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Showing contexts for: dae in Col. R.K. Nayar (Retd.) vs Bses Rajdhani Power Ltd. on 18 April, 2007Matching Fragments
The average recorded energy for connection No. 013-1333658 for the period 5.8.1997 to 9.8.1998 has been 57.59% of the assessed energy for the corresponding period considering the connected load of 45.301KW.
DERC Regulations further provides that even if one seal of the meter is found missing or tampered and the consumption pattern for the last one year is less than 75% of the assessed consumption, the case of Dishonest Abstraction of Energy can be booked.
14. 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 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 not 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. The decision of this Court in Udham Singh v. BRPL 136 (2007) DLT 500 is to the same effect.
16. The applicability of Regulation 26 for determining the penalty arises only after there is a determination by conclusive proof that it is a case of DAE or theft as the case may be. In other words the calculation of the penalty is in the second stage. The Regulation 26 (ii) and (iv) read as under:
(ii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyze the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
The determination of "computed units" or "assessed units" by using a formula in relation to the "connected load" or "billing load" as the case may be takes place after the determination of DAE. If after such computation the recorded consumption is found to be less than the 75% of the assessed or computed consumption, then a certain calculation of penalty ensues. The whole purpose of Regulation 26 is to calculate such a penalty consequent upon the determination of DAE. It is possible in a given case that the case of DAE is established and yet no penalty is attracted when applying the formula under Regulation 26. In these circumstances it can be seen that Regulation 26 is not intended to supply the proof of DAE. In other words the respondent cannot use Regulation 26 as the starting point by first determining the assessed consumption, then applying the formula for determining if a penalty is attracted and then infer, on that basis that it is a case of DAE. The formula for determining penalty cannot itself be the proof of DAE. However, that is what appears to have been done in the present case as is evident from the reading of the Speaking Order.
19. Although the above decisions were rendered in the context of a conviction in a criminal case, the proof necessary for inferring FAE or DAE can be no less considering that the element of 'dishonesty' brings in the concept of means read which is common to both FAE/DAE and the offence of theft of electricity. Moreover the consequence of a DAE for the consumer is that he has to pay the penalty which is five times the normal tariff.
20. Applying these tests in the instant case it is seen that the petitioner himself was hardly shown to be responsible for the tampering of the meter. Since it was he who complained having found the meter tampered, it was unreasonable for the respondent company to turn around and accuse the petitioner himself of tampering the meter. The documents dated 7.10.1998 hardly reads like an inspection report. There are no signatures of the team of officers who visited the premises. There is no signature of the petitioner or even an endorsement that he refused to sign. In fact, it is not even in the standard format. In the circumstances, the petitioner is justified in doubting if such inspection took place at all. Moreover, the presumption that is sought to be drawn in the present case is completely belied by the fact that, after the two inspections on 1.8.1998 and 7.10.1998 (a fact that remains disputed) the I.G. (Enforcement) of the DVB had on 24.12.1998 asked for a re-examination of the case, a fact that is not denied by the respondent. Nowhere in the pleadings or even in the written submissions filed by the respondent is it actually explained whether in fact that re-examination took place. By merely reiterating what was found at the time of inspection in the Speaking Order, the respondent does not add to the understanding whether the petitioner can be held to be guilty of FAE.