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21. This Court has in a series of decisions in Udham Singh v. BSES Rajdhani Power Ltd. 136 (2007) DLT 500, Col. R.K. Nayyar v. BSES(Judgment dated 18.4.2007 in W.P. (C) No. 2904 of 2005) and Smt. Jagdish Narayan v. NDPL (Judgment dated 18.4.2007 in W.P. (C) No. 10287 of 2005 etc.) interpreted the provisions of Section 135 of the Act read with the DERC Regulations. The relevant passages of the last mentioned judgment in Jagdish Narayan reads as under:

23. What is central to the definition of theft under Section 135 of the Act, which according to the respondent covers DAE as well is the element of 'dishonesty'. Therefore the means read or the intention of the consumer to dishonestly abstract electricity must be proved "conclusively" to bring home the charge of DAE. Therefore the requirement of "conclusive evidence" in terms of Regulation 25 (iii) is consistent with the statutory mandate of Section 135(1). That can be established only by showing that the consumer was responsible for tampering the meter by some visible means. The external manifestations of tampering, as has been found in the inspections conducted in the present cases, can only raise a suspicion of DAE. That suspicion will have to be made good by some tangible evidence of physical means of tampering before the presumption can be drawn that it was the consumer who tampered the meter.
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. 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.

Violation of Natural Justice

24. In view of the above conclusion, the other submissions of the Petitioner about it not being furnished with the copy of the inspection report dated 13.12.2004 along with the show cause notice issued prior to the passing of the speaking order need not be examined. However, it should be observed that the burden of showing the supply of relevant documents to the Petitioner is definitely on the respondent. The endorsement on the inspection report dated 13.12.2004 shows that the consumer had refused to sign. However, this by itself does not settle the issue since this endorsement is by an official of the respondent. The respondent will then have to show that a copy of this report was dispatched to the Petitioner by registered post or any other verifiable means. Without the supply of the documents upon which the Respondent is relying to draw an inference adverse to the Petitioner, there would be justification in the consumer claiming that there has been a violation of the principles of natural justice. In such cases, it will not be a valid defense for the respondent to contend that the Petitioner should have asked for a copy of the report. If the Petitioner in fact did not know that such a report existed then it is hardly surprising that it did ask for such a report. The decision of this Court in Harvinder Motors v. BSES Rajdhani Power Ltd. also underscores the importance of complying with the principles of natural justice.