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18.PW3 Sh. Vasudev Sharma stated in his cross­examination that he has been working as a Guard with the plaintiff since 1995 and use to watch the property as well as the electricity meters.

19.DW­1 SH. Khushal Singh stated in his cross­examination that the inspection was conduced on 26.06.1999. On the said date he was working as Inspector in Enforcement­II. He had checked the connected load alongwith Sh. S.R. Verma and Sh. G.P. Chauhan, Members of the Inspection team. He stated that he does not remember that whether the said inspection was carried out in a routine manner or on some complaint. The connected load was checked on the basis of the rating capacity of the machines and no other scientific methods was adopted for checking the connected load. All five meters were checked but action was taken against three meters which was suspected to be defective. He did not check the meter but had only signed the MTD report being the member of the inspection team. He did not know the defect in the meters. FAE has been booked on the basis of tampered meter but not because of excess connected load. He does not remember who was present at the site at the time of inspection. The copy of inspection report was not accepted by any representative of plaintiff.

21.DW3. Sh. V.P. Singh stated in his cross­examination he was the member of inspection team and was working at Superintendent Tech at the relevant time. He could not state what was the category of the connections and how much of the sanctioned loan against each connection. He had checked all the five meters on 26.06.1999. Irregularities was founded in three meters as mentioned in MTD report dated 26.06.1999. The half seals, hollow gram seal rivets of the meter in question of intact and ok except the meter glass was found through the film could be inserted in the cavity between the meter glass and cover. No film was found inserted in the cavity between the meter glass and cover when the meter was checked. The meter was recording consumption at the time of inspection. He was not present at the time of personal hearing. He had no knowledge regarding installation of sub 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.