The burden of proof lies with the party asserting a claim, and failure to rebut the evidence presented results in a judgment in favor of the plaintiff.

[1] The plaintiffs claim against the defendant is for loss of revenue due to alleged tampering of the electricity meter at the defendant's factory premises.

Plaintiff's Case

[2] On 3.9.2009, the plaintiffs employees carried out a routine inspection on the installation of the electricity meter at the defendant's factory. They discovered that the test terminal block (TTB') in the meter room had been tampered with, in particular, the seal bits on the meter cage and panels were fakes, and a foreign blue wire had been used as a bypass on wire S1 and S2 in the TTB for the red, yellow and blue phases. The plaintiff is claiming for loss of revenue of RM1,940,208.64 for the period between December 2007 and September 2009.

Defendant's Defence

[3] The defendant's pleaded case is mounted on two planks. Firstly, it is contended that it has no knowledge of the alleged tampering. Secondly, the defendant disputes the computation of the loss of revenue and contends that it is in fact a back billing by the plaintiff.

Findings Of The Court

[4] The following witnesses were called by the parties at the trial:

PW1 - En. Mohd Afham Bin Mohd Latiff (Tukang Teknik Biasa)

PW2 - Cik Siti Hawa Binti Ahmaddariri (Juruteknik Tingkatan Biasa)

PW3 - En. Ramesh a/I Thangeveloo (Pengurus SEAL Zon Selatan TNB)

DW1 - En. Anantha Kumar Achu (Jurutera Elektrikal)

DW2 - En. Johari Bin Hassim (Pengurus Kilang)

[5] It was agreed that the only issues for determination relate to the question of whether the Plaintiffs TTB at the defendant's factory had been tampered with; and if so, whether the plaintiff is entitled to recover the loss of revenue and any expenses incurred by the plaintiff due to the tampering of the TTB?

(1) Whether the Plaintiff's test terminal block at the defendant's factory has been tampered with?

[6] In law, the party who desires the Court to give judgment as to any legal right or liability bears the burden of proof (s 101(1) Evidence Act 1950 ). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden O f introducing evidence. The burden of proof lies on the party throughout the trial. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish its case. If the plaintiff fails to do so, it will not do for the plaintiff to say that the defendant has not established its defence ( Selvaduray v. Chinniah [1939] MLJ 253 CA ; s 102 ). It should also be noted that there must be some preponderance in the plaintiff's favour at the conclusion of the whole case. Even if the plaintiff established a prima facie case, but at the conclusion of the trial the Court found that the position was exactly even, then any preponderance in favour of the plaintiffs had ceased to exist. If that happens, then the plaintiff has failed to discharge the burden of proof which is upon it, and the plaintiff must necessarily fail ( Abrath v. North Eastern Railway Co [1883] 11 QBD 440, 452 (CA)).

[7] PW2 visited the defendant's factory on 3.9.2009 and conducted a routine inspection on the installation of the meter. PW2 found evidence of tampering of the meter. The seal bits at the meter cage and meter panel were counterfeits (exhs. P1(M), P1(N) and P4). The seal bits at the TTB were missing (exh. P1(G)). A foreign blue wire tied with a yellow wire had been used as a bypass at the TTB (exhs. P1(F) and P6). PW2 also found that the foreign blue wire was tied to a window next to the meter panel (exhs. P1(U) and P1(V)). PW2 removed the foreign wire at the TTB and resealed th