Delhi District Court
State vs Narender Kumar on 19 October, 2022
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.274/2022
FIR No.570/2019
U/s 135 of Electricity Act
PS New Ashok Nagar
State versus Narender Kumar
S/o Sh. Jagram
R/o Dallu Pura Village,
New Ashok Nagar, Delhi
Date of institution 14.03.2022
Arguments heard 19.10.2022
Date of judgment 19.10.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. Jitin Kumar lodged a complaint under section 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') with the SHO New Ashok Nagar for registration of FIR against the accused Narender Kumar (Registered Consumer/owner) under Section 135 of the Act.
2. Succinctly, the facts of the case are that on 09.10.2019, at about 7.25 am, an inspection was conducted by the inspection team of BSES YPL at the premises of accused situated at Village Dallu Pura, New Ashok Nagar, Delhi-110096. The inspection team was comprised of Sh. Jitin Pal FIR No.570/2019 State vs Narender Kumar 1 of 14 (Assistant Manager), Sh. Varun Sharma (DET) and Sh. Raju (Lineman).
At the time of inspection, one meter no.71009427 (meter in question) with reading 1408 KW units was found installed at the site in the name of accused, however, the accused/user was found indulged in direct theft of electricity through two core black colour illegal PVC insulated copper wires which were further joined with two multi strand red colour wires which were connected from service line of BSES and supply was being used at the first floor and the second floor of the premises while the supply of the ground floor was running through the said meter. At the time of inspection, accused was present at the spot. At the time of inspection, total connected load was found to the tune of 4.350 KW/domestic. Necessary videography of the inspection proceedings was captured by videographer Sh. Parvesh. The illegal tapping materials were removed and seized at the spot. All necessary documents i.e. 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 accepted the same. Following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.93,178/-. Accordingly, a theft bill was raised and sent to the accused. Thus, a prayer was made for registration of an FIR against the accused under Section 135 of the Act.
3. The SHO handed over the said complaint to Duty Officer with the direction to register FIR and marked the investigation of the case to HC Yudhvir Singh. Accordingly, Duty Officer registered FIR No.570/2019 and marked the investigation of the case to HC Yudhvir Singh, the IO of FIR No.570/2019 State vs Narender Kumar 2 of 14 the case. Thereafter, IO visited the inspected premises, served the accused with the notice u/s 41.1(A) of the Cr.P.C. Accused joined the investigation and produced copies of ownership documents of the inspected premises as well as copy of Driving Licence. IO interrogated the accused and during investigation, it revealed that accused was in possession of the inspected premises at the relevant time. IO bound down the accused vide Pabandinama. After completion of investigation, IO filed the charge-sheet under section 135 of the Act against the accused.
4. On 24.08.2022, the notice for the commission of offence under Section 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.
6. PW2 Sh. Jitin Kumar Pal is the Assistant Manager of the complainant company, who deposed that on 09.10.2019, at about 7.25 am, an inspection was conducted by the enforcement team of BSES YPL comprising of himself, Sh. Varun Sharma (DET), Sh. Raju (lineman) and Sh. Parvesh (Videographer) at the premises of accused Narender Kumar i.e.Village Dallu Pura, Delhi-96. At the time of inspection, one single phase meter No.71004927 with reading 1408 KWH units was found installed at th premises of accused in the name of accused and the electricity supply of ground floor was running through the said meter FIR No.570/2019 State vs Narender Kumar 3 of 14 while the electricity supply of the first floor and the second floor was running through direct theft of electricity with the help of two core black colour cables and the said wires were joined with PVC multi strand Red colour wire and said wires were connected from service line of BSES YPL. At the time of inspection, total connected load was found to be 4.350 KW which was being used for domestic purposes at the first floor and the second floor. At the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Pravesh. 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 and PW3 identified the video which was recorded by the videographer during inspection. PW2 and PW3 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. The illegal wires were removed by lineman Sh. Raju and seized at the spot vide seizure memo Ex.PW2/4. Entire set of inspection documents was prepared at the spot in presence of accused and the same were tendered to the accused but he refused to accept and sign the same. On the basis of inspection, a theft bill of Rs.93,177/- (Ex.PW2/5) was raised and sent to accused. Thereafter, on 27.11.2019, he lodged a complaint (Ex.PW2/6) with the SHO PS New Ashok Nagar for registration of an FIR against the accused.
7. PW3 Sh. Raju is the Lineman, who was also one of the members of the inspection team and corroborated the testimony of PW2. He has also identified the accused in the video contained in the CD Ex.PW2/1.
FIR No.570/2019 State vs Narender Kumar 4 of 14
8. PW1 ASI Yudhvir Singh (then HC) is the IO of the case. This witness deposed that on 27.11.2019, the complaint lodged by Sh. Jitin Kular Pal, (Assistant Manager of the complainant company) was handed to Duty Officer for registration of the FIR. Accordingly, FIR No.570/2019 was registered and investigation of the case was marked to him. The copy of FIR has been brought on record as Ex.PW1/1. Thereafter, on 10.12.2019, he served the accused with the notice u/s 41(A) Cr.P.C/Ex.PW1/2. Accused joined the investigation and PW1/IO interrogated accused. During investigation, accused produced copies of ownership documents of the inspected premises as well as copy of his Driving Licence which has been brought on record as Mark A colly. During investigation, it revealed that accused was in possession of the inspected premises at the relevant time. PW1 bound down accused vide Pabandinama Ex.PW1/3. After completion of investigation, PW1/IO filed the charge-sheet.
9. After culmination of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. Accused admitted the factum of inspection. Accused admitted that the meter No.71004927 was installed at the inspected premises in his nsame. Accused also admitted that at the time of inspection, he was present at the spot and necessary videography of the inspection proceedings was done by the videographer. Accused denied the allegations of theft of electricity, however, he stated that he has already settled the matter and settlement has been paid and an NOC has also been issued. Accused opted not to lead any defence evidence. Accordingly, opportunity to lead defence evidence was closed.
FIR No.570/2019 State vs Narender Kumar 5 of 14
10. I have heard the final arguments from the Ld. Addl. PP for the State as well as Ld. Counsel for the accused and gone through the record of the case. Ld. Addl. PP for the State submitted that at the time of inspection, one meter no.71004927 was found installed at the site in the name of accused and supply of the ground floor was running through the said meter while supply of the first floor and second floor was running through direct theft and the accused/user was found indulged in direct theft of electricity through illegal wires. It is further submitted that the prosecution has proved its case against the accused beyond reasonable doubt through the testimony of prosecution witnesses. On the other hand, Ld. Defence Counsel submitted that accused is innocent and he has been falsely implicated in this case and that accused has not committed any theft.
11. 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 the Act. The provisions of Section 135 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or FIR No.570/2019 State vs Narender Kumar 6 of 14
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent 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:
FIR No.570/2019 State vs Narender Kumar 7 of 14 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.
12. 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".
13. As per prosecution case, at the time of inspection, one meter no.71004927 was found installed at site in the name of accused but the accused/user was found indulged in direct theft of electricity through illegal wire as the supply of the ground floor was running through the said meter while the supply of the first floor and the second floor was running through direct theft. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
14. PW2 Sh. Jitin Kumar Pal (Assistant Manager) and PW3 Sh. Raju (Lineman) are the material witnesses in this case. Both these witnesses were members of the inspection team which was being headed by Sh. Jitin Kumar Pal, Assistant Manager of the complainant company. PW2 and have corroborated the allegations made in the complaint Ex.PW2/6 and deposed that the electricity supply of ground floor was running through the said meter no.71004927 while the electricity supply of the first floor and the second floor was running through direct theft of electricity with the FIR No.570/2019 State vs Narender Kumar 8 of 14 help of two core black colour cables and the said wires were joined with PVC multi strand Red colour wire and said wires were connected from service line of BSES YPL and these facts have not been disputed by the accused during cross-examination of PW2 and PW3. PW2 and PW3 also deposed that the illegal wires were removed from the site and seized at the spot and again these facts have not been disputed by the accused. PW2 and PW3 also deposed that at the time of inspection accused was present and necessary videography of the inspection proceedings was done by videographer/PW5 Sh. Satender and this fact has not been disputed by the accused in his statement recorded U/s 313 Cr.P.C. PW2 and PW3 deposed that inspection report, load report and seizure memo were prepared at the spot and same were tendered to the accused for signature but he refused to accept and sign the same. Accused did not deny this fact in the cross- examination of witnesses. PW2 and PW3 have proved on record the inspection report Ex.PW2/2, load report Ex.PW2/3 and seizure memo Ex.PW2/4. PW2 also proved electricity bill Ex.PW2/5. Accused endeavoured to dispute the factum of inspection conducted by the inspection team, preparation of inspection report, load report and seizure memo as well as videography of the inspection proceedings done by videographer. Perusal of cross-examination of PW2 and PW3 shows that though, the accused has 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. Accused has also not specifically disputed the genuineness of assessment of load assessed FIR No.570/2019 State vs Narender Kumar 9 of 14 by the complainant as mentioned in the load report Ex.PW2/3. Furthermore, in his statement recorded U/s 313 Cr.P.C, accused admitted the factum of inspection as well as his presence at the spot at the time of inspection and videography of the inspection proceedings done by the videographer. During evidence, PW2 and PW3 identified the video recorded by videographer Sh. Parvesh. They have also identified the accused in the said video. Accused has also not disputed his identity as well as the identity of inspected premises shown in the video. Thus, the factum of inspection, presence of the accused at the spot at the time of inspection, inspection proceedings conducted at the spot as well as videography of inspection proceedings done by videographer Sh. Parvesh stand proved.
15. Accused has not disputed the fact that electricity meter no. 71004927 was installed at the inspected premises for domestic purposes and the supply of the ground floor was running through the said meter while the supply of the first floor and the second floor was running through direct theft. As per PW2 and PW3, accused was indulged in theft of electricity through illegal wires and the said wires were removed by the line and seized at the spot. Accused has not rebutted these facts during evidence of PW2 and PW3. During evidence before the court, the CD of the inspection proceedings was played before the court and PW2 and PW3 have identified the accused in the said video and at that time also, accused did not dispute to the contents of the video. Accused has also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in load report Ex.PW2/3.
FIR No.570/2019 State vs Narender Kumar 10 of 14
16. It is clear from the deposition of PW2 and PW3 that on 19.10.2019, at about 7.25 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 meter no.71004927 was lying installed at the premises of accused for domestic purposes but the user/accused was found indulged in theft of electricity through illegal wires and supply of the first floor and the second floor was running through direct theft with the help of illegal wires. The inspection proceedings were recorded by videographer and CD of the said inspection proceedings was brought on record as Ex.PW2/1. PW2 and PW3 also proved the relevant documents i.e. inspection report as Ex.PW2/2, load report as Ex.PW2/3 and seizure memo as Ex.PW2/4. PW2 also proved the electricity bill as Ex.PW2/5.
17. 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.
18. The Hon'ble Supreme Court, in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee', has laid down the law related to the rebuttal of statutory presumption. Relevant portion FIR No.570/2019 State vs Narender Kumar 11 of 14 of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
19. In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the presumption exists against him. Accused has simply stated in his statement recorded under Section 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 only through his own electricity meter and without tampering the same. However, accused has not brought anything on record to disprove the allegations made in the complaint. 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.93,177/- (Ex.PW2/5) against the accused and it is further clear from the statement of accused recorded under Section 313 Cr.P.C that accused settled the matter with the complainant 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.PW2/5 then instead of FIR No.570/2019 State vs Narender Kumar 12 of 14 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, 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".
20. In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that at the time of inspection, meter no.71004927 was lying installed at the inspected premises but the supply of the first floor and second floor was running through direct theft and accused/user was indulged in theft of electricity through illegal wires FIR No.570/2019 State vs Narender Kumar 13 of 14 which is punishable under Section 135 of the Electricity Act, 2003. Consequently, accused is convicted under Section 135 of the Electricity Act, 2003. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2022.10.19 17:54:31 -0300 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 19.10.2022 FIR No.570/2019 State vs Narender Kumar 14 of 14