Delhi District Court
State vs Mohd. Wasim on 19 May, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (ELECTRICITY)
EAST DISTRICT KARKARDOOMA COURTS : DELHI
SC No.480/2022
FIR No.573/2019
U/s 135 of Electricity Act
PS Mohd. Wasim
State versus Mohd. Wasim
S/o Mohd. Saleem
R/o H.No.283, Gali No.15,
Jafrabad, Delhi
Date of institution 22.04.2022
Arguments heard 19.05.2023
Date of judgment 19.05.2023
JUDGMENT
1. Accused Mohd. Waseem has been facing trial upon the allegations that he intentionally indulged in act amounting to direct theft of electricity and thereby committed an offence under the relevant provisions of Electricity Act 2003 (hereinafter referred to as 'the Act').
Brief facts of the prosecution case
2. Briefly the facts of the case are that on 08.08.2019, at about 11.45 am, an inspection was conducted by the Inspection Team of BSES YPL at the premises of accused i.e. H.No.283, Ground Floor, Gali No.15, Jafrabad, Pole No.Y-009, Delhi-110053. The inspection team comprised of Sh. Santosh Kumar Singh (Assistant Manager), Sh. Satvir Sharma (DET) and Sh. Manish Hans (Lineman) alongwith lady guard Ms. Geeta. At the time of inspection, no electricity meter was found installed at site and FIR No.573/2019 State vs Mohd. Wasim 1 of 20 the user/accused was found indulged in direct theft of electricity by tampering the electricity supply system of the complainant company with the help of two core black colour PVC illegal aluminium cables which were found connected from yellow colour service cable of BSES Distribution Box. At the time of inspection, total connected load was found to the tune of 0.390 KW which was being used for non-domestic purposes (for running shop). The illegal wires were removed by the lineman and seized at the spot. All the necessary documents like inspection report, load report and seizure memo were prepared at the spot. Entire set of documents prepared at the site was tendered to the accused/user for signature but he refused to sign and accept the same. Public persons were requested to join the investigation but none agreed. Necessary videography of the inspection proceedings was done by the videographer Sh. Puneet.
3. 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.21,065/-. Accordingly, a theft bill was raised and sent to the accused but she did not make payment of the theft bill. On failure to pay the bill amount, BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Authorized Officer/Assistant Manager Sh. Santosh Kumar Singh, lodged a complaint U/s 135 & 138 r/w Section 150 of the Electricity Act, 2003 with the SHO, PS Krishna Nagar for registration of an FIR against the accused Mohd. Wasim (landlord) and Zahid (tenant/user) U/s FIR No.573/2019 State vs Mohd. Wasim 2 of 20 135 & 138 r/w Section 150 of the Act.
4. The concerned SHO marked the said complaint to SI Sushil Singh. Thereafter, SI Sushil Singh made endorsement on the complaint and handed over the complaint to Duty Officer for registration of FIR. Accordingly, Duty Officer registered FIR No.573/2019 and marked the investigation of the case to SI Sushil Singh, the IO of the case. After registration of FIR, IO visited the inspected premises, prepared site plan and served the accused Mohd. Wasim with notice U/s 41.1(A) Cr.P.C. Accused joined the investigation and IO interrogated him and prepared interrogation report. During interrogation, it was revealed that the inspected premises belongs to accused Mohd. Wasim and accused Zahid (since not traced) was his tenant, who was residing in the inspected premises at the relevant time and said Zahid has vacated the inspected premises and his whereabouts are not known to him. IO bound down the accused vide Pabandinama.
5. After completion of investigation, the charge-sheet was filed against the accused Mohd. Wasim U/s 135/138 r/w Section 150 of the Act.
NOTICE
6. On 01.09.2022, a notice for the commission of offence U/s 135 of the Act was given to the accused to which he has pleaded not guilty and claimed trial.
7. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in FIR No.573/2019 State vs Mohd. Wasim 3 of 20 chronological order, the testimony of members of inspection team is being discussed first.
PROSECUTION EVIDENCE
8. PW2 Sh. Satvir Sharma is the Diploma Trainee Engineer (DET), who deposed that on 08.08.2019, at about 11.45 am, an inspection was conducted by the Enforcement Team of BSES YPL comprising of himself, Sh. Santosh Kumar Singh (Assistant Manager), Sh. Manish Hans (Lineman) and Sh. Puneet (Videographer) at the premises of accused i.e. shop situated at H. No.283, Ground Floor, Gali No.15, Jafrabad, Delhi. At the time of inspection, no electricity meter was found installed at the shop of accused which was situated at Ground Floor and further found that the accused was found indulged in theft of electricity with the help of illegal wire, which was connected from the Straight Thrugh Joint of BSES Pole. At the time of inspection, connected load was found to the tune of 0.390 which was used for commercial purposes at the premises of accused. Necessary videography of the inspection proceedings was captured by videographer Sh. Puneet on the instructions of Team Leader Sh. Santosh Kumar Singh. 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 PW2 identified the video which was captured by videographer Sh. Puneet. PW2 also identified the accused in the said video. During inspection, the inspection report Ex.PW2/2 and the load report Ex.PW2/3 were prepared at the spot. PW2 further deposed that the illegal wires were removed by the FIR No.573/2019 State vs Mohd. Wasim 4 of 20 Lineman Sh. Manish Hans and seized at the spot vide seizure memo Ex.PW2/4. On the basis of inspection, a theft bill of Rs.37,257/- (Ex.PW2/5) was raised and sent to accused. Entire inspection documents were prepared at site during inspection and the same were tendered to the accused for signature but he refused to sign and accept the same. Thereafter on 23.09.2019, a complaint (Ex.PW2/6) lodged by Sh. Santosh Kumar Singh (Assistant Manager) with the SHO, PS Jafrabad for registration of FIR against the accused. During evidence, the case property i.e. two black colour wires were produced before the court and shown to the witness, who identified the said wires as the same which were removed and seized at the spot during inspection. The said wires are Ex.P-1 (colly).
9. PW3 Sh. Puneet is the Videographer, who deposed that on 08.08.2019, at about 11.45 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. Santosh Kumar Singh (Assistant 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.
10.PW1 SI Sushil Singh is the IO of the case. This witness deposed that on 23.09.2019, the complaint (Ex.PW2/6) lodged by Sh. Santosh Kumar Singh (Assistant Manager) of BSES YPL was handed to him by the SHO concerned. Thereafter, he made endorsement Ex.PW1/1 on the complaint and handed over the complaint to Duty Officer for registration of FIR. Accordingly, Duty Officer registered FIR No.573/2019 and marked the FIR No.573/2019 State vs Mohd. Wasim 5 of 20 investigation of the case to him. The copy of FIR has been brought on record as Ex.PW1/2. Thereafter, he visited the inspected premises and prepared site plan Ex.PW1/3. On 15.03.2020, he served the accused with the notice u/s 41.1(A) Cr.P.C (Ex.PW1/4) upon which accused joined the investigation. He interrogated the accused and prepared Interrogation Report Ex.PW1/5. He also recorded statement of neighbour of accused namely Mohd. Arfin which is Ex.PW1/6. Accused was bound down to appear before the court vide Pabandinama Ex.PW1/7. After completion of investigation, charge-sheet was filed.
11.Thereafter, prosecution evidence was closed and matter was posted for statement of the accused.
STATEMENT OF ACCUSED
12.All incriminating evidence which have come on record, were put to the accused U/s 313 Cr.P.C. Accused denied all the material allegations. However, accused chose not to lead any evidence to his defence.
FINAL ARGUMENTS
13.Final arguments were advanced by the Ld. Addl. PP for the State as well as Ld. Counsel for the accused.
14.Ld. Addl. PP with the assistance of AR of the complainant company argued that at the time of inspection, no electricity meter was found installed at the premises of the accused and accused was found indulged in direct theft of electricity. Ld. Addl. PP further submitted that the prosecution has proved the FIR No.573/2019 State vs Mohd. Wasim 6 of 20 allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. Thus, it is prayed that accused may be convicted.
15.On the other hand, Ld. Defence Counsel submitted that accused is innocent and he has been falsely implicated in this case. It was submitted that accused has not committed any theft. It is also stated that matter has been settled and settlement amount has been deposited. Thus, it is prayed that accused may be acquitted.
DISCUSSION
16.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 Section 135 of the Act. The provision of Section 135 of the Electricity Act is 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 FIR No.573/2019 State vs Mohd. Wasim 7 of 20 punishable with imprisonment for a term which may extend to three years or with fine or with both:
17.Under the Act, Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 64 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 FIR No.573/2019 State vs Mohd. Wasim 8 of 20 consumer or his 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 FIR No.573/2019 State vs Mohd. Wasim 9 of 20 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 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.
18.As per prosecution case, at the time of inspection, no electricity meter was found installed at site and the user/accused was found indulged in direct theft of electricity through illegal wires. Thus, the onus was on the prosecution to prove these FIR No.573/2019 State vs Mohd. Wasim 10 of 20 allegations against the accused beyond reasonable doubt. Accused was stated to be owner of the electricity in the inspected premises and thus is liable to answer the allegations.
19.PW2 Sh. Satvir Sharma (DET) and PW3 Sh. Puneet (videographer) are the material witnessed of this case. PW2 corroborated the allegations made in the complaint (Ex.PW2/6) and deposed having witnesses the factum, mode and manner of commission of theft. Accused was found indulged in direct theft of electricity with the help of an illegal cable which was directly connected from Straight Through Wire of BSES Pole. During cross-examination of PW2, accused did not put to witness any suggestion that electricity meter was available at the inspected premises. PW3 was also part of Inspection Team who corroborated the deposition of PW2 on material points. He deposed having videographed the Inspection Proceedings which recorded the commission of theft of electricity at the inspected premises. PW3 also proved the Certificate U/s 65 of Evidence Act as Ex.PW2/1. PW2 and PW3 were duly cross-examined by Ld. Counsel for accused who was unable to cull out any contradiction in their testimony. The depositions were about same incident of inspection and those were consistent in basic details with necessary corroboration from material documents proved. Ld. counsel for accused merely put suggestions to material witnesses who were part of inspection team that no inspection took place and any such documents were not prepared which were categorically denied by witnesses.
20.It was also submitted that seizure of wires used for theft and FIR No.573/2019 State vs Mohd. Wasim 11 of 20 preparation of inspection documents are not shown in the video. PW2 has given detailed deposition about removal of wires, its seizure as well as preparation of inspection documents in the testimony sheet. Videography also has been proved by PW2 and PW3. It is note worthy that removal of wire or its seizure has not been created doubt upon, rather theft recovered was well- videographed. It is settled that videography proceedings or even seizure of illegal cable or device used for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the witness which he was unable to explain being member of Inspection Team. Documents prepared bear signature of PW2 as prime member of Inspection Team. Those documents have been placed in original in the court and proved by PW2. Just because removal of illegal cable or seizure was not videographed, it would not falsify the testimony of PW2 and PW3 which squarely indicates and explains about Inspection Proceedings. Similarly, preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. No doubt, removal and seizure of 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. Nothing contradictory could be extracted from the testimony of prosecution witnesses during cross-examination and the FIR No.573/2019 State vs Mohd. Wasim 12 of 20 testimony of witnesses has been consistent and thus, the factum of inspection, preparation of documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stand proved.
21.It is submitted on behalf of the accused that during investigation, IO recorded statement of Mohd. Arfin, the neighbour of accused, however, the prosecution has not examined this witness. AR of the complainant company submitted that this witness did not participate in the investigation and his statement was recorded by the IO just to support the prosecution case in respect of occupation of the inspected premises. In this matter, inspection was carried out on 08.08.2019 while IO visited the inspected premises after registration of FIR and recorded statement of Mohd. Arfin Ex.PW1/6 in which he stated that accused Mohd. Wasim is the owner of the inspected premises. Moreover, ownership as well as possession of the inspected premises has not been disputed by the accused. There is not even a suggestion to that effect. There is no explanation rendered as to how accused was present at the time of inspection if he was also not the user in the inspected premises. IO also testified that accused was owner s well as user of the premises. Accused also admitted in his statement U/s 313 Cr.P.C. that he was owner as well in possession of the inspected premises at the relevant time. Accused has also not disputed that he was not residing at the inspected premises or was residing elsewhere and he used to come to inspected premises only to collect rent or was not FIR No.573/2019 State vs Mohd. Wasim 13 of 20 aware as to what was being done at inspected premises. Accused has also brought any document like rent agreement etc or lead any evidence to project that it was, indeed, Zahid who was user and in possession of the inspected premises at the relevant time. Being owner of the inspected premises, it was primary responsibility of the accused to ensure that electricity supply was being used through authorized sources only. As such non-examination of Mohd. Arfin has not created any dent in the prosecution story.
22.It was also submitted on behalf of the accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the user/accused was found indulged in direct theft of electricity through illegal wires and these facts have been well proved by PW2. During evidence, the CD containing inspection proceedings was played before the court which depicted the manner in which the accused was found indulged in direct theft of electricity through illegal wires. It is clear that there was no electricity meter available at the premises of the accused. It is not disputed by the accused that at the time of inspection, certain electrical appliances as mentioned in the load report were found at the inspected premises at the time of inspection and connected load was running through illegal wire which was directly connected from BSES service cable. Furthermore, as per load report, certain electrical appliances were available at the inspected premises and accused has not explained as how those appliances were run in absence of an FIR No.573/2019 State vs Mohd. Wasim 14 of 20 authorized electricity meter. It is not the case of the accused that he was running those electric appliances through other means other than direct theft of electricity. Thus, it is clear from the record that the officials of complainant company who had no animosity with the accused, have proved the allegations beyond reasonable doubt and 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."
23.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 were inimical to the accused.
FIR No.573/2019 State vs Mohd. Wasim 15 of 20
24.It is not the case of accused that inspection team was not authorized to conduct inspection or that it indulged in any illegality which thwarts the entire process of inspection proceedings. Accused has not explained as to how and from where he was drawing electricity, if the prosecution story is incorrect. He has 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 incident. If there was any electricity meter available at the inspected premises or that the accused was drawing electricity through any authorized meter, he ought to have brought some document or give details of the electricity meter to disprove the prosecution story but he has not brought any such document on record which indicates that no electricity meter was available for inspected premises at the time of inspection while electrical appliances can be seen to be running during inspection proceedings.
25.It is evident from the deposition of PW2 and PW3 that on 08.08.2019, at about 11.45 am, an inspection was carried out at aforesaid premises of accused by the inspecting team members/officials of complainant company. It is also clear that no electricity meter was available at the inspected premises and the user/accused was found indulged in direct theft of electricity through illegal wires. The video of inspection proceedings was recorded by the videographer and the CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/1. PW2 also proved the relevant documents FIR No.573/2019 State vs Mohd. Wasim 16 of 20 i.e. inspection report as Ex.PW2/2, load report as Ex.PW2/3, seizure memo as Ex.PW2/4 and electricity bill as Ex.PW2/5. Oral testimony led by competent witness coupled with proved documentation and failure of accused to even put across his version or explanation of events or to falsify/discredit the prosecution version proves the factum of inspection which unearthed the illegal act of accused having indulged in direct theft of electricity.
26.Inspection Report and Load Report were prepared as per applicable 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. There is no reason to discredit the prosecution version. The testimony of prosecution witnesses coupled with proven documentation prove that accused indulged in direct theft of electricity.
27.Once the prosecution successfully establishes the charges against the accused regarding theft of electricity then in view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act, it is to be presumed that accused has committed direct theft of electricity if accused fails to bring some evidence on record to rebut the presumption. The presumption is reproduced 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 FIR No.573/2019 State vs Mohd. Wasim 17 of 20 electricity has been dishonestly caused by such consumer".
28.The Hon'ble Supreme Court of India, 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'."
29.In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the aforesaid statutory presumption. It is clear from the record that in his statement recorded U/s 313 Cr.P.C, the accused has simply stated that he has already settled the matter with the complainant company and settlement amount has already been paid. It is clear from the record that the accused did not lead any defence evidence. If the accused did not indulge in direct theft of electricity or that he was using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused was to prove on record that at the time of inspection, he was drawing electricity through his own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Furthermore, it is clear from the evidence of PW2 that in regard to the electricity theft, the complainant company had raised a bill of Rs.37,257/- (Ex.PW2/6) against the accused and it is further clear from the statement of accused recorded U/s 313 Cr.P.C that the accused FIR No.573/2019 State vs Mohd. Wasim 18 of 20 settled the matter qua the theft bill with the complainant company and paid the settlement amount. In case, the officials of the complainant company had not carried out the inspection as deposed by the prosecution witnesses or raised a false and baseless claim by way of theft bill (Ex.PW2/6), then instead of going for settlement, the accused would have raised his protest and would have initiated appropriate proceedings against the officials of complainant company for raising a false claim against him. This conduct of the accused also fortifies the allegations of the direct theft of electricity against him. Neither accused lead any independent evidence to discredit the prosecution version nor has he projected any defence which could puncture the projected prosecution case. In view of these discussions, it is held that accused has 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 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 FIR No.573/2019 State vs Mohd. Wasim 19 of 20 electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
30.In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that no electricity meter was available at the premises of the accused at the time of inspection. The very act of drawing electricity by connecting illegal wires with the service lines without having to pay for consumption of electrical energy has dishonest intention inherent in it. Accused has not tried/attempted to reason or distance himself from his act. He has not stated that he was not aware of his liability of pay for the usage of electricity energy. Videography was duly recorded that electrical appliances are in use at the inspected premises. There is no explanation even on the face of it qua its usage. The only reasonable conclusion is that accused, deliberately, consciously being aware of malafide of his illegal act, indulged in getting connections to use electricity in premises being owner and in immediate possession of his inspected premises. It is established that accused dishonestly indulged in direct theft of electricity through illegal wires having established connection with overhead service cable, which is punishable U/s 135 of the Electricity Act, 2003. Consequently, accused is convicted U/s 135 of the Electricity Act, 2003. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2023.05.19 17:30:55 -0400 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 19.05.2023 FIR No.573/2019 State vs Mohd. Wasim 20 of 20