Delhi District Court
State vs 1) Akash @ Monu on 13 April, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.34/2022
FIR No.781/2020
U/s 135/150 of Electricity Act
PS Harsh Vihar
State versus 1) Akash @ Monu
S/o Nanak Chand
2) Nanak Chand
S/o Sh. Hari Singh
B/o H.No.A-788, Gali No.15,
Pratap Nagar Saboli, Delhi.
Date of institution 01.01.2022
Arguments heard 13.04.2023
Date of judgment 13.04.2023
JUDGMENT
1. Accused Akash @ Monu and Nanak Chand have been facing trial upon the allegations that they allegedly indulged in direct theft of electricity despite having an electricity meter and thereby committed offences under relevant provision of Electricity Act, 2003 (hereinafter referred to as 'the Act').
Brief facts of the prosecution case
2. On 08.09.2020, at 7.36 am, an inspection was carried out by the joint inspection team of the complainant company at the premises of accused persons i.e. A-788, Ground Floor, Gali No.15, Pratap Nagar, Delhi- 110093. At the time of inspection, no electricity meter was found FIR No.781/2022 State vs Akash @ Monu & Anr. 1 of 21 installed at site and the user/accused was found indulged in direct theft of electricity with the help of two core black colour illegal aluminium cable which was found connected from BSES LV Mains. Total connected load was found to the tune of 2.178 KW which was being used for domestic purposes. Necessary videography of the inspection proceedings was captured by the videographer Sh. Mohsin. The illegal wires were removed by the lineman and seized at the spot. The inspection report, load report and seizure memo were prepared at the spot. An advisory notice was also issued to the accused/user. Entire set of inspection documents was tendered to the accused/user but he refused to accept and sign the same.
3. It is averred that accused Akash @ Monu was found to be user while accused Nanak Chand was found to be owner of the inspected premises. On the basis of connected load, applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.18,172/-. Accordingly a theft bill was raised and sent to the accused persons but they failed to deposit the theft bill amount. On failure to pay the theft bill amount, BSES Yamuna Power Limited (hereinafter referred as complainant company) through its Sr. Manager Sh. Mriganka Ghosh, lodged a complaint under Section 135 & 150 of the Act with the SHO, PS Harsh Vihar upon whose direction FIR No.781/2020 was registered against the accused persons.
4. After completion of investigation, charge-sheet was filed against the accused persons U/s 135/150 of the Act.
FIR No.781/2022 State vs Akash @ Monu & Anr. 2 of 21 NOTICE
5. On 22.08.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Nanak Chand. A separate notice for the commission of offence U/s 135 of the Act was given to accused Akash @ Monu. Both accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case against the accused, the prosecution examined the following witnesses.
7. PW1 ASI Manbir Singh (then HC) is the IO of the case, who deposed that 16.09.2020, after registration of FIR, investigation of the case was marked to him. The copy of the FIR is Ex.PW1/1. Thereafter, on 10.10.2020, he visited the inspected premises and prepared site plan Ex.PW1/2. On 21.12.2020, he served accused persons with the notices u/s 41(A) Cr.P.C (Ex.PW1/3 and Ex.PW1/4) upon which accused persons joined the investigation. He interrogated the accused persons and prepared interrogation reports Ex.PW1/5 and Ex.PW1/6. Accused persons produced copy of their Aadhar Cards as well as copies of ownership documents of the inspected premises Mark A (colly). During investigation, it was revealed that accused Nanak Chand was the owner of the inspected premises while accused Akash @ Monu was in occupation of the inspected premises at the relevant time. PW1/IO bound down accused persons vide Pabandinamas Ex.PW1/7 and Ex.PW1/8. After completion of investigation, PW1/IO filed the charge-sheet.
8. PW2 Sh. Mriganka Ghosh is the Sr. Manager of the complainant FIR No.781/2022 State vs Akash @ Monu & Anr. 3 of 21 company, who deposed that on 08.09.2020, at about 07.36 am, an inspection was conducted by Enforcement Team of BSES YPL comprising of himself, Sh. Lalit Kumar (DET), Sh. Sanjay Kumar (Lineman) and Sh. Mohsin (Videographer) at the premises of accused persons i.e. A-788, Ground Floor, Gali No.15, Pratap Nagar, Delhi- 110093. At the time of inspection, no electricity meter was found installed at the inspected premises and accused Akash @ Monu was found indulged in direct theft of electricity with the help of two core black colour illegal aluminum cable which was found connected with the LV Main of BSES. At the time of inspection, connected load was found to be 2.178 KW which was being used for domestic purposes at ground floor of inspected premises. PW2 further deposed that at the time of inspection, accused Akash @ Monu was present and necessary videography was captured by the videographer Sh. Mohsin. The CD containing videography of the inspection proceedings is proved on record as Ex.PW2/1. During evidence, the CD was played on the laptop and after seeing the CD, PW2 identified the video which was captured by videographer Sh. Mohsin. He also identified the user/accused Akash @ Monu fearing in the videography. During inspection, the inspection report Ex.PW2/2 and the load report Ex.PW2/3 were prepared at the spot. PW2 further deposed that illegal wire was removed by the lineman Sh. Sanjay Kumar and seized at the spot vide Seizure Memo Ex.PW2/4. During inspection, he also issued an Advisory Notice Ex.PW2/5 to accused Monu @ Akash. Entire set of inspection documents prepared at site was tendered to user/accused but he refused FIR No.781/2022 State vs Akash @ Monu & Anr. 4 of 21 to accept and sign the same. On the basis of inspection, a theft bill of Rs.18,171/- (Ex.PW2/6) was raised and sent to the accused. Thereafter on 14.09.2020, he lodged a complaint (Ex.PW2/7) with the SHO, PS Harsh Vihar for registration of FIR against the accused persons. During evidence, the case property i.e. tow-core black colour aluminum wire of 2 x 10 mm square size having length of 0.75 meter approx was produced and shown to the witness who identified the said wire as the same which was removed and seized at spot at the time of inspection. The wire is Ex.P-1.
9. PW3 Sh. Lalit Kumar is the Diploma Trainee Engineer (DET), who was one of the member of the inspection team, deposed on the similar lines as testified by PW2.
10.PW4 Sh. Sanjay Kumar is the Lineman, who was one of the member of the inspection team, deposed on the similar lines as testified by PW2 and PW3.
11.PW4 Sh. Mohsin is the Videographer, who deposed that on 08.09.2020, at about 7.36 am, an inspection was carried out by the enforcement team of BSES YPL at the premises of accused and on the instructions of team leader Sh. Mriganka Ghosh (Sr. Manager), he captured the videography of inspection proceedings. He also identified the CD (Ex.PW2/1) played before the court as well as its contents.
12.Thereafter prosecution evidence was closed and matter was posted for recording of statements of accused persons.
FIR No.781/2022 State vs Akash @ Monu & Anr. 5 of 21 STATEMENTS OF ACCUSED:-
13.All incriminating materials which have come on record in the testimony of prosecution witnesses were put to the accused persons in their statements U/s 313 Cr.P.C. Accused persons denied all the material allegations. However, accused persons chose not to lead any evidence to their defence.
FINAL ARGUMENTS
14.Final arguments were advanced by the Ld. Addl. PP as well as Ld. Counsel for the accused persons.
15.Ld. Addl. PP argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses. AR of the complainant company also argued that there was no electricity meter found installed at the inspected premises and accused persons dishonestly indulged in direct theft of electricity by connecting illegal wire from LV Mains of BSES. He also emphasised that inspection was conducted as per Rules and applicable Regulations. It is prayed that accused persons be convicted under appropriate provisions of law.
16.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 company and settlement amount has already been paid and NOC has already been issued by the complainant company. It is prayed FIR No.781/2022 State vs Akash @ Monu & Anr. 6 of 21 that accused persons may be acquitted.
DISCUSSION
17.Before proceeding further, it would be appropriate to reproduce the definition of 'consumer' as in this case, accused Nanak Chand was found to be owner while accused Akash @ Monu was found to be user in the inspected premises at the relevant time. The relevant provision of Section 2 (15) of the Act is produced as under: "Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;
18.Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises are covered under the definition of the 'consumer' and thus, they are liable for punishment if illegal abstraction of energy is found at the premises of accused. In this regard, this court is also supported with the judgment of the Hon'ble Delhi High Court reported as Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal No.479/2011).
19.Next, before dealing with the factual aspects of the present case, it is deemed appropriate 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 as well as 150 of Electricity Act. The provisions of Section 135 and 150 of the Electricity Act are reproduced as under:-
FIR No.781/2022 State vs Akash @ Monu & Anr. 7 of 21 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:
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.
FIR No.781/2022 State vs Akash @ Monu & Anr. 8 of 21
20.Under 'the Act', Regulations are framed by the Delhi Electricity Regularity Commission and Regulation 60 to 63 deal with theft of electricity, which are reproduced hereunder: "60. Inspections of the premises and electrical installations by Authorized officer:-
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection. (2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3). (3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment. (4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations.
61. Preparation of Report by Authorized officer:-
(1) In the event of detection of theft of electricity, the Authorized officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission's Orders.
(2) All the material evidences such as tampered meter, tampered meter seal and artificial means used for illegal abstraction of energy and the documentary evidences etc., which are relevant to the case and found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his authorized representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points:
Provided that if the witness refuses to sign, the same shall be recorded in the report and captured in the videography.
(4) The inspection Report shall be signed by the Authorized officer and a copy of the same shall be handed over to the consumer or his FIR No.781/2022 State vs Akash @ Monu & Anr. 9 of 21 representative at the site immediately under proper acknowledgement. The other persons present at site may also sign the inspection report. (5) If consumer or his representative at site refuses to acknowledge and accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or outside the premises and photographed and/or video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection. (6) The inspection report shall form the basis for further action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity:-
(1) The prosecution for theft of electricity under section 135 of the Act shall be initiated only in the cases where dishonest intention is evident from the relevant facts, records and other evidence of the case. (2) In case sufficient evidence is found to establish theft of electricity, the Authorized officer under subsection (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, meter, service line etc., from the premises under a seizure Memo. (3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act:
Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty four hours from time of such disconnection:
Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy consumed by resorting to external methods involving remote control, high voltage injection etc., committed by the consumer or his employee or any other person acting on his behalf, shall also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the FIR No.781/2022 State vs Akash @ Monu & Anr. 10 of 21 Commission or by the agency authorized by the Commission in this regard.
63. Assessment Bill for theft of electricity:-
(1) The Assessing officer shall assess the energy for theft of electricity as notified in the Appendix I to the Regulations. (2) The period of assessment for theft of electricity shall be for a period of 12 (twelve) months preceding the date of detection of theft of electricity or the exact period of theft if determined, whichever is less:
Provided further that period of theft of electricity shall be assessed based on the following factors:-
(i) actual period from the date of commencement of supply to the date of inspection;
(ii) actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
(iii) actual period from the date of preceding checking of installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever available.
(v) based on the document being relied upon by the accused person.
(3) The assessment bill shall be prepared on two times the rate as per applicable tariff.
(4) While making the assessment bill, the Licensee shall give credit to the consumer for the electricity units already paid by the consumer for the period of the assessment bill.
(5) The assessment order shall be served upon the consumer or the person in occupation or possession or in charge of the place or premises, as the case may be, within 7 (seven) days of disconnection of supply or within 2 (two) days from the date of receipt of request of such person, whichever is earlier.
21.As per prosecution case, at the time of inspection, no authorized electricity meter was found installed at the inspected premises. At the time of inspection, accused/user Akash @ Monu was found indulged in direct theft of electricity with the help of illegal wire. Accused Nanak FIR No.781/2022 State vs Akash @ Monu & Anr. 11 of 21 Chand, being owner of inspected premises let/permitted/allowed the user/accused Akash @ Monu commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
22. PW2 Sh. Mriganka Ghosh (Sr. Manager), PW3 Sh. Lalit Kumar (DET), PW4 Sh. Sanjay Kumar (Lineman) and PW5 Sh. Mohsin (Videographer) are the material witnesses in this case. They corroborated the allegations made in the complaint (Ex.PW2/7) and deposed that the time time of inspection, no electricity meter was found installed at the time of inspection and accused/user was found indulged in direct theft of electricity through illegal wire. These witnesses were cross-examined by the Ld. Defence counsel who was unable to cull out any contradiction in their testimony. Ld. Counsel for the accused persons has merely put suggestions to PW2, PW3 and PW4 that no inspection took place and any such documents were not prepared, which were denied by witnesses. Accused persons have not rebutted and controverted the evidence that no electricity meter was available at the time of inspection for the inspected premises and electric supply was running through illegal aluminium cable by connecting the same with LV Main of BSES.
23. The depositions by PW2, PW3 and PW4 were about same incident of inspection and those were consistent in basic details with necessary corroboration from material documents proved. During evidence, the CD of the inspection proceedings was played before the court and these witnesses identified the user/accused present at the spot in the video FIR No.781/2022 State vs Akash @ Monu & Anr. 12 of 21 contained in the CD Ex.PW2/1. Accused persons did not dispute the contents of the video as well as presence of the accused Akash @ Monu at the spot. Accused Akash @ Monu has neither disputed his identity nor the identity of the inspected premises shown in the video contained in the CD Ex.PW2/1. Accused persons have also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in the load report (Ex.PW2/3). As per load report, certain electrical appliances were available at the inspected premises and accused persons have not explained as how they used to run those appliances in absence of an authorized electricity meter. It is not the case of the accused that they were running those electrical appliances through any legal subsisting means. Nothing contradictory could be extracted from the testimony of prosecution witnesses.
24.It is not the case of accused persons that inspection team was not authorized to conduct inspection. Accused persons have not explained as to how and from where electricity energy was being drawn, if the prosecution story is incorrect. They have not brought any document or evidence on record which could suggest that any authorized electricity meter was available at the inspected premises at the time of inspection. If there was any electricity meter available at the inspected premises or that the accused persons were drawing electricity through any authorized meter, they ought to have brought some document or give details of the electricity meter to disprove the prosecution story but they have not brought any such document on record which clearly indicates FIR No.781/2022 State vs Akash @ Monu & Anr. 13 of 21 that no electricity meter was available for inspected premises at the time of inspection.
25. PW2, PW3 and PW4 proved the relevant documents i.e. inspection report, load report, seizure memo, advisory notice and electricity bill. Load Report and Inspection Report were prepared as per applicable Regulation of the Regulation No.61 and 63(2) of the Regulation. Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied and theft bill was raised accordance to Regulations. During the course of arguments, AR of the complainant has submitted that matter was settled the matter qua civil liability and at that time, the complainant company has given a credit to the accused persons for the electricity units already paid by the accused persons for the period of assessment as per mandate of Regulation 63(4) of the Regulation.
26.It is submitted by the Ld. Counsel for accused persons that removal of alleged illegal cable and preparation of documents at the spot has not been shown in the videography. PW2, PW3 and PW4 have given detailed deposition about removal of illegal wire, its seizure as well as preparation of inspection documents in the testimony sheet. Videography has also been proved by these witnesses. It is note worthy that removal of illegal cable or its seizure has not been created doubt upon, rather theft recovered was well-videographed. In fact meter was removed and proved as case property in the court. It is settled that videography proceedings or even seizure of aforesaid illegal cable used FIR No.781/2022 State vs Akash @ Monu & Anr. 14 of 21 for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the witnesses which they are unable to explain being member of Inspection Team. Preparation of these documents have not been specifically disputed by the accused persons. Documents Ex.PW2/2, Ex.PW2/3 and Ex.PW2/4 bear signature of PW2, PW3 and PW4 as prime members of Inspection Team. Those documents have been placed in original in the court and proved by the witnesses. Preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. No doubt videography of removal and seizure of meter/wire as well as preparation of Inspection Documents are recommended under applicable Regulation but propriety of process without any major lacunae cannot thwart the genuineness of entire proceedings. These are minor fallouts which cannot discredit the entire process and do not hit at the root because establishment of theft is based upon oral testimony which has been able to withheld the test of cross-examination.
27.During inspection, PW2 also issued an advisory notice. In the advisory notice proved as Ex.PW2/5, it is clearly mentioned that in case the accused/user has anything to say against the inspection, he should file written objection thereto within four working days but the user/accused kept mum and chose not to file any objection which indicates the involvement of the accused in direct theft of electricity else he would have raised his objection before the competent authority.
28. It was also submitted on behalf of the accused that prosecution case is FIR No.781/2022 State vs Akash @ Monu & Anr. 15 of 21 highly doubtful as no public witness was joined during the inspection of the premises. It is stated that officials of the complainant company who had no animosity with the accused persons, testified in support of prosecution version, therefore, under these circumstances, non-joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court of India has made the following observations :-
".....The report prepared by the officers of the Electricity Board is an act done in discharge of their duties and could not be straightway reflected or disbelieved unless and until there was definite and cogent material on record to arrive at such a finding. The inspection report is a document prepared in exercise of his official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct."
29.In the case titled as 'Sushil Sharma vs BSES Rajdhani Power Ltd.' in Crl. Appeal No.1060/10 decided on 22.12.2010, the Hon'ble Delhi High Court has held that non-examination of independent/public witness is no infirmity as the members of the inspection team who deposed in the court, were having no enmity against the appellant and their testimonies are trustworthy. In the present case also, there is no material to show that the BSES officials who inspected the premises of the accused persons were inimical to the accused.
30. Prosecution has thus proved that user/accused Akash @ Monu who was in possession of the inspected premises at the relevant time, indulged in FIR No.781/2022 State vs Akash @ Monu & Anr. 16 of 21 direct theft of electricity, in conscious knowledge with accused Nanak Chand. Having said that such indulgence/abstraction/consumption as proved by prosecution was dishonest on the part of accused.
31. In view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act, once the prosecution successfully establishes the charges against the accused persons regarding the theft of electricity, it is to be presumed that accused persons have committed theft of electricity unless accused brings some evidence on record to rebut the presumption. The said presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 reads as follows:-
"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".
32.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'."
33.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 FIR No.781/2022 State vs Akash @ Monu & Anr. 17 of 21 that they are innocent and have been falsely implicated in this case. They stated that they have already settled the dispute and settlement amount has already been paid by them and NOC has also been issued. Accused persons did not lead any evidence to their defence. If the user/accused did not indulge in direct theft of electricity or that they were using the electricity through any legal means, then the accused persons are 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, inspected premises was being put to use by accused persons while accused Nanak Chand was the landlord and accused Akash @ Monu was found to be user in the inspected premises at the time of inspection. It is clear from the evidence led by prosecution that at the time of inspection, accused/user was found indulged in direct theft of electricity through illegal cable. 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 FIR No.781/2022 State vs Akash @ Monu & Anr. 18 of 21 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 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".
34. As per testimony of PW1 as well as statements recorded U/s 313 Cr.P.C, accused Nanak Chand was the owner of the inspected premises and thus, it was his duty to ensure that electricity supply of the premises is carried out in the inspected premises only through authorized meter and not through direct theft of electricity. It is not the case of the accused Nanak Chand that he was not aware about the factum of direct theft of electricity being committed by the user/accused Akash @ Monu. Accused Nanak Chand has not specifically denied the factum of direct theft of electricity committed by the user/accused. It is clear from the statements recorded U/s 313 Cr.P.C, that accused persons have settled the matter qua theft bill (Ex.PW2/6) with the complainant company and they have already paid the settlement amount and NOC has also been obtained by them. In case, accused Nanak Chand was unaware that user/accused Akash @ Monu 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 user/accused. However, it is clear that accused Nanak Chand did not take any action in this regard against the user/accused and his aforesaid conduct speaks FIR No.781/2022 State vs Akash @ Monu & Anr. 1 of 21 for itself that he was well aware of the illegal act of the user/accused. Thus, under these facts and circumstances, it can be very well said that once the accused Nanak Chand had come to know about the said illegal activity of the accused/user, he ought to have taken appropriate action against the user/accused Akash @ Monu 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 accused/user indulged in direct theft of electricity. Being landlord, accused Nanak Chand has also remained silent and he did not take any action against the user/accused which indicates that he was also well aware that user/accused indulged in direct theft of electricity. Also it was accused Nanak Chand who was admittedly drawing monetary benefit from the inspected premises without ensuring legitimate electric/supply in the premises. He was ware that tenant was putting to use electrical appliances. It is evident that he knew the act and conduct of his tenant and abetted him in commission of theft of electricity. Accused Nanak Chand is, thus, liable U/s 150 of the Act.
35.In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the user/accused Akash @ Monu dishonestly indulged in direct theft of electricity through illegal wires. It is also proved on record that inspected premises belongs to accused Nanak Chand and accused/user Akash @ Monu has been proved to have indulged in direct theft of electricity through illegal cable. Accused Nanak Chand being owner, let/permitted/consciously allowed the user/accused Akash @ Monu commit direct theft of electricity.
FIR No.781/2022 State vs Akash @ Monu & Anr. 2 of 21 Thus, accused Nanak Chand is guilty of abetment of offence of direct theft of electricity. Accordingly, accused/user Akash @ Monu stands convicted for the offence punishable U/s 135 of the Electricity Act and accused Nanak Chand stands convicted for the offence punishable U/s 135 r/w section 150 of the Electricity Act 2003. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2023.04.13 17:18:13 -0400 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 13.04.2023 FIR No.781/2022 State vs Akash @ Monu & Anr. 3 of 21