Delhi District Court
State vs Radhey Shyam on 30 May, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.165/2021
FIR No.301/2020
U/s 135 of Electricity Act
PS Sonia Vihar
State versus Radhey Shyam
S/o Sh. Ramkishan
R/o G-3/557, 5th Pusta,
Sonia Vihar, Delhi
Date of institution 12.03.2021
Arguments heard 30.05.2022
Date of judgment 30.05.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. R.K. Tiwari, had given a complaint U/s 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') with the SHO, PS Sonia Vihar with a prayer to register an FIR against the accused U/s 135 of the Act.
2. Succinctly, the facts of the case are that on 21.08.2020, at about 8.09 am, an inspection was conducted by the inspection team of BSES YPL comprising of Sh. R.K. Tiwari (Assistant Manager), Sh. Lalit Kumar (DET), Sh. Montu (Lineman) and Sh. Sachin (Videographer) at the premises of accused i.e. H.No.CN-1426, Gali No.17, 5th Pusta, Sonia Vihar FIR No.301/2020 State vs Radhey Shyam 1 of 13 near Jiwan Jyoti Public School, (Pole No. KWN D323), Delhi-110094. At the time of inspection, no electricity meter was found installed at the premises of accused and user/accused was found indulged in direct theft of electricity through two single core Blue colour PVC illegal aluminium wires which were joined with the Distribution Box of BSES. Total connected load was found to the tune of 2.443 KW which was being used for domestic purpose. All necessary documents namely inspection report, load report and seizure memo were prepared at the spot. An advisory notice was also issued to the accused. 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. Necessary videography of the inspection proceedings was done by the videographer Sh. Sachin Kumar. Illegal tapping material was removed and seized at the spot. Following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.29,862/-. Accordingly, a theft bill was raised and sent to the accused but accused did not make payment of the theft bill. The CD of the said videography alongwith Certificate U/s 65B of the Evidence Act was also submitted with the SHO, PS Sonia Vihar alongwith complaint. Thus, a prayer was made for registration of an FIR against the accused U/s 135 of the Act.
3. The SHO handed over the said complaint (Ex.PW2/7) to Duty Officer with the direction to register an FIR and handover the investigation of the case to HC Parveen. The Duty Officer registered the FIR No.301/2020 and handed over the investigation of the case to HC Parveen, the IO of the case. After registration of FIR, IO visited the inspected FIR No.301/2020 State vs Radhey Shyam 2 of 13 premises, served the accused with the notice U/s 41.1(A) Cr.P.C, interrogated the accused and prepared interrogation report. During investigation, accused produced copy of his Aadhar Card and copies of documents (GPA) pertaining to inspected premises. IO collected the said documents and placed on record. IO bound down the accused vide Pabandinama. After completion of investigation, IO filed the charge-sheet U/s 135 of the Act against the accused.
4. On 28.02.2022, a notice for the commission of offence U/s 135 of the Act was given to the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first:-
(5.1) PW2 Sh. Lalit Kumar is Diploma Trainee Engineer (DET). This witness deposed that on 21.08.2020, at about 8.09 am, an inspection was conducted by the enforcement team comprising of himself, Sh. Ravi Kumar Tiwari (Assistant Manager), Sh. Montu (lineman) and Sh. Sachin (Videographer) at the premises of accused i.e. H.No.CN-1426, Gali no. 17, 5th Pushta, Sonia Vihar near Jeevan Jyoti Public School, Delhi-110094. During inspection, no electricity meter was found installed at the premises of accused and accused was found indulged in direct theft of electricity through illegal tapping from DB box of BSES YPL. The total connected load was found to the tune of 2.443 KW which was being used for FIR No.301/2020 State vs Radhey Shyam 3 of 13 domestic purpose at the Ground Floor and the First Floor of the inspected premises. PW2 further deposed that at the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Sachin. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/1. During evidence, the CD was played on the laptop and PW2 has correctly identified the video which was recorded by the videographer during inspection. PW2 also identified the accused in the said video. 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 lineman Sh. Montu and seized at the spot vide seizure memo Ex.PW2/4. During inspection, an advisory notice Ex.PW2/5 was also issued by Ravi Tiwari (Assistant Manager) to the accused. On the basis of inspection, a theft bill of Rs.29,861/- (Ex.PW2/6) was raised and sent to the accused. Thereafter, on 02.09.2020, Sh Ravi Tiwari (Assistant Manager) lodged the complaint (Ex.PW2/7) with the SHO, PS Sonia Vihar for registration of an FIR against the accused. PW2 has also identified the signature of Sh. Ravi Tiwari on the complaint at point A. During evidence, the case property i.e. two Blue colour single core PVC aluminium wires of 10 mm square size and having approx length of 0.5 meter each were produced and shown to PW2 who correctly identified the said wires as the same which were removed and seized during the inspection at the site. The illegal wires have been brought on record as Ex.P1 (colly).
(5.2) PW1 HC Narender is the IO of the case. This witness deposed that 04.09.2020, after registration of FIR, investigation of the case was FIR No.301/2020 State vs Radhey Shyam 4 of 13 marked to him. The copy of FIR has been brought on record as Ex.PW1/1. Thereafter, on 11.12.2020, he visited the premises of the accused and served the accused with the notice u/s 41.1 (A) Cr.P.C (Ex.PW1/2). On the same day, accused joined the investigation and he interrogated the accused and prepared interrogation report (Ex.PW1/3) in presence of Ct. Jitender. During investigation, accused produced copies of GPA pertaining to inspected premises and stated that the inspected premises belongs to his wife Geeta. Accused also stated that his wife is a house wife and he was found indulged in direct theft of electricity through illegal wires. Accused also produced copy of his Aadhar Card. The copies of GPA and Aadhar Card have been brought on record as Mark A (colly). Thereafter, accused was bound down vide Pabandinama Ex.PW1/4.
6. After completion of prosecution evidence, statement of accused was recorded U/s 313 Cr.P.C. Accused denied that inspection was conducted at his premises on the aforesaid date but he did not deny that there was no electricity meter installed at the inspected premises. Accused denied rest of the allegations, however, he stated that he has already settled the matter and settlement amount has been paid and an NOC has also been issued. Accused did not lead any evidence to his defence.
7. I have heard the final arguments from the Ld. Addl. PP as well as Ld. Counsel for the accused and gone through the record of the case. During the course of arguments, with the assistance of Authorized Representative of complainant, Ld. Addl. PP submitted that prosecution has proved its case against the accused beyond reasonable doubt through the testimony of prosecution witnesses. On the other hand, Ld. Defence FIR No.301/2020 State vs Radhey Shyam 5 of 13 Counsel submitted that accused is innocent and he has been falsely implicated in this case and that accused has not committed any theft.
8. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provision of the Act which is required to be gone into for appropriate disposal of the case. The present case pertains to section 135 of Electricity 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 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 -
FIR No.301/2020 State vs Radhey Shyam 6 of 13
(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 proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
9. There is a presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 which 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".
10. As per prosecution case, at the time of inspection, no electricity FIR No.301/2020 State vs Radhey Shyam 7 of 13 meter was available at the premises of the accused and the accused was indulged in direct theft of electricity through two single core Blue colour PVC illegal aluminium wires which were joined with the Distribution Box of BSES. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
11. PW2 Sh. Lalit Kumar (DET) is the material witness in this case. He was one of the members of the inspection team which was being headed by Sh. Ravi Kumar Tiwari (Assistant Manager). He has corroborated the allegations made in the complaint (Ex.PW2/7) and deposed that at the time of inspection, no electricity meter was available there and the user/accused was indulged in direct theft of electricity through illegal tapping from Distribution Box of BSES. PW2 also deposed that the illegal wires were removed by the lineman Sh. Montu and seized at the spot vide seizure memo Ex.PW2/4 and this fact has not been disputed by the accused at all in the cross-examination of PW2. PW2 also deposed that at the time of inspection, accused was present and necessary videography of the inspection proceedings was done by videographer Sh. Sachin Kumar. He also deposed that inspection report, load report, seizure memo and advisory notice were prepared at the spot and he has brought on record the inspection report as Ex.PW2/2, load report as Ex.PW2/3, seizure memo as Ex.PW2/4 and advisory notice as Ex.PW2/5. Accused endeavoured to dispute the factum of inspection, preparation of inspection report, load report and seizure memo as well as videography of the inspection proceedings done by videographer Sh. Sachin Kumar. Perusal of cross-examination of PW2 shows that though, the accused has FIR No.301/2020 State vs Radhey Shyam 8 of 13 endevaoured to dispute these facts, however, he has not specifically disputed the factum of preparation of the relevant documents, the contents and authenticity of the inspection report and CD containing videography of the inspection proceedings. During evidence, the CD of the inspection proceedings was played before the court and PW2 identified the said video. PW2 has also identified the accused in the said video and at that time also, accused did not dispute the contents of the video. Accused has also not disputed the correctness of the load assessed by the officials of the complainant company which is mentioned in the load report (Ex.PW2/3). Thus, inspection proceedings conducted at the spot as well as videography of inspection proceedings done by videographer Sh. Sachin stand proved.
12. It is clear from the deposition of PW2 as well as inspection documents and interrogation report (Ex.PW1/3) that on 21.08.2020, at about 08.09 am, an inspection was carried out at the 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 but the user/accused was found indulged in direct theft of electricity through illegal wires. It is also clear that the illegal wires were removed and seized at the spot. The inspection proceedings were recorded by photographer Sh. Sachin and CD of the said inspection proceedings was brought on record as Ex.PW2/1. PW2 also proved the relevant documents namely inspection report as Ex.PW2/2, load report as Ex.PW2/3, seizure memo as Ex.PW2/4 advisory notice as Ex.PW2/5 and electricity bill as Ex.PW2/6.
13. It has also been submitted by the Ld. Counsel for accused that FIR No.301/2020 State vs Radhey Shyam 9 of 13 the prosecution case is highly doubtful as no public witness was joined by the BSES officials during inspection of the premises. It is clear that the user/accused was found indulged in direct theft of electricity through illegal wires and these facts have been well proved by PW2. The CD containing inspection proceedings was played before which depicted the manner in which the accused was indulged in direct theft of electricity through illegal wires. PW2 also identified the accused featuring in the said video. Accused has neither disputed his identity nor the identity of the inspected premises in the video contained in the CD (Ex.PW2/1). Thus, it is clear from the record that the officials of the 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 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."
14. 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 FIR No.301/2020 State vs Radhey Shyam 10 of 13 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 BSES officials who inspected the premises of the accused were inimical to the accused.
15. 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. Thus, in view of the proviso of section 135 (1) of the Act, after the prosecution establishes the charges of electricity theft against the accused then under the aforesaid provisions of law, the accused is legally bound to bring some material on record to rebut the statutory presumption.
16. 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'."
17. In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the statutory presumption. Accused has simply FIR No.301/2020 State vs Radhey Shyam 11 of 13 stated in his statement recorded U/s 313 Cr.P.C that he has already settled the matter with the complainant company and settlement amount has already been paid, however, 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 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.29,861/- (Ex.PW2/6) against the accused and it is further clear from the statement of accused recorded U/s 313 Cr.P.C that accused settled the matter with the complainant company and paid the settlement amount. In case, the officials of the complainant company would not have carried out the inspection as deposed by the prosecution witnesses and the complainant company would have 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 for raising a false claim against him. This conduct of the accused also fortifies the allegations regarding the direct theft of electricity against the accused. 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' FIR No.301/2020 State vs Radhey Shyam 12 of 13 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".
18. In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that at the time of inspection, no electricity meter was available in the premises of the accused and accused/user was indulged in direct theft of electricity through illegal wires, 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 AJAY
AJAY GUPTA
Date:
GUPTA 2022.05.30
17:30:18
(Ajay Gupta)
+0530
Addl. Sessions Judge (Electricity)
East/Karkardooma Courts/Delhi
Announced in open
court on 30.05.2022
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