Delhi District Court
Tata PowerDdl vs . Abdul Kadir on 13 November, 2018
1
CC No. 412/17
PS Aman Vihar
U/s 135 of The Electricity Act
Tata PowerDDL Vs. Abdul Kadir
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ASJ
(ELECTRICITY), NORTH WEST DISTRICT, ROHINI COURTS,
DELHI.
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, Delhi110085.
Through: Shri S.K. Garg
............Complainant
VERSUS
Abdul Kadir
S/o Shri Ali Hasan
Inspected at A152
Kirari, Aman Vihar,
Delhi 110086
.............Accused
Page 1 of 12
2
CC No. 412/17
PS Aman Vihar
U/s 135 of The Electricity Act
Tata PowerDDL Vs. Abdul Kadir
Under Section 135, 138 read with Section 151 of The Electricity Act.
1. Date of Institution : 05.09.2017
2. Date of reserving order : 29.10.2018
3. Date of pronouncement of
Judgment : 13.11.2018
JUDGMENT
The present complaint has been filed by the complainant company alleging therein that on 06.04.2017, a joint inspection team of the complainant company had inspected the premises i.e. A152, Aman Vihar, Delhi (hereinafter be referred as 'said premises"). During inspection, it was found that electricity connection bearing No. 60000284632 was found installed at the said premises for commercial purpose in the name of the accused. The inspection report was prepared at the site. As per the inspection, the meter bearing No. 41122928 is suspected burnt as only electric meter was burnt, nothing else, and also no major fire marks observed at site. The residual of burnt meter was also not found at site. The total connected load was found to be 4.966 KW Page 2 of 12 3 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir used for commercial purposes.
It is further alleged that on 30.03.17 at the time of installing new meter, it was reported that reportedly burnt meter was not found at the site. The missing of the meter as well as the residuals of the allegedly burnt meter from the site shows that the accused has intentionally removed the meter from the site by reporting the same to the company that his meter was burnt with clear motive to escape from criminal as well as civil liability. The accused has indulged in the dishonest abstraction of energy and thereby causing the wrongful loss to the complainant company and wrongful gain to himself.
2. Accordingly, the present complaint was instituted and the complainant company has examined two witnesses i.e. CW1 Shri B.B. Gogia and CW2 Shri Kaushal Kishore Parsad for pre summoning evidence. On the basis of pre summoning evidence, vide order dt. 15.1.18 the accused was summoned.
Charge U/s 135 of The Electricity Act has been framed against the accused to which the accused pleaded not guilty and claimed trial.
3. In support of its case, the complainant company has Page 3 of 12 4 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir examined five witnesses. Statement of accused has been recorded U/s 313 Cr.P.C. in which he has denied the case of the complainant.
PW1 Shri Kaushal Kishore Parsad has deposed that on 6.4.17 he was working as Asstt. Manager in the Corporate Enforcement Group of the complainant company. On that day he along with Shri Vivek Kumar, Shri Yogesh, Photographer and Technician and Shri Gajender, Technician from M/s Shakti had inspected the premises of the accused i.e. H.No. 152, BlockA, Kirari, Aman Vihar, Delhi. At the time of inspection, electricity meter No. 41122928 installed vide CA No. 60000284632 which was completely burnt, residual of burnt meter was not found at site and no major fire marks were found at site which shows that meter was deliberately burnt. A load of 4.966 KW was found connected for non domestic purpose. At the time of inspection accused Abdul Kadir was present at the spot. They prepared the inspection report Ex. PW1/A. The inspection report was tried to be served upon the accused however he refused to sign and accept the same. A show cause notice was also issued to the accused but he refused to sign and accept the same. The said show cause notice is Ex. PW1/B. Page 4 of 12 5 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir Photographs were taken during the inspection by Yogesh of M/s Shakti. The said photographs are Ex. PW1/C1 to Ex. PW1/C5. The said photographs depicts the accused, connected load and the said photographs also depicts that there was no major fire marks at the spot. The accused has deliberately burnt the meter and has disposed off its residual of the burnt meter.
PW2 Shri Vivek was the member of the inspection team and he has deposed on the same lines as of PW1.
PW3 Shri Yogesh has deposed that on 6.4.17 he was working as photographer with M/s Shakti. On that day he along with Shri K.K. Parsad, Shri Vivek Kumar and Gajender Singh, the complainant officials had gone to premises number 152, Kirari, BlockA, Aman Vihar, Delhi. He took the photographs during the inspection and the same are Ex. PW1/C1 to Ex. PW1/C5. The CD of the said photograph is Ex. PW3/A. The certificate U/s 65B of Indian Evidence Act is Ex. PW3/B. PW4 Shri Sumit Kumar has deposed that he has issued show cause notice Ex. PW4/A to the accused. He has also analyzed the consumption pattern and which was found to be Page 5 of 12 6 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir 26.02% of the computed consumption and the consumption pattern analysis sheet as Ex. PW4/B. He has passed the speaking order Ex. PW4/C and issued the theft bill which is Ex. PW4/D. PW4 Shri B.B. Gogia is the authorized representative of the complainant company and has proved the power of attorney Ex. PW5/A and the meter service form as Ex. PW5/B.
4. Ld. Counsel for the complainant company has argued that from the evidence on record, the complainant has proved its case beyond reasonable doubt against the accused.
On the other hand, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the case. There is no evidence on record which would prove that it is the accused who has committed the alleged offence. The complainant has failed to prove its case beyond reasonable doubt against the accused.
5. It is for the complainant company to prove its case beyond reasonable doubt against the accused that he has committed the alleged offence U/s 135 of The Electricity Act.
Section 135 of Indian Electricity Act, 2003 reads as follows: Page 6 of 12 7 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir Theft of electricity "(1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(c) uses electricity for the purpose other than for Page 7 of 12 8 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;.....".
Provided also that if it is provided that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
6. It is the case of the complainant that the accused was the user of the electricity at the said premises and has intentionally removed the said meter from the site by reporting the same to the complainant that the said meter was burnt. The accused has done it with the motive to avoid his civil and criminal liability as he is involved in the offence of theft of electricity by way of dishonest Page 8 of 12 9 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir abstraction of energy through the said meter.
Undoubtedly, the said meter was not found at the site at the time of installation of new meter on 30.3.17 as per the meter service form Ex. PW5/B. It has been observed in Ex. PW5/B that the meter completely burnt and no meter found at site.
It is only during inspection on 6.4.17, as per the inspection report Ex. PW1/A that the said meter is suspected to be burnt as no major fire marks were observed at site and residual of burnt meter was not found at the site.
PW1 and PW2 has also deposed on the same facts as mentioned in the inspection report Ex. PW1/A. It is for the complainant to prove beyond reasonable doubt that it was the accused who has burnt the said meter and thereafter has removed the same from the site. The evidence of PW1 and PW2 who are the members of the inspection team, inspection report Ex. PW/A, meter service form Ex. PW5/B does not conclusively prove that it was the accused who has deliberately or intentionally removed the said meter from the site by alleging that it was burnt.
There is no expert report on record to support the Page 9 of 12 10 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir allegations of the complainant that the circumstances as found at the site as per the inspection report could lead to conclusion that there is no burning of said meter at the site.
7. The complainant has also relied upon the consumption pattern analysis sheet which is Ex. PW4/B. As per Ex. PW4/B, the consumption pattern was found on the lower side i.e. recorded consumption was found to be 26.02% of the computed consumption. However, in my opinion the consumption pattern by itself cannot lead to inference dishonest abstraction of energy in this case because there is no evidence on record of physical tampering of the said meter or use of any artificial means to prove that the meter was recording lesser unit then the only computed units. 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 Page 10 of 12 11 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir 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 DAE 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 DAE 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 and intention by the consumer to "fraudulently" abstract electricity in this context it is necessary to emphasis that the analysis of consumption pattern cannot constituted substantive proof of DAE in the absence Page 11 of 12 12 CC No. 412/17 PS Aman Vihar U/s 135 of The Electricity Act Tata PowerDDL Vs. Abdul Kadir 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."
8. In view of the above discussions, I am of the opinion that the complainant has failed to prove its case beyond reasonable doubt against the accused that accused has committed the theft of electricity by way of dishonest abstraction of energy. Accordingly, accused is acquitted of the charges. Bail bond cancelled. Surety discharged. File be consigned to Record Room.
Digitally signed by RAJNEESH RAJNEESH KUMAR GUPTA
KUMAR GUPTA Date: 2018.11.13 15:22:23
+0530
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. 13.11.2018 ASJ (Electricity)
North West District
Rohini Courts
Delhi
Page 12 of 12