Delhi District Court
State vs Riyazuddin on 21 May, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.772/2021
FIR No.144/2021
U/s 135/138 of Electricity Act
PS Seelampur
State versus Riyazuddin
S/o Zahiruddin
R/o D-128, 5th Floor
New Seelampur, Delhi
Date of institution 23.12.2021
Arguments heard 22.04.2022
Date of judgment 21.05.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Manager Sh. Sanwarmal Pareek, had given a complaint U/s 135/138 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') to the SHO, PS Seelampur against the accused Riyazuddin (user) with a prayer to register an FIR against the accused U/s 135/138 of the Act.
2. Succinctly, the facts of the case are that on 06.01.2021, at about 1.20 hours, an inspection was conducted by the inspection team of BSES YPL comprising of Sh. Sanwarmal Pareek (Manager), Sh. Devender (DET) and Sh. Mohan Pal (Lineman) alongwith lady guard Ms. Chanchal FIR No.144/2021 State vs Riyazuddin 1 of 14 at the premises of accused persons i.e. D-128, 5th Floor, New Seelampur, Pole No.YVR-V-344, Delhi-110053. At the time of inspection, no electricity meter was found installed at site for 5 th floor and the user was found indulged in direct theft of electricity through two Yellow colour PVC insulated aluminium illegal wires which were joined with Straight Through Joint of the service cable of BSES. Total connected load was found to the tune of 5.793 KW/DX/DT. The illegal wires were removed and seized at the spot. All the necessary documents namely inspection report, load report and seizure memo were prepared at the spot. Entire set of documents which was prepared at the site was tendered to the 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. Satender Panwar. Public persons were requested to join the inspection proceedings but none agreed. It is averred that the said illegal acts of the user/accused are covered within the provisions of section 135 & 138 of the Act. Following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.1,07,566/-. Accordingly, the theft bill was raised and sent to the accused but he did not make payment of the theft bill. The CD of the said videography alongwith Certificate U/s 65B of the Evidence Act was also submitted to the SHO, PS Seelampur alongwith the complaint. Thus, a prayer was made for registration of an FIR against the accused U/s 135/138 of the Act.
3. The SHO handed over the said complaint (Ex.PW1/6) to Duty Officer with the direction to register an FIR and handover the investigation of the case to ASI Netrapal Singh for necessary action. Duty Officer FIR No.144/2021 State vs Riyazuddin 2 of 14 registered the present FIR and handed over the investigation of the case to IO ASI Netrapal Singh, the IO of the case. After registration of FIR, the IO visited the inspected premises, prepared site plan, served the accused with the notice U/s 41.1(A) Cr.P.C, interrogated the accused and prepared interrogation report. Accused produced the copy his Aadhar Card as well as copy of documents pertaining to inspected premises. IO bound down the accused vide Pabandinama and in this regard GD No.0079A was also lodged. After completion of investigation, the charge-sheet was against the accused U/s 135/138 of the Act.
4. On 23.12.2021, the notice for the commission of offence U/s 135/138 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:-
(5.1) PW1 Sh. S.M. Pareek is the Manager of the complainant company. This witness deposed that on 06.01.2021, at about 1.20 pm, an inspection was conducted by the enforcement team of BSES YPL comprising of himself, Sh. Devender Kumar (DET), Sh. Mohan Pal (lineman) and Satender Panwar (Videographer) at the premises of accused Riyazuddin s/o Sh. Zahiruddin i.e. H.No.D-128, 5th floor, New Seelampur, Delhi-110053. During inspection, no electricity meter was found installed at site for the 5th floor of the premises and the accused was found indulged in direct theft of electricity through illegal wires, which were joined with the BSES straight through (joint). Total connected load was found to the FIR No.144/2021 State vs Riyazuddin 3 of 14 tune of 5.793 KW which was being used for domestic purpose at fifth floor. PW1 further deposed that during inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Satender Panwar. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW1/1. During evidence, the CD was played on the laptop. PW1 identified the video which was recorded by the videographer during inspection. PW1 also identified the accused in the video contained in the CD Ex.PW1/1. PW1 deposed that the inspection report Ex.PW1/3 and the load report Ex.PW1/4 were prepared at the spot. PW1 further deposed that the illegal wires were removed by lineman Sh. Mohan Pal and seized at the spot vide seizure memo Ex.PW1/4. Entire set of documents was prepared at the spot during inspection and the same was tendered to the accused for signature but he refused to sign and accept the same. On the basis of inspection, the theft bill of Rs.1,07,565/- (Ex.PW1/5) was raised and sent to accused. PW1 also deposed that on 12.04.2021, he lodged a complaint (Ex.PW1/6) with the SHO PS Seelampur for registration of an FIR against the accused. During evidence, the case property i.e. two Yellow colour aluminium wires of 8 mm square size and having length of 0.5 meter each were produced and shown to the witness who identified the said wires as the same which were removed and seized at the spot during inspection. The said case property has been brought on record as Ex.P1 (colly).
(5.2) PW2 Sh. Mohan Pal is the Lineman. This witness was another member of the inspection team and he has corroborated the testimony of FIR No.144/2021 State vs Riyazuddin 4 of 14 PW1. He deposed that the illegal wires were removed by him and seized at the spot vide seizure memo Ex.PW1/4.
(5.3) PW3 ASI Netrapal Singh is the IO of the case. This witness deposed that on 12.04.2021, on the directions of SHO, the complaint (Ex.PW1/6) was handed over to Duty Officer for the registration of FIR. Accordingly, Duty Officer registered the FIR No.144/21 and investigation of the case was marked to him. The copy of FIR has been brought on record as Ex.PW3/1. PW3 further deposed that on 12.06.2021, he visited the premises of the accused, prepared a site plan Ex.PW3/2 and served the accused with the notice u/s 41.1(A) of the Cr.P.C (Ex.PW3/3). On the same day, accused joined the investigation and he interrogated the accused and prepared interrogation report Ex.PW3/4. During interrogation, accused produced copy of his Aadhar Card as well as copy of documents of the inspected premises and same have been brought on record as Mark A (colly). The accused was bound down to appear before the court vide Pabandinama Ex.PW3/5.
6. After completion of prosecution evidence, statement of the accused was recorded U/s 313 Cr.P.C. Accused admitted that the factum of inspection. Accused also admitted that no electricity meter was installed at the inspected premises. Accused denied rest of the allegations. However, accused stated that he has already settled the matter and settlement has been paid and an NOC has also been issued. Accused did not lead any defence evidence to his defence.
7. I have heard the final arguments from the Ld. Addl. PP as well as FIR No.144/2021 State vs Riyazuddin 5 of 14 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, no electricity was available in the premises of the accused and he 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:-
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 FIR No.144/2021 State vs Riyazuddin 6 of 14
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
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 FIR No.144/2021 State vs Riyazuddin 7 of 14 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, no electricity meter was found installed at site for 5 th floor and the user was found indulged in direct theft of electricity through two Yellow colour PVC insulated aluminium illegal wires which were joined with the Straight Through Joint of the service cable of BSES. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
11. PW1 Sh. S.M. Pareek (Sr. Manager) and PW2 Sh. Mohan Lal (lineman) are the material witnesses of this case. They were members of the inspection team which was being headed by Sh. S.M. Pareek. PW1 and PW2 have corroborated the allegations made in the complaint (Ex.PW1/6) and deposed that at the time of inspection, no electricity meter was found installed at the spot for the inspected premises and accused was found indulged in direct theft of electricity through illegal wires which were joined with the BSES straight through (joint). PW2 also deposed that the illegal wires were removed by him and seized at the spot vide seizure memo Ex.PW1/4. This fact has not been disputed by the accused during FIR No.144/2021 State vs Riyazuddin 8 of 14 the cross-examination of PW1 and PW2. PW1 and PW2 also deposed that at the time of inspection accused was present and necessary videography of the inspection proceedings was done by videographer Sh. Satender Panwar. PW1 and PW2 also deposed that the documents namely inspection report, load report and seizure memo were prepared at the spot and PW1 and PW2 have brought on record the inspection report as Ex.PW1/2, load report as Ex.PW1/3 and seizure memo as Ex.PW1/4. Accused did not deny the fact that an inspection was carried out at his premises, however, he endeavoured to dispute 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 PW1 and PW2 shows that though, the accused has endevaoured to dispute these facts, however, he has not specifically disputed the factum of preparation of the relevant documents. Accused has not disputed the fact that no electricity meter was installed at the spot. As per PW1 and PW2, accused was indulged in direct theft of electricity through illegal wires and said wires were removed by the lineman and seized at the spot. Accused has not rebutted this fact during the evidence of PW1 and PW2. During evidence before the court, the CD of the inspection proceedings was played before the court and PW1 and PW2 identified the accused in the said video and at that time also, accused did not dispute to the contents of the video. Accused has also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in load report (Ex.PW1/3). Thus, inspection proceedings conducted at the spot as well as presence of the accused at the FIR No.144/2021 State vs Riyazuddin 9 of 14 spot and videography of inspection proceedings done by videographer Sh. Satender Panwar stand proved.
12. It is clear from the deposition of PW1 and PW2 that on 06.01.2021, at about 1.20 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 no electricity meter was available at the inspected premises and the user/accused was indulged in direct theft of electricity through illegal wires. It is also clear that the illegal wires were removed and seized at the spot. The inspection proceedings were recorded by photographer Sh. Satender Panwar and CD of the said inspection proceedings has been brought on record as Ex.PW1/1. PW1 and PW2 have also proved the relevant documents namely inspection report as Ex.PW1/2, load report as Ex.PW1/3, seizure memo as Ex.PW1/4 and electricity bill as Ex.PW1/5.
13. It was also submitted on behalf of the accused that the 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 user/accused was found indulged in direct theft of electricity through illegal wires and these facts have been well proved by PW1 and PW2. During evidence, the CD 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 wires. PW1 and PW2 also identified the accused in the said video. Accused has neither disputed his identity nor the the identity of the inspected premises depicted in the video contained in the CD Ex.PW1/1. Thus, it is clear from the FIR No.144/2021 State vs Riyazuddin 10 of 14 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 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 FIR No.144/2021 State vs Riyazuddin 11 of 14 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 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 resources 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 FIR No.144/2021 State vs Riyazuddin 12 of 14 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 PW1 that in regard to the electricity theft, the complainant company had raised a bill of Rs.1,07,565/- (Ex.PW1/5) 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 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.PW1/5), then instead of going for settlement, the accused would have raised his protest and would have initiated appropriate proceedings against the officials of complainant for raising a false claim against him. This conduct of the accused also fortifies the allegations 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 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 FIR No.144/2021 State vs Riyazuddin 13 of 14 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 no electricity meter was available at the premises of the accused and he 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. Digitally signed by AJAY AJAY GUPTA Date:
GUPTA 2022.05.21
17:59:06
+0530
(Ajay Gupta)
Addl. Sessions Judge (Electricity)
East/Karkardooma Courts/Delhi
Announced in open
court on 21.05.2022
FIR No.144/2021 State vs Riyazuddin 14 of 14