Delhi District Court
State(Bses) vs Devanand on 21 August, 2024
SC No.180/2021 State Vs. Devanand
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 180/2021
FIR No. 205/2019
Under Section 135/150 Electricity Act
PS Gandhi Nagar
State
versus
Devanand
S/o Sh. Sher Singh
R/o 9/5323, Old Seelampur, Gandhi Nagar,
Delhi-110031
.... Accused
Date of institution 18.03.2021
Judgment reserved on 12.07.2024
Judgment Pronounced on 21.08.2024
Decision Convicted
JUDGMENT
1. Accused Devanand is facing trial upon the allegations that his tenant/user Ravinder (since not arrested) indulged in theft of electricity in the inspected premises and accused Devanand being owner of the inspected premises, committed an offence punishable under Section 135 r/w Section 150 of Electricity Act 2003 (hereinafter referred to as 'the Act').
Judgment 1 of 24
SC No.180/2021 State Vs. Devanand
Brief Facts
2. On 04.07.2019, at about 3.40 pm, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by PW2 Sh. Anil Kumar (Assistant Manager) in the residential premises of accused at House No.9/5512, Ground Floor, Old Seelampur, Delhi-110031.
3. At the time of inspection, four electricity meters were found installed at the site but outgoing supply of these meters were found disconnected. Meter room of the inspected premises was found locked and the person present at the inspected premises did not open the lock of the meter room on the pretext that the key of the meter room is with the landlord. The inspection team with the help of ladder managed to see the supply status of the inspected premises through a window at upper side of the door and it was found that LED was functional in meter room. The electricity supply of Ground Floor of the inspected premises was found running directly through one service cable and supply was being used for sewing machine work. Out of four meters, serial number of one meter i.e. 11474510 was captured in videography. One Abdul Rehman was found to be registered consumer of electricity meter bearing serial number 11474510. The illegal material/case property could not be removed and Judgment 2 of 24 SC No.180/2021 State Vs. Devanand seized due to locked position of the meter room.
4. At the time of inspection, total connected load running on direct theft was found to be 3.096 KW which was being used for non-domestic purposes i.e. sewing machine work. Videography of the connected load was recorded by the videographer. Inspection documents i.e. Inspection Report, Load Report and Seizure Memo 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.2,68,980/- Accordingly, a theft bill was raised and sent to the accused but he 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, 138 & 150 Electricity Act with SHO, PS Gandhi Nagar for registration of FIR against user Ravinder (since not arrested being not traceable) and registered consumer Abdul Rehman U/s 135, 138 & 150 of the Electricity Act.
7. On the said complaint, present FIR was registered and investigation was marked to ASI Mohan Bir. During investigation, it was revealed that Devanand was owner of the inspected premises while Ravinder and Abdul Rehman were his tenants and the electricity meter bearing serial no. 11474510 was in the name of Abdul Rehman and they both have left the inspected premises. Accordingly, Judgment 3 of 24 SC No.180/2021 State Vs. Devanand Devanand being owner of the inspected premises was charged as one of the accused in this case. After completion of investigation, charge-sheet was filed against the accused Devanand U/s 135/138/150 of Electricity Act.
Notice
8. On 04.05.2023, notice U/s 251 Cr.P.C for commission of offence punishable under Section 135 r/w Section 150 of the Act was given to accused Devanand. He did not plead guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution examined following three witnesses.
10. PW1 HC Rakesh Kumar, is the IO initial of the case, who proved endorsement as Ex.PW1/A, copy of FIR as Ex.PW1/B, site plan as Ex.PW1/C, notice U/s 41A Cr.P.C. given to accused as Ex.PW1/D and disclosure statement of accused as Ex.PW1/E. He also proved copy of Election I-Card as Ex.PW1/F and copy of ownership document of the inspected premises as Ex.PW1/G (colly). He also proved Pabandinama Ex.PW1/H.
11. PW2 Sh. Anil Kumar is Team Leader/complainant who was heading the inspection team. He proved CD of videography of the inspection proceedings as Ex.PW2/A, inspection report as Ex.PW2/B, load report as Ex.PW2/C and theft bill as Ex.PW2/D. He also proved the complaint Judgment 4 of 24 SC No.180/2021 State Vs. Devanand as Ex.PW2/E.
12. PW3 Sh. Parveen is the videographer who, on the instruction of team leader Sh. Anil Kumar, captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW2/A and Certificate U/s 65B of Indian Evidence Act as Ex.PW3/A. Statement of Accused
13.All incriminating evidence which has come on record, were put to the accused under Section 313 Cr.P.C. Accused denied all material allegations and stated that he is innocent and has been falsely implicated in this case. He has not committed any theft of electricity. However, accused did not lead any Defence Evidence.
Arguments
14.Ld. Addl. PP submitted that user Ravinder and Abdul Rehman were tenants of accused Devanand who is owner of the inspected premises while the electricity meter bearing serial no. 11474510 was in the name of Abdul Rehman. It is also argued that outgoing supply of the meter was found disconnected and entire load of ground floor was found running through direct theft of electricity. Accused Devanand being owner of the inspected premises was well aware of all these facts and he abetted his tenants to commit direct theft of electricity and thus, he being owner of the inspected premises, is liable for the alleged offences. Ld. Addl. PP further submitted that prosecution Judgment 5 of 24 SC No.180/2021 State Vs. Devanand 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 may be convicted.
Analysis
15.On the other hand, Ld. Defence Counsel submitted that accused is innocent and he has been falsely implicated in this case. It submitted that accused has not committed any theft. It is also submitted that accused has settled civil liability qua impugned theft bill and NOC has also been issued to accused.
16.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:-
"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;"
17.In this case, accused Devanand was found to be owner of the inspected premises and his tenants Ravinder and Abdul Rehman (since not traced) were 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 Judgment 6 of 24 SC No.180/2021 State Vs. Devanand premises/registered consumer 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).
18.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 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 Judgment 7 of 24 SC No.180/2021 State Vs. Devanand 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 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.
19. There is a presumption mentioned in the third proviso of Section 135(1) of the Electricity Act, 2003 which reads as Judgment 8 of 24 SC No.180/2021 State Vs. Devanand 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.
20.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".
21.As per prosecution case, at the time of inspection, four electricity meters were found installed at the site but outgoing supply of these meters were found disconnected and Ravinder and Abdul Rehman (since not arrested) were found to be tenants of the accused Devanand. Tenant/user Ravinder was found to be user of electricity while the electricity meter bearing serial no.11474510 was found registered in the name of Abdul Rehman who was also tenant of the accused Devanand. Accused Devanand being owner of inspected premises let/permitted/allowed the user/his tenants to commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
22. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 Judgment 9 of 24 SC No.180/2021 State Vs. Devanand 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 ti report a case of theft and then under Regulation 63 there is assessment of theft bill.
23. 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 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., Judgment 10 of 24 SC No.180/2021 State Vs. Devanand 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.
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 Judgment 11 of 24 SC No.180/2021 State Vs. Devanand 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 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 Judgment 12 of 24 SC No.180/2021 State Vs. Devanand 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.
24. PW2 Sh. Anil Kumar (Assistant Manager) and PW3 Sh.
Parveen (Videographer) are prime witnesses of this case being members of inspection team. PW2 corroborated the allegations made in the complaint ( Ex.PW2/E) and deposed that during inspection it was found that meter room of the inspected premises was found clocked and person present there did not open the meter room stating that the key of the said room is with the landlord Devanand. PW2 further deposed that he tried to find out the status of electricity and found that four meters were installed in the meter room including meter No.11474510 which was installed for ground floor in the name of Abdul Rehman and outgoing supply of the said meters were found disconnected but supply of the inspected premises was running through service cable without meter and all these facts have been captured in the videography from the window. PW2 further deposed that the person present at the spot disclosed that accused is owner of the inspected premises while Ravinder is tenant therein. Accused has not Judgment 13 of 24 SC No.180/2021 State Vs. Devanand specifically denied these facts during cross-examination of PW2.
25. PW2 further deposed that at the time of inspection, total connected load was found to be 3.096 KW which was being used for non-domestic purposes i.e. sewing machine work. He further deposed that the videography of the inspection proceedings was captured by videographer Sh. Parveen. He also deposed that the illegal wire could not be removed during inspection as the meter room was locked.
26. PW3/videographer Parveen conducted the videography of the Inspection Proceedings in which the commission of theft of electricity at the inspected premises was recorded. PW2 & PW3 were duly cross-examined by Ld. Counsel for accused was unable to bring out any contradiction in their testimony. Accused has not specifically disputed the factum of inspection. However, Ld. Counsel for accused endeavoured to say that PW2 was not authorized to do inspection as no document authorization of PW2 to conduct raid has been filed on record. Ld. Counsel for accused has simply put suggestion that no theft was found during inspection proceedings and for this reason the wires through which the alleged theft was taking place were not seized, which facts have been denied by PW2. Accused has not disputed the load mentioned in the load report. Rather to the query regarding calculation of load, PW2 specifically stated that upon his instruction, Diploma Trainee Engineer (DET) calculated the load. entire electric Judgment 14 of 24 SC No.180/2021 State Vs. Devanand appliances/load was running through illegal wire.
27. 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 person has not disputed the calculation of the load as mentioned in the load report. Accused has not rendered any alternative explanation. Accused Devanand is admittedly the owner of the inspected premises. Ravinder is stated to be user of the electricity at the relevant time and Abdul Rehman was stated to be registered consumer. Although, they were stated to be not present at the site at the time of inspection, it is admitted by the accused Devanand that Ravinder and Abdul Rehman were his tenants in the inspected premises and electricity meter No.11474510 was registered in the name of his tenant Abdul Rehman. So it is evident that accused knew that co- accused also shared the intention alongwith accused to indulge into acts constituting direct theft of electricity. Furthermore, accused was well known that outgoing supply of the electricity meters installed there was lying disconnected that he permitted his tenants/user Ravinder and Abdul Rehman to use the inspected premises which shows malafide intention of the accused to commit direct theft of electricity causing loss to exchequer. It is not the case of the accused that outgoing supply of the electricity meter No.11474510 was not disconnected and load of the booked floor i.e. Ground Floor was running through Judgment 15 of 24 SC No.180/2021 State Vs. Devanand authorized electricity meter at the inspected premises.
28. 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, preparation of documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stands proved.
29.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 PW2 & PW3.
30. During evidence, CD (Ex.PW2/A) containing inspection proceedings was played before the court which depicted the manner in which the user was found indulged in direct theft of electricity through illegal wire. Accused has not disputed the identity of the inspected premises shown in the video contained in the CD. Furthermore, it is not disputed at all by the accused that the outgoing supply of the electricity meters including meter No.11474510 which was registered in the name of his tenant Abdul Rehman, was lying disconnected at the time of inspection and supply of the Ground Floor was running directly with the help of illegal wire.
Judgment 16 of 24
SC No.180/2021 State Vs. Devanand
31. Nothing has been brought on record to indicate that
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."
32. 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 Judgment 17 of 24 SC No.180/2021 State Vs. Devanand accused.
33. In addition, nothing has come on record to show that the 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.
34.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.
35. 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 Judgment 18 of 24 SC No.180/2021 State Vs. Devanand 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 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."
36. 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 Judgment 19 of 24 SC No.180/2021 State Vs. Devanand exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
37. In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the aforesaid statutory presumption. Accused did not lead any defence evidence nor he has brought anything on record which could suggest that his tenants/user were drawing electricity through authorized means or electricity meter. Moreover, it is admitted position of fact that outgoing supply of the electricity meters installed at the inspected premises was lying disconnected. As per load report, certain electric appliances were found in the inspected premises and accused has not explained as to from where he was drawing electricity to run those appliances. Also, it is not the case of the accused that there was any Genset and he was drawing energy from the same.
38.If the accused/user 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 was to prove on record that at the time of inspection, user/his tenant was drawing electricity through his own electricity meter and was paying bills commensurate to the consumption. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Accordingly, it is held that accused has failed to rebut the statutory presumption.
Judgment 20 of 24 SC No.180/2021 State Vs. Devanand
39. Furthermore, it is clear from the evidence of PW2 that in regard to the electricity theft, the complainant company had raised a bill of Rs.2,68,980/- (Ex.PW2/D) against the accused and during the course of arguments, Ld. Counsel for accused submitted that that accused has settled the matter qua civil liability and also deposited the settlement amount and NOC has also been issued. 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 would have raised his protest and would have initiated appropriate proceedings against complainant company for raising a false claim against him. This conduct of the accused also fortifies the allegations of the direct theft of electricity against him.
40.Notwithstanding, if the user/tenants 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, his tenants Ravinder and Abdul Rehman were drawing electricity through their own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Though, four electricity meters Judgment 21 of 24 SC No.180/2021 State Vs. Devanand were found installed at the inspected premises but outgoing supply of the said meters were lying disconnected. In view of these discussions, it is held that accused has failed to rebut the statutory presumption.
41. In this regard, this court is supported by the judgment of Hon'ble High Court of Delhi reported as Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by 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".
42. Accused did not lead any defence evidence. If the tenants i.e. Ravinder and Abdul Rehman were not indulged in direct theft of electricity or that they were using the Judgment 22 of 24 SC No.180/2021 State Vs. Devanand electricity through any legal means, then the accused Devanand, who claimed himself to be 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 inspected premises was belonging to accused Devanand at the relevant time, which was let out to co-accused Ravinder and Abdul Rehman (not traceable). Accused has not brought any material on record or lead any evidence to disprove the prosecution case.
43. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that user Ravinder and Abdul Rehman (since not arrested) dishonestly indulged in direct theft of electricity through illegal wire. It is also proved on record that accused Devanand was the owner of inspected premises and user/tenant Ravinder and Abdul Rehman have been proved to have indulged in direct theft of electricity by attaching illegal wire. Accused Devanand being the owner of he inspected premises let/permitted/consciously allowed the user/tenants/co-accused Ravinder (not arrested) and Abdul Rehman (not arrested) to commit direct theft of electricity. Thus, accused Devanand is guilty of abetment of offence of direct theft of electricity. Accordingly, Devanand is convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003.
Judgment 23 of 24 SC No.180/2021 State Vs. Devanand
44. User/tenant Ravinder and Abdul Rehman have since not been arrested. Necessary legal action may be taken against them as and when they are traced out.
Let convict be heard on quantum of sentence. Announced in the Open Court on 21.08.2024 Digitally signed Ashish by Ashish Rastogi Rastogi 2024.08.21 Date:
16:43:40 +0530 (Ashish Rastogi) Addl. Sessions Judge-05 (Electricity) East/Karkardooma Courts/Delhi Judgment 24 of 24