Delhi District Court
State (Bses) vs Mohd Riyaz on 4 May, 2026
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 415/2022
FIR No. 671/2019
Under Section 135/150 Electricity Act
PS Welcome
State
versus
1) Mohd. Riyaz
S/o Mohd. Irshad
2) Firoza Begum
W/o Mohd. Riyaz
Both R/o E-49/F-303, Old No.49/F-203,
Janta Mazdoor Colony, Welcome,
Seelampur, Delhi-110053.
.... Accused
Date of institution 07.04.2022
Arguments heard 04.05.2026
Judgment Pronounced on 04.05.2026
Decision Convicted
JUDGMENT
1. Accused Mohd. Riyaz and Firoza Begum are facing trial upon the allegations that Mohd. Riyaz (user of electricity) was indulged in theft of electricity and accused Firoza Begum who was found to be registered consumer, is stated Judgment 1 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
to have abetted said Mohd. Riyaz to commit theft of electricity and thereby, accused Mohd. Riyaz committed an offence punishable U/s 135 of the Electricity Act, 2003 and accused Firoza Begum committed an offence punishable U/s 135 r/w section 150 of Electricity Act 2003 (hereinafter referred to as 'the Act').
Brief Facts
2. On 19.11.2019, at about 11.24 hours, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by Sh. Inder Pal Singh (DGM of the complainant company) in the residential premises of accused i.e. H.No.E-49/F-303, First Floor (Old No.E-49/F-203), Janta Mazdoor Colony, Welcome, Seelampur, Delhi-110053.
3. At the time of inspection, one electricity meter bearing no.1174409 with reading 17799 KWH was found installed at the premises in the name of accused Firoza Begum but the said meter was found in stopped condition and co- accused Mohd. Riyaz was found indulged in direct theft of electricity with the help of illegal wire which was connected in supply cable to load (service cable tampered).
4. At the time of inspection, accused Mohd. Riyaz was present and connected load was found to the tune of 3.181 KW which was being used for domestic purposes. It is further alleged that Mohd. Riyaz was found to be user of electricity while accused Firoza Begum was found to be Judgment 2 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
registered consumer and abetted the accused Mohd. Riyaz to commit theft of electricity. Videographer Sh. Sandeep captured videography of inspection proceeding. Inspection documents i.e. Inspection Report, Load Report, Seizure memo and Advisory notice were prepared at the spot.
5. On the basis of connected load, applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.56,314/- Accordingly, a theft bill was raised and sent to the accused persons but they did not make payment of the theft bill.
6. On failure to pay the theft bill amount, complainant company through its Authorized Officer lodged a complaint U/s 135 Electricity Act 2003 against the accused Mohd. Riyaz and U/s 135 r/w section 150 of the Electricity Act, 2003 against the accused Firoza Begum, with SHO, PS Welcome for registration of FIR against the accused persons.
7. On the said complaint, present FIR No.671/2019 was registered and investigation of the case was marked to HC Narender, the IO of the case. After completion of investigation, IO filed the charge-sheet against the accused persons.
Notice
8. On 02.02.2023, notice U/s 251 Cr.P.C for commission of offence punishable U/s 135 of Electricity Act 2003 against Judgment 3 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
the accused Mohd. Riyaz and U/s 135 r/w Section 150 of Electricity Act 2003 against the accused Firoza Begum was given to both accused persons to which they pleaded not guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution examined following witnesses.
10. PW1 Sh. Inder Pal Singh is the DGM of the Complainant Company who was heading the inspection team. He proved CD of videography of the inspection proceedings as Ex.PW1/A, inspection report as Ex.PW1/B, load report as Ex.PW1/C, seizure memo as Ex.PW1/D, Advisory notice as Ex.PW1/E and theft bill as Ex.PW1/F. He also proved the complaint lodged by him as Ex.PW1/G. He also proved the case property i.e. aluminium cable which was removed from the spot and seized as Ex.P1.
11. PW2 Sh. Sandeep is the videographer who, on the instruction of team leader Sh. Inder Pal Singh/PW1, captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW1/A.
12. PW3 ASI Narender (then HC) is the IO of the case. He proved the FIR as Ex.PW3/1, site plan as Ex.PW3/2, notice U/s 41A Cr.P.C given to accused Firoza Begum as Ex.PW3/3 and that of accused Mohd. Riyaz as Ex.PW3/4, disclosure statement of accused Mohd. Riyaz as Ex.PW3/5. He also proved copy of Aadhar Cards of the Judgment 4 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
accused persons as Ex.PW3/6 and Ex.PW3/7. He also proved the Pabandinamas of the accused persons as Ex.PW3/8 and Ex.PW3/9. He further deposed that during investigation, accused persons were found in possession of the inspected premises and in this regard he recorded the statements of their neighbours namely Mohd. Sarfaraz and Sajia which are proved on record as Ex.PW3/10 and Ex.PW3/11.
Statement of Accused
13.All incriminating evidence which has come on record, were put to the accused persons under Section 313 Cr.P.C. Accused persons denied all material allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead any defence evidence and accordingly opportunity to lead defece evidence was closed and matter was posted for final arguments.
Arguments
14.Ld. Addl. PP assisted by AR of the complaint company submitted that accused Mohd. Riyaz was found to be user of electricity, was found indulged in direct theft of electricity. It is further deposed that one electricity meter bearing no.1174409 was found installed at the premises in the name of accused Firoza Begum but the said meter was found in stopped condition and co-accused Mohd. Riyaz was found indulged in direct theft of electricity with the Judgment 5 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
help of illegal wire which was connected in supply cable to load. It is further submitted that accused Firoza Begum being registered consumer allowed/abetted user Mohd. Riyaz to commit direct theft of electricity and accused Firoza Begum being registered consumer is responsible for the said act. Ld. Addl. PP further submitted that prosecution has proved allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. He also emphasized that inspection was conducted as per Rules and applicable Regulations. Thus, it is prayed that accused persons may be convicted.
Analysis
15. Ld. Amicus Curiae, on the other hand, submitted that accused persons are innocent and have been falsely implicated in this case. It was submitted that accused have not committed any theft of electricity. It is also submitted that during pendency of trial, accused Mohd. Riyaz who is husband of accused Firoza Begum, has settled the civil liability qua impugned theft bill but due to financial constraint, settlement amount could not be deposited.
16. At the outset, it is observed that the Certificate U/s 65B of Indian Evidence Act, 1872 for the videography proceedings has not been filed on record. Ld. Addl. PP and AR of the complainant company submit that videography has been proved by PW3 and therefore, the non-exhibition of the certificate Section 65B of Indian Evidence cannot be Judgment 6 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
fatal to the case of the prosecution as there was no objection raised by the Ld. Defence counsel for the accused at the time of proving CD containing videography of the inspection proceedings. The court, in relation to the said legal position, is supported by the judgement reported as Sonu @ Amar vs State of Haryana, AIR 2017 SC 3441 wherein it is held:
26. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, it was held that:
"Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof." In RVE Venkatachala Gounder, this Court held as follows:
"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 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 Judgment 7 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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 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 insisting 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." [Emphasis supplied] It would be relevant to refer to another case decided by this Court in PC Purshothama Reddiar v. S Perumal, (1972) 1 SCC 9. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate 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 Head-constables 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."
Judgment 8 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
27. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
17.Taking into account the law as laid down by the Hon'ble Supreme Court, the videography stands proved even when the certificate U/s 65B of Indian Evidence Act has not been filed/exhibited.
18.At the outset, it would be appropriate to reproduce the definition of 'consumer'. The relevant provision of Section 2 (15) of the Act is produced as under:-
Judgment 9 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
"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;"
19.In this case, accused Firoza Begum was found to be registered consumer and co-accused Mohd. Riyaz was found to be user of electricity at the relevant time. Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises/registered consumer are covered under the definition of the 'consumer' and thus, accused Firoza Begum is 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).
20.Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to Section 135 r/w Section 150 of the Act. The provision of Sections 135 & 150 of the Electricity Act are reproduced as under:
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or Judgment 10 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
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 Judgment 11 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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. 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.
22.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines 'dishonestly' and holds that Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
23.As per prosecution case, at the time of inspection, one electricity meter bearing no.1174409 was found installed at the premises in the name of accused Firoza Begum but the said meter was found in stopped condition and co- accused Mohd. Riyaz was found indulged in direct theft of electricity with the help of illegal wire which was connected in supply cable to load. Accused Firoza Begum as well as co-accused Mohd. Riyaz were found indulged in direct theft of electricity with the help of illegal wire which was connected in supply cable to load. Accused Mohd.
Judgment 12 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
Riyaz was found to be user of the electricity and accused Firoza Begum was found to be registered consumer. Accused Firoza Begum being registered consumer permitted/allowed the user Mohd. Riyaz to commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
24. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deals with theft of electricity. Regulation 60 empowers authorized Officer to inspect premises. Under Regulation 61 Authorized Officer makes an Inspection Report, Regulation 62 lays down procedure to report a case of theft and then under Regulation 63 there is assessment of theft bill.
25. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 60. Inspections of the premises and electrical installations by Authorized officer: -
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his Judgment 13 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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.
(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.
Judgment 14 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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 sub-section (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, meter, service line etc., from the premises under a seizure Memo.
(3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act: Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty-four hours from time of such disconnection: Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy consumed by resorting to external methods involving remote control, high voltage injection etc., committed by the consumer or his employee or any other person acting on his behalf, shall also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the Commission or by the agency authorized by the Commission in this regard.
63. Assessment Bill for theft of electricity: -
(1) The Assessing officer shall assess the energy for theft of electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall be for Judgment 15 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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.
26. As per prosecution case, at the time of inspection, user Mohd. Riyaz was found to be user of the electricity in the inspected premises and was indulged in direct theft of electricity.
27. PW1 Sh. Inder Pal Singh (DGM) and PW2 Sh. Samdeep (Videographer) are prime witnesses of this case being members of inspection team. PW1 corroborated the allegations made in the complaint ( Ex.PW1/A) and deposed that at the time of inspection, one electricity meter Judgment 16 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
bearing no.1174409 with reading 17799 KWH was found installed at the premises in the name of accused Firoza Begum but the said meter was found in stopped condition and co-accused Mohd. Riyaz was found indulged in direct theft of electricity with the help of illegal wire which was connected from service line of above said electricity meter. This fact has not been rebutted by the accused persons in the cross-examination of PW1.
28. PW1 further deposed that at the time of inspection, accused Mohd. Riyaz was present at the spot and total connected load was found to be 3.181 KW which was being used for domestic purposes at first floor. Accused persons have not disputed the load report, its content and its genuineness. PW1 further deposed that illegal wire was removed and seized at the spot vide seizure memo Ex.PW1/D and this fact has not been disputed by the accused persons.
29. PW1 further deposed that on his instruction, PW2 Sandeep conducted the videography of the Inspection Proceedings in which the commission of theft of electricity at the inspected premises was recorded. Videography of the inspection proceedings appears to have been admitted by the accused persons as accused has not denied the contents of video and its genuineness. In reply to the question of Ld. Defence Counsel, PW1 stated that videographer Sandeep was employed by the complainant company and PW1 has also identified the accused Mohd. Riyaz in the Judgment 17 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
said video. Accused Mohd. Riyaz has not explained as to how he is appearing in the said video if videography of the inspection proceedings was not done by PW3.
30. PW1 and PW2 were duly cross-examined by Ld. Defence Counsel for accused persons was unable to bring out any contradiction in their testimony. Further the inspection of the premises appears to have been admitted by the accused persons because Ld. Defence Counsel merely put suggestions to PW1 that at the time of inspection, no theft of electricity was detected at the premises which fact has been denied by the witness. Further, to the question of Ld. Defence Counsel, PW1 stated the present inspection is a routine inspection.
31. As per load report, certain electrical appliances were found installed at the inspected premises. In the load report, calculation of the load has been mentioned and accused persons have not disputed the calculation of the load as mentioned in the load report. Accused persons not rendered any alternative explanation. Accused Firoza Begum is admittedly the registered consumer and accused Mohd. Riyaz is stated to be user of the electricity at the relevant time. So it is evident that accused Firoza Begum knew that user Mohd. Riyaz also shared the intention alongwith accused to indulge into acts constituting direct theft of electricity. Furthermore, accused Firoza Begum knew that the said meter was lying in stopped condition despite that she permitted/allowed to use the electricity in Judgment 18 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
the inspected premises. Nothing contradictory emerged in the testimony of prosecution witnesses during cross- examination and the testimony of witnesses has been consistent and thus, the factum of inspection and preparation of documents, videography of inspection proceedings done by videographer stands proved.
32.It is submitted on behalf of accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the accused was found indulged in direct theft of electricity through illegal wire and these facts have been well proved by PW1 and PW2.
33. During evidence, CD (Ex.PW1/A) containing inspection proceedings was played before the court which depicted the manner in which the accused was found indulged in direct theft of electricity through illegal cable. Accused Mohd. Riyaz has neither disputed his identity nor the identity of the inspected premises shown in the video contained in the CD. Furthermore, in the entire cross- examination, accused persons have not disputed or rebutted the fact that the said meter was lying in stopped condition as deposed by PW1. It is not the case of the accused that outgoing supply of the electricity meter were running/active and electricity in the inspected premises at the second floor was running through the authorized meter.
34. Nothing has been brought on record to indicate that Judgment 19 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
officials of complainant company had any animosity with the accused and therefore, under these circumstances, non- joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court has made the following observations:
".....The report prepared by the officers of the Electricity Board is an act done in discharge of their duties and could not be straightway reflected or disbelieved unless and until there was definite and cogent material on record to arrive at such a finding. The inspection report is a document prepared in exercise of his official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct."
35. 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.
36. In addition, nothing has come on record to show that the Judgment 20 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
inspection was not conducted as per the procedure prescribed under the DERC Regulations pertaining to the theft of electricity. There is not even a suggestion in the cross examination of witnesses that there is any procedural lapse or impropriety and the guidelines as prescribed have not been followed.
37.Once the prosecution successfully establishes the charges against the accused regarding theft of electricity then in view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act it is to be presumed that accused has committed direct theft of electricity if accused fails to bring some evidence on record to rebut the presumption. Thus, in view of the proviso of section 135 (1) of the Act, after the prosecution establishes the charges of electricity theft against the accused then under the aforesaid provisions of law, the accused is legally bound to bring some material on record to rebut the statutory presumption.
38. Coming to the Presumption as envisaged U/s 135 of Electricity Act, it is to be noted that it uses the word "shall presume". Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself Judgment 21 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act."
39. 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'."
40. In view of the settled law, now it is to be seen if the accused taken any defence to rebut the aforesaid statutory presumption. Accused persons did not lead any defence Judgment 22 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
evidence nor they have brought anything on record which could suggest that accused Mohd. Riyaz was drawing electricity through authorized means or electricity meter. Moreover, it is admitted position of fact that it is not denied at all that the said meter was lying in stopped condition and the electricity supply of inspected premises was found running directly through service cable of the said meter. As per load report, certain electric appliances were found in the inspected premises and accused persons have not explained as to from where they were drawing electricity to run those appliances. Also, it is not the case of the accused persons that there was any Genset and they were drawing energy from the same.
41. Furthermore, it is clear from the evidence of PW2 that in regard to the electricity theft, the complainant company had raised a theft bill of Rs.56,314/- and sent to the accused persons but they did not make payment of the theft bill. During the course of arguments, Ld. Defence Counsel submitted that that accused Mohd. Riyaz has settled the matter qua civil liability but the settlement amount could not be deposited due to financial constraints. In case, the officials of the complainant company would not have carried out the inspection as deposed by prosecution witnesses and complainant company would have raised a false and baseless claim by way of theft bill (Ex.PW2/D), then instead of going for settlement, accused persons would have raised their protest and would have Judgment 23 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
initiated appropriate proceedings against complainant company for raising a false claim against them. This conduct of the accused persons also fortifies the allegations of the direct theft of electricity against him.
42. Notwithstanding, if the accused persons were not indulged in direct theft of electricity or they were using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused was to prove on record that at the time of inspection, they were drawing electricity through their own electricity meter. However, accused persons have not brought anything on record to disprove the allegations brought on record by the prosecution. In view of these discussions, it is held that accused persons have failed to rebut the statutory presumption.
43. If the user Mohd. Riyaz was not indulged in direct theft of electricity or he was using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused Firoza Begum was to prove on record that at the time of inspection, user Mohd. Riyaz was drawing electricity through his own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Accordingly, it is held that accused persons have failed to rebut the statutory presumption.
44. In this regard, this court is supported by the judgment of Judgment 24 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
Hon'ble High Court of Delhi reported as Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through mere. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
45. Accused persons did not lead any defence evidence. If the user Mohd. Riyaz was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused Firoza Begum, who claimed herself to be owner/landlord of the inspected premises, was liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is admitted position of fact that accused Firoza Begum was registered consumer but the said meter was lying in stopped condition and both the accused were persons were in use and occupation of the Judgment 25 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
inspected premises at the relevant time and they were indulged in direct theft of electricity in the manner discussed above. Accused persons have not brought any material on record or lead any evidence to disprove the prosecution case.
46. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that user Mohd. Riyaz was indulged in direct theft of electricity through illegal wire. It is also proved on record that accused Firoza Begum was the registered consumer while accused Mohd. Riyaz has been proved to have indulged in direct theft of electricity by attaching illegal external device. Accused Firoza Begum being the registered consumer permitted/consciously allowed the user Mohd. Riyaz to commit direct theft of electricity. Thus, accused Firoza Begum is guilty of abetment of offence of direct theft of electricity and accused Mohd. Riyaz is guilty of offence punishable U/s 135 of Electricity Act. Accordingly, accused Firoza Begum is held guilty and convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003 and accused Mohd. Riyaz is held guilty and convicted for the offence punishable U/s 135 of Electricity Act 2003.
Let convicts be heard on quantum of sentence. Announced in the Open Court on 04.05.2026.
(Ashish Rastogi)
Addl. Sessions Judge-05 (Electricity)
East/Karkardooma Courts/Delhi
Judgment 26 of 26