Petitioners which were the Opposite Parties before the District Forum, have filed this Revision Petition against the order dated 9th January, 2007 passed by the State Consumer Disputes Redressal Commission, Haryana (for short, the State Commission), whereby the State Commission set aside the Order passed by the District Forum, allowed the complaint, quashed the demand notice 17.11.2000 and directed the Petitioners to refund the amount deposited by the Respondent(s) –Complainant with interest @ 9% per annum from the date of deposit till realization. Facts: Petitioners had provided electricity connection bearing No.85 P4-62 in the name of Respondent (Complainant No.1), which was being used by Complainant No.2. On 17th November, 2000 the said meter was checked by the officials of the Petitioners. A hole/slit of 4 MM in length was found in the meter through which strip (plastic), wire/needle could be inserted to stop the running of the meter. Taking it to be a case of theft of energy, Petitioners determined the penalty amount of Rs.68,294/- for which a notice dated 17.11.2000 was served upon the Respondents requiring them to deposit the amount. The amount was deposited under protest. Respondent(s) filed the complaint on the allegation that it was not possible to commit theft of energy taking into account the size of the slit and the place where it was shown in the inspection note prepared by the Petitioners. That the demand raised was illegal and required to be quashed. It was prayed that the Petitioners be directed to refund the amount deposited along with interest @ 18% per annum from the date of deposit till realization. In addition, the Respondent had claimed Rs.10,000/- as compensation on account of mental agony and harassment caused to him. Petitioners on being served entered appearance, filed written statement justifying the demand because the Respondent(s) were indulging in commission of theft of energy. It was prayed that the complaint be dismissed. District Forum accepting the stand taken by the Petitioners dismissed the complaint. Aggrieved against the Order passed by the District Forum, Respondent(s) filed the appeal before the State Commission. State Commission has reversed the Order of the District Forum. State Commission relying on the decision of this Commission in HVPN through its Sub Divisional Officer vs. Sanjeev Malik etc. 2005(2) CPC 645 held that mere finding of the hole in the meter alone by itself would not be a circumstance to conclude that the Respondents were abstracting energy dishonestly. That the charge of theft of energy was in the nature of criminal charge which was required to be proved by cogent and convincing evidence. Another finding recorded by the State Commission is that the Petitioners failed to send the defective meter to M &T lab to find out whether there was any tampering of the meter or not. That as per instructions issued by the Petitioners, the meter was required to be sent to M & T lab for testing. Relevant findings recorded by the State Commission are as under: “While assailing the order dated 3.4.2002 of the District Forum it has been strenuously urged by the learned counsel representing the appellant that the District Forum has grossly erred in not giving due consideration to the fact that as per sketch prepared in the checking report dated 17.11.2000 the location of the hole/slit, which was recorded to be 4 MM dimension, is at the bottom on the left side of the meter box and it is impossible for anybody to stop the running of the disc of the meter by inserting wire/strip inside the meter hole. It was also pointed out that the Meter Reader of the opposite parties had been recording the meter reading regularly and such an hole was not detected or even no report was made by him to the opposite parties prior to the date of 17.11.2000. It was also contended by him that the existence of the hole in the meter would not tantamount to theft of the energy because it is not even the case of the opposite parties that any plastic strip was found inside the meter during the inspection of the meter by the officials of the opposite parties. There is considerable merit in the stand taken from the side of the appellant in this regard. By now it is well settled that existence of hole in the meter alone would not be a circumstance to conclude that the consumer was indulging in the Commission of abstraction of energy dishonestly. Reference in this regard may be made to HVPN through its Sub Divisional Officer vs. Sanjeev Malik etc. 2005(2) C.P.C. 645 wherein it has been held that mere finding of the hole in the meter does not prove theft of energy and the charge of theft of energy is a criminal charge which has be proved by cogent and convincing evidence to be led by the Opposite Parties. Another circumstances which cannot be ignored is that the meter installed at the premises of the complainants was removed and sealed as per the procedure prescribed by the instructions issued by the opposite parties, however, the same was not sent to M&T lab so as to find out that any tampering of the meter had resulted. Adverting to the finding of the District Forum, the primary reason which is recorded in Para No.8 of the order for rejecting the complaint is that the checking report was signed by Complainant No.2 Ghansham Dass and thereafter no complaint was made by the complainants to the higher authorities regarding the raid conducted by the officials of the opposite parties and for that reason inference against the complainants was drawn on that account. No effort had been made to examine the legal consequences resulting therefrom the existence of the hole so recorded in the checking report. Therefore, the order of the District Forum, as such, cannot be sustained”. (emphasis supplied) We agree with the findings arrived at by the State Commission. This Commission in the case of Sanjeev Malik (supra) has held that mere finding of the hole in the meter does not prove theft of energy. Theft of energy being in the nature of criminal charge has to be proved by leading cogent and convincing evidence. The existence of hole in the meter by itself does not conclude that the Respondent was guilty of commission of abstraction of energy dishonestly. As per instructions issued by the Petitioners themselves, a defective meter was required to be sent to M & T lab to determine whether there was any tampering with the meter. Admittedly, Petitioners did not send the defective meter to the M & T lab so as to find out any tampering with the meter. Petitioners failed to examine the legal consequences resulting from the existence of hole in the meter recorded in the checking report. There is no link evidence to show that the hole in the meter led to abstraction of energy dishonestly. There is no convincing or irrefutable evidence on record to show that the Respondent was guilty of abstracting energy dishonestly. For the reasons stated above, we do not find any merit in this Revision Petition and dismiss the same with no order as to costs. | 
