DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC.No.194 of 13.08.2009<br /> Decided on: 11.11.2009<br /> <br /> Joginder Singh S/o Sh. Partap Singh (Malaaya Wale), aged about 52 years, resident of village Gehri Bara Singh, Tehsil Talwandi Sabo, Distt. Bathinda.<br /> <br /> …..Complainant.<br /> Versus<br /> 1. Punjab State Electricity Board, The Mall, Patiala, through its Secretary.<br /> 2. S.D.O./A.E.E., Punjab State Electricity Board, Sub-urban Sub Division, Maur, Distt. Bathinda.<br /> <br /> ……Opposite parties.<br /> <br /> Complaint under Section12 of the Consumer Protection Act, 1986.<br /> <br /> Present:<br /> For the Complainant : Sh. Ish Kumar, counsel for the complainant.<br /> For the Opposite parties : Sh. J.P.S.Brar, counsel for opposite parties.<br /> <br /> QUORUM<br /> <br /> Sh. George, President.<br /> Dr. Phulinder Preet, Member.<br /> Sh. Amarjeet Paul, Member.<br /> <br /> ORDER<br /> <br /> GEORGER, PRESIDENT:-<br /> <br /> 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as ‘Act’) with the allegations against the opposite parties that he is holding two tubewell connections in his name bearing connection nos. MK-79 A.P. with sanctioned load of 10 BHP and MK-299 A.P. with sanctioned load of 7.5 BHP. Both the connections are in service since long as per rules of PSEB. He has paid all the dues in time, yet he received a Provisional Demand Notice dated 09.06.2009 from opposite parties, whereby a demand of Rs. 58,008/- has been raised by the opposite parties on the basis of alleged checking conducted by Senior XEN, Enforcement-I, Bathinda on 08.06.2009 with the allegation that he was found running 7.5 BHP motor illegally/unauthorisedly, and therefore, it is a case of theft of electricity. No checking report was supplied to him, and in fact no checking was conducted by the Enforcement staff on the spot in his presence, nor his signatures were obtained on the alleged checking report. He filed objections to the Provisional Demand Notice. However, he was not called by opposite party No.2 nor any personal hearing was given to him, and final order was issued without affording him a proper opportunity of being heard. He sent the objections to the Provisional Demand Notice on 09.06.2009, which was replied to by opposite parties vide their letter dated 20.07.2009, whereas his objections were shown to have been disposed of, after hearing the complainant on 13.07.2009 as per order dated 14.07.2009. All these facts show that the order has been passed by opposite party No.2 on 14.7.2009 without considering the objections filed by the complainant, and without giving a reasonable opportunity of being heard. The complainant has, thus sought directions against the opposite parties to withdraw the impugned notices i.e. notice of provisional order dated 09.06.2009 Ex.C-7, and final order dated 27.08.2009 Ex.C-5, and to quash the illegal demand raised by the opposite parties to the tune of Rs. 58,008/-, and also to pay compensation to the tune of Rs. 30,000/- on account of mental tension, agony, harassment and inconvenience along with litigation expenses to the tune of Rs. 5,000/-.<br /> 2. Opposite parties contested the allegations raising inter-alia objections that the complainant is not a consumer; complaint is not maintainable; complainant has not come in this Forum with clean hands, and has suppressed the true and material facts; there is no deficiency in service and complaint is false, frivolous and liable to be dismissed.<br /> 3. On merits while denying all the allegations of the complainant, opposite parties pleaded that the demand of Rs. 58,008/- was raised on the basis of checking dated 08.06.2009. The complainant was found running his electric motor 7.5 BHP to run his another third one tube well in addition to his other two legal connections i.e. MK-79 A.P. and MK-299 A.P. The complainant was found running the third motor of 7.5 BHP illegally and un-authorized by way of abstractions of electricity, and therefore, he was issued the Provisional Notice dated 09.06.2009 for Rs. 58,008/- by registered post. The checking was conducted in presence of representative of the complainant, namely Sh.Gurtej Singh, and there was no other public person was present at the site. at that time. Information of the theft of electricity by the complainant was also sent to S.H.O. Anti Theft Electricity Board, Bathinda for registration of case. Complainant filed objections to the provisional notice, and complainant was informed vide letter dated 20.07.2009 that his objections were found to be unsatisfactory. Thereafter, the complainant was personally heard, and issued final notice dated 28.08.2009 for depositing an amount of Rs. 58,008/-.<br /> 4. The learned counsel for the complainant has strongly contended that complainant has been involved in a false case of theft of energy with the allegations that he was found running 7.5 BHP motor illegally/unauthorisedly by an Enforcement staff of opposite parties on 08.06.2009. He has urged that notice of provisional order of assessment Ex.C-7, was issued to the complainant for demanding Rs. 58,008/- on the basis of checking report Ex.C-11. Complainant has filed objections Ex.C-9, and were sent to opposite parties by registered post Ex.C-8. These objections were replied to by the opposite parties as per their letter Ex.C-10 dt. 20.07.2009, whereas opposite parties have prepared a false and frivolous order dt. 14.07.2009 Ex.R-18, wherein, it has been mentioned that the complainant was associated on 13.07.2009 to afford an opportunity of being heard. The learned counsel has urged that neither the checking report Ex.R-9 is signed by the complainant nor proceeding dt. 13.07.2009 got signed by opposite parties from the complainant. The learned counsel has further urged that even the checking report prepared Ex.R-9 on the spot, if compared with the copy of this report supplied to the complainant Ex.C-11, it differs with each other. According to Ex.C-11, unauthorized motor has been shown clearly by the remarks “Chori Wali Motor” whereas, in the note given below, the unauthorized motor has been shown at point ‘A’ on the other site plan report. The learned counsel has urged that even the checking authority of opposite parties is not aware of the theft point, where the unauthorized motor was running, at the time of alleged checking.<br /> 5. The learned counsel appearing on behalf of opposite parties has urged that there is only clerical mistake in two documents i.e.Ex.C-11 and Ex.R-9. The exact location of unauthorized motor has been shown in the foot note of both these documents at point ‘A’. He has also urged that opposite parties have brought on the record, affidavits of responsible officers i.e. Sh. Charanjit Singh, Senior XEN Enforcement Ex.R-1, Sh. Mukhtiar Singh, AAE Ex.R-2, Sh. Ashok Kumar Singla, SDO Ex.R-3 and Sh. Kaur Singh, J.E. Ex.R-4, and has also placed on the record, photographs on the spot Ex.R-11 to Ex.R-17.<br /> 6. Complainant in order to prove the allegations, filed his own affidavits dated 22.09.2009 and dated 13.08.2009 Ex.C-1 and Ex.C-6, and also brought on record, photo copy of demand notice dated 03.06.2009 Ex.C-2; copy of pass book of electric connection No. MK-299 A.P. Ex.C-3; copy of pass book of electric connection No MK-79 A.P. Ex.C-4; copy of last notice dated 27.08.2009 Ex.C-5; copy of notice of provisional order dated 09.06.2009 Ex.C-7; copy of postal receipt Ex.C-8; copy of objections dated 07.07.2009 Ex.C-9; copy of memo dated 20.07.2009 Ex.C-10; photo copy of checking report cum site plan Ex.C-11, and also brought or record, affidavit of Sh. Gurtej Singh dated 22.09.2009 Ex.C-12 and affidavits of Sh. Nirmal Singh and Sh. Manjeet Singh Ex.C-13 and Ex.C-14.<br /> 7. To controvert the evidence of the complainant, opposite parties filed affidavit of Sh. Charanjit Singh, Senior XEN Enforcement dt. 13.10.2009 Ex.R-1 and affidavits of Sh. Mukhtiar Singh, AAE, Sh. Ashok Kumar Singla, S.D.O. and Sh. Kaur Singh, J.E. Ex.R-2 to Ex.R-4 and also brought on record, photo copy of Notice of provisional order of assessment dt. 09.06.2009 Ex.R-5; copy of postal receipt Ex.R-6; copy of reply by complainant Ex.R-7; copy of memo Ex.R-8; copy of checking report Ex.R-9; C.D. Ex.R-10; Photographs Ex.R-11 to Ex.R-17 and copy of order dt. 14.07.2009 Ex.R-18.<br /> 8. We have considered the rival contentions of both the parties, after taking into consideration the entire record of the case. The main document on the basis of which opposite parties have built up their case of theft, against the complainant is the alleged checking report-cum-site plan Ex.C-11 and Ex.R-9. The perusal of these two documents, which are one and the same, it appears that opposite parties have made some cuttings in Ex.R-9 to point out “Chori Wali Motor”, whereas the copy supplied to the complainant Ex.C-11 shows that Chori Wali Motor on the alleged side of the site plan, whereas in the foot note of both the documents i.e. site plan Ex.C-11 and Ex.R-9, the motor has shown at point ‘A’ on the extreme theft side. This fact is not made clear by the officials, who conducted checking on the spot, and filed their affidavits Ex.R-1, Ex.R-2 and Ex.R-4. The site plan Ex.C-11 and Ex.R-9 are the most important documents as the authenticity of which have become doubtful. The allegations of theft are of serious nature and cannot be taken to be proved, merely on the basis of surmises or conjunctures rather the allegations are to be proved by cogent, convincing and reliable evidence.<br /> 9. It has been held by “Punjab State Consumer Disputes Redressal Commission, Chandigarh, in case titled Charan Singh Vs. The Chairman, P.S.E.B. and another 2006 (1) CPC 285, the charge of theft of energy is a criminal charge and a strict proof is required to establish the offence as is required before a criminal court. Of course, niceties/technicalities of Evidence Act regarding the production of evidence can be overlooked. However, the charge has to be proved. In the present case, due serious infirmity for the site plan brought on the record has caused a serious dent in the allegations of theft leveled by opposite parties against the complainant”. <br /> 10. The record also reveals that the provisional order of assessment of Ex.C-7 dated 09.06.2009 demanding an amount of Rs. 58,008/- issued to the complainant along with site plan Ex.C-11, and in site plan Ex.C-11 “Chori Wali Motor” was shown infact legally/authorized connection of the complainant. Complainant accordingly filed his written objections Ex.C-9 and sent to opposite party No.2 by registered post AD, receipt Ex.C-8 on 09.07.2009 at 6:29 PM. These objections were replied to by the opposite parties vide letter Ex.C-10 on 20.07.2009, wherein, there is no mention that the complainant was given an opportunity of being heard on 13.07.2009, and that complainant walked out under protest without making any submission, whereas opposite parties have brought on the record and office order Ex.R-18 dated 14.07.2009, wherein, it has been shown that on 13.07.2009, the complainant was associated, and he was afforded an opportunity of being heard, whereas the complainant walked out under protest. This document does not speak about the objections Ex.C-9 sent by the complainant to opposite parties by registered post.<br /> 11. It appears that office order Ex.R-18 dt. 14.07.2009 has been manipulated in order to show that the complainant was afforded an opportunity of being heard as per provisions of Section 126 of Electricity Act, and also the Rules and Regulations framed by P.S.E.B. to follow the procedure in detection of theft of energy cases. If the complainant would have attended the enquiry on 13.07.2009, this fact would have definitely reflected by the opposite parties in letter Ex.C-10 dt. 20.07.2009. Even the alleged final notice Ex.C-5 dt. 27.08.2009 also reveals that it has been issued without following the procedure straight away demanding an amount of Rs. 58,008/- from the complainant without affording him any opportunity for appeal before competent authority against Enforcement staff as per requirement of law.<br /> 12. Taking into consideration, the totality of the facts, circumstances and the evidence on the record, we are of the considered view that opposite parties have to aply establish that the complainant was found running third motor of 7.5 BHP unauthorisedly. Since the photographs and the C.D. placed on the record does not confirm the allegation leveled against the complainant, having regard to the totality of the facts and circumstances, as referred to here-in-above, we hereby accept the complaint and direct opposite parties to withdraw the impugned order i.e.Ex.C-7 dt. 09.06.2009 and Ex.C-5 dt. 27.08.2009, as the same stands quashed. Both the parties are left to be bear their own costs.<br /> 13. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned.<br /> <br /> Pronounced (GEORGE)<br /> 11.11.2009 PRESIDENT<br /> <br /> <br /> (DR. PHULINDER PREET)<br /> MEMBER<br /> <br /> <br /> (AMARJEET PAUL)<br /> MEMBER<br />