WPC No.5470/2008 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 5470/2008 % Date of decision : 18th February, 2010. MUKESH MEHRA ..... Petitioner Through Mr.Ravi D. Sharma, advocate. versus B.S.E.S YAMUNA POWER LTD ..... Respondent Through Mr. Vikram Nandrajog, advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R 1. The impugned speaking order dated 9th/10th July, 2008 holds that the petitioner is guilty of dishonest abstraction of electricity for the following reasons :- “Establishment of facts of Cases: The case has been analysed and observed as under:  In this case the date of inspection display was found hang. This fact has been mentioned on meter inspection Performa no.7374 as well as on seizure memo. This situation arises mostly in the cases where meter is tampered without any physical interference i.e. Electro Static Discharge (ESD) due to software disturbances as meter is not calibrated to face extreme high WPC No.5470/2008 Page 2 voltage generated artificially.  As per CMRI data download and analysis of consumption pattern it has been observed that extra ordinary and extreme high MD (KW) as 41.4 KW has been recorded on 23/08/2007. This extra feature also appears when meter is subjected to high voltages generated artificially.  As per CMRI data, meter RTC found faulty. This situation arises when meter is externally applying extra high voltage. This aspect also strengthens the fact in this case that meter has been applied with ESD.  As per CMRI, power factor found recorded very low. CT tamper events recorded for seven times and magnetic tamper events also recorded for four times. As per CMRI data, meter LCD and LED found not o.k. Hence the case again confirms that ESD has been used with the sole motives of Dishonest Abstraction of Energy. Thus, conclusive evidence of Dishonest Abstraction of Energy is deducted.  The average consumption as per module works out to 09.16% which is much less than the prescribed limit of DERC which is corroborative evidence of Dishonest Abstraction of Energy. It is a case of Dishonest Abstraction of Energy wherein meter has been tampered without any physical interference. Thus the case is covered under clause 52(XII) as per SERC supply Code. Final Proposal/Order: In view of the evidence of tampering of seals, faulty of display and RTC, recording of low power factor, GT short tamper and magnetic tamper and extremely low recorded consumption pattern conclusive evidence of Dishonest Abstraction of Energy is substantiated against the consumer. Further consumer submission that he has not WPC No.5470/2008 Page 3 tampered the meter does not absolve him from the case of Dishonest Abstraction of Energy. DAE is established under tariff schedule 2007 Regulation 52 & 53 of Metering & Billing Regulations of DERC and Section 135 & 138 of Electricity Act, 2003.” 2. On the basis of the said Order, the respondent-discom has raised the impugned bill of Rs.7,47,929/-. 3. Pursuant to complaint made by the petitioner on 14th September, 2007 that the meter was not recording electric consumption, the officers of the respondent-discom inspected the meter on 19th September, 2007 and it was noticed that the meter pulse and display was not working and therefore accuracy check was not possible. It was also recorded that seals were removed for testing and the meter terminal was found burnt. On 20th September, 2007 the old meter was removed by the Enforcement Department and it was recorded that the old terminal was found burnt. 4. Show cause notice dated 5th December, 2007 was issued to the petitioner. The said show cause notice in addition to other observations records that meter box seals, terminal seals and half seals were found tampered. It further states that meter hologram seals were found to be open. The impugned speaking order dated 9/10th July, 2008 records that there was evidence of tampering of seals. WPC No.5470/2008 Page 4 5. As noticed above, in the meter testing report dated 19th September, 2007 there is no allegation of tampering of seals. In fact, the meter testing report dated 19th September, 2007 specifically states that seals were removed for testing. Thus, the officers of the respondent-discom have themselves had removed the seals of the meter for testing. The respondent-discom along with the counter affidavit have filed inspection report dated 20th September, 2007. The said inspection report records “no physical illegal evidence found inside the meter by the joint team”. It thereafter records that terminal seals, ultrasonic welding and half seals were found tampered and refixed. Obviously, this has reference to the removal of seals and tests made by the meter testing team as recorded in their report dated 19th September, 2007. This fact unfortunately has been completely ignored and overlooked in the speaking order. 6. The speaking order further notes that CMRI data downloaded on 23rd August, 2007 records extraordinary and high MDI as high as 41.4 KW. This may be correct but the officer passing the speaking order should have addressed and examined the MDI (KW) for the earlier period. MDI (KW) for the period between November 2006 to August 2007 as per the details in the computer records of the respondent-discom varies between 4.56 KW to 9.20 KW. It never WPC No.5470/2008 Page 5 went into double figure. This factor has not been again accounted for and is ignored. There are number of reasons why on a particular day and time, the meter may record a high MDI like when a certain special equipment is brought at site for repairs, etc. If high MDI (KW) recorded on one day is an isolated incident, it may not be significant if other data/MDI(KW) recordings over a period of time are satisfactory. 7. The speaking order records that Real Time Clock (RTC) was found to be faulty. It is accepted that there can be number of reasons why RTC may fail. The impugned order records one of the reasons why the RTC can fail is when extreme high voltage current is applied. However, it ignores that there can be other circumstances and reasons why RTC can fail. The first paragraph of the reasons given in the speaking order further records that the meter display was found to be hanging and this mostly happens in cases where the meter is tampered with. This again is a presumption or a possibility but not certain or monolithic inference. The display can hang and malfunction for various reasons. These may be a relevant factors, when there is other material and evidence which justify and show tampering or dishonest abstraction of electricity. RTC and display failure alone do not indicate tampering or dishonest abstraction of electricity as a universal affirmative rule and are not conclusive proofs. Probabilities WPC No.5470/2008 Page 6 cannot take shape of proof itself and are not conclusions. The error becomes apparent if we examine the reasons given by the laboratory report when the meter was tested. The laboratory has opined that the said failures may be due to heavy loads/imbalance load – due to imbalance load condition. The reasons given in the laboratory test report have not been considered and referred to in the speaking order. They are completely ignored. 8. In view of the above, I find that the speaking order cannot be sustained as it fails to take into consideration relevant and material facts and is one sided. The same is accordingly quashed. The impugned bill accordingly also fails and is set aside. No costs. 9. The amount deposited by the petitioner pursuant to the interim order passed by this Court will be adjusted in the future bills of the petitioner. SANJIV KHANNA, J. FEBRUARY 18, 2010 P/VKR/NA