Delhi District Court
State vs Dilshad on 7 July, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.56/2021
FIR No.495/2020
U/s 135/150 of Electricity Act
PS Seelampur
State versus Dilshad
S/o Abdul Rashid
R/o H.No.A-23, Main Road,
Chauhan Banger, Delhi
Date of institution 12.02.2021
Arguments heard 07.07.2023
Date of judgment 07.07.2023
JUDGMENT
1. Accused Dilshad has been facing trial on the allegation that he intentionally indulged in an act amounting to theft of electricity and thereby committed offence under relevant provision of the Electricity Act (hereinafter called the Act).
Brief facts of the prosecution case
2. On 23.10.2019, at 3.24 pm, an inspection was carried out by the inspection team of the complainant company at the premises of accused i.e. A-23, Ground Floor Khasra, No.1/228, Main Road, Chauhan Banger, Delhi-110053. At the time of inspection, no electricity meter was found installed at site and the user/accused was found indulged in direct theft of electricity with the help of two core black colour illegal aluminium cable which was found connected from BSES Yellow colour FIR No.495/2019 State vs Dilshad 1 of 20 service cable. At the time of inspection, connected load was found to the tune of 2.576 KW which was being used for non-domestic purposes at the Ground Floor of the inspected premises. Necessary videography of the inspection proceedings was captured by the videographer Sh. Bani Singh. The illegal cable was removed by the lineman and seized at the spot. Necessary documents like inspection report, load report and seizure memo were prepared at the spot. An advisory notice was also issued to the accused/user. Entire set of inspection documents was tendered to the accused/user but he refused to accept and sign the same.
3. 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.2,10,895/-. Accordingly a theft bill was raised and sent to the accused but he failed to deposit the theft bill amount. On failure to pay the theft bill amount, BSES Yamuna Power Limited (hereinafter referred as complainant company) through its Authorized Officer/Assistant Manager Sh. R.B. Yadav, lodged a complaint under Section 135 & 150 of the Act with the SHO, PS Harsh Vihar upon whose direction FIR No.495/2019 was registered against the user/accused.
4. After completion of investigation, charge-sheet was filed against the accused Dilshad U/s 135 of the Act.
5. It is pertinent to mention here that initially, the complaint was filed against one Anish (user) and Dilshad (landlord) for theft of electricity. During investigation, it was found that accused Dilshad was owner as well as user of the inspected premises at the relevant time and no such person by the name of Anish has ever resided in the inspected premises. IO filed the FIR No.495/2019 State vs Dilshad 2 of 20 present charge-sheet U/s 135 of the Act only against the accused Dilshad.
NOTICE
6. On 09.09.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Dilshad to which he did not plead guilty and claimed trial.
PROSECUTION EVIDENCE
7. In order to prove its case against the accused, the prosecution examined the following witnesses.
8. PW1 Sh. Sanjay Verma is the Diploma Trainee Engineer (DET), who deposed that on 23.10.2019, at about 3.24 pm, an inspection was conducted by Enforcement Team of BSES YPL comprising of himself, Sh. R.B. Yadav (Assistant Manager), Sh. Manish Hans (Lineman) and Sh. Bani Singh (Videographer) at the premises of accused i.e. H. No. A- 23, Ground Floor, Khasra No.1/228, Main Road, Chauhan Bangar, Delhi-110053. At the time of inspection, no electricity meter was found installed at the inspected premises and accused/user was found indulged in direct theft of electricity with the help of two core black colour cable which was jointed with BSES Yellow colour cable. At the time of inspection, connected load was found to the tune of 2.576 KW which was being used for commercial purpose i.e. for running Biryani Shop at ground floor of the inspected premises. Necessary videography of the inspection proceedings was captured by the Videographer Sh. Bani Singh. The CD containing videography of the inspection proceedings is proved on record is Ex.PW1/1. During evidence, the CD FIR No.495/2019 State vs Dilshad 3 of 20 was played on the laptop and PW2 identified the video which was captured by videographer. He also identified the accused featuring in the said video. During inspection, the inspection report Ex.PW1/2 and the load report Ex.PW1/3 were prepared at the spot. Team Leader Sh. R.B. Yadav also stated to have issued an advisory notice Ex.PW1/4 to the user/accused. Entire set of inspection documents was prepared at site during inspection and the same were tendered to user/accused but he refused to sign and accept the same. PW2 also deposed that the illegal PVC Aluminium wire was removed from site by the lineman Sh. Manish Hans and seized at spot vide seizure memo Ex.PW1/4. On the basis of inspection, a theft bill of Rs.2,10,895/- (Ex.PW1/6) was raised and sent to user/accused. During evidence before the court, the case property i.e. one black colour Aluminum wire of size 2 x 6 mm 2 having length of 2.25 meter was produced and shown to witness who identified the said wire as the same which was removed and seized at the inspected premises. The said wire is Ex.P-1.
9. PW2 SI Khagnesh Kumar is the IO of the case, who deposed that after registration of FIR, investigation of the case was marked to him. The copy of the FIR is Ex.PW2/1. Thereafter, on 05.12.2019, he served the accused with the notice u/s 41(A) Cr.P.C (Ex.PW2/2) upon which accused joined the investigation. He interrogated the accused and prepared interrogation report Ex.PW2/3. PW2 also deposed that during interrogation, accused gave a hand written letter stating therein that inspected premises belongs to him and no body in th name of Anish was residing in the inspected premises. The said letter is Ex.PW2/4. PW2/IO FIR No.495/2019 State vs Dilshad 4 of 20 bound down accused vide Pabandinama Ex.PW2/5. After completion of investigation, PW1/IO filed the charge-sheet.
10.PW3 Sh. R.B. Yadav is the Assistant Manager of the complainant company, who filed the complaint Ex.PW3/1, corroborated the allegations made in the complaint Ex.PW3/1. He also deposed on the similar lines of testimony of PW1.
11.PW4 Sh. Bani Singh is the Videographer, who deposed that on 23.10.2019, at about 3.24 pm, an inspection was carried out by the enforcement team of BSES YPL at the premises of accused and on the instructions of team leader Sh. R.B. Yadav (Assistant Manager), he captured the videography of inspection proceedings. He also identified the CD (Ex.PW1/1) played before the court as well as its contents.
12.Thereafter prosecution evidence was closed and matter was posted for recording of statements of accused.
STATEMENTS OF ACCUSED
13.All incriminating materials which have come on record in the testimony of prosecution witnesses were put to the accused in his statement U/s 313 Cr.P.C. Accused denied all the material allegations. However, accused chose not to lead any evidence to his defence.
FINAL ARGUMENTS
14.Final arguments were advanced by the Ld. Addl. PP as well as Ld. Counsel for the accused.
15.Ld. Addl. PP argued that the complainant company has proved its case FIR No.495/2019 State vs Dilshad 5 of 20 against the accused beyond reasonable doubt through the testimonies of prosecution witnesses. AR of the complainant company also argued that there was no electricity meter found installed at the inspected premises and accused dishonestly indulged in direct theft of electricity by connecting illegal wire from BSES service cable. He also emphasised that inspection was conducted as per Rules and applicable Regulations. It is prayed that accused be convicted under appropriate provisions of law.
16.Ld. Defence Counsel, on the other hand, argued that accused is innocent and has been falsely implicated in the present case. Accused has not committed any theft of electricity. It is further submitted that matter has already been settled with the complainant company and settlement amount has already been paid and NOC has already been issued by the complainant company. It is prayed that accused may be acquitted.
DISCUSSION
17.Before proceeding further, it would be appropriate to reproduce the definition of 'consumer' as in this case, accused Dilshad was found to be owner of the inspected premises at the relevant time. 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 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;
FIR No.495/2019 State vs Dilshad 6 of 20
18.Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises 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). Accused is stated to be owner of the inspected premises, thus, he is primarily answerable for any illegal activity/theft of electricity being carried out in his premises.
19.Next, before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to Sections 135 as well as 150 of Electricity Act. The provisions of Section 135 and 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 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, FIR No.495/2019 State vs Dilshad 7 of 20 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:
20.Dishonest intention has not been defined in Electricity Act. As per section 24 of IPC, it implies an act done with intention of causing wrongful gain to one or wrongful loss to another. The allegations against the accused are about hooking illegal wires with overhead BSES supply line and connecting the same with wiring of inspected premises. Therefore, section 135(1) would be relevant and applicable. As mentioned, dishonest intention is primary ingredient to impute any culpability in this matter.
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 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.
21.Under 'the Act', Regulations are framed by the Delhi Electricity FIR No.495/2019 State vs Dilshad 8 of 20 Regularity Commission and Regulation 60 to 63 deal with theft of electricity, which are reproduced hereunder: "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 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.
FIR No.495/2019 State vs Dilshad 9 of 20 (5) If consumer or his representative at site refuses to acknowledge and accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or outside the premises and photographed and/or video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection.
(6) The inspection report shall form the basis for further action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity:-
(1) The prosecution for theft of electricity under section 135 of the Act shall be initiated only in the cases where dishonest intention is evident from the relevant facts, records and other evidence of the case. (2) In case sufficient evidence is found to establish theft of electricity, the Authorized officer under subsection (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:-
FIR No.495/2019 State vs Dilshad 10 of 20 (1) The Assessing officer shall assess the energy for theft of electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall be for a period of 12 (twelve) months preceding the date of detection of theft of electricity or the exact period of theft if determined, whichever is less:
Provided further that period of theft of electricity shall be assessed based on the following factors:-
(i) actual period from the date of commencement of supply to the date of inspection;
(ii) actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
(iii) actual period from the date of preceding checking of installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever available.
(v) based on the document being relied upon by the accused person. (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.
22.As per prosecution case, at the time of inspection, no authorized electricity meter was found installed at the inspected premises. At the time of inspection, accused/user was found indulged in direct theft of electricity with the help of illegal wire. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
23.PW1 Sh. Sanjay Verma (DET), PW3 Sh. R.B. Yadav (Assistant Manager) and PW4 Sh. Bani Singh (videographer) are the material FIR No.495/2019 State vs Dilshad 11 of 20 witnesses in this case. PW1 and PW3 corroborated the allegations made in the complaint (Ex.PW3/1) and deposed having witnessed the factum, mode and manner of commission of theft. User/accused was found to be indulged in direct theft of electricity. During cross-examination of PW1 and PW3, accused did not put to witnesses any suggestion that electricity meter was available at the inspected premises. PW4 was also part of Inspection Team who corroborated the deposition of PW1 and PW3 on material points. He deposed having videographed the Inspection Proceedings which recorded the commission of theft of electricity at the inspected premises. PW1, PW3 and PW4 were duly cross-examined by Ld. Counsel for accused who was unable to cull out any contradiction in their testimony. The depositions were about same incident of inspection and those were consistent in basic details with necessary corroboration from material documents proved. Ld. counsel for accused merely put suggestions to material witnesses who were part of inspection team that no inspection took place and any such documents were not prepared which were categorically denied by witnesses.
24.It is also argued by the Ld. Counsel for accused that the removal of alleged illegal cable and even preparation of documents at the spot has not been videographed. PW1 and PW3 have given detailed deposition about the removal of illegal wire, its seizure as well as preparation of inspection documents in the testimony sheet. Videography has also been proved by these witnesses. It is note worthy that removal of illegal cable or its seizure has not been created doubt upon, rather theft FIR No.495/2019 State vs Dilshad 12 of 20 recovered was well-videographed. It is settled that videography proceedings or even seizure of aforesaid illegal cable used for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the witnesses which they are unable to explain being member of Inspection Team. Preparation of these documents have not been specifically disputed by the accused. Documents Ex.PW1/2, Ex.PW1/3 and Ex.PW1/4 bear signature of PW1 and PW3 as prime members of Inspection Team. Those documents have been placed in original in the court and proved by the witnesses. Preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. No doubt, removal and seizure of wire as well as preparation of Inspection Documents are recommended under applicable Regulation but there is no direct requirement of specifically videographing the seizure or preparation of inspection document. Propriety of process without any major lacunae cannot thwart the genuineness of entire proceedings. These are minor fallouts which cannot discredit the entire process and do not hit at the root because establishment of theft is based upon oral testimony which has been able to withheld the test of cross- examination. Nothing contradictory could be extracted from 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 stand proved.
FIR No.495/2019 State vs Dilshad 13 of 20
25.It was also argued on behalf of the 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 user/accused was found indulged in direct theft of electricity through illegal wires and these facts have been well proved by PW1 and PW3. During evidence, the CD containing inspection proceedings was played before the court which depicted the manner in which the accused/user was found indulged in direct theft of electricity through illegal wires. It is clear that there was no electricity meter available at the premises of the accused. It is not disputed by the accused that at the time of inspection, certain electrical appliances as mentioned in the load report was found at the inspected premises at the time of inspection and connected load was running through illegal wires. Furthermore, as per load report, certain electrical appliances were available at the inspected premises and accused has not explained as how the accused/user used to run those appliances in absence of an authorized electricity meter. It is not the case of the accused that user was running those electric appliances through means other than direct theft of electricity. Thus, it is clear from the record that the officials of complainant company who had no animosity with the accused, have proved the allegations beyond reasonable doubt and therefore, under these circumstances, non-joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court of India FIR No.495/2019 State vs Dilshad 14 of 20 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."
26.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.
27.It is not the case of accused that inspection team was not authorized to conduct inspection or that it indulged in any illegality which thwarts the entire process of inspection proceedings. Accused has not explained as to how and from where he was drawing electricity, if the prosecution story is incorrect. He has not brought any document or evidence on record which could suggest that any authorized electricity meter was available at the inspected premises at the time of incident. If there was any electricity meter available at the inspected premises or that the accused was drawing electricity through any authorized meter, he ought to have brought some document or give details of the electricity meter FIR No.495/2019 State vs Dilshad 15 of 20 to disprove the prosecution story but he has not brought any such document on record which indicates that no electricity meter was available for inspected premises at the time of inspection while electrical appliances can be seen to be running during inspection proceedings.
28.PW1 and PW3 proved the relevant documents i.e. inspection report, load report, seizure memo, advisory notice and electricity bill. Load Report and Inspection Report were prepared as per applicable Regulation of the Regulation No.61 and 63(2) of the Regulation. Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied and theft bill was raised accordance to Regulations. The testimony of prosecution witnesses coupled with proven documentation prove that accused indulged in direct theft of electricity.
29.It is evident from the deposition of prosecution witnesses that on 23.10.2019, at 3.24 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 found indulged in direct theft of electricity through illegal wires. The inspection proceedings were recorded by the videographer and the CD containing videography of the inspection proceedings has been brought on record as Ex.PW1/1. PW1 and PW3 proved the relevant documents i.e. inspection report as Ex.PW1/2, load report as Ex.PW1/3, seizure memo as Ex.PW1/4, FIR No.495/2019 State vs Dilshad 16 of 20 advisory notice as Ex.PW1/5 and electricity bill as Ex.PW1/6. In the advisory notice, it is clear mentioned that in case the accused/user has anything to say against the inspection, he should file written objection thereto within four working days but the user/accused kept mum and chose not to file any objection which indicates the involvement of the accused in direct theft of electricity else he would have raised his objection before the competent authority. Oral testimony led by competent witness coupled with proved documentation and failure of accused to even put across his version or explanation of events or to falsify/discredit the prosecution version proves the factum of inspection which unearthed the illegal act of accused having indulged in direct theft of electricity.
30.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. The said presumption is reproduced 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".
31.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 FIR No.495/2019 State vs Dilshad 17 of 20 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'."
32.In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the statutory presumption. Accused has simply stated in his statement recorded U/s 313 Cr.P.C that he is innocent and has been falsely implicated in this case. He stated that he has already settled the dispute and settlement amount has already been paid by them and NOC has also been issued. Accused did not lead any evidence to their defence. If the user/accused did not indulge in direct theft of electricity or that he was using the electricity through any legal means, then the accused is liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is clear from the evidence led by prosecution that at the time of inspection, accused/user was indulged in direct theft of electricity through illegal cable. Accused has not brought any material on record or lead any evidence to disprove all these allegations. Thus, 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 FIR No.495/2019 State vs Dilshad 18 of 20 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".
33.In this case, accused has been served with the notice U/s 251 Cr.P.C for the commission of offence punishable U/s 135 r/w Section 150 of the Act. Accused has illegally established connection with BSES service cable to draw electricity. Accused has intentionally indulged in the alleged act to constitute theft of electricity in order to derive illegal benefit at direct expense of BSES and other honest consumers. Dishonest intention of accused is inherent in the very act proved against him. Accused was owner as well as user of the inspected premises and therefore, act imputed to the accused is squarely covered under Section 135 of the Act itself. Therefore, any discussion on the point of abetment U/s 150 of the Electricity Act is not called for.
34.In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that no electricity meter was available at the premises of the accused at the time of inspection. The very act of drawing electricity by connecting illegal cable with BSES service cable without having to pay for consumption of electrical energy has dishonest intention inherent in it. Accused has not FIR No.495/2019 State vs Dilshad 19 of 20 tried/attempted to reason or distance himself from his act. He has not stated that he was not aware of his liability of pay for the usage of electricity energy. Videography was duly recorded that electrical appliances are in use at the inspected premises. There is no explanation even on the face of it qua its usage. The only reasonable conclusion is that accused, deliberately, consciously being aware of malafide of his illegal act, indulged in getting connections to use electricity in premises being owner and in immediate possession of his inspected premises. It is established that accused Dilshad dishonestly indulged in direct theft of electricity through illegal wire having established connection with service cable of BSES which is punishable U/s 135 of the Electricity Act, 2003. Consequently, accused is convicted U/s 135 of the Digitally signed Electricity Act, 2003. SHELLY by SHELLY ARORA ARORA Date:
2023.07.07 04:31:14 +0530 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 07.07.2023 FIR No.495/2019 State vs Dilshad 20 of 20