Delhi District Court
State vs . on 31 March, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
SC No : 1261/16
FIR No: 233/09
P.S : BHAJANPURA, DELHI
U/S 135/138 OF THE ELECTRICITY ACT, 2003
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
Prem Prakash Sharma @ Kalu Pandit
S/o Sh. Shiv Dutt Sharma
R/o A8, Gali No.1,
North Ghonda, Near Main Road,
Yamuna Vihar, Delhi.
........... Accused
DATE OF INSTITUTION OF THE CASE : 18.01.2010
DATE ON WHICH JUDGMENT WAS RESERVED : 24.03.2018
DATE OF PASSING OF JUDGMENT : 28.03.2018
JUDGMENT :
A Criminal Complaint addressed to the Station House
Officer, Bhajan Pura, Police Station, Delhi was filed by Sh. Nafees
Ahmed, the then Senior Manager/Authorized Officer of BSES YPL
Page 1/33
company (in short to be called as Complainant Company
hereinafter) against accused persons namely Sh. Kalu Pandit and
Sh. Prem Prakash Sharma, Both R/o A8, Gali No.1, Near Main
Road, North Ghonda, Yamuna Vihar, Delhi 110 053 for the
offences punishable u/s 135/138 of the Electricity Act, 2003 (in
short called as Act hereinafter) r/w Sec.379/34 of Indian Penal
Code, 1860 (in short IPC) for an offence of electricity theft
against accused persons.
(A) FACTS :
2. The main allegation made in the said complaint are to
the effect, inter alia, that on 29.01.2009 at about 10 : 45 a.m., an
inspection was carried out by the officials of BSES YPL
comprising of Sh. Nafees Ahmed (Sr. Manager), Sh. Sanjeev
Kumar (Tr. Engg.), Sh. Anand Sagar (Elect.), Sh. Rajender Singh
(Lineman), Sh. Pawan Kumar (Lineman) alongwith CISF and
local police personnels namely Ct. Jaiveer and ASI Mahender of
P.S. Bhajanpura, Delhi at the premises i.e. R/o A8, Gali No.1,
Near Main Road, North Ghonda, Yamuna Vihar, Delhi 110 053
(in short called as inspected premises). It has been further
alleged that said inspection was conducted in respect of
Page 2/33
K.No.1250A060083 (New) 9YV6109794686(Old) and Meter
No.17052488. It has been further alleged that when inspection
team reached at the site, they found the accused indulged in
direct theft of electricity by using supply directly by tapping
before meter with illegal taplon wire connected with PR
connector to his load from BSES Service line and other 2nd
illegal cable was also found directly connected to his load from
LTMP of BSES main connected with PR connectors. It has been
further alleged that during the inspection, it was found that it
was the coaccused Kalu Pandit (user), who was being instigated
by accused Prem Prakash Sharma (Registered Consumer) for
committing the abetment of theft of electricity and both have
common intention to commit the offence.
3. It has been further alleged in the Complaint that a
total connected load of 137.225 KW/IX/DT(in short KW) 3.913
KW/DX/DT (in short KW), totaling to 141.138KW/DT was
checked & assessed during the course of said inspection which
was being illegally used by accused through artificial means not
authorized by the complainant company. It has been further
alleged that the inspection report, load report and seizure memo
Page 3/33
were prepared at the spot. The videography of the inspected
premises showing irregularities were also taken and the accused
was found committing direct theft of electricity at the time of
inspection by using electricity illegally from the system of the
Complainant Company which was being used for domestic as
well as for industrial purposes. It has been further alleged that
after inspection, a theft bill for an amount of Rs.1,48,55,875/
was also raised on the basis of the connected load found at the
time of inspection. Hence, the present Complaint dt.24.02.2009
was filed against the accused persons for initiating legal action as
per law including the determination of civil liability against them
as per the provision of Section 154(5) of the Act. Upon the said
complaint, the present FIR No.233/09 for offence punishable
U/Sec.135 & 138 of Act r/w Sec.379 of Indian Penal Code (for
short IPC) was registered on 20.06.2009 against accused persons
namely Prem Prakash Sharma and Kalu Pandit. However,
during investigation it was found that accused Prem Prakash
Sharma and Kalu Pandit are the same and one person and Kalu
Pandit is the nick name of Prem Prakash Sharma and same has
been wrongly mentioned as two persons in the complaint filed by
the Complainant Company. Taking into said observation, Ld.
Page 4/33
Predecessor Court had taken congnizance against only accused
namely Prem Parkash Sharma @ Kalu Pandit on 18.01.2010.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted.
During investigation, I.O recorded the statement of the witnesses,
arrested the accused and after completion of investigation,
present chargesheet U/Sec.173 of Criminal Procedure Code (in
short Cr.P.C) was filed against the accused Prem Parkash
Sharma @ Kalu Pandit. Thereafter, accused was summoned.
(C) NOTICE :
5. After compliance of provision U/Sec.207 of Cr.P.C, on
16.05.2011a notice of accusation was framed against the accused Prem Prakash Sharma @ Kalu Pandit by the Ld. Predecessor Court for the offence punishable u/s 135 of the Electricity Act to which he pleaded not guilty and claimed trial.
(D) PROSECUTION EVIDENCE :
6. In support of its case, the Prosecution has examined following seven (7) witnesses in order to substantiate the allegation : Page 5/33 (1) HC Haidar Ali from P.S. Shahdara, Delhi, was examined as PW1 who was the duty officer. He has deposed that he received the rukka from ASI Rameshwar Prasad/ PW7 and on the basis of rukka he lodged the present FIR No. 233/09 Ex. PW1/A. (2) Sh. Sanjeev Kumar, trainee Engineer was examined as PW 2, who was the member of raiding team and in his examination in chief, the inspection report prepared by Sh.
Nafees Ahmed PW3 was exhibited as Ex. PW2/A, load report prepared by him was exhibited as Ex. PW2/B, meter details report prepared by him was exhibited as Ex. PW2/C, videography done by Sh. Vinod Kumar, photographer was exhibited as Ex. PW2/D, seizure memo of illegal cables and three phase electronic meter bearing no. 17052488 prepared by him was exhibited as Ex. PW2/E. He has also identified the accused in the Court correctly. However his further examination was deferred but this witness did not turn up for his further examination and crossexamination.
(3) Sh. Nafees Ahmed, who was the team leader was examined Page 6/33 as PW3. In his testimony he has deposed that on 29.01.2009 at about 10.45 pm he alongwith Sanjeev Kumar, PW2 and other team members inspected the premises no. A8, Gali no.1, North Ghonda, near Main Road Yamuna Vihar, Delhi and found accused to be involved in electricity theft by using supply directly by tapping before the meter with the BSES service line load from LTMP, BSES main connected with the PR connectors and said supply was being used for domestic as well as industrial purposes i.e. for running the anodyzing factory and dyeing work and connected load was found to the tune of 137.225 KW for industrial purposes and 3.913 KW for domestic purposes (total 141.138 KW). He has further deposed on the similar line about the preparation of documents of inspection i.e. inspection report Ex. PW2/A, load report Ex. PW2/B, meter details report Ex. PW2/C. He has also identified his signatures on all these documents. He has also deposed on the similar line as PW2 regarding the preparation of CD Ex. PW2/D and seizure memo Ex.PW2/E of case property and also identified his signature upon the seizure memo. He has further deposed that all the documents were Page 7/33 tendered to the accused to sign and receive but he refused. He has also identified the accused in the Court as a person who was present at the time of inspection. PW3 has further deposed that he lodged the present complaint Ex. PW3/A on 24.02.2009 with PS Bhajanpura. He has correctly identified the case property i.e. one PVC alluminium cable size 4x15 mm sq of black colour having length of 14 meter, one PVC alluminium cable size 4x15 mm sq of yellow colour having length of 39 meters, one three phase electronic meter bearing no. 17052488 with service cable having length of 2 meters in yellow colour of 4x15 mm sq. alongwith PR connector taflone wire having length of 2 meter in three pieces and all the case property was exhibited as Ex. P1. This witness was cross examined at length by ld. Defence counsel for accused.
(4) Sh. Manish Kumar, Assistant Manager was examined as PW4 who raised the theft bill to the tune of Rs. 1,48,55,875/ Ex. PW4/1. This witness was not cross examined on behalf of the accused.
(5) Sh. R.P. Sharma, Senior Manager was examined as PW5, who has handed over the plastic bag containing the case Page 8/33 property to the IO ASI Rameshwar Prasad and in this regard, he has proved the seizure memo prepared by IO as Ex. PW5/A. This witness was cross examined at length on behalf of the accused.
(6) Sh. Anand Sagar, lineman was examined as PW6, who deposed on the same lines as of PW3 Sh. Nafees Ahmed being one of the member of the inspection team. He has also deposed that the case property was removed by him alongwith other lineman Pawan and Rajender and were seized at site. He has also correctly identified the accused. This witness was cross examined at length on behalf of the accused.
(7) SI Rameshwar Prasad, IO of the present case was examined as PW7, who got registered the FIR No. 233/09 of the present case as Ex.PW1/A upon the complaint Ex. PW3/A after making his endorsement as Ex. PW7/A. He has received the sealed case property vide seizure memo Ex. PW5/A which was produced by PW5 Sh. R.P. Sharma. He had arrested the accused vide arrest memo Ex. PW7/B and also conducted the personal search of the accused vide Ex.PW7/C. He has further deposed that he recorded the Page 9/33 disclosure statement of accused Ex. PW7/D and after collecting the documents and CD after recording the statement of witnesses. This witness was cross examined at length by ld. Defence counsel for accused.
7. No other witness was produced or examined on behalf of the prosecution's side. Hence, on 12.12.2017 as per their oral submission, P.E was closed and matter was fixed for recording of Statement of the accused Prem Prakash Sharma @ Kalu Pandit U/sec.281 r/w Sec.313 Cr.P.C.
(E) STATEMENT OF ACCUSED :
8. On 17.01.2018 statement of the accused U/sec.281 r/w Sec.313 Cr.P.C was recorded explaining all the incriminating evidence against him on record which he denied as false & incorrect. Accused has asserted in his statement that he has been falsely implicated in the present case and has no concern with the inspected premises. He has further asserted that there is no house number bearing no.A8, Gali no.1, North Ghonda, near Main Road, Yamuna Vihar, Delhi. However he has admitted that videography was done at the time of inspection at the house no.
Page 10/33A8 and he is appearing in the said videography. He has further asserted that two houses bearing no. A8 are in gali no.3 owned by Sh. S.K. Pandit and Niranjan Singh and he had gone there out of curiosity to see the raid. He has further asserted that he does not remember as to whether any electronic meter no. 17052488 was installed in his name or not. Accused did not prefer to lead defence evidence. Hence, DE was closed and matter was fixed for final arguments.
(G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
9. I have heard final arguments advanced on behalf of the parties. I have also gone through the record as well as contents of CD which was played during final arguments, relevant provisions of case law and written submissions filed on behalf of the parties.
10. Before going through the facts of the present case, it would be relevant to reproduce the relevant provisions of Electricity Act for ready reference :
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to Page 11/33 be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d)uses electricity through a tampered meter;or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or Page 12/33 attempted consumption or attempted us :-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity.
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two Page 13/33 years and shall also be debarred from getting supply of electricity for that period from any other source or generating station............................................................
11. Thus, from the aforesaid provision of law, it is clear that the Complainant Company is required to prove as under :
a) That there was theft/abstraction of electricity illegally by tempering the meter or by illegally tapping from a source not validly authorised.
b) That it was being done by the accused/consumer in the inspected premises.
12. The law is well settled that in case the aforesaid ingredients are proved, there is presumption in Proviso III of Section 135(1) of the Electricity Act, 2003 which is reproduced for ready reference : "Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
Page 14/3313. The main submissions made during the course of final arguments on behalf of the prosecution/complainant were inter alia, to the effect that the accused herein was found indulged in direct theft of electricity by tapping before the meter with BSES Service line load from LTMP, BSES Main connected with PR connectors and connected load was found 137.225 KW for industrial purposes and 3.913 KW for domestic purposes; and electricity was being used illegally, the meter was found installed at the subject premises at the time of inspection but electicity was being used by bypassing the meter; that due to illegal theft of electricity committed by the accused, the complainant company suffered huge monetary loss; that such illegally extracted electricity was used by the accused for industrial purposes as well as domestic; that all the relevant papers like inspection report, load report, seizure memo etc. were prepared at the spot but the accused who was present there refused to sign the same; even the accused himself is appearing in the CD and he has been present through out the inspection proceedings; that all the material witnesses have been examined in this case by the prosecution and that they have duly proved the case against the accused herein by Page 15/33 way of cogent evidence, both oral as well as documentary; that ultimately, a theft bill to the extent of Rs.1,48,55,875/ was sent to the accused but he deliberately failed to pay any amount out of it to the complainant company; that all the necessary formalities like conducting of inspection, preparation of inspection report, load report, seizure memo etc. were done by the team of the complainant company at the spot as per rules; that accused is liable to be convicted as per law; that accused is also liable for civil liability as per law. In the end, a prayer was made for convicting the accused strictly as per law for the offence punishable U/Sec.135 of the Electricity Act, 2003 as well as for making him liable for civil liability as per provisions of Section 154(5) of the Act.
14. On the other hand, the main submissions advanced on behalf of the accused were interalia, that the accused was never in possession of the alleged inspected premises, no ownership document has been filed on record to prove that accused was owner or in occupation of the inspected premises; that the testimony of witneses PW2 cannot be read into evidence; that PW3 has admitted that the case property was not Page 16/33 properly sealed when it was produced before the Court; that there is no evidence led to prove the basis of raising the bill; that there is doubt regarding the handing over the case property to the IO by PW5; that the IO could not state that accused was indulged in theft of electicity; that all the witneses were confronted with their statements recorded by the police and it is clear from the confrontation of the witnesses with their previous statements recorded by the IO that they had not disclosed the material facts to the IO; even the seizure of the case property is doubtful; that there is no legally admissible evidence availabe on record; that accused has been falsely implicated in this case by the officials of the Complainant Company; that all the witnesses of the prosecution have deposed falsely in this case; that no independent witnesses of the locality were joined by the inspecting party during the alleged inspection conducted in this case nor it was conducted as per rules; that accused is not liable to be convicted in this case for any offence or that accused is not liable for any civil liability in this case. In the end, a prayer was made for acquittal of the accused for the offence U/Sec.135 of the Act as well as for discharging him from civil liability as per provision of Section 154(5) of the Act.
Page 17/33(G) FINDINGS :
15. In the present case, accused has been charged that he was involved in the theft of electicity after illegally and dis honestly abstracting the electricity from BSES LV Overhead Mains/LTMP Line through illegal wires at premises no. A8, Gali no.1, North Ghonda, Delhi by tapping before the meter.
16. In the present case, from the evidence available on the record i.e. in the testimony of PW3 and PW6 it is proved that a raid was conducted at the premises bearing No.A8, North Ghonda, Delhi on 29.01.2009 by raiding team comprising of witnesses PW2 Sh. Sanjeev Kumar, PW3 Sh. Nafees Ahmed, PW6 Sh. Anand Sagar and two linemen Pawan Kumar and Rajender. It has been further proved on record in the testimony of aforesaid witnesses that at the time of inspection, it was found that there was direct theft of electricity by taking direct supply of electricity by tapping in service line of BSES through illegal wires. It has been further proved from the testimony of the aforesaid witnesses that it was found that electricity supply directly from BSES LV Overhead Mains/ LTMP line was being used for Page 18/33 industrial purposes as well as domestic purposes through illegal means. It has been further proved that anodizing factory and deying work was being done. It has been further proved that electicity theft was being done by tapping before the meter in service cable coming from LTMP OVERHEAD BSES Mains connected with PR connectors.
17. It has been further proved from the testimony of the witnesses that at the time of inspection, there was no valid/authorised source of consumption of electricity at the inspected premises and same was going on through illegal tapping. It has been further proved that the documents i.e. Inspection report as Ex.PW2/A, Load report as Ex.PW2/B, Meter detail report as Ex.PW2/C and seizure memo Ex.PW2/E were prepared at site by the inspection team. It has been further proved from the testimony of the witnesses that the entire proceedings were videographed and same was converted into CD Ex.PW2/D. It has been further proved in the testimony of the witnesses that the illegal wires were removed and were seized by PW3 vide seizure memo Ex.PW2/E with the help of linemen. It has been further proved that the theft bill Ex. PW4/1 for a sum of Page 19/33 Rs.1,48,55,875/ was raised against the accused by PW4 Sh. Manish Kumar as per DERC Rules and Regulations. The witness PW5 has proved that he has handed over the case property vide seizure memo Ex. PW5/A to the IO PW7. Witness PW3 and PW 6 have correctly identified the accused as user who was present at the time of inspection. Witness PW3 has identified the case property as Ex.P1 including the illegal cables as well as meter no. 17052488.
18. The witness PW3 has also proved the filing of complaint Ex.PW3/A dated 24.02.2009. Witness PW1 HC Haider Ali has proved the recording of the present case FIR Ex.PW1/A on 20.06.2009. Witness PW7/IO has proved his endorsement Ex. PW7/A at point A upon the rukka. Witness PW 7 has also proved that he has arrested the accused on 16.08.2009 vide arrest memo Ex.PW7/B and also got conducted his personal search vide Ex.PW7/C. During investigation of the present case, he seized the case property received from PW5 BSES Officials vide seizure memo Ex.PW5/A.
19. Though accused has stated that the inspected Page 20/33 premises is situated in gali no.3 owned by Sh. S.K. Pandit and Sh. Niranjan Singh, but it appears to be false as the perusal of the CD makes it clear that the entire proceedings of the inspection was being carried out in his presence. Even he has admitted that he is being seen in the CD Ex. PW2/D though he has taken a defence that he had gone to the inspected premises lying in other gali out of curiosity. However this defence also appears to be false if the CD is seen. In the CD he is clearly appearing talking with the members of inspecction team and he is clearly visible as interested party and not a passerby or a curious person standing to see the proceedings.
20. As per record /inspection report Ex. PW2/A, electricity connection with one K. NO. 1250A060083 and meter no. 17052488 in the name of accused found installed. This fact has not been specifically denied by the accused. He has only stated that he does not remember that any such meter was installed at the inspected premises in his name or not. Even the photocopy of Lal Dora certificate seized at the time of inspection which is clear from the inspection report Ex. PW2/A makes it clear that inspected premises belongs to the accused as the Page 21/33 address of inspected premises clearly written upon the said certificate which is dated 23.05.2008. He has not examined any witness in his defence that the said meter was not in his name, though he could have prove this fact by summoning the record. Thus, it is proved beyond any doubt that inspected premises was situated in Gali no.1 and the accused was occupier of the same.
21. The next argument has been advanced on behalf of accused that witneses when contradicted with their statements recorded u/s 161 Cr.P.C., it is found that there is material contradiction /omission in their statements. Here it is to be noted that the statement recorded u/s 161 Cr.P.c. is not encyclopedia of the facts. Moreover in the present case whatever omission/contradiction are pointed out in the cross examination of witnesses i.e. regarding the manner of electicity theft, use of electricity, videography by videographer, seizure of photographs and Lal Dora Certificate, fragmented connected load or preparation of documents by the officials of the complainant company, the perusal of statement of the witnesses makes it clear that they have clearly given the necessary details of manner of the inpsection, mode of theft of electrcity, purpose of theft of Page 22/33 electricity, videography of inspection proceedings in their statements u/s 161 of Cr.P.C. Thus, the omissions/contradictions pointed out are not significant. Rather the witnesses in their testimony before the Court have explained and supplemented their statement recorded u/s 161 of Cr.P.C. Thus, this argument is having no force and is acccordingly rejected.
22. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of the witnesses as their testimony remained unrebutted and unshakened despite lengthy cross examination. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution as well as fully corroborated with the videography of the proceedings, it is proved that there was electricity theft by accused by direct tapping from service cable before the meter of BSES LTMP Line through illegal wires for domestic as well as industrial purposes.
23. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that he was not involved in electricity theft in any Page 23/33 manner not was the consumer of the electricity.
24. The law on the point of rebuttal is well settled. Rebuttal of presumption is to be established from a "prudent men's test" making the court to believe the existence of defence of the accused. In other words, the accused is not supposed to prove his defence beyond reasonable doubt under the law and if any law shift the burden on the accused to rebut the presumption, the extent of onus to be discharged by him, which has been answered by the Hon'ble Supreme Court in case titled as "Hiten P. Dalal Vs. Bratindranath Banjerjee" cited as 2001(6) SCC 16 in Para 20 as follows : "Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reason ability being that of the "prudent man".
25. In his defence the accused has not examined any witness. In the statement recorded u/s 281 read with section 313 of Cr.P.C. accused himself has admitted that he is appearing in Page 24/33 the CD Ex. PW2/D.
26. There is nothing on record to suggest that there was any enmity between accused and officials of Complainant Company or he has been falsely implicated in the present case. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : "The report prepared by the Officer of the Electricity Board is an act done in discharge of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgement that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
Page 25/3327. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused that he was falsely implicated. The accused has taken a vague plea that he has been falsely implicated in the present case.
28. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not Page 26/33 appeal in case of theft of electricity.
29. There is no dispute regarding registration of FIR. Though the accused has denied that no inspection was carried out in his presence nor the inspected premises was belonging to him. However, the witnesses have proved on record that on 29.01.2009 at about 10 : 45 p.m. an inspection was carried out at the premises no. A8, Gali no.1, North Ghonda, Near Main Road, Yamuna Vihar, Delhi. They have further proved that at the time of inspection, the present accused was running the factory which is clearly visible in the CD and that he was directly using the electricity by tapping before the meter in the service of BSES YPL LTMP Box through illegal wires.
30. During the inspection, it was found that all the load was directly running through illegal tapping and in this regard an inspection report Ex.PW2/A, Load report Ex.PW2/B and Meter Detail report Ex.PW2/C were prepared. Videography vide CD Ex.PW2/D was also done at the spot. The case property i.e the illegal wire was seized from the spot vide seizure memo Ex.PW2/E, The case property have been duly identified by the Page 27/33 witnesses and was collectively exhibited as Ex.P1 with the meter installed in the name of the accused at the inspected premises.
31. There is supporting documentary evidence to the oral evidence of the aforesaid witness in the form of videography Perusal of the CD of the videography Ex.PW2/D makes it clear that at the time of inspection, illegal use of electricity for industrial purpose as well as for domestic purposes were going in the inspected premises.
32. The accused had taken the defence that the inspection was not valid inspection. So far as the validity of the inspection is concerned, complainant has a right to prove theft of electricity done by the accused irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. The Hon'ble Supreme Court in "State and Ors Vs. N.M.T Joy Immaculate 2004(5) SCC 729 has observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C or any other law excludes Page 28/33 relevant evidence on the ground that it was obtained under an illegal search or seizure. Therefore, even if the inspection was not conducted by an Officer as designated under the notification, the members of the inspection team who had visited the site and found the electricity being stolen are competent witnesses to depose in the Court about the theft of electricity and the manner in which electricity was being stolen.
33. Further, it has to be kept in the mind that the conclusion of theft after trial can not be made merely on the basis of an inspection report. If the law had been that the inspection report in itself would have been conclusive evidence of the theft of electricity and no further evidence would have been required, it would have been possible for the counsel for the accused to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent Page 29/33 evidence therefore, the validity of the inspection report cannot be attached too much of importance.
34. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or nonfiling of photographs are not a serious infirmity in any electricity theft case since the case can be proved by oral testimony supported by photographs showing the theft of electricity. The illegal wires are clearly visible in CD Ex. PW2/D. Thus, it cannot be said that production of wires is not duly sealed condition after about more than 5 years in any manner cause any prejudice to the defence of accused. In this regard, reliance may be placed upon the judgment reported in case titled as "Mukesh Rastogi Vs. NDPL"
decided on 23.10.2007 by the Hon'ble High court of Delhi in Criminal Appeal No.531/2007.
35. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, Page 30/33 fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not appeal in case of theft of electricity.
36. In view of the aforesaid discussion and law laid down by the Hon'ble Supreme court, it can be safely held that accused has failed to rebutt the presumption arising against him under the ProvisoIII of the Electricity Act that he was involved in the direct theft of electricity on the date of inspection at the inspected premises when it has been proved on record that accused was very much present at the inspected premises and was doing the commericial activity as well as using electricity for domestic purposes illegally without having any valid licence/source of electricity to consume it.
Page 31/3337. Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused appears to be without any substance.
(H) CONCLUSION :
38. From the aforesaid discussion, it is clearly proved that prosecution has established from the cogent evidence that an inspection was carried out on 29.01.2009 at about 10 : 45 p.m. at the premises no. A8, Gali no.1, North Ghonda, Near Main Road, Yamuna Vihar, Delhi and that the said premises belongs to the accused Prem Prakash Sharma @ Kalu Pandit and there was electricity supply directly running through illegal tapping just before the meter in the service cable of BSES LTMP service Line as there is nothing on record to suggest that the accused was authorized to use the electricity for industrial as well as for domestic purposes. Thus, the State has been able to prove that there was direct theft of electricity by the present accused at the time of inspection in the inspected premises.
39. Thus, it has been proved on record that it was the accused, who was directly involved in the electricity theft and Page 32/33 this fact has been proved beyond any reasonable doubt from the testimony of the witnesses and seizure of illegal wires from the inspected premises no. A8, Gali no1, North Ghonda, Yamuna Vihar, Delhi as well as the videography placed on record. Accordingly, the accused Prem Prakash Sharma @ Kalu Pandit is held guilty and convicted for the offence punishable u/s 135 r/w Sec.135 of the Electricity Act. He is also held liable for the civil liabilities for using electricity illegally for industrial as well as domestic purposes under section 154(5) of the Electricity Act.
Main file be consigned to record room.
Ahlmad to prepare the misc. file for the purposes of arguments on sentence.
Be put up for supply of copy of judgement to the accused/convict on 31.03.2018.
ANNOUNCED IN THE OPEN COURT TODAY ON 28th MARCH, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 33 no. of pages) Digitally signed by (One Spare copy is attached) DEVENDRA DEVENDRA KUMAR SHARMA KUMAR Location:
Karkardooma Court SHARMA Date: 2018.03.31 14:58:59 +0530 Page 33/33 Page 34/33