Delhi District Court
State vs . Vinod Kumar Thakur on 12 July, 2023
IN THE COURT OF SH. JITENDRA SINGH: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT NORTH WEST, ROHINI COURTS, DELHI
CNR No. DLNW01-011849-2017
Cr. Case No. 01/2017
FIR No. 499/2017
P.S. Mukherji Nagar
U/S. 135 OF THE ELECTRICITY ACT, 2003
STATE VS. VINOD KUMAR THAKUR
1. Date of Commission of Offence : 05.01.2016
2. Date of institution of the case : 29.11.2017
3. Name of the complainant : Sh. HCS Chundawat
HOG, CEG Enforcement,
TPDDL, Delhi.
4. Name of accused, parentage
& address. :Vinod Kumar Thakur
S/o Sh. Laxmi Chand, R/o;
H.No. 33, Gali No. 1,
Jagatpur Village, Delhi.
5. Offence complained or proved :135 of Electricity Act,
2003.
6. Plea of Accused :Pleaded not guilty.
7. Final Order : Convicted
8. Date of Reserving judgment : 04.07.2023
9. Date of Final Order : 12.07.2023
FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 1 of 14
JUDGMENT
BRIEF FACTS OF THE CASE:
1. Succinctly, the facts of the present case are that on 05.01.2016, at about 3.30 PM a team of Tata Power Delhi Distribution Limited (hereinafter referred to as 'Complainant Company'), visited the premises bearing no. H.No. 30/8, Indira Vikas Colony, Village Dheerpur, Near Sant Nirankari Sr. Secondary School, Delhi (hereinafter referred to as 'Premises'). During inspection no meter was found installed at site and direct theft of electricity was found being committed by tapping TPDDL Low Tension Aerial Bunch Conductor (hereinafter referred to as 'LT ABC') between pole no. 413-10/27/9 to 413-10/27/8 by using two pieces of single core PVC black colour wire, which was further connected to the internal wiring of the premises to run all electrical appliances and connected load was found to be 1.715 KW for commercial purpose. At the time of inspection accused was present at site and his photograph was taken by the photographer and his ID proof i.e. Aadhar card was also photographed. Videography was also done at the time of inspection. Inspection report Ex. PW1/1 was prepared at site. Two pieces of single core PVC black aluminum wire was seized with paper seal no. 201297, which were being used for theft was removed and seized, vide seizure memo, vide Ex. PW1/2.
The site sketch was also prepared, which is Ex. PW1/3. At the time of inspection, the photographer Sh. Uday from M/s. Empire FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 2 of 14 Enterprises had taken photographs, which are Ex. PW1/4/A1 to Ex. PW1/4/A10. The CD of the photographs and videography is Ex. PW1/A5. Thereafter, the police complaint was made, and accordingly the present First Information Report (hereinafter referred to as 'FIR') was got registered under Section 135 of the Electricity Act, 2003 (hereinafter referred to as '2003, Act') in the Police Station: Mukherji Nagar.
NOTICE AGAINST THE ACCUSED:
2. After completion of investigation, the charge sheet under Section 135 of Electricity Act, 2003, was filed against the accused Vinod Kumar Thakur and accordingly, notice was framed against the accused, wherein he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
3. PW-1 Sh. Kaushal Kishore Prasad, who deposed that on 05.01.2016, he was working as Assistant Manager with the complainant company and on that day, he alongwith Sh. Parveen Bhardwaj, (the then Assistant Officer), Sh. Vivek Kumar (Engineer), Sh. Uday Kumar, photographer from M/s. Empire Enterprises had inspected the premises of the accused. At the time of inspection accused was present at site and direct theft of electricity was being committed by tapping TPDDL LT ABC between Pole No. 413-
10/27/9 and 413/10/27/8 by using two pieces of single core PVC FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 3 of 14 Black colour wire, which was further connected to the internal wiring of the premises. He further deposed that inspection Ex. PW1/1 was prepared at site, which bears his signatures at point A and inspection report was tried to serve upon the accused, but he refused to sign and accept the same. He further deposed that illegal wires were removed and seized, vide seizure memo, which is Ex. PW1/2 and the same was sealed with the paper seal. They had also prepared the site sketch, which is Ex. PW1/3 and the place of theft was being committed is shown at point X. The photographer Sh. Uday had taken ten photographs, which are Ex. PW1/4/A1 to Ex. PW1/4/A10. He further deposed that he can identify the signature of the photographer Uday as he had seen him, while signing and writing the documents. The signatures of photographer Uday are at point B on the inspection report, which is Ex. PW1/1 on each page. He further deposed that the seizure memo, which is Ex. PW1/2, bears the signatures of Uday (photographer) at point B. The photographer had also conducted the videography. The CD of the photographs is Ex. PW1/A5.
4. PW-2 Sh. Praveen Bhardwaj, who deposed that on 05.01.2016, he was working as Assistant Officer with the complainant company and was posted at Corporate Enforcement Group of the complainant company at UP Samaj Building, Pitampura, Delhi. On that day, at around 3.30 PM, he alongwith Sh. Kaushal Kishore Prasad (the then Assistant Manager), Sh. Vivek FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 4 of 14 Kumar, (Engineer), Sh. Uday Kumar, photographer from M/s. Empire Enterprises had inspected the premises of the accused. He further deposed that at the time of inspection, accused was present at site and at the time of inspection, direct theft of electricity was being committed by tapping TPDDL LT ABC between pole no. 413- 10/27/9 and 413-10/27/8 by using two pieces of single core PVC black colour wire, which were further connected to the internal wiring of the premises. He further deposed that inspection report, which is Ex. PW1/1 was prepared at site bearing his signatures at point C. Inspection report was tried to be served upon the accused, but he refused to sign and accept the same. He further deposed that illegal wires were removed and seized, vide seizure memo Ex. PW1/2, bearing his signatures at point C and the same was sealed with the paper seal. They had also prepared the site sketch, which is Ex. PW1/3, bearing his signatures at point B and the place of theft was being committed is shown at point X. The photographer Sh. Uday had taken 10 photographs, which are Ex. PW1/4/A1 to Ex. PW1/4/A10. The photographer had also conducted the videography. The CD of the photographs and the videography is Ex. PW1/A5.
5. PW-3 ASI Mritunjay Kumar, who deposed that on 22.07.2017, he was posted at PS Mukherji Nagar as Head Constable. On that day, the investigation of the present case was marked to him by SHO PS Mukherji Nagar. The file of the case was handed over to him by ASI Dhruv Raj. Thereafter, he visited the site in question. He FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 5 of 14 further deposed that on 20.09.2017, he arrested the accused in the presence of Ct. Surajmal from H.No. 33, Gali No. 1, Jagat Pur, Burari, Delhi and prepared the arrest memo, which is Ex. PW3/A, bearing his signature at point A. The personal search of the accused was also carried out and prepared personal search memo, which is Ex. PW3/B, bearing his signatures at point A. He further deposed that accused was produced before the court on 21.09.2017 and he was released on bail.
6. PW-4 retired SI Chander Pal, who deposed that on 20.11.2017, he was posted at DIU, North-West District and investigation of the case was marked to him by ACP, DIU investigation of the case was already complete so on 23.11.2017, he had filed the charge sheet in the court.
7. PW-5 SI Dhruv Raj, who deposed that on 21.01.2016, he was posted at PS Mukherji Nagar as Head Constable. On that day, rukka, which is Ex. PW1/1 was marked to him by SHO, PS:
Mukherji Nagar. On 22.07.2017, he got the FIR no. 499/17 registered against the accused through DO/ASI Narender Pal. Thereafter, investigation of the case was transferred to IO/HC Mritunjay Kumar.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C:-
08. After culmination of prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. The accused denied the charge of direct theft of electricity and stated that he is innocent FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 6 of 14 and he has been falsely implicated in the present case. Accused opted not to lead any defence evidence. Accordingly, opportunity to lead defence evidence was closed and matter was listed for final arguments.
APPRECIATION OF EVIDENCE:-
09. Before dealing with the factual aspect of the present case, it is deemed appropriate to specify the relevant provision of the 2003, Act which are required to be gone into for appropriate disposal of the cases pertaining to section 135 of 2003, Act. The said provision 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. 499/2017, State Vs. Vinod Kr. Thakur Page 7 of 14 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 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 FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 8 of 14 proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
10. As per prosecution case, the accused was involved in direct theft of electricity. Allegedly accused had tampered the electricity supply system of the complainant company as he had found indulged in direct theft of electricity. Thus, the onus was on the prosecution to prove and establish beyond reasonable doubt:-
(i) That the accused Vinod Kumar Thakur was indulged in theft of electricity, which was being committed from Pole no. 413-10/27/9 and 413/10/27/8 by using illegal wire.
(ii) That the accused Vinod Kumar Thakur has committed the theft by use of two pieces of single core PVC black colour aluminum wire, which were further connected to the internal wiring of the premises of the accused.
(iii) That the accused Vinod Kumar Thakur was illegally consuming the electricity for commercial purpose.
11. PW-1 Sh. Kaushal Kishore Prasad (Sr. Manager) and PW-2 Sh. Praveen Bhardwaj (Sr. Officer) are the most material witnesses in this case. Both these witnesses were members of the inspection team of the complainant company. Both these witnesses have corroborated the allegations mentioned in the complaint, which is Ex. PW2/1 and deposed that during inspection accused was found indulged in direct theft of electricity by tapping TPDDL LT FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 9 of 14 ABC between Pole No. 413-10/27/9 and 413-10/27/8 by using two pieces of single core PVC black colour wire, which was further connected to the internal wiring of the premises to run the electrical appliances. PW-1 and PW-2 also deposed that illegal wire was seized, vide seizure memo, which is Ex. PW1/2. PW-1 and PW-2 deposed that inspection report, site sketch and seizure memo of illegal wires were prepared at the spot and they have proved on record the inspection report, which is Ex.PW1/1, site sketch, w h i c h i s Ex.PW1/3 and seizure memo, which is Ex.PW1/2. Both these witnesses were cross-examined on behalf of accused but nothing fruitful came out in favour of the accused.
12. Accused has not disputed that there was no electricity meter in his premises. He has even not disputed the correctness of the assessment of the load assessed by the officials of complainant company, which is mentioned in inspection report Ex. PW1/1 as in this regard no question was put on behalf of the accused either to PW-1 and PW-2, during their cross- examination before the court.
13. It is clear from the deposition of PW-1 and PW-2 that an inspection was carried out at the premises of accused on 0 5 .01.2016, by the inspecting team members/officials of complainant company and the accused was found indulged in direct theft of electricity. H e had tampered the electricity supply system of the complainant company as he had found indulged in direct theft of electricity by tapping TPDDL LT ABC between Pole FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 10 of 14 No. 413-10/27/9 and 413-10/27/8 by using two pieces of single core PVC black colour wire, which was further connected to the internal wiring of the premises to run the electrical appliances. PW-1 and PW-2 proved the relevant documents i.e. inspection report, which is Ex.PW1/1, seizure memo of illegal wire, which is Ex. PW1/2, site sketch, which is Ex. PW1/3, photographs, which are Ex. PW1/4/A1 to Ex. PW1/4/A10 and CD of the photographs and the videography, which is Ex. PW1/A5, depicts the manner in which the direct theft of electricity was being committed by the accused at the premises.
14. The accused has taken a defence that no public witness has been joined by the inspection team during the raid of the premises. This plea of the accused does not carry much weight because in the present case, accused was found indulged in direct theft of electricity by tampering the electricity supply system of the complainant company by tapping TPDDL LT ABC between Pole No. 413-10/27/9 and 413-10/27/8 by using two pieces of single core PVC black colour wire, which was further connected to the internal wiring of the premises to run the electrical appliances and these facts have been well proved by PW-1 and PW-2. Thus, non- joining of public witness is not fatal to the prosecution case. In the regard, this Court is supported with the Judgment of Hon'ble Supreme Court titled as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 11 of 14 Hon'ble Supreme Court 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....".
15. 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 and 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 TPDDL officials were inimical to the accused.
16. Accused did not lead any defence evidence. If the accused was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the easiest way for the accused was to prove on record that he was using electricity for his premises at the time of inspection. In this regard, this court is supported by the judgment of Hon'ble High Court of FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 12 of 14 Delhi reported as 'Mukesh Rastogi Vs. North Delhi Power Limited' reported as 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 electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
17. It is well settled that admitted facts needs not be proved. The accused has not disputed his presence at the premises, when the inspection took place. The accused had the opportunity to bring on record the electricity bills to prove that at the time of inspection the accused was using electricity from his authorize connection, however, he has has failed to do so. Therefore, this court has no FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 13 of 14 hesitation to hold that the accused has indulged in direct theft of electricity. The prosecution was also required to prove on record that the electricity was being used for commercial purpose. In the case in hand, it is alleged that the accused has using the electricity for running tea stall. Both the raiding team members i.e. PW-1 and PW-2 have no where deposed that the accused was using the electricity in his house for running a teal stall. Though the prosecution has successfully proved that the accused has indulged in direct theft of electricity, however, the prosecution has failed to prove on record that the theft of electricity was being used for commercial purposes.
18. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the accused was indulged in direct theft of electricity which is punishable under section 135 of the Electricity Act, 2003. Consequently, accused is convicted under section 135 of the Electricity Act, 2003.
19. Put up for determination of civil liability and order on sentence on 04.08.2023. Digitally signed by JITENDRA JITENDRA SINGH SINGH Date: 2023.07.12 14:37:55 +0530 Announced in the open court (JITENDRA SINGH) today i.e. on 12.07.2023 ASJ (Electricity)/ Distt. N/W Rohini Courts, Delhi.
FIR No. 499/2017, State Vs. Vinod Kr. Thakur Page 14 of 14