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19.The defendant examined DW2 Mr. D. K. Rastogi who was only partly cross­examined as he stopped appearing for deposing in the court. He stated in his cross­examination that he was working as JE, Enforcement in the year 2000. He was appointed in the DVB in 1993. His work was to check the connected load and to see what type of business was being run at the premises in question. He was not concerned with the checking of the meter. He did not check the meter in question himself. He never worked in the MTD department of the defendant. He had never checked any three phase meter of his own. He conducted the inspection with the joint team. He stated that the meter in question was not opened and no investigation/checking was done to ascertain whether there was any tempering in the meter or not. He stated that the meter seals were found fictitious and rivets were found tempered as mentioned in the inspection report Ex. DW3/P2. He stated that at the time of inspection, there was no electricity supply and the joint team had never inspected the meter in question again to confirm whether the electricity was being consumed fraudulently or not.

24. The decision of the Hon'ble Supreme Court in Jagannath Singh v. B.S. Ramaswamy is illustrative although there the Court was concerned with a criminal conviction for the offence of theft of electricity under Sections 39 and 44 of the Indian Electricity Act, 1910. The approach to the requirement of proof of dishonest abstraction of energy is nevertheless relevant for the present case. The Hon'ble Supreme Court held that the existence of artificial means for abstracting energy can only give rise to a presumption that there had been a dishonest abstraction. The supplier would still have to show that the consumer is responsible for such tampering. In the said case, it was contended that the existence of an open stud hole on the meter was sufficient proof that dishonest abstraction of energy had taken place. In answer to that contention, the Hon'ble Supreme Court observed as under: "A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorized taking of energy, and cannot be regarded as an artificial means of its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under Section 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."

25. Applying the above test, it has to be held that an automatic presumption of DAE on the basis of the external symptoms of tampering together with the analysis of the consumption pattern would not be a safe and error free method.

Suit No. 97/2014 & Suit No. 98/2014 Page No. 20 of 29 Some other tangible evidence must be shown to exist. An accu check meter can be deployed to find out if the meter is in fact recording lesser units. The analysis of the consumption pattern in terms of the Regulation 26 (ii) is merely corroborative and not by itself substantive evidence of DAE. The decision of this Court in Udham Singh v. BSES Rajdhani Power Ltd.­136 (2007) DLT 500 is to the same effect. In fact, the formula is applied in terms of Regulation 25 (iv) read with 26 (ii) only for determining the penalty payable by the consumer once a case of either direct theft or DAE has been made out. The penalty formula cannot itself supply the proof of DAE or theft.

26.DW2 has categorically stated that He did not check the meter in question himself. He stated that the meter in question was not opened and no investigation/checking was done to ascertain whether there was any tempering in the meter or not. He stated that the meter seals were found fictitious and rivets were found tempered as mentioned in the inspection report Ex. DW3/P2. He stated that at the time of inspection, there was no electricity supply and the joint team had never inspected the meter in question again to confirm whether the electricity was being Suit No. 97/2014 & Suit No. 98/2014 Page No. 23 of 29 consumed fraudulently or not.