Delhi District Court
State (Bses) vs Mohd Riyaz on 4 May, 2026
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 769/2022
FIR No. 65/2020
Under Section 135 Electricity Act
PS Welcome
State
versus
Mohd. Riyaz
R/o E-49/F-352, Janta Mazdoor Colony,
Welcome, Delhi-110053.
.... Accused
Date of institution 14.07.2022
Arguments heard on 04.05.2026
Judgment Pronounced on 04.05.2026
Decision Convicted
JUDGMENT
1. Accused Mohd. Riyaz is facing trial upon the allegations that he indulged in theft of electricity and thereby, committed an offence punishable under Section 135 of Electricity Act 2003 (hereinafter referred to as 'the Act').
Brief Facts
2. On 11.09.2019, at about 11.45 am, an inspection was conducted by the inspection/Enforcement team of BSES Judgment 1 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz Yamuna Power Limited (hereinafter referred as complainant company) headed by Sh. Tara Chandra (the then Manager of the complainant company) at the premises of accused at i.e. H.No.E-49/F-352, 1st Floor & 2nd Floor, Janta Mazdoor Colony, Welcome, Delhi-110053.
3. At the time of inspection, no electricity meter was found installed at the premises of accused i.e. first and second floor. However, one electricity meter bearing No.35002943 was found installed at ground floor which was being used for ground floor only and accused was found indulging in direct theft of electricity with the help of two core black colour cable which was found connected from BSES Pole No.YVR-Z-646.
4. At the time of inspection, accused was present at the spot and total connected load was found to be 2.660 KW which was being used for domestic purposes. Videographer Sh. Sumit Kumar captured the videography of inspection proceeding. Inspection documents i.e. Inspection Report, Load Report and Seizure Memo were prepared at the spot.
5. 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.47,582/- Accordingly, a theft bill was raised and sent to the accused but he did not make payment of the theft bill.
6. On failure to pay the theft bill amount, complainant company through its Authorized Officer filed the present Judgment 2 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz complaint U/s 135 Electricity Act.
Notice
7. On 05.04.2024, notice U/s 251 Cr.P.C for commission of offence punishable under Section 135 of the Act was given to accused. Accused did not plead guilty and claimed trial.
8. Prosecution Evidence
9. In order to substantiate its allegations, the prosecution examined following witnesses
10. PW1 Sh. Anuj Kumar Varshaney is the Diploma Trainee Engineer (DET) of the complainant who was one of the members of the inspection team. He proved the CD containing videography of the inspection proceedings as Ex.PW1/A, inspection report as Ex.PW1/B, load report as Ex.PW1/C, seizure memo as Ex.PW1/D and theft bill as Ex.PW1/E. He also proved the complaint as Ex.PW1/F lodged by PW3 Sh. Tara Chandra (the then Assistant Manager of the complainant company).
11. PW2 SI Dharamvir Singh (then ASI) is the IO of the case.
PW2/IO proved the FIR as Ex.PW2/A, site plan as Ex.PW2/B, Notice U/s 41A Cr.P.C given to accused as Ex.PW2/C, interrogation report as ExPW2/D and disclosure statement of accused as Ex.PW2/E. He also proved copy of Adhar Card of accused and electricity bill in the name of accused Firoza Begum as Ex.PW2/F (colly) and Pabandinama as Ex.PW2/G. Judgment 3 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
12. PW3 is Sh. Tara Chandra (the then Assistant Manager of the complainant company) who was heading the inspection team. He corroborated the testimony of PW1 Sh. Anuj Kumar Varshney and deposed on the similar lines of PW1.
13. PW4 Sh. Sumit Kumar is the videographer who, on the instruction of team leader Sh. Tara Chandra, captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW1/A and Certificate U/s 65B of Indian Evidence Act as Ex.PW4/A. Statement of Accused
14.All incriminating evidence which has come on record, were put to the accused under Section 313 Cr.P.C. Accused denied all material allegations and stated that he is innocent and has been falsely implicated in this case. He has not committed any theft of electricity.
Arguments
15.Ld. Addl. PP submitted that accused was found indulged in direct theft of electricity and no electricity meter was found installed at his premises. Ld. Addl. PP further submitted that prosecution has proved allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. He also emphasized that inspection was conducted as per Rules and applicable Regulations. Thus, it is prayed that accused may be convicted.
16. On the other hand, Ld. Amicus Curiae for accused Judgment 4 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz submitted that accused is innocent and he has been falsely implicated in this case. It is further submitted that accused has not committed any theft of electricity as alleged by the prosecution. It is also submitted that during pendency of trial, accused has settled the civil liability qua impugned theft bill but due to financial constraints, settlement amount has not been deposited by the accused.
Analysis
17. Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to Sections 135 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 punishable with imprisonment for a term which Judgment 5 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz may extend to three years or with fine or with both:
18. 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."
19.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines 'dishonestly' and holds that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
20.Allegations against the accused are about hooking illegal wire with main line of BSES Pole and connecting the same with inspected premises of the accused. Therefore, Section 135(1) of the Act would be relevant and applicable. As mentioned, dishonest intention is primary ingredient to impute any culpability in this matter.
21. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deals with theft of electricity. Regulation 60 empowers authorized Officer to inspect premises. Under Regulation 61 Authorized Officer makes Inspection Report, Regulation 62 lays down procedure to report a case of theft Judgment 6 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz and under Regulation 63 there is assessment of theft bill.
22. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 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: (2) Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(3) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(4) 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. (5) he 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 Judgment 7 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz the witness refuses to sign, the same shall be recorded in the report and captured in the videography.
(4) The inspection Report shall be signed by the Authorized officer and a copy of the same shall be handed over to the consumer or his 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 sub-
section (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 Judgment 8 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy consumed by resorting to external methods involving remote control, high voltage injection etc., committed by the consumer or his employee or any other person acting on his behalf, shall also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the 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.
Judgment 9 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
(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.
23. As per prosecution case, at the time of inspection, no electricity meter was found installed in the inspected premises and accused was indulged in direct theft of electricity.
24. PW1 Sh. Anuj Kumar Varshney, PW3 Sh. Tara Chandra (Assistant Manager of the complainant) and PW3 Sh. Sumit Kumar (videographer) are the prime witness of this case being members of inspection team. PW1 and PW3 corroborated the allegations made in the complaint (Ex.PW1/F) and deposed that at the time of inspection, no electricity meter was found installed for inspected premises and the accused was found indulged in direct theft of electricity with the help of two core black colour cable which was found connected from BSES YPL No YVR-Z-646. PW1 and PW3 also deposed the said illegal wire was removed and seized at the spot vide seizure memo Ex.PW1/D. Accused has not rebutted these facts Judgment 10 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz during cross-examination of PW1 and PW3.
25. PW1 and PW3 further deposed that at the time of inspection, accused was present at the spot and total connected load was found to be 2.660 KW which was being used for domestic purposes. PW1 and PW3 further deposed that load report was prepared at the spot vide load report Ex.PW1/C. Accused has not disputed the load mentioned in the load report. All these fact were not rebutted or denied by the accused in the cross-examination of PW1 and PW3. Rather to the question of Ld. Counsel, PW1 and PW3 clearly testified that the inspection was conducted at the premises of the accused in mass raid. They further testified that the load report was prepared after seeing the connected load. All these facts clearly indicate that accused was actively involved in the theft of electricity and the line of questions clearly points out to the fact that at least the inspection of premises was conducted and factum of inspection stands proved beyond doubt. In this connection, the observations of the Hon'ble Supreme Court given in the latest judgement of Balu Sudam Khalde & Ors. v. State of Maharashtra, 2023 INSC 314 can be beneficially relied upon here. The Hon'ble Supreme Court in this case observed:
31. In the course of hearing of this appeal, we also noticed something very important, going to the root of the matter.
32.We noticed that in the cross-examination of the original first informant, PW 1 Asgar Shaikh (Exh.7), few suggestions were put to him by the defence counsel. We quote the relevant part of the cross-examination of the first informant:
Judgment 11 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
"The attack on us was sudden. The first blow was hit on my head. I was assaulted severely on the head. Due to assault, I suffered a bleeding injury. It is not true that I felt giddy due to assault. Yes I however suffered pain.
At that time, I did not feel that I should save my life. I did not feel that I should run away or I should try to hide myself. I went towards the side of Lohiya Nagar Police Chowkey. I did feel that I was being assaulted without any reason. Abbas was screaming while he was being assaulted. ..."
33.We are of the view from the aforesaid that the suggestions put by the defence counsel in the cross-examination of the eyewitnesses establishes the presence of PW1 Asgar Shaikh at the scene of offence and the factum of assault could also be said to have been admitted. The reply to the suggestions answers the submission canvassed by the learned counsel for the appellants that PW1 Asgar Shaikh should not be believed or relied upon as there is nothing on record to indicate that he was an injured eyewitness. The defence could be said to have admitted the presence of PW Asgar Shaikh. When the aforesaid part of the cross-examination of PW1 Asgar Shaikh was brought to the notice of the defence counsel, he submitted that a suggestion put by defence counsel to a witness in his cross-examination has no evidentiary value and even if the same is incriminating in any manner would not bind the accused as the defence counsel has no implied authority to admit the guilt of the facts incriminating the accused.
34.According to the learned counsel such suggestions could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the satisfaction made to a witness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri. LJ 4076, a three Judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365 of the IPC read with Section 3(1) and 3(5) of the Terrorists and Disruptive Activities (Prevention) Act, 1987.
36.In the aforesaid case, this Court, while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We Judgment 12 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 reply as under:
"15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is about 6-7 kms. away from his village Sakrahi. The witness identified the appellant-
Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination the witness stated as under:
"Accused-Tarun Boradid not blind my eyes nor he assaulted me."
17. This part of cross-examination is suggestive of the presence of accused-Tarun Bora in the whole episode. This will clearly suggest the presence of the accused- Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him."
37 In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re- appreciating the evidence on record, this Court noticed that in the cross-examination of the PW 4, Sube Singh, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following observations made by this Court in paragraphs 8 and 9 reply as under:
"8. PW 3, Bhagat Singh, stated in his examination-in- chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross- examined as to how and in what manner he could Judgment 13 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was not possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated that the accused Dharam Vir, was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, PW 4 said: "It is not correct that Dharam Vir accused was wearing a shirt of cream colour and not a white colour at that time."
The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence."
38.Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross- examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
39.Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value or utility if it incriminates the accused in any manner.
40.It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in Judgment 14 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
41.The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
42.Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.
43.The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. At this stage, we may quote with profit the observations made by a Division Bench of the Madhya Pradesh High Court in the case of Govind s/o Soneram v. State of M.P. reported in 2005 Cri.LJ 1244. The Bench observed in paragraph 27 as under:
Judgment 15 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
"27. The main object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit. It should be remembered that cross-examination is a duty, a lawyer owes to his clients and is not a matter of great personal glory and fame. It should always be remembered that justice must not be defeated by improper cross-examination. A lawyer owes a duty to himself that it is the most difficult art. However, he may fail in the result but fairness is one of the great elements of advocacy. Talents and genius are not aimed at self- glorification but it should be to establish truth, to detect falsehood, to uphold right and just and to expose wrongdoings of a dishonest witness. It is the most efficacious test to discover the truth. Cross-examination exposes bias, detects falsehood and shows mental and moral condition of the witnesses and whether a witness is actuated by proper motive or whether he is actuated by enmity towards his adversaries. Cross-examination is commonly esteemed the severest test of an advocate's skill and perhaps it demands beyond any other of his duties exercise of his ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort. Sometimes cross-examination assumes unnecessary length, the Court has power to control the cross- examination in such cases. (See Wrottescey on cross-examination of witnesses). The Court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime [See State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316]."
44.During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.
45.However, it would all depend upon the nature of the suggestions and with what idea in mind such suggestions are made to the witness. Take for instance in case of a charge of Judgment 16 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz rape under Section 376 of the Indian Penal Code, the statement of the accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the accused. In cases of rape, it is permissible for the accused to take more than one defence. In such type of cases a suggestion thrown by the defence counsel to a prosecution witness would not amount to an admission on the part of the accused. At the same time, if the defence in the cross examination of the prosecutrix, with a view to support their alternative case of consent procure answers to the questions in the form of suggestions implicating the accused for the offence of rape then such suggestions would definitely lend assurance to the prosecution case and the Court would be well justified in considering the same. We may give one more example of a case where the accused would plead right of a private defence. Such a defence is always available to the accused but although if such a defence is not taken specifically during the course of trial yet if the evidence on record suggests that the accused had inflicted injuries on the deceased in exercise of his right of private defence then the Court can definitely take into consideration such defence in determining the guilt of the accused. However, if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence.
26. In his cross-examination, PW1 and PW3 have also disclosed as how and in what manner, theft of electricity was being committed by the accused. PW1 and PW3 have clearly stated that accused was indulged in theft of electricity with the help of two core black colour cable which was found connected from BSES YPL Pole No.YVR-Z-646. Accused, who is stated to be present at the spot at the time of inspection, has not rebutted or denied this fact at all.
27. PW4 Sh. Sumit Kumar conducted the videography of the Judgment 17 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz Inspection Proceedings in which the commission of theft of electricity at the spot was recorded and this fact appears to have been admitted as in reply to the question of Ld. Defence counsel, PW4 clearly stated that the videography was captured on his instruction by PW3.
28. PW1 and PW3 further deposed that at the time of inspection, connected load was assessed as 2.218 KW and necessary videography of the inspection proceedings was done by PW4 Sh. Sumit Kumar. PW1 and PW3 were duly cross-examined by Ld. Counsel for accused was unable to bring out any contradiction in their testimony. Videography of the inspection proceedings also appears to have been admitted by the accused because accused has neither denied the videography nor its content. Rather, in reply to the question of Ld. Counsel, PW3 testified that he cannot tell the make of handy-cam which was used for videography during inspection.
29. In his evidence, PW1 and PW3 further deposed that the illegal wire was i.e. two black colour cable was removed and seized at the spot. During evidence before the court, the case property i.e. one black colour wire of 2x10 mm square having length of ½ meter was produced and shown to PW1 who has correctly identified the same as the same wire which was removed and seized at the spot vide seizure memo Ex.PW1/D. Accused has not disputed/rebutted this fact. The theft of electricity by the accused has been videographed by PW4 and the video Judgment 18 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz clearly demonstrate the mode and manner of theft of electricity being committed by the accused.
30. Accused could not specifically bring fourth anything in the cross-examination which could successfully rebut the preparation of inspection report as well as load report and their contents. Accused has simply put suggestion that the videography is false and fabricated one and that accused never indulged in theft of electricity and that accused has been falsely implicated in this case which facts have been denied by PW1, PW3 and PW4. Nothing contradictory emerged in the testimony of prosecution witnesses during cross-examination and the testimony of witnesses has been consistent and thus, the factum of inspection, preparation of inspection documents and videography of inspection proceedings done by videographer stands proved.
31.It is further submitted by Ld. Counsel for accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the testimony of prosecution witnesses that the accused was found indulged in direct theft of electricity through illegal wire and these facts have been well proved by PW1, PW3 and PW4.
32. During evidence, CD (Ex.PW1/A) 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 wire. Furthermore, Judgment 19 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz it is admitted position of fact that there was no electricity meter found installed in the inspected premises at the time of inspection.
33. Nothing has been brought on record to indicate that officials of complainant company had any animosity with the accused 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."
34. 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 imparts 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 Judgment 20 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz 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.
35. In addition, nothing incriminating has come on record to show that the inspection was not conducted as per the procedure prescribed under the DERC Regulations pertaining to the theft of electricity. There is not even a suggestion in the cross examination of witnesses that there is any procedural lapse or impropriety and the guidelines as prescribed have not been followed.
36. 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.
37. Coming to the Presumption as envisaged U/s 135 of Electricity Act, it is to be noted that it uses the word "shall presume". Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Judgment 21 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act."
38. 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 Judgment 22 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz 'prudent man'."
39. 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. Accused did not lead any defence evidence nor he has brought anything on record which could suggest that accused was drawing electricity through authorized means or electricity meter. Moreover, it is admitted position of fact that there was no electricity meter for inspected premises. As per load report, certain electric appliances were found in the inspected premises and accused has not explained as to from where he was drawing electricity to run those appliances. Also, it is not the case of the accused that there was any Genset and he was drawing energy from the same. In addition, there is not even an iota of evidence to suggest that the premises appearing in videography does not belong to the accused.
40. 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.47,582/- (Ex.PW1/E) against the accused and during the course of trial, accused settled the civil liability qua the impugned theft bill, although he has not deposited the settlement amount. During the course of arguments, Ld. Counsel for accused submitted that settlement amount has not been deposited by the accused due to financial constraints. In case, the officials of the complainant company would not have carried out the inspection as deposed by prosecution witnesses and Judgment 23 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz complainant company would have raised a false and baseless claim by way of theft bill (Ex.PW1/E), then instead of going for settlement, accused would have raised his protest and would have initiated appropriate proceedings against 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.
41. Notwithstanding, if the accused was not indulged in direct theft of electricity or 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. In view of these discussions, it is held that accused has failed to rebut the statutory presumption.
42. 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 Judgment 24 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz 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".
43. 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 and accused Mohd. Riyaz who was found indulging in direct theft of electricity through illegal wire, which is an offence punishable U/s 135 of the Electricity Act, 2003. Consequently, accused Mohd. Riyaz is convicted U/s 135 of the Electricity Act, 2003.
Let convict be heard on quantum of sentence. Announced in the Open Court on 04.05.2026 (Ashish Rastogi) Addl. Sessions Judge-05 (Electricity) East/Karkardooma Courts/Delhi Judgment 25 of 25