Delhi High Court
N.D.P.L. vs Sony Steels on 8 January, 2014
Author: S. Muralidhar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
R-6 & 7
+ CRL.A. 57 of 2008
N.D.P.L. ..... Appellant
Through: Mr. Vikram Nandarajog and
Mr. Sushil Jaswal, Advocates
versus
SONY STEELS ..... Respondent
Through: Mr. Ujjwal K. Jha and Mr. B.P.
Agarwal, Advocates
WITH
CRL. A. 230 of 2008
NARENDRA KUMAR GUPTA ......Appellant
Through: Mr. Ujjwal K. Jha and Mr. B.P.
Agarwal, Advocates
versus
N.D.P.L. .......Respondent
Through: Mr. Vikram Nandarajog and
Mr. Sushil Jaswal, Advocates
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 08.01.2014
1. These are two Appeals - one by Mr. Narender Kumar Gupta, the
Appellant in Crl. A. 230 of 2008 and the other by North Delhi Power
Limited ('NDPL'), being Crl. A. No. 57 of 2008 against the impugned
judgment dated 29th September 2007 and the conviction order dated
5th October 2007 passed by the learned Additional Sessions Judge
(ASJ'), Delhi.
2. By the impugned judgment dated 29th September 2007, the learned
ASJ held Mr. Narender Kumar Gupta to be guilty of the offence
under Section 135 of the Electricity Act, 2003 ('Áct'), and by the said
order, the civil liability was determined to be Rs. 1,98,762 on the basis
of 6x5 formula. As regards the sentence for the conviction under
Section 135 of the Act, the learned ASJ, by the separate
conviction order dated 5th October 2007, sentenced Mr. Gupta to a
fine of Rs. 1,00,000, and in default thereof, to undergo rigorous
imprisonment for nine months.
3. Learned counsel for Mr. Gupta referred to the complaint preferred
by NDPL before the Court of the ASJ as well as the evidence on
record and submitted that there was nothing to show that Mr. Gupta
had, in fact, been responsible for injecting high voltage electricity,
which resulted in the meter burning out. It is further pointed out that,
since the seals in the meter were found intact, there was no occasion
for the meter to have been tampered by Mr. Gupta. Reliance is placed
on the decisions dated 17th March 2010 in WP(C) No. 4103 of 2007
titled Bansi Lal v. B.S.E.S. Rajdhani Power Ltd. and Modern Rice
Mill v. Madhyanchal Vidyut Vitran Nigam Limited 2012 (1) ADJ
296.
4. Mr. Vikram Nandarajog, learned counsel for the NDPL, on the
other hand, submitted that it had come in evidence that there was no
occasion for only the meter of the accused to be burnt if there was
indeed a possibility of a spike of electricity in the system, because the
neighbouring meters were all found to be intact. Secondly, it was
submitted that for direct injection, there was no need to tamper with
the seal as long as the accused had access to the mains from which the
high voltage electricity was being injected. He referred to the denial
by the witnesses of the NDPL in their cross-examinations, that they
had failed to bring on record all the meters checked by the neighbours
only because there was no such checking of the neighbours' meters.
He submitted that the learned trial Court had acted fairly in restricting
the calculation of the amount payable to a period of 1½ months and
had also not sentenced the accused to any imprisonment.
5. The complaint by NDPL before the Court was to the effect that a
joint inspection team of the officials was formed to conduct a raid
at premises No. 1114 g/g Block, DSIDC Industrial Area, Narela,
Delhi on 6.9.2004 comprising Mr. Mukesh Kumar, J.E.(Enf.) and
Mr. Ashish Joshi, ET(Enf.), and that during the course of such
inspection, it was found that "the meter in question was segregated at
the site" and that the meter was found "deliberately burnt by injecting
high voltage, thus damaging the status of the meter." The fact of the
matter is that it was Mr. Gupta who, in fact, gave a complaint to
NDPL on 5th September 2004 that the meter was not displaying any
reading. This was an electronic digital meter. Therefore, when the
display stopped, the consumer, i.e., Mr. Gupta, gave a complaint. In
his hand written complaint, a copy of which is on record, he also set
out the reading that was available on 4th September 2004. This was,
therefore, not a case of NDPL, on its own, having conducted a raid on
the premises of the consumer.
6. It is also not in dispute that till the date on which the complaint was
made, Mr. Gupta was not found to have indulged in any dishonest
abstraction of electricity. There was no previous complaint against
him. The case of Mr. Gupta is that till that date he was consuming
around 75% of the connected load. In the speaking order passed by the
NDPL, the consumption was found to be 52% of the connected load.
Be that as it may, the answer given by the NDPL's witnesses in their
cross-examination to the question whether the PCB on the meter could
be burnt as a result of a spike of high voltage on the part of NDPL,
Mr. Surender Singh, PW-1, gave the following answers:
"The pressure wire circuit was found burnt. By giving high
voltage from outside the PCB can be burnt. It is correct that
high voltage can be from the NDPL side and in that eventuality
also PCB can be burnt. (Vol. We had checked the neighbourer's
meter whose supply was going on through the same feeder and
the meters were found O.K.). The seals of the meter box were
found intact and O.K. We have not brought any record to show
that the meter of the neighbour was found O.K. It is wrong to
suggest that the meter of the neighbour was not checked and
due to this reason no record has been brought and placed on
record."
7. In discussing the above evidence, the learned ASJ has, in the
impugned order, gone by the fact that the witness had denied the
suggestion that the meters in the neighbourhood were not checked.
8. If NDPL wanted to dispel any doubts about the PCB being burnt
due to a spike of electricity in the system, it was required to show that
the neighbours' meters were in working order at around the same
time. It should not have been difficult for NDPL to produce records to
substantiate this plea. Once the answer to the question whether PCB
could be burnt through high voltage from the side of the NDPL is in
the affirmative, then the burden could not have been shifted to the
consumer to prove the contrary on the facts of the case. In the present
case, clearly, the NDPL did not discharge that burden.
9. The other aspect of the matter was that the seals of the meter were
found intact. This was admitted by PW-1 in his cross-examination. He
explained that "the high voltage can be given through the cable. The
outgoing of the meter is connected to the main switch which is
accessible to the consumer." However, this appears to be a surmise on
the part of the witness since no photographs were filed with the
complaint to show that it was the consumer who, through the mains,
tried to inject the high voltage electricity into the meter.
10. The Court finds that the discussion of the evidence by the trial
Court is not satisfactory. It has verbatim quoted from the speaking
order and come to the conclusion that it did not call for interference.
Being a trial Court, it was required to analyse the evidence to
determine if it clearly indicated, beyond all reasonable doubt, that an
offence under Section 135 of the Act was committed by the consumer.
11. The evidence on record does not unmistakably point to the guilt of
the consumer in the instant case. Consequently, this Court is unable to
uphold the conviction of the Respondent for the offence under Section
135 of the Act. The impugned judgment dated 29th September 2007 is
hereby set aside.
12. Consequently, the question of imposing any civil liability on the
Respondent under Section 154(5) of the Act does not arise. The order
to that extent is also hereby set aside.
13. Resultantly, Mr. Gupta is entitled to a refund of all the amounts
paid by him pursuant to the impugned judgment dated 29th September
2007 as well as the conviction order dated 5th October 2007, both of
which are hereby set aside.
14. Crl. A. 230 of 2008 is accordingly allowed and Crl. A. No. 57 of
2008 is dismissed.
S.MURALIDHAR, J
JANUARY 08, 2014
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