Delhi District Court
State vs 1) Nafees Ul Hasan on 11 July, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.50/2022
FIR No.313/2020
U/s 135/138/150 of Electricity Act
PS Seelampur
State versus 1) Nafees Ul Hasan
S/o Raisul Hasan
2) Raisul Hasan
S/o Zaheer Ul Hasan
Both R/o C-51 New Seelampur,
Shahdar, Delhi
Date of institution 12.01.2022
Arguments heard 07.07.2022
Date of judgment 11.07.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. R.B. Yadav, had given a complaint U/s 135/138/150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') to the SHO, PS Seelampur with a prayer to register an FIR against the accused Raisul Hasan (Registered Consumer) and accused Nafees Ul Hasan (User) U/s 135/138/150 of the Act.
2. Succinctly the facts of the case are that on 17.08.2020, at about 10.26 am, an inspection was carried out by the joint inspection team of the FIR No.313/2020 State vs Nafees Ul Hasan etc 1 of 18 complainant company at the premises of the accused persons situated at H.No.C-51, New Seelampur, Shahdara (Pole No.YVR V297), Delhi-
110053. The inspection team was comprised of Sh. R.B. Yadav (Assistant Manager), Sh. Arif (DET) and Sh. Prakash Chand (lineman) alongwith local one lady guard Reeta. The inspected premises was found divided into two portions (one portion is towards street side/front side and back portion is towards the side of park. At the time of inspection, one meter bearing no.12011681 with reading of 11143 kwh of units was found installed there but accused/user was found indulged in direct theft of electricity by bypassing the said meter. The said meter was bypassed by inserting two illegal multi-strand Teflon wires at the input terminal of the said meter. Total connected load was found to the tune of 2.081 KW which was being used for domestic purpose. Necessary videography of the inspection proceedings was done by the videographer Sh. Vinod Kumar. The said meter alongwith illegal tapping material was removed and seized at the spot. The inspection report, load report, seizure memo and advisory notice were prepared at the spot and same were tendered to the accused/user Nafees Ul Hasan but he refused to sign and accept the same. Public persons were requested to join the inspection proceedings but none agreed. On the basis of inspection, the complainant company assessed the demand to the tune of Rs.12,245/-. Accordingly, following the guidelines of DERC, a theft bill was raised and sent to the accused but accused persons failed to deposit the said amount. Original CD of the said videography and certificate U/s 65B of the Evidence Act was also submitted alongwith the complaint. It is averred that accused Raisul Hasan FIR No.313/2020 State vs Nafees Ul Hasan etc 2 of 18 is the registered consumer and accused Nafees Ul Hasan is the user of the electricity. The acts of the accused Nafees Ul Hasan fall within the provisions of section 135/138 of the Act and the acts of accused Raisul Hasan fall within the provisions of section 135/138/150 of the Act. Thus, a prayer was made in the complaint to register an FIR against the accused Nafees Ul Hasan U/s 135/138 of the Act and against the accused Raisul Hasan U/s 135/138/150 of the Act.
3. The SHO handed over the said complaint (Ex.PW4/2) to Duty Officer with the direction to register an FIR and handover the investigation of the case to ASI Netrapal Singh. The Duty Officer registered the FIR No.313/2020 against the accused persons U/s 135/138/150 of the Act and marked the investigation of the case to ASI Netrapal Singh, the IO of the case. Thereafter, on 15.12.2020 IO visited the inspected premises where accused Nafees Ul Hasan met. IO served accused Nafees Ul Hasan with the notices U/s 41.1A Cr.P.C. IO prepared site plan. IO interrogated the accused and prepared interrogation report and in this regard GD No.36A was also lodged. During investigation, accused Nafees Ul Hasan produced copy of his Aadhar Card. IOO bound down Nafees Ul Hasan vide Pabandinama. After completion of investigation, charge-sheet was filed against the accused Nafees Ul Hasan U/s 135/138 of the Act.
It is pertinent to mention here that accused Nafees Ul Hasan is found to be user at the time of inspection. Raisul Hasan was found to be registered consumer and being registered consumer he is liable for abetment as he let the accused Nafees Ul Hasan commit direct theft of electricity. Accordingly, accused Raisul Hasan was also summoned for the FIR No.313/2020 State vs Nafees Ul Hasan etc 3 of 18 offence U/s 135/150 of the Act.
4. On 28.02.2022, a notice for the commission of offence U/s 135/138 of the Act was given to accused Nafees Ul Hasan. On 01.04.2022, a separate notice for the commission of offence U/s 135 r/w section 150 of the Act was given to the accused Raisul Hasan. Both accused persons pleaded not guilty and claimed trial.
5. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first:-
(5.1) PW4 Sh. R.B. Yadav is the Assistant Manager of the complainant company, who was heading the inspection and therefore his testimony is being discussed first. PW4 Sh. R.B. Yadav deposed that on 17.08.2020, at about 10.26 am, an inspection was conducted by the enforcement team of BSES YPL comprising of himself, Sh. Prakash Chand (lineman), Sh. Arif (DET) and Sh. Vinod (Videographer) at the premises of accused Nafees Ul Hasan i.e. H.No.C-51 New Seelampur, Shahdara, Delhi-110053. At the time of inspection, one single phase meter No.12011681 with reading 11143 KWH of units was found installed at the premises of accused, however, the accused was found indulged in direct theft of electricity after bypassing the meter through two illegal wires which were connected to the meter input terminal of the said meter. PW4 further deposed that the premises was found divided into two parts, one portion was towards street side/front side and back portion was towards the park. The illegal wires FIR No.313/2020 State vs Nafees Ul Hasan etc 4 of 18 were found connected to the back side portion of the first floor of the premises of the accused. The total connected load was found to the tune of 2.081 KW which was being used for domestic purpose at the backside portion of the first floor of the inspected premises. PW4 also deposed that at the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Vinod. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW1/1. During evidence, the CD was played on the laptop and PW4 identified the video which was recorded by the videographer during inspection. PW4 also identified the accused/user Nafees Ul Hasan in the said video. PW4 further deposed that the inspection report Ex.PW1/2 and the load report Ex.PW1/3 were prepared at the spot. The illegal wire i.e. PVC Teflon wires and meter were removed and seized at the spot vide seizure Ex.PW1/4. During inspection, he also served an advisory notice (Ex.PW4/1) to the accused/user. On the basis of inspection, a theft bill of Rs.12,245/- was raised and sent to accused. The copy of the said bill has been brought on record as Ex.PW1/5. PW4 also deposed that on 26.08.2020, he lodged a complaint (Ex.PW4/2) to the SHO, PS Seelampur for registration of an FIR against the accused persons.
(5.2) PW1 Sh. Prakash Chand is the Lineman. This witness was another member of the inspection team and he has corroborated the allegations made in the complaint Ex.PW4/2.
(5.3) PW2 Sh. Vinod is the Videographer. This witness deposed that on 17.08.2020, at about 10.26 am, an inspection was conducted at the premises of accused and during inspection, on the instructions of team FIR No.313/2020 State vs Nafees Ul Hasan etc 5 of 18 leader Sh. R.B. Yadav, he recorded videography of inspection proceedings. During evidence, the CD (Ex.PW1/1) was played and he has identified the video which was recorded by him at the time of inspection.
(5.4) PW3 ASI Netrapal Singh is the IO of the case. This witness deposed that on 26.08.2020, on the direction of SHO, a complaint (Ex.PW4/2) lodged by Sh. R.B.Yadav was handed over to Duty Officer for registration of an FIR. Accordingly, FIR No.313/2020 was registered and the investigation was marked to him. The copy of the FIR has been brought on record as Ex.PW3/1. PW3 further deposed that on 15.12.2020, he visited the inspected premises, prepared site plan Ex.PW3/2 and served the accused Nafees Ul Hasan with the notices U/s 41.1(A) of the Cr.P.C (Ex.PW3/3). On the same day, accused Nafees Ul Hasan joined the investigation and he interrogated the accused and prepared interrogation report (Ex.PW3/4). During interrogation, accused produced no objection certificate in respect of theft bill and copy of his Aadhar Card which are brought on record as Mark A (colly). During investigation, it came to notice that accused Nafees Ul Hasan is the user of the electricity. He bound down the accused Nafees Ul Hasan to appear before the court vide Pabandinama Ex.PW3/5. After completion of investigation, he filed the charge-sheet.
6. After completion of prosecution evidence, statements of both accused persons were recorded U/s 313 Cr.P.C. Both accused persons admitted that an inspection was carried out at their premises. They have also admitted that meter no.12011681 was installed in the name of accused Raisul Hasan. They have also not disputed that accused Nafees Ul Hasan FIR No.313/2020 State vs Nafees Ul Hasan etc 6 of 18 was user at the time of inspection. Both accused also admitted that accused Nafees Ul Hasan was present at the spot at the time of inspection and illegal wires alongwith aforesaid meter were removed by PW1 Sh. Prakash Chand. Accused persons denied the allegations of electricity theft. However, accused persons stated that they have settled the matter with the complainant company and they have also made the payment and an NOC has been issued. Accused persons did not lead any evidence to their defence.
7. Final arguments have been heard from the Ld. Addl. PP as well as Ld. Counsel for the accused persons. During the course of arguments, Ld. Addl. PP submitted that at the time of inspection, one electricity meter No.12011681 found installed at the inspected premises in the name of accused Raisul Hasan. It is also submitted that inspected premises belongs to accused persons and during relevant time, co-accused Nafees Ul Hasan was user. Accused Raisul Hasan being registered consumer let the user/co- accused Nafees Ul Hasan commit direct theft of electricity. Accused Nafees Ul Hasan was indulged in direct theft of electricity after bypassing the said meter with the help of Teflon wires which were inserted at input terminal of the said meter. It is further argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses.
8. Ld. Defence Counsel, on the other hand, argued that accused persons are innocent and they have been falsely implicated in the present case. Accused persons have not committed any theft of electricity. It is further submitted that matter has already been settled with the complainant FIR No.313/2020 State vs Nafees Ul Hasan etc 7 of 18 company and settlement amount has already been paid and an NOC has already been issued by the complainant company.
9. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to sections 135/138/150 of Electricity Act. The provisions of section 135/138/150 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent FIR No.313/2020 State vs Nafees Ul Hasan etc 8 of 18 conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
Section 138. Interference with meters or works of licensee. - (1) Whoever, -
(a)unauthorisedly connects any meter, indicator or apparatus with any electronic line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
(b)unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or
(c)lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or
(d)maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering;
FIR No.313/2020 State vs Nafees Ul Hasan etc 9 of 18 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence.
(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both. (3) Notwithstanding anything contained in sub-section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub-section (1) of section 135, sub- section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
10. There is a presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 which reads as follows:-
FIR No.313/2020 State vs Nafees Ul Hasan etc 10 of 18 "Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
11. As per prosecution case, at the time of inspection, one electricity meter No.12011681 was found installed at the inspected premises in the name of accused Raisul Hasan. Accused Nafees Ul Hasan was found to be user. At the time of inspection, accused Nafees Ul Hasan was indulged in direct theft of electricity through illegal wires after bypassing the aforesaid meter by inserting Teflon wires at the input terminal of the said meter. Accused Raisul Hasan, registered consumer, let the user/accused Nafees Ul Hasan commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
12. PW4 Sh. R.B. Yadav (Assistant Manager), PW1 Sh. Prakash Chand (Lineman) and PW2 Sh. Vinod (videographer) are the material witnesses in this case. PW4, PW1 and PW2 have corroborated the allegations made in the complaint (Ex.PW4/2) and their testimony is in conformity with the documents i.e. inspection report (Ex.PW1/2), load report (Ex.PW1/3), seizure memo (Ex.PW1/4), advisory notice (Ex.PW4/1) and copy of electricity bill Ex.PW1/5. PW1 and PW4 have has also identified the accused Nafees Ul Hasan in the video contained in the CD (Ex.PW1/1). PW2 Sh. Vinod (videographer) has identified the video of the inspection proceedings contained in the CD (Ex.PW1/1).
13. PW3 IO ASI Netrapal Singh deposed that during investigation, FIR No.313/2020 State vs Nafees Ul Hasan etc 11 of 18 it came to notice that accused Nafees Ul Hasan was the user of the electricity in the inspected premises. This fact has not been disputed by the accused persons in the cross-examination of PW3.
14. It is clear from the testimony of PW1, PW2 and PW4 that on 17.08.2020, at about 10.26 am, an inspection was carried out at the premises of accused persons by the inspecting team members/officials of complainant company and at the time of inspection, aforesaid electricity meter no.12011681 was found installed in the name of accused Raisul Hasan and this fact has not been disputed by the accused persons in the cross-examination of PW1, PW2 and PW4. It is further clear from the testimony of prosecution witnesses as well as statements of accused persons recorded U/s 313 Cr.P.C that the inspected premises belongs to accused persons and accused Raisul Hasan was registered consumer and accused Nafees Ul Hasan was user in the inspected premises. It is further clear from the testimony of prosecution witnesses as well as video contained in the CD Ex.PW1/1 that the user/accused Nafees Ul Hasan was indulged in direct theft of electricity through illegal wires by inserting Teflon wire at the input terminal of the said meter. Accused persons have not disputed the fact that at the time of inspection, meter was found bypassed by inserting Teflon wires at the input terminal of the said meter in the cross-examination of PW1 and PW4. Inspection proceedings were recorded by videographer and CD containing videography of the said inspection proceedings was brought on record as Ex.PW1/1. It is also clear from the testimonies of PW1 and PW4 that the meter no.12011681 and illegal wires were removed by the lineman and this fact has not been FIR No.313/2020 State vs Nafees Ul Hasan etc 12 of 18 disputed by the accused persons in the cross-examination of these witnesses as well as in the their statements U/s 313 Cr.P.C. Accused Nafees Ul Hasan also admitted that he was present at the spot at the time of inspection and necessary videography was done by the videographer. Perusal of cross-examination of PW1 and PW4 show that though, the accused persons endevaoured to dispute the factum of inspection, preparation of inspection documents, seizure memo and videography of the inspection proceedings, however, they have not specifically disputed the factum of preparation of the relevant documents, the contents and authenticity of the inspection report and CD containing videography of the inspection proceedings. Accused persons have not specifically disputed the genuineness of assessment of load assessed by the complainant as specified in the load report Ex.PW1/3. During evidence, PW1 and PW4 identified the video recorded by videographer as well as user/accused Nafees Ul Hasan in the said video. Accused persons have also not disputed the identity of the inspected premises depicted in the video contained in the CD Ex.PW1/1. The videography of the inspection proceedings was done by videographer and accused Nafees Ul Hasan has been identified by PW1 and PW4 in the video contained in the CD (Ex.PW1/1) during their evidence and accused persons have neither disputed the identity of the accused Nafees Ul Hasan nor disputed the contents of the video. Thus, inspection, presence of accused/user well as videography of the inspection proceedings conducted by the videographer stand proved.
15. In their statements, PW1 and PW4 have clearly deposed that meter no.12011681 was lying installed in the name of accused Raisul FIR No.313/2020 State vs Nafees Ul Hasan etc 13 of 18 Hasan and accused Nafees Ul Hasan was the user and the said meter was bypassed with the help of Black colour illegal Teflon wires which were inserted at input terminal of the said meter and accused/user was indulged in direct theft of electricity in the aforesaid manner. It is also clear from the statements of prosecution witnesses as well as statements of accused persons recorded U/s 313 Cr.P.C that the inspected premises belongs to accused persons and at the time of inspection, accused Nafees Ul Hasan was user and accused Raisul Hasan was the registered consumer. Thus, in view of settled provision of section 150 of the Act, accused Raisul Hasan being registered consumer is liable for abetment of the offence of direct theft of electricity as he let the user/accused Nafees Ul Hasan commit direct theft of electricity through illegal wire. Accused persons endevaoured to deny the fact that the accused/user was not indulged in any type of theft of electricity, however, it is clear that during evidence before the court, CD (Ex.PW1/1) containing video clip of inspection proceedings was played before the court which depicted the manner in which user/accused Nafees Ul Hasan was found indulged in direct theft of electricity through illegal wires.
16. As per testimony of prosecution witnesses as well as statements recorded U/s 313 Cr.P.C, inspected premises belongs to persons and accused Raisul Hasan is the registered consumer thus, it was his duty to ensure that no illegal activity is carried out in his premises. It is clear from the evidence of the prosecution witnesses that the user/accused Nafees Ul Hasan was indulged in direct theft of electricity through illegal wires. It is not the case of the accused Raisul Hasan that he was not aware about the FIR No.313/2020 State vs Nafees Ul Hasan etc 14 of 18 factum of direct theft of electricity being committed by the accused Nafees Ul Hasan. The accused Raisul Hasan has not specifically denied the factum of direct theft of electricity committed by the accused Nafees Ul Hasan. It is clear from their statements recorded U/s 313 Cr.P.C, that accused persons have settled the matter qua theft bill with the complainant company and they have already paid the settlement amount and an NOC has also been obtained by them. In case, accused Raisul Hasan was unaware that co-accused/user Nafees Ul Hasan has committed direct theft of electricity then he ought to have brought this fact to the notice of the complainant and he ought to have disassociated himself from the said illegal activity of accused Nafees Ul Hasan. However, it is clear that accused Raisul Hasan did not take any action in this regard against the co- accused Nafees Ul Hasan and his aforesaid conduct speaks for itself that he was well aware of the illegal act of the co-accused Nafees Ul Hasan. Thus, under these facts and circumstances, it can be very well said that once the accused Raisul Hasan had come to know about the said illegal activity of the co-accused, he ought to have taken appropriate action against the co-accused Nafees Ul Hasan and he was also duty bound to inform the complainant company about the same, however, he did not do the needful though, he was well aware that co-accused/user Nafees Ul Hasan is indulged in direct theft of electricity. Thus, under these circumstances, it can be very well said that accused Raisul Hasan has abetted the offence of direct theft of electricity and therefore, he is liable U/s 150 of the Act.
17. In view of the statutory presumption mentioned in the third FIR No.313/2020 State vs Nafees Ul Hasan etc 15 of 18 proviso of section 135 (1) of the Act, once the prosecution successfully establishes the charges against the accused regarding the theft of electricity, it is to be presumed that accused has committed theft of electricity unless accused brings some evidence on record to rebut the presumption. In view of the discussions made in the preceding paras, it is held that the prosecution has proved the charges against the accused persons that the accused Nafees Ul Hasan who was user in the inspected premises was indulged in direct theft of electricity, in connivance with accused Raisul Hasan and therefore, in view of the third proviso of section 135 (1) of the Electricity Act 2003, it is to be presumed that co-accused Nafees Ul Hasan was indulged in direct theft of electricity, in connivance with accused Raisul Hasan, if they are unable to rebut the statutory presumption.
18. The Hon'ble Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
19. In view of the settled law, now it is to be seen if the accused persons have taken any defence to rebut the statutory presumption. Accused persons have simply stated in their statements recorded U/s 313 Cr.P.C that they are innocent and have been falsely implicated in this case. They stated that they have already settled the dispute and settlement FIR No.313/2020 State vs Nafees Ul Hasan etc 16 of 18 amount has already been paid by them and an NOC has also been issued. Accused persons did not lead any evidence to their defence. If the co- accused Nafees Ul Hasan was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused accused persons were liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is admitted position of fact that at the relevant time, accused Nafees Ul Hasan was user and accused Raisul Hasan was the registered consumer. It is clear from the evidence led by prosecution that at the time of inspection, co-accused/user Nafees Ul Hasan was indulged in direct theft of electricity through illegal wires after bypassing the electricity meter. Accused persons have not brought any material on record or lead any evidence to disprove all these allegations. Thus, it is held that accused persons have failed to rebut the statutory presumption. In this regard, this court is supported by the judgment of Hon'ble High Court of Delhi reported as 'Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through mere. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this FIR No.313/2020 State vs Nafees Ul Hasan etc 17 of 18 was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
20. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the co-accused/user Nafees Ul Hasan was indulged in direct theft of electricity through illegal wires for the offence punishable U/s 135 of the Act but no offence U/s 138 of Act is made against the accused Nafees Ul Hasan. It is also proved on record that accused Raisul Hasan was registered consumer and accused Nafees Ul Hasan was user in the inspected premises and user/accused Nafees Ul Hasan was indulged in direct theft of electricity and accused Raisul Hasan let the co-accused/user Nafees Ul Hasan commit direct theft of electricity. Thus, accused Raisul Hasan is guilty of abetment of offence of direct theft of electricity. Accordingly, co-accused Nafees Ul Hasan is convicted for the offence punishable U/s 135 of the Electricity Act and accused Raisul Hasan is convicted for the offence punishable U/s 135 r/w section 150 of the Electricity Act 2003.
Digitally
signed by AJAY
AJAY GUPTA
GUPTA Date:
2022.07.11
17:40:39 -0300
(Ajay Gupta)
Addl. Sessions Judge (Electricity)
East/Karkardooma Courts/Delhi
Announced in open
court on 11.07.2022
FIR No.313/2020 State vs Nafees Ul Hasan etc 18 of 18