Delhi District Court
State(Bses) vs Sabir on 26 July, 2024
SC No.564/2022 State Vs. Sabir
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 564/2022
FIR No. 384/2020
Under Section 135/150 Electricity Act
PS Jafrabad
State
versus
Sabir
S/o Sh. Khachedu
R/o C-98/22, Main Road, Chauhan Bangar,
Delhi-110053
.... Accused
Date of institution 19.05.2022
Judgment reserved on 31.05.2024
Judgment Pronounced on 26.07.2024
Decision Convicted
JUDGMENT
1. Accused Sabir is facing trial upon the allegations that he indulged in theft of electricity and thereby, committed an offence punishable under Section 135 r/w Section 150 of Electricity Act 2003 (hereinafter referred to as 'the Act').
Judgment 1 of 21
SC No.564/2022 State Vs. Sabir
Brief Facts
2. On 15.01.2020, at about 11.20 am, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by PW2 Sh. Sanwar Mal Pareek (Assistant Manager) in the residential premises of accused at House No.C-98/22, Second Floor, Main Road, Chauhan Bangar, Delhi-110053.
3. At the time of inspection, no electricity meter was found installed at the site and user i.e. tenant/co-accused Israr (since not traced) 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.X-371.
4. At the time of inspection, total connected load was found to be 5.276 KW which was being used for domestic purposes. Videographer Sh. Satender Pawar (PW4) captured videography of inspection proceeding. Inspection documents i.e. Inspection Report, Load Report, Seizure Memo and advisory notice 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.94,784/- 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 Judgment 2 of 21 SC No.564/2022 State Vs. Sabir company through its Authorized Officer lodged a complaint U/s 135, 138 & 150 Electricity Act with SHO, PS Jafrabad for registration of FIR against the accused Sabir U/s 135, 138 & 150 of the Electricity Act being owner of the inspected premises and U/s 135 & 138 of the Electricity Act against the accused Israr being user of electricity.
7. Initially, the complaint was marked to HC Rakesh Kumar who made endorsement Ex.PW1/A and got registered FIR No.384/2020 (Ex.PW1/B). On being transferred, further investigation of the case was marked to HC Bhoodev, the IO of the case. During investigation, it was revealed that accused Sabir was owner of the inspected premises while co-accused Israr was his tenant and was user of the electricity in the inspected premises at the relevant time. After completion of investigation, HC Bhoodev (PW2) filed the charge-sheet keeping co-accused/tenant Israr in column no.12 being not traceable.
Notice
8. On 14.12.2023, notice U/s 251 Cr.P.C for commission of offence punishable under Section 135 r/w Section 150 of the Act was given to accused Sabir. He did not plead guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution Judgment 3 of 21 SC No.564/2022 State Vs. Sabir examined following three witnesses.
10. PW1 HC Rakesh Kumar, is the IO initial of the case, who proved endorsement Ex.PW1/A and copy of FIR as Ex.PW1/B.
11. PW2 HC Bhoodev is the subsequent IO who conducted further investigation and filed the charge-sheet. He proved notice U/s 41A Cr.P.C. given to accused as Ex.PW2/A and notice U/s 91 Cr.P.C given to accused as Ex.PW2/B and its reply as Ex.PW2/D. He also seized copy of Aadhar Card of accused, electricity bill in the name of accused Sabir, copy of order of Lok Adalat and receipt of payment of the theft bill vide seizure memo Ex.PW2/C. He also proved Pabandinama Ex.PW2/E.
12. PW3 Sh. Sanwar Mal Pareek is Team Leader/complainant who was heading the inspection team. He proved CD of videography of the inspection proceedings as Ex.PW3/A, inspection report as Ex.PW3/B, load report as Ex.PW3/C, advisory notice as Ex.PW3/D and theft bill as Ex.PW2/E. He also proved the complaint as Ex.PW3/F.
13. PW4 Sh. Satender Pawar is the videographer who, on the instruction of team leader Sh. Sanwar Mal Pareek, captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW3/A. Statement of Accused
14.All incriminating evidence which has come on record, Judgment 4 of 21 SC No.564/2022 State Vs. Sabir 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. However, accused did not lead any Defence Evidence.
Arguments
15.Ld. Addl. PP submitted that accused was found indulged in direct theft of electricity and no electricity meter was 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.
Analysis
16.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.
17.At the outset, it would be appropriate to reproduce the definition of 'consumer'. The relevant provision of Section 2 (15) of the Act is produced as under:-
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the Judgment 5 of 21 SC No.564/2022 State Vs. Sabir time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;"
18.In this case, accused Sabir was found to be owner of the inspected premises and his tenant/co-accused Israr (since not traced) was found to be user of electricity at the relevant time. Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises/registered consumer are covered under the definition of the 'consumer' and thus, they are liable for punishment if illegal abstraction of energy is found at the premises of accused. In this regard, this court is also supported with the judgment of the Hon'ble Delhi High Court reported as Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal No.479/2011).
19.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 Section 135 r/w Section 150 of the Act. The provision of Sections 135 & 150 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 Judgment 6 of 21 SC No.564/2022 State Vs. Sabir 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:
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence. (2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both.
(3) Notwithstanding anything contained in sub-
section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the Judgment 7 of 21 SC No.564/2022 State Vs. Sabir commission of an offence punishable under sub- section (1) of section 135, sub-section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
20. 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.
21.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".
22.As per prosecution case, at the time of inspection, no electricity was found installed in the inspected premises and accused Sabir as well as co-accused Israr (since not traced) were found indulged in direct theft of electricity with the help of illegal wire connecting the same with BSES Pole No.X-371. Accused Sabir who was present at the time of inspection, was found to be owner of the inspected premises and he disclosed that accused Israr was Judgment 8 of 21 SC No.564/2022 State Vs. Sabir his tenant and was user of the electricity in the inspected premises. Accused Sabir being owner of inspected premises let/permitted/allowed the user/accused Israr to commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
23. 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 an Inspection Report, Regulation 62 lays down procedure ti report a case of theft and then under Regulation 63 there is assessment of theft bill.
24. 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:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the Judgment 9 of 21 SC No.564/2022 State Vs. Sabir occupier of the premises before entering the premises and take the acknowledgment.
(4) The 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 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: -
Judgment 10 of 21 SC No.564/2022 State Vs. Sabir
(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 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 Judgment 11 of 21 SC No.564/2022 State Vs. Sabir 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.
(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.
25. As per prosecution case, at the time of inspection, no electricity meter was found installed in the inspected premises and co-accused Israr who was alleged to be tenant (of accused Sabir) as well as user of the electricity in the inspected premises was indulged in direct theft of electricity.
26. PW3 Sh. Sanwar Mal Pareek (Sr. Manager) and PW4 Sh.
Satender Pawar (Videographer) are prime witnesses of this case being members of inspection team. PW3 corroborated the allegations made in the complaint (Ex.PW3/F) and Judgment 12 of 21 SC No.564/2022 State Vs. Sabir deposed that at the time of inspection, no electricity meter was found installed at the inspected premises and that, accused who was present at the spot and was occupying the premises as owner of the inspected premises, was found indulged in direct theft of electricity with the help of two core black colour wire which was found connected from BSES Pole No. X-371. PW3 further deposed that at the time of inspection, one person was present who disclosed his name as Sabir who is stated to have disclosed that Israr was his tenant as well as user of the electricity at the time of inspection. Accused has not specifically denied these facts during cross-examination of PW3.
27. PW3 further deposed that at the time of inspection, total connected load was found to be 5.276 KW which was being used for domestic purposes. He further deposed that the load was taken physically as accused Sabir did not allow the inspection team to take videography of the connected load and this fact has not been disputed by the accused at all in the cross-examination of PW2.
28. PW4 conducted the videography of the Inspection Proceedings in which the commission of theft of electricity at the inspected premises was recorded. PW3 & PW4 were duly cross-examined by Ld. Counsel for accused was unable to bring out any contradiction in their testimony. Ld. Counsel for accused merely put suggestions to witnesses that no inspection took place and any such documents were not prepared which were categorically Judgment 13 of 21 SC No.564/2022 State Vs. Sabir denied by witnesses. Accused has simply denied the inspection documents but he has not denied its contents. Accused has not disputed the load mentioned in the load report, however, to the query regarding running of load, PW3 specifically stated that entire electric appliances/load was running through illegal wire. Ld. Counsel for accused simply put suggestion that at the time of inspection no theft of electricity was detected.
29. As per load report, certain electrical appliances were found installed at the inspected premises. In the load report, calculation of the load has been mentioned and accused person has disputed the calculation of the load as mentioned in the load report. Accused has not rendered any alternative explanation. Accused Sabir is admittedly the owner of the inspected premises. Co-accused Israr is stated to be user of the electricity at the relevant time. Although, he was stated to be not present at the site at the time of inspection, accused Sabir was admittedly present at site at the time of inspection. So it is evident that accused knew that co-accused also shared the intention alongwith accused to indulge into acts constituting direct theft of electricity. Furthermore, accused was well known that there was no electricity meter in the inspected premises despite that he let out the inspected premises (if version of accused Sabir is presumed to be correct that Israr was his tenant and was using electricity in the inspected premises) or allowed the co-accused to use inspected premises which Judgment 14 of 21 SC No.564/2022 State Vs. Sabir shows malafide intention of the accused to commit direct theft of electricity causing loss to exchequer.
30. 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 documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stands proved.
31.It is submitted on behalf of accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the accused was found indulged in direct theft of electricity through illegal wire and these facts have been well proved by PW3 & PW4.
32. During evidence, CD (Ex.PW4/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. Accused has neither disputed his identity nor the identity of the inspected premises shown in the video contained in the CD. Furthermore, it is admitted position of fact that there was no electricity meter available at the premises of the accused at the time of inspection.
33. Nothing has been brought on record to indicate that Judgment 15 of 21 SC No.564/2022 State Vs. Sabir 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 is 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 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.
Judgment 16 of 21 SC No.564/2022 State Vs. Sabir
35. In addition, nothing 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 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 Judgment 17 of 21 SC No.564/2022 State Vs. Sabir 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 'prudent man'."
Judgment 18 of 21 SC No.564/2022 State Vs. Sabir
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.
40. Rather in the advisory notice proved as Ex.PW2/D, it is clearly mentioned that in case the accused/user has anything to say against the inspection, he should have filed written objection thereto within four working days but the user/accused chose not to file any objection which indicates the involvement of the accused in direct theft of electricity else he would have raised her objection before the competent authority.
41.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 Judgment 19 of 21 SC No.564/2022 State Vs. Sabir anything on record to disprove the allegations brought on record by the prosecution. Accordingly, 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 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. Accused did not lead any defence evidence. If the tenant i.e. Israr was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused Sabir, who claimed himself to be landlord Judgment 20 of 21 SC No.564/2022 State Vs. Sabir of the inspected premises, was liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is admitted position of fact that inspected premises was belonging to accused Sabir at the relevant time, which was let out to co-accused Israr (not traceable). Accused has not brought any material on record or lead any evidence to disprove the prosecution case.
44. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that user/co-accused Israr (since not arrested) dishonestly indulged in direct theft of electricity through illegal wire. It is also proved on record that accused Sabir was the owner of inspected premises and accused/user Israr has been proved to have indulged in direct theft of electricity by attaching illegal external device. Accused Sabir Singh being the owner let/permitted/consciously allowed the user/accused Israr to commit direct theft of electricity. Thus, accused Sabir is guilty of abetment of offence of direct theft of electricity. Accordingly, Sabir is convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003. File be taken up again as and when user/co-accused Israr is arrested.
Let convict be heard on quantum of sentence.
Digitally Announced in the Open Court on 26.07.2024 signed by Ashish Ashish Date:
Rastogi Rastogi 2024.07.26 18:06:27 +0530 (Ashish Rastogi) Addl. Sessions Judge-05 (Electricity) East/Karkardooma Courts/Delhi Judgment 21 of 21