Delhi District Court
Pvt Ltd vs Ndpl Reported As 142 (2007) Dlt 116," ... on 19 July, 2016
IN THE COURT OF MS. SWARANA KANTA SHARMA, ASJ
(ELECTRICITY), NW DISTRICT: ROHINI: DELHI.
CC No. 607/12 (Old No.)
CC No. 515286/16 (New No.)
Police Station : Bawana
Title:
Tata Power Delhi Distribution Limited
Erstwhile North Delhi Power Limited,
Registered Office at:
Grid Sub Station Building
Hudson Lines, Kingsway camp,
Delhi110009.
Also at :
Enforcement Assessment Cell
HRDI Building, Sector3,
Rohini, Delhi.
Through: Sh. Satish Chander Ahuja
Technical Consultant of the Company ........ Complainant
VERSUS
Satpal,
S/o Sh. Jagat Singh (Registered owner),
R/o 42/2, Village Poothkalan,
Delhi.
Jugal Kishore (User),
S/o Sh. Babu Lal,
R/o 777, BlockB,
Camp4, Jwalapuri,
Delhi - 110087. .......... Accused Persons
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 1 of 25
Under Section 135, 138 r/w Section 151 of Electricity Act, 2003
Date of institution : 18.10.2012
Date of reserving order : 19.7.2016
Date of pronouncement : 19.7.2016
Appearances
Sh. Ashish Yadav, Learned Counsel for the complainant company.
Sh. Manish Makkar, Ld. Counsel, Advocate for accused Satpal and Jugal
Kishore.
J U D G M E N T
1. The present complaint has been filed by the complainant
company, alleging therein that on 02.5.2011, a joint inspection team of
the complainant company had inspected the premises of accused
Satpal and accused Jugal Kishore i.e. House No. 140, Sector5,
DSIDC, Bawana, Delhi. During inspection, it was found that both the
accused persons were indulging in committing dishonest abstraction of
energy as both CT box seals of meter were found to be tampered with,
meter terminal seal and meter half seals were not visible/burnt and
were found tampered with, meter body were found tampered with,
sticker seals of the meter were found tampered with and resoldering
marks were found to be on inner meter terminal block PCB of the
meter found tampered. At the time of inspection, a total load of 56.894
KW was found connected for industrial purpose.
2. Accordingly, the present complaint was instituted and the
complainant company had examined two witnesses i.e. CW1 Shri
Upendra Dabas and Sh. S.C. Ahuja for presummoning evidence.
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 2 of 25
3. On the basis of presummoning evidence the learned
Predecessor of this Court was pleased to take cognizance of the
offence punishable under Section 135 and 150 of the Electricity Act,
2003 against accused Satpal and Section 135 of the Electricity Act,
2003 against accused Jugal Kishore and had summoned accused
Satpal and accused Jugal Kishore.
4. After appearance of the accused persons, documents under
Section 207 Cr.P.C were supplied to them.
5. On 10.10.2013 charge under Section 135 read with Section 150
of the Electricity Act was framed against accused Satpal and charge
under Section 135 of the Electricity was framed against accused Jugal
Kishore to which they pleaded not guilty and claimed trial.
6. In support of its case the complainant company has examined
six witnesses.
7. PW1 Shri S.S Meena, Senior Manager deposed that on
02.5.2011 he alongwith Sh. Upender Dabas and photographer of M/s
Dev Photo Magic had inspected the premises of accused i.e. House
No. 140, Sector5, DSIDC Bawana, Delhi. He stated that at the time of
inspection, they had found that the retained meter bearing No. NDPL
12413 installed vide K. No. 41405154169 had been tampered with. He
stated that at the time of inspection, meter box seals, terminal seal, half
seal were found tampered. Sticker seals and meter body were found
tampered. He stated that resoldering marks were found on inner meter
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 3 of 25
terminal block. He stated that at the time of the inspection, a load of
56.894 KW was found connected against the sanctioned load of 40 KW
for industrial purpose. He stated that the inspection was carried out in
the presence of Rajjan, labourer. He proved the photographs which
were taken at the spot at the time of inspection as Mark A1 to A18.
On being crossexamined by Sh. Manish Makkar, Ld. Counsel
for both the accused persons he admitted that on 02.5.2011, the
electricity was not connected with meter no. NDPL12413. He stated
that he did not know as to when the electricity was disconnected from
the aforesaid meter. He voluntarily stated that the meter was retained
at site which was inspected by them. He stated that he did not know
the date since when the same was retained and even did not know by
whom it was retained, but it was retained by MMG Department. He
stated that he did not have any knowledge regarding the burning of the
meter. He voluntarily stated that as per his knowledge the meter was
not burnt at site. He admitted that at the time of inspection on
02.5.2011, the retained meter was not seized by them. He admitted
that the retained meter was not sent to any NABL Laboratory for its
testing.
He voluntarily stated that no such NABL Laboratory was
assigned to NDPL at the relevant time. He admitted that for the last
two years NABL Laboratory has been assigned to NDPL for meter
testing. He admitted that on 18.10.2012, the NABL Laboratory was
assigned to NDPL. He voluntarily stated that the same has started
functioning in the year 2013. He admitted that the meter was not sent
for testing till 17.9.2014. He denied that burning of the meter was
within his knowledge. He stated that inspection report Ex. CW1/1 is in
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 4 of 25
his handwriting and at point X word "Meter was burnt was written
initially, but the same was cut by him." He voluntarily stated that the
word meter was burnt was written by mistake in the inspection report
and that is why necessary correction was done by him. He proved the
protocol sheet of burnt meter dated 28.5.2010 with the request no.
1011158621 as Ex. PW1/DA.
He deposed that he did not have knowledge that in the inspected
premises in question, another meter was installed with K. No.
414051333184. He admitted that he has mentioned that a load of
56.894 KW was found connected with the meter No. NDP12413, but
the same was not connected with the same as the load was connected
with new meter. He admitted that he had not issued any show cause
notice pertaining to the connected load of 56.894 KW from the new
meter. He stated that the power of segregation of the meter was given
to him by his HOD Sh. S.K. Dass.
He stated that at the time of segregation of the meter, registered
consumer and user (accused herein) were not found at the site. He
admitted that till date the same has not been checked through third
party laboratory. He admitted that show cause notice Ex. CW1/3 was
not handed over to any of the accused. He voluntarily stated that one
Mr. Rajan, worker of the accused was found present at the site. He
stated that after speaking over the phone to accused no. 2 Jugal
Kishore, he had served the show cause notice to him. He admitted
that action report Ex. CW2/1 was prepared by him.
8. PW2 Sh. Upendra Dabas stated that on 02.5.2011 he
alongwith Sh. S.S. Meena and photographer of M/s Dev Photo Magic
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 5 of 25
had conduced an inspection at the premises of the accused i.e. House
No. 140, Sector5, DSIDC, Bawana, Delhi. He stated that at the time
of inspection, they had found that the retained meter bearing No. NDPL
12413 installed vide K. No. 41405154169 had been tampered with. He
stated that at the time of inspection, the meter box seals, terminal seal,
half seal had been tampered with. He stated that the sticker seals and
meter body were tampered with.
He stated that at the time of inspection, the connection had been
sanctioned in the name of accused Satpal and the user of the
electricity was accused Jugal Kishore. He stated that at the time of
inspection, a total load of 56.894 KW was found connected against the
sanctioned load of 40 KW for industrial purpose. He stated that the
inspection was carried out in the presence of Rajjan, Labourer of
accused Jugal Kishore. He stated that inspection report Ex. CW1/1
was prepared by them. The notice of the same was served upon
Rajjan after obtaining his signatures. He stated that the action taken
report Ex. CW1/2 was also prepared at the site. He stated that show
cause notice at the time of inspection Ex. CW1/3 was issued. He also
proved 18 photographs which were taken at the time of inspection
Mark A1 to Mark A18. He stated that the irregularities which were
noticed at the time of inspection in the meter are visible in the
photographs. He stated that photographs A2, A3 reveal that the
seals were tampered with, photographs A14 and A18 reveal that
sticker seals of the meter have been tampered with. The photograph
A10, A11 and A12 reveal resoldering marks on the inner meter
terminal block. He stated that paper seals no. 120915 and 120916
were fixed on the meter and the meter box to maintain status quo. He
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 6 of 25
stated that theft of electricity had been committed by accused Jugal
Kishore in connivance with accused Satpal.
On being crossexamined by Ld. Counsel for both the accused
persons he stated that he is diploma holder in electronics and electrical
engineering. He stated that the Meter Management Group had
retained the meter at Site. He stated that no person from the said
department was present at the site on 02.5.2011. He stated that he did
not know when the meter was retained by the concerned department.
He stated that the MDI i.e. Maximum Demand Indicator mentioned in
the document Ex. CW1/1 pertains to the new meter as there was no
supply of electricity in the retained meter. He admitted that no officer
who had prepared the speaking order Ex. CW2/13 had called him
before passing the said order for clarification or suggestions. He stated
that he did not know whether there were two connections running in the
premises in question including the connection in question.
Attention of the witness had been drawn to Ex. CW1/1 and after
going through the same the witness stated that two running
connections are mentioned in Ex. CW1/1 at point P. He denied that
they had mentioned the load of other connection on the inspected
meter in question. Attention of the witness had been drawn to 18
photographs and after going through the same, he admitted that they
did not reflect the photographs of the appliances mentioned in the
photographs.
He stated that the technician of their department had segregated
the meter at the site by using screw driver and plier. He admitted that
the name and signatures of other technician are not mentioned in the
inspection report. Attention of the witness was drawn to Ex. CW1/1
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 7 of 25
and after going through the same he admitted that he had put remark
'Burnt' at point X which was later on cut by him. He stated that the
meter number was not visible in the meter and, therefore, he had
written 'Burnt', but later on he had found meter number with the help of
technician and had, therefore, written the meter number. He admitted
that he had mentioned on Ex. CW1/1 the status of seal number as
burnt. He stated that at point Z on Ex. CW1/1, the status of seal is
mentioned as 'Not visible due to burning". The attention of the witness
was also drawn to protocol sheet dated 27.5.2010/28.5.2016 and after
going through the same he stated that he has no knowledge about the
same.
He admitted that on 02.5.2011, the electricity was not connected
with the meter no. NDPL12413 and, therefore it was not energized. He
stated that the meter was retained at the site when the inspection was
conducted. However, he did not know the date when the meter had
been retained. He further stated that the reference for retained meter
was orally communicated to them by Sh. Rajeev Gupta, HOG. He
stated that he did not have knowledge about the burning of the meter.
He admitted that at the time of inspection on 02.5.2011, the retained
meter was not seized by them. He also admitted that the retained
meter was not sent to any NABL Laboratory for its testing. He further
stated that at that point of time, no such laboratory was assigned to
NDPL. He further stated that the laboratory has started functioning in
the year 2013. He also admitted that the meter was not sent for testing
till today. He denied that burning of the meter was within his
knowledge.
He stated that he has no knowledge whether the meter in
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 8 of 25
question was burnt on 23.5.2010 and fire brigade was called and
intimation was given to NDPL regarding the same. He also admitted
that he has no knowledge whether after this incident, the meter was
changed after two days. He stated that the protocol sheet of brunt
meter dated 28.5.2010 with request no. 1011158621 is Ex. PW1/DA
and this was not in his knowledge. He admitted that he had not issued
any show cause notice pertaining to the connected load of 56.894 KW
from the new meter. He stated that it was not in his knowledge that
meter no. 12413 was burnt meter and the same was changed with new
meter on 28.5.2010. He stated that the internal circuit of the meter was
damaged, but no additional thing was found inside or outside the meter
through which DAE could not take place. He denied that the meter
was burnt due to inevitable circumstances beyond the control of the
consumer.
9. PW3 Sh. Devi Sahai is the photographer who proved
photographs of the spot as Ex. PW3/A1 to Ex. PW3/A18 and the
negatives of the said photographs as Ex. PW3/B1 to Ex. PW3/B18.
On being cross examined by Ld. Counsel for the accused he
stated that he had issued a receipt towards payment of photographs.
He had not brought the receipt since he had given it to the official of the
complainant. He admitted that the inspection report did not bear his
signatures. He stated that he was not asked to sign the inspection
report.
10. PW4 Sh. S.C. Ahuja stated that on 02.5.2011 an inspection
was carried out by the raiding party of TPDDL at the premises of the
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 9 of 25
accused persons and the case of theft of electricity by tampering with
the electricity meter was booked against the accused. He stated that
on the basis of the said inspection, a final bill for dishonest abstraction
of energy was raised against the accused persons. He stated that at
the time of inspection, accused Satpal was found to be the registered
consumer of electricity. He proved the copy of K number as Ex.
PW4/1.
On being crossexamined by Ld. Counsel for accused Satpal
and accused Jugal Kishore he stated that he has no personal
knowledge regarding the present case. He admitted that the
documents proved by him were not prepared in his presence except
the power of attorney.
11. PW5 Sh. Manoj Kumar Kharbanda stated that on 25.5.2011
he had issued a show cause notice to the accused persons for
personal hearing on 06.6.2011 vide show cause notice dated
24.5.2011 which was already Ex. CW2/4. He stated that on 06.6.2011
accused Satpal and accused Jugal Kishore had attended the personal
hearing. The accused persons had given a written
representation/personal hearing sheet which was already Ex. CW2/5.
He stated that on 30.01.2012 another show cause notice was issued to
both the accused persons for personal hearing on 09.02.2012
alongwith all the relevant documents including tamper status report,
cumulative tamper report, load survey data and copy of photographs of
the inspection. He stated that during personal hearing, all the aspects
with respect to tampering of meter and corroborative data were
explained in details to both the accused persons. He proved the self
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 10 of 25
attested voter identity card of accused Jugal Kishore as Ex. PW5/A.
He stated that consumption pattern of the accused persons was
analyzed by him and average recorded consumption during the period
07.5.2009 to 02.5.2010 was found to be 2546 units per month. He
stated that average computer consumption for connected load of
56.894 KW for 20 hours was found to be 17068 units per month. He
stated that the use for electricity for 20 hours per day was seen from
the downloaded tampered data. He stated that the tamper events
occurred during day, evening and night hours. Thus, the average
recorded consumption of the accused persons was found to be only
14.9% of the average computed consumption which was extremely
low. He stated that he had passed the speaking order against both the
accused persons after considering entire facts of the case and the said
speaking order was proved as Ex. CW2/10.
On being crossexamined by Ld. Counsel for both the accused
he stated that neither the burnt meter had been produced before him
nor he had seen it. He admitted that he had not referred the matter for
assessment as per Regulation 40 of the DERC, 2007 as the case was
reported to Enforcement Assessment Cell for processing in dishonest
abstraction of energy and not for assessment. He stated that all the
seals of the meter were found tampered. He stated that he had not
filed certificate under Section 65B of Indian Evidence Act with the data
analysis report. He admitted that he had not specifically mentioned in
his speaking order that the meter was burnt, however, he had
mentioned in the first page of the speaking order at point B that the
seal was not visible due to burning. He admitted that the meter
number was not visible in these two photographs. He admitted that on
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 11 of 25
02.5.2011, the meter in question was lying disconnected and there was
no live current in the meter. He stated that the meter in question was
not sent to any laboratory for testing. He stated that summary of
enforcement assessment cell contains the internal communication
between him and two other officials. He proved the same as Ex.
PW5/DA.
12. PW6 Sh. Nitin Marjara stated that at the request of
Enforcement Assessment Cell, data was provided by Advance
Metering Infrastructure Group to EAC. He stated that certificate under
Section 65B of Indian Evidence Act was issued by him. He proved the
same as Ex. PW6/X. He stated that the data was provided by his
group in soft copy pertaining to meter no. NDP 12413 to Enforcement
Department.
On being crossexamined by Ld. Counsel for both the accused
persons he admitted that he did not have any authority letter or notification
issued in his name which authorises him to issue and produce certificate
under Section 65B of Indian Evidence Act. He admitted that the certificate
was prepared on 16.01.2016 whereas the data in question was downloaded in
the year 2010. he admitted that the soft copy (CD) which he had provided to
EAC is not on judicial file. He did not remember the date of disconnection of
the meter in question. He admitted that if the meter is disconnected then the
data cannot be downloaded. He voluntarily stated that if the meter is re
powered up using power supply, the meter data can be downloaded. Even
there is a provision of downloading the data from memory of meter if it is
connected on a separate power jig in the laboratory of the complainant
company. He admitted that it is mentioned in inspection report Ex. CW1/1
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 12 of 25
that the meter had been retained at site and that the data could not be
downloaded through CMRI as mentioned at point D.
13. Thereafter, the evidence of complainant company i.e. TPDDL
was closed on 08.12.2015.
14. Statement of accused Satpal and accused Jugal Kishore under
Section 313 Cr.P.C. was recorded wherein they have denied the
allegations stating that they are innocent and have been falsely
implicated in the present case. Therefore, the case was listed for
defence evidence.
15. Ld. Counsel for accused has examined only one witness in his
defence.
16. DW1 Sh. Ishu Panchal proved protocol sheet dated 29.9.2006
qua K. No. 41405154169 as Ex. DW1/A. He admitted that the
summoned record pertains to meter no. 0400012413 installed at the
initial reading 45802 in the premises of the accused.
On being crossexamined by Sh. Amit Singh, Senior Manager
(Legal) of the complainant company he stated that he has no personal
knowledge about the present case and has only brought the
summoned record. He admitted that at the time of installation of meter,
accuracy check of the meter was reported to be 0.42 positive as per
record.
17. Thereafter, defence evidence was closed and case was listed for
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 13 of 25
final arguments.
18. I have heard arguments on behalf of the complainant company
as well as Ld. Counsel Sh. Manish Makkar for accused Satpal and
accused Jugal Kishore and have gone through the case file. I have
also given my careful consideration to the documents placed on record.
19. Sh. Ashish Yadav, Ld. Counsel for complainant company has
submitted that on the basis of the statement of all the witnesses it has
been proved that the accused was committing theft of electricity and,
therefore, he be convicted for the offence punishable under Section
135 read with Section 150 of Electricity Act.
20. Sh. Manish Makkar, Ld. Counsel for both the accused persons
on the other hand has stated that since it was a criminal complaint it
was the duty of the complainant to prove their case beyond reasonable
doubt. It is stated that the complainant company has not been able to
prove that the premises in question belongs to the accused or that he
was committing theft of electricity at any point of time and, therefore,
the accused is liable to be acquitted.
21. Since the present case pertains to tampering of seals, let me
discuss the legal provisions on this point first.
22. As far as tampering and removing of seals and hologram is
concerned the law on the point is clear. The term DAE is not defined
anywhere except the DERC Regulations, 2002. Section 2(m) of
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 14 of 25
DERC regulations, 2002 which reads as under :
"Section 2 (m) "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
the meter has been caused to record less
energy than actually passing through it. It shall
also include any other means adopted by
consumer to cause the meter to stop or run
slow (such as reversing the polarity of one
phase of poly phase meters, changes in CT or
PT, etc.)."
23. Similar provision is laid down under Section 135 (i)(b) of the
Electricity Act which reads as under :
"tampers a meter, installs or uses a tampered
meter, current reversing transformer, loope
connection or any other device or method
which interferes with accurate or proper
registration, callibration or metering of electric
current or otherwise results in a manner
whereby electricity is stolen or wasted;
24. The provision of presumption of DAE has been laid down found
in the provision of Section 135(i) Second Proviso as under :
"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 provided, that
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 15 of 25
any abstraction, consumption or use of
electricity has been dishonestly caused by
such consumer.
25. Let me also discuss the relevant provision of law under Section
52 (iv) & (viii) of Delhi Electricity Supply Code and Performance
Standards Regulations, 2007 since it is alleged that meter seals were
tampered with:
(iv) The Authorised Officer shall prepare a report
giving details such as connected load,
condition of meter seals, working of meter and
mention any irregularity noticed (such as
tampered meter, current reversing transformer,
artificial means adopted for theft of energy) as
per format given in annexeXI or as approved
by the Commission from time to time.
(viii) In case of suspected theft, the Authorised
Officer shall remove the old meter under a
seizure memo and seal it in the presence of
the consumer/his representative. The
Licensee shall continue the supply to the
consumer with a new meter. The old meter
shall be tested in a NABL accredited
laboratory and the laboratory shall give a test
report, in writing, which alongwith photographs
/ videographs shall constitute evidence
thereof. The list of NABL accredited
laboratories shall be notified by the
Commission. The Authorised Officer shall
record reasons to suspect theft in the premises
in his report."
26. In the light of above law, let me examine the testimony of
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 16 of 25
witnesses to conclude as to whether the complainant company has
been able to prove its case beyond reasonable doubt against accused
persons or not. I have gone through testimonies of the witnesses who
have been examined by the complainant company.
27. In order to presume a case of DAE as defined under proviso of
Section 135 (i) of Electricity Act, the complainant/licencee is required to
establish that consumer had adopted 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.
28. A perusal of the testimony of witnesses in the present case
shows that there are glaring discrepancies in the statements of the
witnesses regarding the meter in question. The main contention of the
Ld. Counsel for both the accused persons is that the meter had not
been tampered with, and that the meter had been burnt and it was only
on his complaint regarding burning of the meter, that the meter in
question had been changed. A perusal of the file and the testimony of
the witnesses supports the claim of the Ld. Defence Counsel that the
meter of the consumer had been changed. The protocol sheet
regarding the same has been filed on record which shows that the
meter had been changed by the MMG Department of the complainant
company.
29. PW1 Sh. S.S. Meena as well as other witnesses have admitted
in their testimony that the old meter had been retained at the site by the
MMG Department. It can thus be inferred that the old meter in
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 17 of 25
question which had been retained at the site and was later on,
inspected and was allegedly found to be tampered with. It is thus clear
that this meter was not in use on the date of inspection as a new meter
in place of the old meter (meter in question) had been installed at the
site. It is not the case of the complainant company that there was any
other reason, other than complaint of burning of the meter which had
occasioned their department to change the meter in question. This
thus supports the claim of the accused that he had lodged a complaint
regarding burning of the meter and it had been changed at his request.
30. The complainant company has not examined any witness nor
they have filed on record any evidence as to why the old meter had
been retained at the site and a new meter had been installed in its
place.
In such circumstances, any witness from MMG Department
would have been the best witness to depose as to why the meter in
question had been retained at site and a new meter had been installed
in its place. Therefore, withholding the documents pertaining to those
proceedings as well as holding back the witnesses lead the court to
draw an adverse inference against the complainant company regarding
burning of the meter.
31. The witnesses who have been examined in the witness box
have given contradictory statements regarding the burning of the
meter. PW1 Sh. S.S. Meena states that he did not know whether the
meter had been burnt or not. However, in his crossexamination he
has admitted that he had mentioned at point X on Ex. CW1/1 that the
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 18 of 25
meter had been burnt. However, later on he had deleted the same
since it was written by mistake. However, in his crossexamination he
admits that in the inspection report Ex. CW1/1 at point Y it is written
that the meter terminal seal was not visible as it was burnt and half
seals were not visible as burnt in his own handwriting. Therefore, it is
clear that PW1 Sh. S.S. Meena has himself mentioned that the meter
seals were burnt and were not visible due to burning.
32. Moreover, when the witness PW1 Sh. S.S. Meena was
confronted with protocol sheet of burnt meter dated 28.5.2010 with a
request no. 1011158621 Ex. PW1/DA he admitted that the inspection
had been conducted after a period of one year after the said sheet was
prepared which reflects burning of meter and change of meter.
33. PW5 Sh. Manoj Kumar Kharbanda, on the other hand admitted
that the meter was not produced before him. He admitted that he was
aware that the meter had been burnt as it had been mentioned in the
inspection report. He also stated that the seals are visible as burnt in
the photographs. He also admitted that the meter number was not
visible in the photographs, neither it was sent to the laboratory. It is,
therefore, clear that there are contradictions in the statements of PW1
Sh. S.S. Meena and PW5 Sh. Manoj Kumar Kharbanda regarding
burning of the meter.
34. It is not clear that if the meter in question had been burnt and
there was complaint by the consumer himself and on his complaint, the
said meter had been changed, where was the question of tampering
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 19 of 25
with the seals of the said meter and once the meter number and the
seals were burnt and not clearly visible, how could the inspection team
conclude that the seals had been tampered with.
35. Ld. Counsel for the complainant argues that there were re
soldering marks in the meter which can be seen in the photographs
that proves that the meter had been tampered with. I, however, do not
agree with this contention of Ld. Counsel for the complainant since re
soldering marks may actually be a result of burning of the meter as
there is no clear distinction between the burning marks and resoldering
marks clearly visible in the photographs. The meter should have been
sent to any accredited laboratory for examination and the report could
have proved whether the marks found in the meter in question were
resoldering marks or marks due to burning of meter. However, the
meter in question was never sent to any accredited laboratory for
examination, therefore, it could not be proved that there was tampering
with the seals or that resoldering marks were found on the meter in
question.
36. Moreover, the meter in question was removed after the
complaint of the consumer that the meter had been burnt, however, the
same was retained at the spot for reason best known to the
complainant company. In case, there was any suspicion, the inspection
should have been conducted atleast within reasonable period of time
and the meter should have been sent to a laboratory as required under
the Indian Electricity Act. It was crucial piece of evidence since the
number of the meter or the seals were also not visible to the naked eye
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 20 of 25
as per the admission of PW5 Sh. Manoj Kumar Kharbanda in his
crossexamination.
37. Another fact that further weakens the case of the complaint
company is that in this case, the meter had been segregated at the
spot by the inspection team instead of sending it to third party
laboratory. The officers of the complainant company were not
authorized to segregate the meter at site. Interestingly, PW1 Sh. S.S.
Meena admits in his crossexamination that even upon segregation
which in my opinion was illegal, the internal circuit of the meter was
found damaged, but no additional material was found connected for
committing theft of electricity. Therefore, it is clear that the meter had
been burnt and, therefore, the internal circuit was damaged. However,
even upon segregation no evidence of using any artificial means to
interfere with the internal mechanism of the meter had been found to
have raised suspicion of theft of electricity.
38. PW2 Sh. Upendra Dabas has also admitted in his examination
in chief that no illegality was found in the meter in question.
39. No photographs have been filed on record to prove that the
meter had been connected to electricity or was further connected to
any appliance in use.
40. There are many more discrepancies in statements of PW1 Sh.
S.S. Meena and PW2 Sh. Upendra Dabas. PW Sh. S.S. Meena
states that he had filled the IR Form whereas PW2 Sh. Upendra
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 21 of 25
Dabas states that the IR Form had been filled by him. PW1 Sh. S.S.
Meena has stated that the correction in the IR Form regarding burning
of meter at point Y had been made by him whereas, PW2 Sh.
Upendra Dabas states that this correction had been carried out by him.
41. Ld. Counsel for the complainant company further argued that
even if the meter had been burnt, it was burnt deliberately since it had
been tampered with. There is no evidence on record to prove that
burning of meter was deliberate and, therefore, I disagree with this
contention of Ld. Counsel for the complainant company.
42. Ld. Counsel for the complainant company, further stated that
even if no artificial means were found for committing theft of dishonest
abstraction of energy, consumption data downloaded proved that
dishonest abstraction of energy was taking place. In this regard, I have
perused the testimony of PW6 Sh. Nitin Marjara who has proved
certificate under Section 65B of Indian Evidence Act regarding the
downloaded data of the meter Ex. PW6/X. In his crossexamination he
has admitted that the data had been provided in a soft copy to EAC
Department. However, the said soft copy which had been handed over
has not been filed on record. Moreover, in his crossexamination he
has also admitted that the data was downloaded on 02.5.2010 at 22:48
using AMR Technology mentioned at point Z on Ex. CW2/9. However,
a perusal of the file shows that printout of the data had been taken
admittedly on 08.6.2011 at 16:05 which is mentioned at point Y on
page no. 1 of the cumulative tampered status report Ex. PW2/9.
Therefore, the genuineness of the downloaded data itself on the basis
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 22 of 25
of which complainant wants to prove dishonest abstraction of energy
becomes doubtful.
43. It has been clearly laid down in the case of "Bhasin Motors (I)
Pvt Ltd Vs NDPL reported as 142 (2007) DLT 116," that that no case
of dishonest abstraction of energy can be booked only on account of
one seal on the meter missing or tampering or breakage of glass
window etc. unless corroborated by consumption pattern of consumer
as per Regulation 26 (ii) and such other evidence as may be available.
44. However, in my opinion, the consumption pattern by itself cannot
lead to inference of dishonest abstraction of energy in this case,
because there is no corroboration of physical tampering of the meter or
use of any artificial means to prove that the meter was recording lesser
units than the actual consumed units. Further there is no evidence to
show that any device had been used to disturb the internal
mechanism to slow down the meter or to record lesser units than the
actual consumption. Thus, the consumption pattern cannot by itself
constitute evidence of dishonest abstraction of energy. I find support in
my opinion the judgment of Col'. R.K. Nayyar Vs. BSES Rajdhani
Power Ltd. 140 (2007) DLT 257" wherein it has been laid down
that:
".....This court is of the view that an inference of
fraudulent abstraction of energy must be based
on 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
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 23 of 25
noticed on inspection and the consumer. An
inference of FAE should not be permitted to be
drawn on the mere fact that a meter had been
found with broken seals. 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 that permits any person intending
to do mischief to have easy access to the
meter, then to fasten the charge of FAE on the
consumer in the event of the 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 emphasise
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 be open to the respondent, in
the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE "
45. I am, therefore, of the opinion that the complainant company has failed to prove the case beyond reasonable doubt that either any artificial means were used for committing theft of electricity or that the internal mechanism of the meter had been tampered with to slow down the consumption of actual units of electricity. Therefore, accused Satpal and accused Jugal Kishore are entitled to acquittal and thus acquitted of the charged offence.
CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 24 of 25
46. Accused Satpal and accused Jugal Kishore are directed to furnish personal bond of Rs.10,000/ each with one surety (latest passport size photo and residential address proof) in the like amount in compliance of Section 437A Cr.P.C for a period of six months with the condition that they shall appear before the Hon'ble Appellate Court as and when called for.
47. Previous Bail Bond of the accused persons are cancelled and their sureties stand discharged. The documents, if any, of the sureties be returned against proper receipt after getting the endorsement, if any, cancelled.
48. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 19th DAY OF JULY, 2016 (SWARANA KANTA SHARMA) ASJ (ELECTRICITY) NW ROHINI : DELHI CC No. 515286/16 TPDDL v. Satpal & Anr. Page No. 25 of 25