed on the computer screen of the court.
7. PW1 Shri Shlok Singh was the Graduate Engineer Trainee of the complainant company, who deposed that on 26.02.2010 at about 12 O' clock, he along with Shri M.C. Sharma, Shri R.P. BSES Vs. Ravi Goswami, CC No. 171/10 Page 6 of page 19 7 Singh, Shri Vipin Meena and Shri Sunder Lal inspected the premises bearing House No. RZ2980/33, Ground Floor, Tuglakabad Extension, New Delhi and they found that there were two single phase electronic meters installed at the said premises and that they had complaint regarding one of the said meters and they found that the RTC of the said meter was failed. PW1 further deposed that they mentioned the said meter number in the documents prepared at the site i.e. inspection report and meter details and that they further assessed the connected load of the premises which was being run through the said meter, which was being used for basement and ground floor by the accused for commercial purpose and that they have mentioned the same in the load report. PW1 further deposed that they had informed MMG department to change the said meter with the new meter and that officials of MMG department came at the spot and replaced the said meter with the new meter. PW1 further deposed that they seized the said meter at the spot in a bag and he proved the inspection report, meter details, load report, seizure memo, showcause notice as Ex. CW2/1, Ex. CW2/2, Ex. CW2/3, Ex. CW2/4 and Ex. CW2/5. PW1 further deposed that they offered the said documents to the persons BSES Vs. Ravi Goswami, CC No. 171/10 Page 7 of page 19 8 present at the spot to sign and receive, but they refused the same. PW1 further identified the videogoraphy as contained in the CD. PW1 further deposed that Shri M.C. Sharma had verified the names of registered consumer and the user. PW1 also identified and proved the case property i.e. one green bag bearing no. 349625 as Ex. P1, one yellow colour plastic seal bearing no. 015120/BRPL as Ex. P2, one broken yellow colour plastic seal bearing no. 047010/BRPL as Ex. P3 and one electronic meter bearing no. 23410434 as Ex. P4.
8. In his cross examination on behalf of the accused, PW1 volunteered that the second meter installed in the premises was also defective as the RTC of the second meter was also failed but no case was registered qua the second meter. PW1 did not remember the meter number regarding which there was a complaint prior to the inspection. PW1 answered that Shri M.C. Sharma told him about the complaint. PW1 admitted it as correct that the team did not find any artificial means, which could be used to tamper the meter. PW1 answered that after noticing that the meter was defective, the team leader called the MMG officials from Alaknanda division, who replaced the meter BSES Vs. Ravi Goswami, CC No. 171/10 Page 8 of page 19 9 and that the documents prepared at the site were not got signed from the official of the MMG Department. PW1 answered that the team leader had informed the inmates of the house before commencing the inspection, however, he did not remember, who was the said inmate. PW1 could not say as to whether the said inmate was present in the court on the day of deposition or not and that as to whether the said second meter was still installed in the premises. PW1 answered that the load of the second meter was not assessed and that the load which was connected to the meter in question was only mentioned in the load report. PW1 did not remember as to whether there was third meter installed in the premises or that the same was in good condition.
9. PW2 Shri M.C. Sharma, Deputy General Manager in the complainant company deposed almost on the same lines on which PW1 has deposed and as mentioned in the complaint. PW2 further deposed that photographer had conducted the videography of the inspection and the connected load and PW2 also proved the CD of said videography as Ex. CW2/11. PW2 further deposed that after concluding the inspection, they had submitted all the documents and the case property to the BSES Vs. Ravi Goswami, CC No. 171/10 Page 9 of page 19 10 concerned department for further inspection.
10. In his cross examination on behalf of the accused, PW2 replied that one meter was feeding supply to basement and ground floor and the other meter was used for other floors and that as per directions of the DGM (Enforcement), the meter in question was inspected to check the abnormality, if any, as the case pertains to Electronic Static Discharge (ESD). PW2 admitted it as correct that on checking the meter they did not find any artificial means in and around the said meter. He further answered that he did not remember the name of the representative, who was present at the site but covered in the videography. PW2 answered that there was no external evidence of using the ESD device found, however, from the study of CMRI data, an inference could be drawn regarding the use of ESD device, also indicating the time and date of its usage. PW2 admitted it as correct that at the time of inspection, CMRI data was not recovered by the team. PW1 further answered that when the inspection was commenced, no officer of MMG department was present, however, a telephone call was made to summon such officer, before commencing the inspection at around 12 O' BSES Vs. Ravi Goswami, CC No. 171/10 Page 10 of page 19 11 clock and that within ten minutes, officer from the MMG department had reached the inspected premises, but he did not remember his name. PW2 did not remember as to whether there was third meter in the said premises, which was feeding the entire building along with two other meters.
11. PW3 Shri Anant Sharma was the Assistant Manager in the complainant company, who had passed the Speaking Order and he also proved the same as Ex. CW2/9. PW3 deposed that show cause notice dated 26.02.2010 was sent to the consumer for hearing on 23.03.2010 and that as nobody appeared on the said date, final notice dated 21.06.2010 was issued to the consumer requesting him to appear on 30.06.2010 for personal hearing and he also proved the said notices as Ex. CW2/5 and Ex. CW2/8, respectively. PW3 deposed that he found the present case as of the dishonest abstraction of electricity as the consumption pattern so suggested and also because the meter date and time and MD history date were disturbed, which indicated use of Electro Static Discharge (ESD)/HF/EHV.
BSES Vs. Ravi Goswami, CC No. 171/10 Page 11 of page 19 12
12. In his cross examination on behalf of the accused, PW3 answered that he did not visit the site before passing the speaking order and that he was not present in the lab during the analysis of the meter. PW3 admitted that no receipt showing the service of final notice dated 21.06.2010 was placed on the record. He volunteered that he could produce the same. PW3 produced the photocopy of register maintained at the Enforcement office of BSES, whereupon the receipts of speed posts are pasted and marked the same as Mark A and Mark B. PW3 did not remember as to when the final notice was sent to the accused. PW3 answered that he was not having any acknowledgement or any other proof with regard to service of above said letters to the accused, however, he could produce the proof of delivery of the above said postal receipt, which might be lying with the postal department.
13. PW4 Shri Nikhil Kumar, diploma engineer had proved the lab report as Ex. CW2/7, which was prepared by Shri Chander Prakash, who had tested the meter and had left the services of the complainant company. PW4 identified the signatures of Shri Chander Prakash and Shri Kailash on the said documents and he BSES Vs. Ravi Goswami, CC No. 171/10 Page 12 of page 19 13 deposed that he identified the signatures as he had seen both the said persons writing and signing and writing various documents. In his cross examination on behalf of the accused, PW4 answered that Shri Chander Prakash had left the services of the complainant company in the year 2011. PW4 admitted that he had no personal knowledge of the present case.
14. PW5 Shri Ashutosh Kumar is the A.R. of the complainant company, who had proved the present complaint as Ex. CW1/1, Geneal Power of Attorney as Ex. CW1/2. In his cross examination on behalf of the accused, he answered that he did not visit the site and that he had no personal knowledge of the personal case.
15. PW6 Shri G.B. Bara Patre was the Deputy Finance Officer of the complainant company, who prepared the theft bill on the basis of formula given under the DERC Regulations and he also proved the same as Ex. CW2/10. In his cross examination on behalf of the accused, he answered that he had no personal knowledge about the alleged theft case and that he prepared the theft assessment bill at his office on the basis of the documents provided to him by the complainant.
BSES Vs. Ravi Goswami, CC No. 171/10 Page 13 of page 19 14
16. PW7 Shri Sunder Lal was the videographer from M/s. Arora Photo Studio, who conducted the videography of the inspection of the site on the directions of Shri M.C. Sharma and he also identified the said videography and proved the CD of videography as Ex. CW2/11. PW7 deposed that there was no tampering with the data of the videography contained in the said CD. In his cross examination on behalf of the accused, he answered that he did not receive directions from Shri M.C. Sharma in writing to conduct the said videography. PW7 proved the copy his Icard as Ex. PW7/D1, which mentioned the date of issuance as 01.04.2012 and the same was valid upto 31.03.2013. He volunteered that the Icard was renewed every year.
17. DW1 Shri Ravi Goswami deposed that no inspection of his premises was conducted by the officials of the complainant company and that he reached the spot, when the said officials had already finished the work and about to leave from the spot. DW1 further deposed that said officials did not give him any document/report at the spot. DW1 further deposed that two electricity meters were installed in the premises in question and that the officials of the complainant company informed him that BSES Vs. Ravi Goswami, CC No. 171/10 Page 14 of page 19 15 they were taking the one meter for testing as the same was found to be defective and that till date he was not given any report of testing of the meter. DW1 further deposed that he was using the electricity through the meters installed at the site and he also produced the electricity consumption bills in respect of the meter bearing no. 23410434 and the new meter bearing no. 21241803, which was replaced replaced by the officials of the complainant company. DW1 further deposed that the consumption recorded in the earlier meter and the subsequent meter was almost similar and as per the usage of the appliances and that there was no outstanding amount against the said consumption bills. DW1 also proved the consumption bills for the months of January, 2010, November, 2010 and March, 2011 collectively as Ex. DW1/A, which were showing the record of consumption at the backside of the said bills as Ex. A to A1, B to B1 and C to C1. DW1 deposed that he did not interfere with the meter at any point of time and that a false case has been made out against him and that he did not receive any letter from the BSES to witness the meter analysis at lab or to attend personal hearing. DW1 further deposed that he came to know about the present case only when he received summons from the court and BSES Vs. Ravi Goswami, CC No. 171/10 Page 15 of page 19 16 that he is not liable to pay any amount against the theft assessment bill.
18. In his cross examination on behalf of the complainant company, DW1 admitted it as correct that inspection was conducted by officials of complainant company on 26.02.2010 and that he reached at the spot in the end of the said inspection and that officials of complainant company were present at the spot when he reached there. DW1 answered that he demanded documents and reports from the members of raiding team, but they had not provided him the same and that only one report regarding meter testing was prepared at the site and same was given to him. DW1 did not remember as to whether the meter in question was sealed in his presence. DW1 admitted that the meter in question was removed and new meter was installed at the spot in his presence. DW1 replied that he did not request the complainant to test the meter in question through other independent lab except the laboratory of BRPL and that both the meters were installed in his name on the ground floor of the premises in question for commercial purposes. DW1 also admitted that the bills collectively exhibited as Ex. DW1/A did BSES Vs. Ravi Goswami, CC No. 171/10 Page 16 of page 19 17 not contain his name as registered consumer. He volunteered that he was tenant in the premises in question at the relevant time. DW1 could not say as to whether the consumption recorded in the meters was in excess after the inspection as compared to the previous consumption. DW1 was confronted with the CD of videography Ex. CW2/11 and after seeing the said videography, he identified the premises, inspection, connected load, two meters and staff, who were working at the spot.
19. With the said evidence on record, it is admitted that lab test report Ex. CW2/7 was prepared by one Shri Chander Prakash, the engineer concerned, who tested the meter and the said report was approved by one Shri Kailash. Merely exhibiting a document by an alleged secondary source cannot be said to have proved the document itself. Said Chander Prakash or Shri Kailash has not been produced in the witness box, who would have proved not only the said lab test report, but also the fact that the accused, who has denied his signatures on the lab test report, was the person, who signed the lab test report at point C and they would have further identified the accused as the same person, who signed at point C in the lab test report Ex. CW2/7. BSES Vs. Ravi Goswami, CC No. 171/10 Page 17 of page 19 18
20. It is further admitted in the cross examination by PW2 that CMRI data from the meter in question was not retrieved, which go to establish that the said data was never supplied to the accused, which is an essential requirement of a case of dishonest abstraction of electric energy as per rules applicable to the case. Even the consumption pattern was not proved as such by calling any witness, who prepared the same.
21. Initially this case was booked for suspected dishonest abstraction of energy and by not proving the lab test report and non retrieving of the CMRI data and not proving the consumption pattern on behalf of the complainant go to establish that the complainant has miserably failed to bring home the guilty of the accused beyond reasonable doubt so as to shift the onus upon the accused as mentioned in the section 135 & 138 of the Electricity Act, 2003, to rebut the presumption raised in the said provisions against accused.
22. In view of my said discussion, benefit of doubt is extended to the accused and he is acquitted of offence punishable u/s. 135 BSES Vs. Ravi Goswami, CC No. 171/10 Page 18 of page 19 19 & 138 of the Electricity Act, 2003. His PB and SB are hereby cancelled and discharged. The file may be revived, as and when, accused Smt. Rama Kataria, who is now absconding, is brought to books. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 26.10.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Ravi Goswami, CC No. 171/10 Page 19 of page 19