Delhi District Court
State vs Sarfraz Ahmed on 23 August, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.147/2022
FIR No.620/2019
U/s 135 of Electricity Act
PS Jafrabad
State versus Sarfraz Ahmed
S/o Sagir Ahmed
R/o H.No.1415, Gali No.50,
Jafrabad, Delhi
Date of institution 09.02.2022
Arguments heard 18.08.2022
Date of judgment 23.08.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Sr. Manager Sh. Joby PC, made a complaint U/s 135 & 150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') to the SHO, PS Jafrabad with a prayer to register an FIR against the accused Saddiqan (registered consumer) and accused Sarfraz Ahmed U/s 135/150 of the Act.
2. Succinctly, the facts of the case are that on 07.10.2019, at about 1.55 pm, an inspection was conducted by the Enforcement team of BSES YPL comprising of Sh. Joby PC (Sr. Manager), Sh. Sandeep Gupta (DET) and Sh. Mohan Pal (Technician) at the premises of accused persons i.e. FIR No.620/2019 State vs Sarfraz Ahmed 1 of 14 H.No.1415, Main Road Jafrabad, Pole No. YVR Y 103, Delhi-110053. At the time of inspection, one electricity meter No.11817385 was found installed at site but the user/accused was found indulged in direct theft of electricity through two illegal wires which were found connected to the input terminal of BSES meter. Total connected load was found to the tune of 3.237 KW/DX/DT which was being used for domestic purposes. The illegal material and aforesaid meter were removed and seized at the spot.
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 which was prepared at the site was tendered to 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. Shailesh. Following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.58,882/-. 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 and Certificate U/s 65B of the Evidence Act were also submitted alongwith the complaint. Thus, a prayer was made for registration of an FIR against the user and registered consumer.
3. The SHO handed over the said complaint (Ex.PW2/7) to HC Pardeep. HC Pardeep made endorsement on the complaint and handed over the complaint to Duty Officer for registration of an FIR. Accordingly, the Duty Officer registered the FIR No.620/2019 and assigned the investigation of the case HC Pardeep. After transfer of HC Pardeep, further investigation of the case was assigned to HC Jitender, the IO of the FIR No.620/2019 State vs Sarfraz Ahmed 2 of 14 case. Thereafter, HC Jitender visited the inspected premises, prepared site plan and served the accused with the notice U/s 41.1(A) Cr.P.C. Accused joined the investigation and IO interrogated the accused and prepared interrogation report. IO collected copy of Aadhar Card of the accused as well as copies of ownership documents of the inspected premises. During investigation, it came to notice that accused Sarfraz Ahmed became owner of the inspected premises after demise of his mother late Saddiqan and accused was in possession of the inspected premises at the relevant time. IO bound down the accused vide Pabandinama. After completion of investigation, the charge-sheet was filed against the accused.
4. On 06.06.2022, 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. Joby PC is the DGM of the complainant company. This witness deposed that on 07.10.2019, at about 1.15 pm, an inspection was conducted by the enforcement team of BSES YPL at the premises of accused i.e. H.No.1415, Main Road Jafrabad, Delhi-110053. The inspection team was comprised of himself, Sh. Sandeep Kumar Gupta (DET), Sh. Mohan Pal (Lineman) and Sh. Shailesh (Videographer). At the time of inspection, one meter No.11817385 with reading 19710 KW of FIR No.620/2019 State vs Sarfraz Ahmed 3 of 14 units was found installed against CA No.101310443 in the name of Saddiquan (deceased), however, the user/accused was found indulged in direct theft of electricity with the help of illegal wire which was connected from input terminal of the said meter. At the time of inspection, total connected load was found to the tune of 3.327 KW which was being used for domestic purpose at the front portion of the first floor. 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. Shailesh. 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 the witness identified the video which was recorded by the videographer during inspection. The witness also identified the accused Sarfraz Ahmed 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 and the said meter no.11817385 were removed by the lineman Sh. Mohan Pal and seized at the spot vide seizure memo Ex.PW2/4. During inspection, he also issued an advisory notice (Ex.PW2/5) to the accused. Entire set of documents prepared at site during inspection was tendered to the accused for signature but he refused to sign and accept the same. On the basis of inspection, a theft bill of Rs.58,882/- (Ex.PW2/6) was raised and sent to accused. PW2 further deposed that on 14.10.2019, he lodged a complaint (Ex.PW2/7) to the SHO, PS Jafrabad for registration of an FIR against the accused.
(5.2) PW3 Sh. Sandeep Kumar Gupta is the Diploma Trainee Engineer FIR No.620/2019 State vs Sarfraz Ahmed 4 of 14 (DET). This witness was one of the members of the inspection team and he has corroborated the testimony of PW2 and deposed on the similar lines of testimony of PW2.
(5.5) PW1 HC Jitender is the IO of the case. This witness deposed that in the month of October, 2019, the complaint lodged by Sh. Joby PC (Sr. Manager) was marked to HC Pradeep. On 01.11.2019, the said complaint was marked to him for registration of an FIR. Thereafter, he made endorsement Ex.PW1/1 on the complaint and registered the present FIR and also issued certificate U/s 65B of Evidence Act. Copy of FIR and said certificate have been brought on record as Ex.PW1/2 and Ex.PW1/3. PW1 further deposed that after transfer of HC Pradeep, the investigation of the case was marked to him. Thereafter, he visited the spot, prepared site plan Ex.PW1/4 and served the accused with the notice u/s 41(A) Cr.P.C (Ex.PW1/5). Accused joined the investigation and he interrogated the accused and prepared interrogation report Ex.PW1/6. Accused also produced copy of his Aadhar Card as well as copies of ownership documents which have been brought on record as Mark A colly. During investigation, it came to notice that accused became owner of the inspected premises after the death of his father and he was in possession of the inspected premises at the time of inspection. He bound down the accused to appear before the court vide Pabandinama Ex.PW1/7. On completion of investigation, he filed the present charge.
6. After completion of prosecution evidence, statement of the accused was recorded U/s 313 Cr.P.C. Accused did not deny the factum of inspection of his premises. He also admitted the fact that electricity meter FIR No.620/2019 State vs Sarfraz Ahmed 5 of 14 No.11817385 was lying installed at the inspected premises and the said meter alongwith illegal wires was removed by the lineman during inspection. Accused also did not deny the fact that he was present at the spot at the time of inspection and necessary videography was done by the videographer. However, accused denied that he committed direct theft of electricity. Accused 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, it was submitted by Ld. Addl. PP that at the time of inspection, electricity meter No.11817385 was found installed at the inspected premises despite that accused was found indulged in direct theft of electricity. Ld. Addl. PP further submitted that the prosecution has proved the allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. On the other hand, Ld. Defence Counsel submitted that accused is innocent and he has been falsely implicated in this case. It was submitted that accused has not committed any theft.
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 the Act. The provision of section 135 of the Electricity Act is reproduced as under:-
FIR No.620/2019 State vs Sarfraz Ahmed 6 of 14 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 -
(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 FIR No.620/2019 State vs Sarfraz Ahmed 7 of 14 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, electricity meter No.11817385 was found installed at site but the user/accused was found indulged in direct theft of electricity through two illegal wires which were connected to the input terminal of the said meter. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
11. PW2 Sh. Joby PC (DGM) and PW3 Sh. Sandeep Kumar Gupta (DET) are the material witnesses. These witnesses were members of the inspection team which was being headed by Sh. Joby PC (DGM). PW2 and PW3 have corroborated the allegations made in the complaint (Ex.PW2/7) and deposed that at the time of inspection, one electricity meter No.11817385 was found installed in the name of late Saddiqan (mother of accused) and accused was found indulged in direct theft of FIR No.620/2019 State vs Sarfraz Ahmed 8 of 14 electricity with the help of illegal wires which were joined with the input terminal of the said meter. PW2 and PW3 further deposed that the illegal wires and aforesaid meter were removed by the lineman and seized at the spot and this fact has not been disputed by the accused during the cross- examination of PW2 and PW3. PW2 and PW3 also deposed that at the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by videographer Sh. Shailesh and accused has not disputed this fact in his statement recorded U/s 313 Cr.P.C. PW2 and PW3 also deposed that the documents namely inspection report, load report, seizure memo and advisory notice were prepared at the spot and PW2 and PW3 have brought on record the inspection report as Ex.PW2/2, load report as Ex.PW2/3 and seizure memo as Ex.PW2/4. PW2 has also brought on record the advisory notice Ex.PW2/5 and the electricity bill on record as Ex.PW2/6. During the cross-examination of PW2 and PW3, accused endeavoured to dispute the inspection as well as his presence at the spot. He also endeavoured to dispute the preparation of aforementioned documents and the videography of the inspection proceedings. 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 inspection and preparation of the relevant documents. In his statement U/s 313 Cr.P.C as well as in the cross-examination of PW2 and PW3, accused has not disputed the fact that electricity meter No.11817385 was lying installed for the inspected premises in the name of his late mother. Accused has simply stated that he did not commit any direct theft if electricity, however, he has FIR No.620/2019 State vs Sarfraz Ahmed 9 of 14 not explained as to why the aforesaid electricity meter No.11817385 was removed at the time of inspection if he was not involved in direct theft of electricity. In his statement recorded U/s 313 Cr.P.C, accused has not disputed the authenticity of the video contained in the CD Ex.PW2/1. Accused has also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in the load report (Ex.PW3/2). Thus, the factum of inspection, preparation of inspection documents, presence of accused at the spot at the time of inspection and videography of the inspection proceedings done by videographer stand proved.
12. It is clear from the deposition of PW2 and PW3 that on 07.10.2019, at about 1.15 pm, an inspection was carried out at the premises of accused by the inspecting team members/officials of complainant company. It is also clear that electricity meter No.11817385 was lying installed at the inspected premises in the name of Saddiqan, (late mother of accused) and the said meter alongwith illegal wires were removed by the lineman and the user/accused was indulged in direct theft of electricity through illegal wires. The inspection proceedings were recorded by videographer and CD of the said inspection proceedings has been brought on record as Ex.PW2/1. PW2 and PW3 have also proved the relevant documents namely inspection report as Ex.PW2/2, load report as Ex.PW2/3 and seizure memo as Ex.PW2/4. PW2 also proved the advisory notice as Ex.PW2/5 and electricity bill as Ex.PW2/6.
13. It was also submitted on behalf of the accused that the prosecution case is highly doubtful as no public witness was joined during FIR No.620/2019 State vs Sarfraz Ahmed 10 of 14 the inspection of the premises. It is clear from the aforesaid discussions that the user/accused was found indulged in direct theft of electricity through illegal wires and these facts have been well proved by PW2 and PW3. Furthermore, it is admitted position of fact that electricity meter No.11817385 was lying installed at the spot and said electricity meter and illegal wires were removed by the lineman at the time of inspection as the accused was indulged in direct theft of electricity. Thus, it is clear from the record that the officials of complainant company who had no animosity with the accused, have proved the allegations beyond reasonable doubt and therefore, under these circumstances, non-joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court 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 High Court has held that non-examination of independent/public witness is no infirmity as the members of the inspection team who deposed in the FIR No.620/2019 State vs Sarfraz Ahmed 11 of 14 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 aforesaid statutory presumption. It is clear from the record that in his statement recorded U/s 313 Cr.P.C, the accused has simply stated that that he has already settled the matter with the FIR No.620/2019 State vs Sarfraz Ahmed 12 of 14 complainant company and settlement amount has already been paid. It is clear from the record that the accused did not lead any defence evidence. If the accused 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. 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.58,882/- (Ex.PW2/6) against the accused and it is further clear from the statement of accused recorded U/s 313 Cr.P.C that the accused settled the matter qua the theft bill 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 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. 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 FIR No.620/2019 State vs Sarfraz Ahmed 13 of 14 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 beyond reasonable doubt that despite having an electricity meter, accused 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.
(Ajay Gupta) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 23.08.2022 FIR No.620/2019 State vs Sarfraz Ahmed 14 of 14