Delhi District Court
That There Was Theft/Abstraction Of ... vs . on 11 December, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
SC No : 1936/16
FIR No : 202/13
P.S : KRISHNA NAGAR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
RAJPAL SINGH
S/o Late Sh. Dulli Chand
R/o 9/5224, Old Seelampur,
Delhi 110 031.
........... Accused
DATE OF INSTITUTION OF THE CASE : 09.05.2016
DATE ON WHICH JUDGMENT WAS RESERVED: 28.11.2018
DATE OF PASSING OF JUDGMENT : 11.12.2018
JUDGMENT :
A Criminal Complaint addressed to the Station House
Officer, Krishna Nagar, Police Station, Delhi was filed by Sh.
Mukesh Ravivanshi, the then Manager (Enforcement
I)/Authorized Officer of BSES YPL company (in short to be called
as Complainant Company hereinafter) against accused namely
Rajpal Singh for the offence punishable u/s 135 of the Electricity
Act, 2003 (in short called as Act hereinafter) r/w Sec.379/34 IPC
for an offence of electricity theft against accused.
SC No : 1936/13 STATE VS. RAJPAL SINGH 1/28
(A) FACTS :
2. The main allegation made in the said complaint are to
the effect, interalia that on 21.01.2013 at about 01 : 20 p.m., an
inspection was carried out by the officials of BSES YPL
comprising of Sh. Mukesh Ravivanshi (Manager), Sh. Hitesh
Rajput (D.E), Sh. Umesh Kumar (Lineman), Sh. Parvesh Sharma
(Lineman) at the premises i.e. 9/4864, East Old Seelampur, Main
Road, Krishna Nagar, Delhi 110 031 (in short called as
inspected premises) where accused Rajpal Singh was found
indulged in direct theft of electricity by bypassing the Meter
No.11309470 installed in the name of the accused. It has been
further stated that accused was using said illegal electricity
supply for commercial purposes.
3. It has been further alleged in the Complaint that a
total connected load of 45.163KW/NX/DT(in short KW) was
checked & assessed during the course of said inspection which
was being illegally used by accused by bypassing the meter
installed at the inspected premises by the complainant company.
It has been further alleged that the inspection report, load report
and seizure memo were prepared at the spot. The necessary
videography of the inspected premises showing irregularities
were also done and the accused was found committing direct
theft of electricity at the time of inspection by using electricity
illegally from the system of the Complainant Company for
commercial supply, though, connected load of some portion of
SC No : 1936/13 STATE VS. RAJPAL SINGH 2/28
the inspected premises could not taken due to resistance of the
accused. It has been further alleged that during inspection,
accused was found stealing electricity for an amount of
Rs.48,18,969/(Rupees forty eight lacs eighteen thousand nine
hundred sixty nine only) and a theft bill was also raised. Hence,
the present Complaint dt.04.03.2013 was filed against the
accused for initiating legal action as per law including the
determination of civil liability against him as per the provision of
Section 154(5) of the Act. Upon the said complaint, the present
FIR No.202/13 for offence punishable U/Sec.135 of Act r/w
Sec.379 of Indian Penal Code (for short IPC) was registered on
08.05.2013 against accused namely Rajpal Singh.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted.
During investigation, I.O recorded the statement of the witnesses
and after completion of investigation, present chargesheet
U/Sec.173 of Criminal Procedure Code (in short Cr.P.C) was filed
against the accused. Thereafter, accused was summoned.
(C) NOTICE :
5. After compliance of provision U/Sec.207 of Cr.P.C, on
18.01.2018 a notice of accusation was framed against the
accused by this Court for the offence punishable u/s 135 of the
Electricity Act to which he pleaded not guilty and claimed trial.
SC No : 1936/13 STATE VS. RAJPAL SINGH 3/28
(D) PROSECUTION EVIDENCE :
6. In support of its case, the Prosecution has examined
four (4) witnesses in order to substantiate the allegation :
(1) ASI Rajender Singh, Duty Officer was examined as PW1,
who got FIR of the present case registered and has
tendered carbon copy of FIR during his examinationin
chief as Ex.PW1/A. He also got identified his endorsement
on the Complaint dt.04.03.2013 as Ex.PW1/B.
(2) Sh. Mukesh Ravivanshi, DGM, BSES YPL was examined as
PW2, who has deposed that on 21.01.2013 he alongwith
the inspecting team had conducted raid on inspected
premises and Rajpal Singh was found indulged in direct
theft of electricity by bypassing the meter by tapping from
the nearby BSES Pole through illegal yellow colour
aluminum wire and distributed the electricity through black
colour aluminum wire in the inspected premises. He has
relied upon documents i.e. the CD containing videography
of the inspected premises as Ex.PW2/1, the joint
inspection report as Ex.PW2/2, seizure memo as Ex.PW
2/3, Load report as Ex.PW2/4, Complaint filed by him
before the P.S. Krishna Nagar as Ex.PW2/5. He has
correctly identified the accused Rajpal Singh as well as the
case property of the present case i.e 2 single core aluminum
wires of black colour as Ex.P1, one yellow colour
armoured cable as Ex.P2 and carbon copy of seizure memo
as Ex.P3.
SC No : 1936/13 STATE VS. RAJPAL SINGH 4/28
(3) ASI Amar Chand/I.O was examined as PW3, who got
registered the FIR No.202/13 of the present case as Ex.PW
1/A. He has deposed that he had conducted the
investigation of the present case after making endorsement
Ex.PW3/A upon the complaint and also inspected the
premises of the accused and searched for him. However,
accused was found absconding. Thereafter, accused
himself surrendered before the Court and an order was
passed by the Ld. Court not to arrest the accused and
directed him to join the investigation of the present case
vide order dt.01.12.2015 as Ex.PW3/B. He has further
deposed that he had verified the site plan prepared by the
inspection team. He has also seized the case property of
the present case vide seizure memo Ex.PW3/P1. He has
further deposed that on 12.08.2013 he had recorded
statement of BSES YPL officials/raiding party members and
filed the challan against the accused before the Court.
(4) Sh. Hitesh Rajput, Supervisor was examined as PW4, who
has deposed on the same lines of PW2 being one of the
raiding party member. He has also identified the accused
as well as the case property.
All the material witnesses were crossexamined at length.
7. No other witness was produced or examined on
behalf of the prosecution's side. Hence, on 10.09.2018 as per
their oral submission, P.E was closed and matter was fixed for
SC No : 1936/13 STATE VS. RAJPAL SINGH 5/28
recording Statement of the accused Rajpal Singh U/sec.281 r/w
Sec.313 Cr.P.C.
(E) STATEMENT OF ACCUSED :
8. On 18.09.2018 statement of the accused Rajpal Singh
U/sec.281 r/w Sec.313 Cr.P.C was recorded explaining all the
incriminating evidence against him on record which he denied as
false & incorrect. Accused has asserted in his statement that he
has been falsely implicated in the present case by the
complainant company. He has further asserted that there was no
electricity theft through any illegal wire at his premises at any
point of time nor any labourer disclosed his name or any
commercial work was being done by him at the inspected
premises. However, he has admitted in his statement that he has
been known by the name of Bhagwa in the locality and meter
No.11309470 was installed in his name. However, in his further
statement, he has further asserted that he was doing the business
of cloth sewing and one godown was there on the ground floor.
He has further denied that any raid was conducted at his
premises. In his further statement, he has admitted that officials
of complainant company visited the inspected building and
remained there from 3 : 30 p.m .to 5 : 00 p.m and he was also
present there. However, no raid was conducted at his portion
nor any document was prepared or offered to him. He had
denied that he ever resisted the complainant company officials
from pasting the document upon the inspecting premises. He has
SC No : 1936/13 STATE VS. RAJPAL SINGH 6/28
further asserted that no wire was removed by the raiding team,
infact they left the wire as it was there at the inspected premises.
He has further asserted that the inspected premises was jointly
owned by him and his brothers. However, thereafter, his brothers
sold their portion to one Naveen Chaudhary. He has further
asserted that I.O in the present case had wrongly verified his
portion as the place of offence at pointX. He further asserted
that he has been falsely implicated in the present case by Sh.
Naveen Chaudhary, in connivance with BSES officials by
imposing a false raid upon his premises.
Accused preferred to lead defence evidence. Hence,
case was fixed for defence evidence.
(F) DEFENCE EVIDENCE :
9. Now turning to the defence evidence of the accused,
wherein he has examined himself as DW1 and has proved
documents i.e.Representation/Compliant made in Enforcement
Department dt.21.11.2015 as Ex.PW3/D1, Complaint to BSES
dt.25.06.14 marked as Mark D1, Copy of Sale deed executed in
favour of Umrila Chaudhary by Randheer Singh dt.26.02.2010 as
Ex.DW1/A, Copy of Sale deed dt.03.05.2010 executed in favour
of Urmila Chaudhary by Ranvir Singh as Ex.DW1/B, Old Site
Plan of the inspected premises as Ex.PW2/D4, New Site Plan of
the inspected premises as Ex.PW2/D5, Postal receipt
dt.21.11.2015 as Ex.DW1/C (Colly).
SC No : 1936/13 STATE VS. RAJPAL SINGH 7/28
10. He has been crossexamined at length. During his
crossexamination he has deposed that the red portion shown in
the site plan Ex.PW2/D5 belongs to him. During his cross he has
admitted that at the time of inspection his portion was
constructed upto second floor and stitching work was going on at
that time. He has denied that any lathe work was running at his
portion at the time of inspection.
Thereafter, defence evidence was closed on the same
day i.e.09.10.2018 as per the oral submission.
(G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
11. I have heard final arguments advanced on behalf of
the parties. I have also gone through the record as well as
contents of CD of the videography, written submissions filed on
behalf of the parties and relevant provisions of case law.
12. The main submissions made during the course of final
arguments on behalf of the prosecution/complainant were inter
alia, to the effect that the accused herein was found indulged in
direct theft of electricity by bypassing the meter No.11309470
installed in his name through illegal aluminum cable joint with
two number of black colour aluminum wires from nearby BSES
pole without any authority in this regard; that accused herein
had not taken any permission from the complainant company for
using electricity in such a way; that due to illegal theft of
electricity committed by the accused, the complainant company
SC No : 1936/13 STATE VS. RAJPAL SINGH 8/28
suffered huge monetary loss; that such illegally extracted
electricity was used by the accused for commercial purposes; that
all the material witnesses have been examined in this case by the
prosecution and that they have duly proved the case against the
accused herein by way of cogent evidence, both oral as well as
documentary; that ultimately, an theft bill to the extent of
Rs.48,18,969/ was sent to the accused but he deliberately failed
to pay any amount out of it to the complainant company; that all
the necessary formalities like conducting of inspection,
preparation of inspection report, load report, seizure memo etc.
were done by the team of the complainant company at the spot
as per rules; that copies of all the documents prepared at the spot
were tendered to the accused but he refused to accept and sign
the same deliberately for the reasons best known to him; that
accused is liable to be convicted as per law; that accused is also
liable for civil liability as per law. In the end, a prayer was made
for convicting the accused as per law for the offence punishable
U/Sec.135 of the Electricity Act, 2003 as well as for making him
liable for civil liability as per provisions of Section 154(5) of the
Act.
13. On the other hand, the main submissions made by Ld.
defence Counsel during the course of oral final
arguments/written submissions on behalf of the accused Rajpal
Singh were, interalia to the effect that on 21.01.2013 BSES
officials took videography of the rear portion of the inspected
SC No : 1936/13 STATE VS. RAJPAL SINGH 9/28
premises but left without removing any cable from the alleged
spot of theft of electricity; that no documents like inspection
report, load report, meter detail report, seizure memo etc. were
prepared by them at the spot; raised a false bill against the
electricity meter of the accused without verifying the facts from
any authority about the Ownership of the portion in which theft
was going on; that the inspected premises was a joint property
and later on equally divided amongst accused and his brothers
namely Randhir Singh and Ranbir Singh by their mutual consent;
thereafter, his brothers sold their portion to one Ms. Urmila
Chaudhary, W/o Sh. Naveen Chaudhary in the year 2010 and
that from 2010 till date said Ms. Urmila Chaudhary is in
possession of portion of the premises wich was actually inspected
but no electrical connection or electric meter in her name is
installed till date and same fact has never been brought before
the Court by the Complainant Company; that accused is in
possession of the portion shown in red colour Ex.PW2/D4 and
PW2/D5; that accused has no concern with the property shown
in yellow and green colour as same had already been sold by his
brothers to Ms. Urmila Chaudhary; that accused has been falsely
implicated in this case by the officials of the Complainant
Company; that all the witnesses of the prosecution/complainant
company have deposed falsely in this case; that no independent
witnesses of the locality were joined by the inspecting party
during the alleged inspection conducted in this case; that
accused is not liable to be convicted in this case for any offence
SC No : 1936/13 STATE VS. RAJPAL SINGH 10/28
or that accused is not liable for any civil liability in this case. In
the end, a prayer was made for acquittal of the accused for the
offence U/Sec.135 of the Act as well as for discharging him from
civil liability as per provision of Section 154(5) of the Act.
14. Before going through the facts of the present case, it
will be relevant to reproduce the relevant provisions of
Electricity Act for ready reference :
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
(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,
(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
SC No : 1936/13 STATE VS. RAJPAL SINGH 11/28
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 us :
(i) does not exceed 10 kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on account of
such theft of electricity and in the event of second or subsequent
conviction the fine imposed shall not be less than six times the
financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall
not be less than three times the financial gain on account of such
theft of electricity and in the event of second or subsequent
conviction, the sentence shall be imprisonment for a term not less
than six months, but which may extend to five years and with fine
not less than six times the financial gain on account of such theft of
electricity.
Provided further that in the event of second and subsequent
conviction of a person where the load abstracted, consumed, or used
or attempted abstraction or attempted consumption or attempted
use exceeds 10 kilowatt, such person shall also be debarred from
getting any supply of electricity for a period which shall not be less
than three months but may extend to two years and shall also be
debarred from getting supply of electricity for that period from any
other source or generating
station........................................................
SC No : 1936/13 STATE VS. RAJPAL SINGH 12/28
15. Thus, from the aforesaid provision of law, it is clear
that the Complainant Company is required to prove as under :
1. That there was theft/abstraction of electricity illegally by
tempering the meter or by illegally tapping from a source
not validly authorised to the accused.
2. That it was being done by the accused/consumer in the
inspected premises.
16. The law is well settled that in case the aforesaid
ingredients are proved, there is presumption under Proviso III of
Section 135(1) of the Electricity Act, 2003 which is reproduced
for ready reference :
"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".
(H) FINDINGS :
17. In the present case, the accused has been charged
with the allegation that on 21.01.2013 at about 1 : 20 p.m, he
was found involved in direct theft of electricity by bypassing the
meter installed there, when a raid was conducted at the inspected
premises bearing no.9/4864, East Old Seelampur, Main Road,
Krishna Nagar, Delhi 110 031. There is further allegation that
SC No : 1936/13 STATE VS. RAJPAL SINGH 13/28
the stolen electricity was being used for commercial purposes and
connected load was found to be 45.163KW. However, accused
Rajpal Singh has denied to have any concern with the portion of
the inspected premises as the same portion was not in his
possession and same was infact in possession of his brothers who
had already sold out their portion to one Urmila Chaudhary W/o
Naveen Chaudhary prior to the inspection.
18. The registration of the FIR Ex.PW1/A has been
proved in the present case by witness PW1 & PW3 and
registration of FIR has not been disputed on behalf of the
accused. He has also not denied the inspection. In fact accused
has admitted in his Statement recorded U/Sec.281 Cr.P.C r/w
Sec.313 of Cr.P.C that a raid was conducted by BSES officials at
the inspected building, but his defence is that same was not
conducted at his portion. He has also admitted that he was also
present at the time of inspection at the inspected building.
19. Witness PW2 has proved that on 21.01.2013 he
alongwith PW4 and other team member raided the inspected
premises i.e.9/4864, East Old Seelampur, Main Road, Krishna
Nagar, Delhi. He has further proved that they inspected the
premises where there was direct theft of electricity by bypassing
the meter installed there through illegal wires. He has further
proved that connected load was found to be 45.163KW and said
illegal electricity supply was being used for commercial purposes.
SC No : 1936/13 STATE VS. RAJPAL SINGH 14/28
He has further proved the CD of the videography of the inspected
premises as Ex.PW2/1, Joint Inspection Report as Ex.PW2/2,
Seizure Memo as Ex.PW2/3, Load Report as Ex.PW2/4,
Complaint filed against the accused as Ex.PW2/5.
20. He has further proved that inspection documents
were prepared at the spot and documents were offered to the
accused, but he refused to sign the same. He has further proved
that accused is known in the locality as Bhagwa and his name
was revealed from the labour present at the spot, who told his
name as Rajpal. He has further proved that illegal wires were
removed and were seized vide seizure memo Ex.PW2/3. He has
also identified the signatures of other team members upon the
inspection documents. He has also proved the filing of complaint
Ex.PW2/5. He has correctly identified the case property i.e wire
removed from the spot as Ex.P1 & P2 respectively and has also
correctly identified the accused Rajpal Singh in the Court.
21. Witness PW4 Sh. Hitesh Rajput has corroborated the
testimony of PW2 in all material particulars. He has also
identified the accused as well as case property correctly before
the Court. He has also identified the CD of the videography done
on the spot.
22. The bone of contention raised on behalf of the
accused is that he has no concern with the portion where
SC No : 1936/13 STATE VS. RAJPAL SINGH 15/28
inspection was conducted as same was in possession of one
Urmila Chaudhary and he has been falsely implicated at the
behest of her husband Sh. Naveen Chaudhary.
23. In the present case, both the witnesses i.e. witness
PW2 Mukesh Ravivanshi and PW3 ASI Amar Chand after seeing
the site plan Ex.PW2/D4 and Mark PW2/D5 had correctly
identified the site plan of the inspected building and witness PW
3 had correctly identified and pointed out the portion belonging
to the accused as inspected premises in his crossexamination on
the issue of identification of the inspected premises.
24. It is clear from the record and evidence that there was
electricity meter installed in the name of accused Rajpal Singh
bearing Meter No.11309470 and this fact has been mentioned in
the connected load report where the meter number is clearly
mentioned. Had there been no inspection of the portion
belonging to the accused Rajpal Singh , the number of meter
installed in the name of accused could not have been known to
the raiding team members. Therefore, the arguments advanced
on behalf of the accused that none ofthe witnesses visited the
inspected premises holds no water.
25. Thus, from the above testimonies of the witnesses and
since nothing has come out in the crossexamination of any of the
witnesses to disbelieve their testimony, it has been proved on
SC No : 1936/13 STATE VS. RAJPAL SINGH 16/28
record beyond doubt that the inspected premises was
belonging/occupied by the accused as meter bearing
No.11309470 was installed at the inspected premises in the name
of the accused Rajpal Singh. Thus, his plea that he has no
concern with the inspected premises is without any merits.
26. The next argument advanced on behalf of the accused
is that the CD of the videography Ex.PW2/1 cannot be read into
evidence for want of any supporting Certificate U/Sec. 65(B) of
the Indian Evidence Act. This argument has no force. There was
no objection raised on behalf of the accused when the documents
i.e. CD of the videography Ex.PW2/1 was exhibited regarding
the mode of proof that it can not be read into evidence for want
of filing of Certificate U/Sec. 65(B) of Indian Evidence Act. In
this regard, reliance may be placed upon judgment reported in
2017(3) RCR(Criminal) 786 in case titled as "Sonu Vs. State
of Haryana". The relevant para is reproduced for ready
reference as under :
"26 Ordinarily an objection to the
admissibility of evidence should be taken
when it is tendered and not subsequently.
The objections as to admissibility of
documents in evidence may be classified into
two classes; (i) an objection that the
document which is sought to be proved is
itself inadmissible in evidence; and (ii) where
the objection does not dispute the
admissibility of the document in evidence but
is directed towards the mode of proof
SC No : 1936/13 STATE VS. RAJPAL SINGH 17/28
alleging the same to be irregular or
insufficient. In the first case, merely because
a document has been marked as "an exhibit',
an objection as to its admissibility is not
excluded and is available to be raised even at
a later stage or even in appeal or revision. In
the latter case, the objection should be taken
before the evidence is tendered and once the
document has been admitted in evidence and
marked as an exhibit, the objection that it
should not have been admitted in evidence or
that the mode adopted for proving the
document is irregular cannot be allowed to be
raised at any stage subsequent to the marking
of the document as an exhibit. The later
proposition is a Rule of fair play. The crucial
test is whether an objection, if taken at the
appropriate point of time, would have
enabled the party tendering the evidence to
cure the defect and resort to such mode of
proof as would be regular. The omission to
object becomes fatal because by his failure
the party entitled to object allows the party
tendering the evidence to act on an
assumption that the opposite party is not
serious about the mode of proof. On the
other hand, a prompt objection does not
prejudice the party tendering the evidence,
for two reasons; firstly, it enables the Court to
apply its mind and pronounce its decision on
the question of admissibility then and there;
and secondly, in the event of finding of the
Court on the mode of proof sought to be
adopted going against the party tendering the
evidence, the opportunity of seeking
indulgence of the Court for permitting a
regular mode or method of proof and thereby
removing the objection raised by the opposite
SC No : 1936/13 STATE VS. RAJPAL SINGH 18/28
party, is available to the party leading the
evidence. Such practice and procedure is fair
to both the parties. Out of the two types of
objections, referred to hereinabove, in the later
case, failure to raise a prompt and timely
objection amounts to waiver of the necessity
for insistng on formal proof of a document, the
document itself which is sought to be proved
being admissible in evidence. In the first case,
acquiescence would be no bar to raising the
objection in superior Court".
It would be relevant to refer to another case decided by
this Court in P.C. Purshothama Reddiar Vs. S. Perumal,
MANU/SC/0454/1971:(1972) 1 SCC 9. The earlier cases referred
to are civil cases while the case pertains to police reports being
admitted in evidence without objection during the trial. The Court
did not permit such an objection to be taken at the appellant stage
by holding that :
"Before leaving this case it is necessary to refer
to one of the contentions taken by Mr.
Ramamurthi, learned Counsel for the
Respondent. He contended that the police
reports referred to earlier are inadmissible in evidence as the HeadConstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the Respondent now to object to their admissibility".
27. The other arguments that there is no explanation for SC No : 1936/13 STATE VS. RAJPAL SINGH 19/28 delay in filing the complaint to the police is of no consequence. Even it is not the case of the accused that delay in filing the complaint or registration of FIR has caused any prejudice to his case.
28. It was also argued that no public persons were joined during the raid or investigation. There is no law which mandates that in all the cases, public persons must join the proceedings. Thus, nonjoining of public persons in no way marred the interest of the accused in any manner.
29. The witnesses PW2 and PW4 in their testimonies have clearly proved the inspection on 21.01.2013 at the inspected premises bearing No. 9/4864, East Old Seelampur, Main Road, Krishna Nagar, Delhi 110 031 by proving the inspection report Ex.PW2/2, Connected Load report Ex.PW2/4 They have also proved the seizure memo of the case property vide Ex.PW2/3. The proceedings of the Inspection were videographed and CD of the same has been proved as Ex.P2/1. They have correctly identified the case property as Ex.P1 & P2 respectively as well as the accused persons. They have also proved the mode of electricity theft by illegal tapping by the accused for commercial purpose. They have proved that at the inspected premises, there was meter No.11309470 installed in the name of accused Rajpal Singh though same was bypassed through illegal wire by the accused.
SC No : 1936/13 STATE VS. RAJPAL SINGH 20/28
30. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of the witnesses as their testimony remained unrebutted and unshakened despite their lengthly cross examination.
31. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution, it is proved that there was electricity theft by bypassing the meter installed there through illegal wire for illegal supply by accused.
32. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that he was not involved in electricity theft in any manner or that he was not the consumer of the electricity.
33. The law on the point of rebuttal is well settled. Rebuttal of presumption is to be established from a "prudent men's test"
making the court to belief the existence of defence of the accused. In other words, the accused is not supposed to prove his defence beyond reasonable doubt under the law and if any law shift the burden on the accused to rebut the presumption, the extent of onus to be discharged by him, which has been answered by the Hon'ble Supreme Court in case titled as "Hiten P. Dalal Vs. Bratindranath Banjerjee" cited as 2001(6) SCC 16 in Para 22/29 SC No : 1936/13 STATE VS. RAJPAL SINGH 21/28 20 as follows : "
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 reason ability being that of the "prudent man".
34. In his defence, accused has examined himself as DW 1 and he himself admitted in his crossexamination that he was running business of sewing of clothes at the inspected premises and thus, it was for him to prove that he was doing the said business with the valid electricity connection and was paying the electricity bills towards that. Even the accused in his statement recorded U/Sec.281 r/w Sec.313 Cr.PC has himself stated that there was a business being run by him.
35. It is to be noted that the accused had not placed any bill regarding the payment of regular bill of the meter installed in the inspected premises. Had the electricity been going to the accused premises through meter, the easiest way to prove it was by producing the electricity bills paid by the accused to the complainant company. The very fact that the accused did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being SC No : 1936/13 STATE VS. RAJPAL SINGH 22/28 used by the accused by bypassing the meter through illegal wire. Paid electricity bills would have been the best evidence to show that the accused was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the accused to produce and prove such bills paid for the use of electricity. But he has failed to prove any such bill on record.
36. The accused had taken the stand that the inspection was not valid inspection. So far as the validity of the inspection is concerned, complainant has a right to prove theft of electricity done by the accused irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. The Hon'ble Supreme Court in "State and Ors Vs. N.M.T Joy Immaculate 2004(5) SCC 729 has observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C or any other law excludes relevant evidence on the ground that it was obtained under an illegal search or seizure. Therefore, even if the inspection was not conducted by an Officer as designated under the notification, the members of the inspection team who had visited the site and found the electricity being stolen are competent witnesses to depose in the Court about the theft of electricity and the manner in which electricity was being stolen.
SC No : 1936/13 STATE VS. RAJPAL SINGH 23/28
37. Further, it has to be kept in the mind that the conclusion of theft after trial can not be made merely on the basis of an inspection report. If the law had been that the inspection report in itself would have been conclusive evidence of the theft of electricity and no further evidence would have been required, it would have been possible for the counsel for the accused to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be attached too much of importance.
38. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or nonfiling of photographs are not a serious infirmity in any electricity theft case since the case can be proved by oral testimony supported by photographs showing the theft of electricity. Instead, in the present case, the photographs were put in crossexamination of the witnesses to substantiate the defence. In this regard, reliance may be placed upon the judgment reported in case titled as "Mukesh Rastogi Vs. NDPL" decided on 23.10.2007 by the SC No : 1936/13 STATE VS. RAJPAL SINGH 24/28 Hon'ble High court of Delhi in Criminal Appeal No.531/2007. Thus, if for the sake of arguments, it is the accepted that no wire was removed as contended on behalf of the accused, it does not make any difference upon the merits of the case unless and until accused himself is able to prove that he was consuming the electricity through valid source for running his business.
39. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not appeal in case of theft of electricity.
40. In view of the aforesaid case law laid down by the Hon'ble Supreme court, it can be safely held that accused has failed to rebutt the presumption arising against them under the SC No : 1936/13 STATE VS. RAJPAL SINGH 25/28 ProvisoIII of the Electricity Act that he was involved in the direct theft of electricity on the date of inspection at the inspected premises when it has been proved on record that accused was very much present at the inspected premises and were doing the commercial activity without having any valid licence/source of electricity to consume it. Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused appears to be without any substance.
41. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused that he was falsely implicated. The accused has taken a vague plea that he has been falsely implicated in the present case. Despite opportunity accused has failed to bring any witness that the raid was conducted at the other portion of building. Even in the videography his name was revealed by the labour present at site. Of course this person has not been produced as a witness. But it is to be kept in mind that as per prosecution case, this person was labour of the accused and initially accused did not join the investigation. In such circumstances, it cannot be said that I.O did not make sincere efforts to trace him.
42. There is nothing on record to suggest that there was any enmity between accused and officials of Complainant SC No : 1936/13 STATE VS. RAJPAL SINGH 26/28 Company or he has been falsely implicated in the present case. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : "The report prepared by the Officer of the Electricity Board is an act done in discharge of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgement that the inspection report is a document prepared in exercise of its 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"
(I) CONCLUSION :
43. From the aforesaid discussion, it is clearly proved beyond any doubt by the prosecution from the cogent evidence that an inspection was carried out on 21.01.2013 at about 1 : 20 p.m. at the premises No.9/4864, East Old Seelampur, Main Road, Krishna Nagar, Delhi 110 031 and that the said premises belongs to the accused Rajpal Singh and there was direct theft of SC No : 1936/13 STATE VS. RAJPAL SINGH 27/28 electricity as meter found installed there was bypassed by the accused through illegal wires. Further the said direct supply was being used for commercial purposes.
44. In the light of the aforesaid discussion, it has been proved on record that it was the accused who was directly involved in the electricity theft and this fact has been proved beyond any reasonable doubt from the testimony of PWs coupled with inspection report, meter detail report, load report and Videography of the inspected premises which was being used for commercial purpose by the accused without having any valid source of electricity and connected load was found to be 45.163KW. Accordingly, the accused Rajpal Singh is held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and is also held liable for the civil liabilities for using electricity illegally for commercial purpose under section 154(5) of the Electricity Act.
Be put up on 17.12.2018 for arguments on the point of sentence.
ANNOUNCED IN THE OPEN COURT TODAY ON 11th December, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 28 no. of pages) (One Spare copy is attached) Digitally signed by DEVENDRA DEVENDRA KUMAR SHARMA KUMAR SHARMA Date: 2018.12.12 16:31:05 +0530 SC No : 1936/13 STATE VS. RAJPAL SINGH 28/28