Delhi District Court
Complainant vs Raj Kumar on 22 January, 2015
Page 1 of 15
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 236/2013
ID No. 02405R0184962013
Section 135/138 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
Raj Kumar
House No.23, First Floor,
Harijan Basti, Sita Puri,
Dabri, Palam,
Near Police Station,
New Delhi110045.
.....................Accused
Date of institution: .................... 03.07.2013
Arguments heard on: .................... 20.01.2015
Judgment passed on : .................... 22.01.2015
Final Order: .................... Convicted
CC No.236/2013
Page 2 of 15
JUDGMENT:
1. The brief facts of the case are like this. On 20.02.2013 at 4:00 PM a joint inspection team headed by Sh. Ajeet Kumar - Asst. Manager (enforcement) of complainant company alongwith Ashok photographer from M/s. Arora Photo Studio inspected the premises bearing no. 23, first floor, Harijan Basti, Sita Puri, Dabri, Near Police Station, Delhi45 (herein after referred to as inspected premises) being used by accused where one electricity meter no. 21195285 with current reading 3028 kwh was installed in his name. The meter was checked. A shunt through meter phase to phase and neutral to neutral was found. The meter was used for non domestic purpose though it was sanctioned for domestic purposes. The premises was used for running office and gift showroom. A connected load of 12.735 kw was found for non domestic purposes. The video of the inspected premises was taken and thereafter CD was prepared. The meter in question along with illegal copper shunt was removed and taken into possession vide separate seizure memo. The supply was restored through a new meter no.21195286. Inspection report, meter details report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same.
CC No.236/2013 Page 3 of 15
2. A show cause notice dated 01.03.2013 was issued to the consumer to file the reply by 13.03.2013 and to attend the personal hearing on 20.03.2013 before Assessing Officer. The accused/consumer attended the personal hearing and submitted that there is a residential house of 120 sq yards having two floors with separate meters. Ground floor is connected through non domestic meter used for ice cream. The first floor is used for office and museum of jewellery and he has been the owner of the same since January. He is not aware about any kind of tampering in the meter and will apply for change of category of meter. The submissions were recorded in notesheet dated 20.03.2013. On 21.03.2013 the Assessing Officer passed the speaking order by considering documents on record, consumption pattern of the meter from 18.01.2012 till 28.12.2012 showing consumption of 55 units per month which is 3.92% of assessed consumption and submissions of the accused. It was held that a case of dishonest abstraction of energy is made out against the accused/consumer. An assessment bill for theft of electricity (meter tampering) was raised against the accused which remained unpaid. Hence, this complaint.
3. Accused was summoned for the offence U/s 135/138 of CC No.236/2013 Page 4 of 15 Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. NOA for the offence U/s 135/138 of the Act was put to the accused to which he pleaded not guilty and claimed trial.
4. The complainant examined four witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the plea that meter on the ground floor is used for commercial purposes. The ground floor was let out by him. He has not received any notice for personal hearing. Ex PW3/A does not bear his signature at point B. However, no defence evidence has been led.
5. PW1 Ajeet stated that on 20.02.2013 at 4:00 PM he along with other officials of complainant company and Ashok photographer from M/s. Arora Photo Studio inspected the inspected premises being used by accused where one electricity meter no. 21195285 was installed in his name. A meter no.21195286 was also found installed at the time of inspection. The accused is duly identified by him as he was present at the time of inspection. The meter was checked. A shunt through meter phase to phase and neutral CC No.236/2013 Page 5 of 15 to neutral was found. The meter was used for non domestic purpose i.e. for running office and gift showroom though it was sanctioned for domestic purposes. A connected load of 12.735 KW was found for non domestic purposes. The video of the inspected premises was taken and thereafter CD was prepared. The video in the CD is identified by him as it pertains to the inspected premises and recorded at the time of inspection. The meter in question was removed and taken into possession vide seizure memo. The supply was restored through a new meter no.21953019. Inspection report, meter details report, load report and seizure memo Ex CW1/AD were prepared and offered to the accused who refused to receive and sign the same. One sealed plastic bag bearing seal of Ajeet is produced in the court which was opened. Plastic bag containing one meter no.21195285 is taken out. The witness has identified the meter Ex.P1 with shunts which was seized during the course of inspection. The meter was sent to the store at IIT.
6. During cross examination, he stated that there is basement, ground floor and first floor in the premises. There was another connection in the inspected premises for non domestic purposes. The inspection report is prepared for the meter in which shunt was found. CC No.236/2013 Page 6 of 15 There is no tampering in the seal of meter. Anybody having basic knowledge of electricity can put a shunt in the meter without disturbing the seals. The reports were prepared at site and offered to the accused who refused to receive and sign the same. It is correct that ID card and visiting card were shown to the accused. The load of basement and first floor was running through meter in question. The load of ground floor was running through another meter. The suggestion is denied that BSES officials have themselves put the shunt in the meter and thereafter made the case against the accused or some other person was user of the inspected premises or accused was not present at the time of inspection.
7. PW2 Pankaj Tandon stated that he is authorized representative of the complainant. On 09.10.2006 Sh Lalit Jalan was Chief Executive Officer of the complainant company. The Board of Directors of complainant company has passed a resolution Ex.CW2/A in a meeting dated 22.03.2006 vide which Sh Lalit Jalan has been authorized to institute, conduct, defend, settle and to appear before any court and to appoint consultants, professionals, advocates and attorney for the company. Sh Lalit Jalan has been further authorized to delegate any of his powers to any person. He has been CC No.236/2013 Page 7 of 15 duly authorized by Sh Lalit Jalan to institute or defend or sign or verify plaints, affidavits, written statement and to appear before any court vide authority letter Ex. CW2/B. He has filed the complaint Ex. CW2/C on the basis of authority given to him by the complainant.
8. PW3 Anuj Kumar is Assessing Officer. He stated that one show cause notice Ex PW3/A dated 01.03.2013 was issued by him to accused to file the reply by 13.03.2013 and to attend the personal hearing on 20.03.2013. On 20.03.2013 the accused attended the personal hearing and submitted that two floors are connected through separate meters. Ground floor is used for ice cream work and connected through meter for non domestic purposes. The first floor is used for office and museum of jewellery. He has been the owner of the same since January, 2012. He is not aware about any kind of tampering in the meter and will apply for change of category of meter. The notesheet Ex.PW3/B was prepared. He has considered the inspection report, load report, consumption pattern of the meter from 08.01.2012 till 28.12.2012 showing average recorded consumption of 55 units per month which is 3.92% of the assessed consumption and submissions of the accused and passed the speaking order Ex.PW3/C CC No.236/2013 Page 8 of 15 which bears his signature at point A.
9. During cross examination, he stated that he is not aware about the time within which show cause notice has to be issued. The accu check report was not available as accu check could not be conducted due to resistance at site. The slowness of the meter can be ascertained after it is checked in the laboratory or at site but voluntarily stated that there was conclusive proof of tampering in the meter and theft of electricity since neutral to neutral and phase to phase shunts were found in the meter at the time of inspection. The suggestion is denied that factum of artificial means is based only as per documents prepared at site or a case of only unauthorized use of electricity was made out. The meter was sanctioned for domestic purposes. It is correct that notings from X to Y in notesheet Ex.PW3/B are under his handwriting. It is correct that consumer has signed at point B after his submissions were recorded by him in his presence. He did not ask from the consumer whether he understands english or not.
10. PW4 Ashok Kumar, videographer stated that on 20.02.2013 he has accompanied the officials of BSES and went to inspected premises. He has taken the video of inspected premises and CC No.236/2013 Page 9 of 15 thereafter handed over the camera and cassette in the office to Sh Vicky Arora who downloaded the data in the office computer and prepared CD mark X. He has identified the video in the CD as it was recorded at the spot.
11. I have heard ld counsel for the parties and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user or licensee. The complainant has to show that accused has done tampering in the meter and consumed the electricity through tampered meter.
12. Regulation 2 (m) of the Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002 says that dishonest abstraction of energy shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by the consumer to cause the meter to stop or to run slow.
13. In order to draw a presumption of DAE against a consumer in terms of second proviso to section 135 (1) of the Act, it must be CC No.236/2013 Page 10 of 15 shown by the supplier or licensee that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer. The element of dishonesty is the main component of the definition of theft u/s 135 of the Act. Regulation 52 (V) of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 says that report prepared by the authorized officer shall clearly indicate whether sufficient evidence substantiating the fact that theft of energy was found or not. The details of such evidence should be recorded in the report. To my mind, this can be established by the complainant only by showing that consumer was responsible for tampering in the meter by some visible means. The initial onus lies upon the complainant and it will shift to the consumer once this onus is discharged.
14. To prove its case, the complainant has examined four witnesses. The testimony of PW1 is material as he along with other members of the team has carried out the inspection in the inspected premises. It is clear from the entire evidence on record that meter in question i.e. 21195285 was installed in the inspected premises in the name of accused for domestic purposes but it was being used for non domestic purposes ie.. for running the office and museum of CC No.236/2013 Page 11 of 15 jewellery. The accused is owner of the premises. The defence of the accused that premises was let out at the time of inspection does not inspire confidence. The accused has not disclosed the name of tenant or rate of rent or period for which the inspected premises was under
tenancy. The rent agreement is not placed on record. No witness has been examined to prove that inspected premises was under tenancy. The complete particulars to this effect are within the knowledge of the accused which he has failed to disclose. The accused has failed to further his defence. The entire evidence shows that accused is user cum registered consumer of the inspected premises.
15. The point that needs consideration is whether tampering in the meter was allegedly done by the accused or not.
16. The allegation against the accused is that shunt was found in the meter from phase to phase and neutral to neutral which itself is a tampering in the meter. The testimony of PW1 categorically shows that meter no.21195285, installed in the inspected premises, was checked. They found shunt through phase to phase and neutral to neutral. The meter with shunt was seized. PW1 has identified the meter with shunt produced in the court. PW1 has denied the suggestion that BSES officials have themselves put the shunt in the CC No.236/2013 Page 12 of 15 meter and made the case against the accused. Anybody having basic knowledge of electricity can put a shunt without disturbing the seal of the meter. There is nothing in the testimony of PW1 that shunt was not found in the meter at the time of inspection. There is nothing in the cross examination of PW1 which goes in favour of the accused. There is no enmity and the question of false implication does not arise at all. PW3 is Assessing Officer. The accused has attended the personal hearing before Assessing Officer and his submissions were recorded in notesheet Ex.PW3/B which bears the signature of PW3 at point A and that of accused at B. The accused has nowhere denied the factum of inspection during the hearing before Assessing Officer. He has simply taken the plea that he is not aware about any kind of tampering in the meter. Mere denial is no defence at all. The accused has denied his signature at point B on Ex.PW3/B during the course of recording his statement u/s 313 Cr PC. This denial is an afterthought as no such question or suggestion is put to PW3 during the course of his examination. PW3 has also considered the consumption pattern which is only 3.92% of the assessed consumption i.e. 12.735 KW. There was consumption of only 55 units per month from 18.01.2012 till 28.12.2012. The accused has failed to explain why the CC No.236/2013 Page 13 of 15 consumption was low during this period when the inspected premises is used for office as well as for museum of jewellery. Moreover, the accused has not placed electricity bills after the date of inspection to show that consumption pattern is consistent with the consumption pattern from 18.01.2012 till 28.12.2012. It shows that there was tampering in the meter and that is why meter was not recording the correct consumption of electricity. Shunt was found in the meter from phase to phase and neutral to neutral. The shunt is used to slow down the consumption of the meter. The shunt is a visible means of tampering in the meter which itself is a conclusive evidence regarding tampering in the meter. The existence of shunt is a conclusive or sufficient evidence to slow down the meter which is further corroborated from the consumption pattern. To my mind, the evidence on the record shows that there was tampering in the meter which is done by the accused as he is owner as well as user of the inspected premises.
17. Ld counsel for the accused contended that there is no laboratory report so it cannot be said that meter was tampered. Heard and perused the record. The meter was not sent to the laboratory for analysis. To my mind, there was conclusive or sufficient evidence in CC No.236/2013 Page 14 of 15 the form of shunt in the meter which amounts to tampering in the meter. The meter would have been sent to the laboratory for testing in case there was suspicion with respect to dishonest abstraction of energy. To my mind, laboratory report is not required when visible means like shunts etc are found in the meter.
18. Ld counsel for the accused contended that no reliance can be placed on the CD mark X as it is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD mark X on record in order to show that it pertains to inspected premises. PW4 has taken the video but he has not prepared the CD. The person who has downloaded the data in the computer and thereafter prepared the CD is not examined by the complainant. There is no evidence on record that the data was correctly downloaded by that person. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The original cassette is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it.
19. Ld counsel for the accused submitted that testimony of CC No.236/2013 Page 15 of 15 PW1 cannot be relied upon in the absence of examination of other members of joint inspection team though ld counsel for the complainant has urged to the contrary. Heard and perused the record. The number of witnesses examined by the complainant does not make any difference in order to prove a case as only quality of evidence is seen. The testimony of PW1 is consistent with the allegations set out by the complainant. PW1 has fully corroborated the case of the complainant. The accused has failed to shatter PW1 during the course of his cross examination. He has no enmity with the accused. To my mind, non examination of other team members does not have any affect on the merits of the case. Hence, the testimony of PW1 is relied upon.
20. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 23.01.2015.
Announced in the open
Court on dated 22.01.2015 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No.236/2013