Delhi District Court
State vs 1) Rajviri on 8 May, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.191/2021
FIR No.287/2019
U/s 135/150 of Electricity Act
PS Gokulpuri
State versus 1) Rajviri
W/o Sh. Omkar
R/o H.No.H-23, Gali No.2,
Ganga Vihar, Delhi
2) Dharmender @ Monu
S/o Sh. Omkar
R/o H.No.H-23, Gali No.2,
Ganga Vihar, Delhi
Date of institution 20.03.2021
Arguments heard 08.05.2023
Date of judgment 08.05.2023
JUDGMENT
1. Accused Rajviri and Dharmender @ Monu have been facing trial on the allegations that they were found indulged in direct theft of electricity and thereby committed offences under relevant provisions of Electricity Act, 2003 (hereinafter referred to as 'the Act').
Brief facts of the prosecution case
2. On 30.08.2019, at 6.47 pm, an inspection was carried out by the inspection team of the complainant company at the premises of accused persons i.e. H.No.23, Ground Floor, Gali No.2, Ganga Vihar, Delhi- 110094. At the time of inspection, one meter bearing no.70097216 was found installed at site in the name of accused Rajviri but the said meter FIR No.287/2019 State vs Rajviri & Anr. 1 of 20 was found in idle position and the user/accused Dharmender @ Monu was found indulged in direct theft of electricity through two core black colour illegal wires which were found connected from BSES Street Light and other end of the said illegal wires were found connected from internal wiring of the ground floor of the inspected premises. At the time of inspection, total connected load was found to the tune of 1.599 KW/NX/DT which was being used at ground floor for non-domestic purposes i.e. running buffalo dairy. Necessary videography of the inspection proceedings was captured by the videographer Sh. Satender. Illegal wire could not be seized due to resistance created by the accused. Necessary document like inspection report, load report and seizure memo were prepared at the spot. An advisory notice was also issued to user/accused.
3. It is averred that accused Rajbiri was found to be registered consumer while accused Dharmender @ Monu was found to be user. Accused Rajviri being registered consumer abetted accused Dharmender @ Monu for committing direct theft of electricity. Accordingly, BSES Yamuna Power Limited (hereinafter referred as complainant company) through its Authorized Officer/Manager Sh. S.M. Pareek, lodged a complaint with the SHO, PS Gokulpuri for registration of FIR U/s 135 of the Act against the accused Dharmender @ Monu and U/s 135 r/w Section 150 of the Act against the accused Rajviri.
4. On the basis of aforesaid complaint, FIR No.287/2019 was registered and investigation of the case was marked to ASI Gajraj Singh, the IO of the case.
FIR No.287/2019 State vs Rajviri & Anr. 2 of 20
5. After completion of investigation, charge-sheet was filed against the accused persons.
NOTICE
6. On 16.09.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Rajviri. A separate notice for the commission of offence U/s 135 of the Act was given to accused Dharmender @ Monu. Both accused persons pleaded not guilty and claimed trial.
7. In order to prove its case against the accused, the prosecution examined the following witnesses.
PROSECUTION EVIDENCE
8. PW2 Sh. S.M. Pareek is the Manager of the complainant company, who deposed that on 30.08.2019, at about 6.47 am, an inspection was conducted by the Enforcement Team of BSES YPL comprising of myself, Sh. Satender Sharma (DET), Sh. Shiv Kumar (Lineman), Sh. Satender (Videographer) alongwith lady guard Hazrul Nisha at the premises of accused persons i.e. H. No. H-23, Ground Foor, Khasra No. 237, Gali No.2, Ganga Vihar, Karawal Nagar, Delhi-110094. At the time of inspection, one single phase meter bearing No.70097216 was found installed in the name of accused Rajviri at the inspected premises, however, the said meter was in idle position and the user/accused was found indulged in direct theft of electricity with the help of two core black colour illegal wire which was found connected from BSES Street Light. At the time of inspection, total connected load FIR No.287/2019 State vs Rajviri & Anr. 3 of 20 was found to the tune of 1.559 KW which was being used for running buffalo dairy at ground floor of inspection premises. At the glance of inspection, the illegal wire was removed by the person present who disclosed his name Rahul S/o Sh. Omkar. The said wire was not handed over to the inspection team despite repeated request and the meter could not be removed due to resistance created by the person present. PW2 also deposed that videography of the inspection proceedings was captured by Sh. Satender (Videographer). The CD containing videography of the inspection proceedings is proved on record as Ex.PW2/1. During evidence, the CD was played on the laptop and after seeing the video, the witness identified the video which was captured by videographer Sh. Satender. He also identified accused Dharmender @ Monu featuring in the said video who is stated to have deliberately disclosed wrong name as Rahul S/o Sh. Omkar. Inspection Report Ex.PW2/2 and Load Report Ex.PW2/3 were prepared at site in presence of accused Dharmender. During inspection, he also issued an advisory Ex.PW2/4 to user/accused. Entire set of inspection documents was prepared at site and the same was tendered to user/accused but he refused to sign and accept the same. On the basis of inspection, a theft bill of Rs.1,33,270/- (Ex.PW2/5) was raised and sent to the accused. Thereafter, on 01.10.2019, he lodged a complaint Ex.PW2/6 with SHO, PS Gokulpuri for registration of FIR against the accused persons.
9. PW3 Sh. Satender Sharma is the Diploma Trainee Engineer (DET), who was one of the member of the inspection team, deposed on the similar lines as testified by PW2.
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10.PW4 Sh. Satender is the Videographer, who deposed that on 30.08.2019, at about 6.47 am, an inspection was carried out by the enforcement team of BSES YPL at the premises of accused and on the instructions of team leader Sh. S.M. Pareek (Manager), he captured the videography of inspection proceedings. He also identified the CD (Ex.PW2/1) played before the court as well as its contents.
11.PW1 ASI Gajraj Singh is the IO of the case, who testified that on 01.10.2019, the complaint Ex.PW2/6 was marked to him by the SHO concerned. Thereafter, 19.10.2019, he made endorsement Ex.PW1/1 on the complaint and handed over the complaint to Duty Officer who registered present FIR No.287/2019. The copy of the FIR is Ex.PW1/2. Thereafter, on the same day, he visited the inspected premise, prepared site plan Ex.PW1/3 and served the accused persons with the notices u/s 41.1(A) Cr.P.C (Ex.PW1/4 and Ex.PW1/5) upon which they joined the investigation and produced copies of their ID Card, electricity bill and copies of ownership documents of inspected premises which are Mark A Colly. PW1 also deposed that during investigation, it was revealed that accused Rajviri was the registered consumer as well as owner of the inspected premises and accused Dharmender @ Monu was the user of electricity at the relevant time. He prepared interrogation reports Ex.PW1/6 and Ex.PW1/7. Thereafter, he bound down both the accused persons vide Pabandinamas Ex.PW1/8 and Ex.PW1/9. After completion of the investigation, he filed the charge-sheet.
12.Thereafter prosecution evidence was closed and matter was posted for recording of statements of accused persons.
FIR No.287/2019 State vs Rajviri & Anr. 5 of 20 STATEMENTS OF ACCUSED
13.All incriminating materials which have come on record in the testimony of prosecution witnesses were put to the accused persons in their statements U/s 313 Cr.P.C respectively. Accused persons denied all the material allegations. However, accused persons chose not to lead any evidence to their defence.
FINAL ARGUMENTS
14.Final arguments were advanced by the Ld. Addl. PP as well as Ld. Counsel for the accused persons.
15.Ld. Addl. PP argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses. AR of the complainant company also argued that accused Dharmender @ Monu dishonestly indulged in direct theft of electricity with the help of two core black colour illegal wires by connecting the same with BSES Street Light and meter already installed for the inspected premises was lying in idle position. While accused Rajviri who permitted Dharmender to use premises abetted him to commit theft of electricity. He also emphasised that inspection was conducted as per Rules and applicable Regulations. It is prayed that accused persons be convicted under appropriate provisions of law.
16.Ld. Defence Counsel, on the other hand, argued that accused persons are innocent and have been falsely implicated in the present case. Accused persons have not committed any theft of electricity. It is FIR No.287/2019 State vs Rajviri & Anr. 6 of 20 further submitted that impugned theft bill has already been settled with the complainant company and settlement amount has already been paid and NOC has already been issued by the complainant company. It is prayed that accused persons may be acquitted.
DISCUSSION
17.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;"
18. In this case, accused Rajviri was found to be registered consumer as well as owner of the inspected premises and accused Dharmender @ Monu was found to be user 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, 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).
19.Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the FIR No.287/2019 State vs Rajviri & Anr. 7 of 20 Act which are required to be gone into for appropriate disposal of the case. The present case pertains to Sections 135 as well as 150 of Electricity Act. The provisions of Section 135 and150 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, 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 FIR No.287/2019 State vs Rajviri & Anr. 8 of 20 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.
20.Under the Act, Regulations were framed and notified by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deal with theft of electricity, which are reproduced hereunder: "60. Inspections of the premises and electrical installations by Authorized officer:-
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection. (2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3). (3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment. (4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations.
61. Preparation of Report by Authorized officer:-
(1) In the event of detection of theft of electricity, the Authorized officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission's Orders.
(2) All the material evidences such as tampered meter, tampered meter seal and artificial means used for illegal abstraction of energy and the documentary evidences etc., which are relevant to the case and found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his authorized representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time FIR No.287/2019 State vs Rajviri & Anr. 9 of 20 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 subsection (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, meter, service line etc., from the premises under a seizure Memo. (3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act:
Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty four hours from time of such disconnection: Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption FIR No.287/2019 State vs Rajviri & Anr. 10 of 20 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 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.
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21.As per prosecution case, at the time of inspection, one electricity meter No.70097216 was found installed at the inspected premises in the name of accused Rajviri and accused Dharmender @ Monu was found to be occupying inspected premises as user at the time of inspection and was found indulged in direct theft of electricity through illegal wire connecting the same with BSES Street Light. Accused Rajviri, being registered consumer/owner of inspected premises allegedly let/permitted/allowed the user/accused Dharmender @ Monu commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
22. PW2 Sh. S.M. Pareek (Manager), PW3 Sh. Satender Sharma (DET) and PW4 Sh. Satender (Videographer) are the material witnesses in this case. PW2 and PW3 corroborated the allegations made in the complaint (Ex.PW2/6) and deposed that despite having meter No.70097216, accused/user indulged in direct theft of electricity with the help of two core black colour illegal wire which was connected from BSES Street Light, while above said meter was lying in idle position. Accused persons have not disputed the fact that at the time of inspection, the aforesaid meter was in idle condition and electricity supply to ground floor i.e. inspected premises was running through illegal wire. PW2 and PW3 also identified the inspected premises, mode of inspection and user/accused Dharmender @ Monu in the video contained in the CD (Ex.PW2/1). Both these witnesses were cross-examined by the Ld. Defence counsel who was unable to cull out any contradiction in their FIR No.287/2019 State vs Rajviri & Anr. 12 of 20 testimony.
23.The depositions by PW2 and PW3 were about same incident of inspection and those were consistent in basic details with necessary corroboration from material documents proved. Accused Dharmender endeavoured to say that the inspected premises does not belong to him and he was not present at the time of inspection which pleas appear to have been taken just for the sake of defence as during evidence, the CD of the inspection proceedings was played before the court and PW2 and PW3 identified the user/accused Dharmender @ Monu featuring at the spot i.e. dairy in the video contained in the CD Ex.PW2/1. Accused persons did not dispute the contents of the video as well as presence of the accused Dharmender @ Monu at the spot. In the video, accused/user Dharmender @ Monu can be very well seen present at the spot. During the course of arguments, AR of the complainant has drawn attention of this court towards copies of ownership documents Mark A in which municipal premises is H-23, Ground Floor, Khasra No.237, Gali No.2, Ganga Vihar, Karawal Nagar, Delhi and documents Mark A was produced by the accused himself even in the electricity bill of meter No.70097216 which is in the name of Rajviri, the mother of accused Dharmender, reflects same address which proves that inspected premises belongs to accused persons. Accused has not explained as to whom the inspected premises belongs, if indeed, the inspected premises i.e. buffalo dairy does not belong to them. Accused persons have also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in the load FIR No.287/2019 State vs Rajviri & Anr. 13 of 20 report (Ex.PW2/3). Nothing contradictory could be extracted from the testimony of prosecution evidence.
24.PW2 and PW3 proved the relevant documents i.e. inspection report, load report, seizure memo and electricity bill. Load Report and Inspection Report were prepared as per applicable Regulation of the Regulation No.61 and 63(2) of the Regulation. Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied and theft bill was raised accordance to Regulations. During the course of arguments, AR of the complainant has submitted that matter was settled qua civil liability and at that time, the complainant company has given a credit to the accused persons for the electricity unit already paid by the accused persons for the period of assessment as per mandate of Regulation 63(4) of the Regulation.
25.It is submitted that prosecution story is doubtful as meter and illegal wires could not be seized. PW2 and PW3 have given detailed deposition about non-removal of meter due to resistance created by the user/accused as well as preparation of inspection documents in the testimony sheet. Videography has also been proved by PW2 and PW3.
It is note worthy that non removal of meter or its seizure has not been created doubt upon, rather theft recovered was well-videographed. It is settled that videography proceedings or even seizure of aforesaid meter or device or wire used for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the FIR No.287/2019 State vs Rajviri & Anr. 14 of 20 witnesses which they are unable to explain being member of Inspection Team. Preparation of these documents have not been specifically disputed by the accused persons. Those documents have been placed in original in the court and proved by PW2 and PW3. Preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. No doubt videography of removal and seizure of meter/wire as well as preparation of Inspection Documents are recommended under applicable Regulation but propriety of process without any major lacunae cannot thwart the genuineness of entire proceedings. These are minor fallouts which cannot discredit the entire process and do not hit at the root because establishment of theft is based upon oral testimony which has been able to withheld the test of cross-examination.
26.During inspection, PW2 also issued an advisory notice. In the advisory notice proved as Ex.PW2/5, it is clearly mentioned that in case the accused/user has anything to say against the inspection, they should file written objection thereto within four working days but the user/accused kept mum and chose not to file any objection which indicates the involvement of the accused persons in direct theft of electricity else they would have raised their objection before the competent authority.
27. It was also submitted on behalf of the accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the user/accused was found indulged in direct theft of electricity through illegal Teflon wires which were found inserted in the meter terminal to FIR No.287/2019 State vs Rajviri & Anr. 15 of 20 bypass the metering process of energy consumption and these facts have been well proved by PW2 and PW3. The video contained in the CD Ex.PW2/1 also depicted the manner in which the accused/user was found indulged in direct theft of electricity through illegal wire. It is not disputed by the accused persons that at the time of inspection, certain electrical appliances as mentioned in the load report were installed at the inspected premises and connected load was running through illegal wire by connecting the said illegal with BSES Street Light. While accused Dharmender @ Monu who is son of co-accused Rajviri was present at the spot, he concealed his rel identity. This act itself shows the illintenion of accused person. Accused Rajviri has not stated that she was not aware of what was happening or that she was regularly paying the bill. She did not try to distance herself from the act indulged by her son and co-accused Dharmender. Thus, it is clear from the record that the officials of the complainant company who had no animosity with the accused persons, testified in support of prosecution version, therefore, under these circumstances, non-joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court of India 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 FIR No.287/2019 State vs Rajviri & Anr. 16 of 20 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."
28.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 persons.
29.In view of the discussions made in the preceding paras, it is held that the prosecution has proved the charges against the accused persons that the user/accused Dharmender @ Monu who was in possession of the inspected premises at the relevant time, indulged in direct theft of electricity, in conscious deliberation with accused Rajviri and therefore, in view of the third proviso of section 135 (1) of the Electricity Act 2003, it is to be presumed that user/accused Dharmender @ Monu indulged in direct theft of electricity, in connivance with/having been abetted by accused Rajviri, if they are unable to rebut the statutory presumption.
30.The said presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 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 FIR No.287/2019 State vs Rajviri & Anr. 17 of 20 abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
31.The Hon'ble Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
32.In view of the settled law, now it is to be seen if the accused persons have taken any defence to rebut the statutory presumption. Accused persons have simply stated in their statements recorded U/s 313 Cr.P.C that they are innocent and have been falsely implicated in this case. They stated that they have already settled the dispute and settlement amount has already been paid by them and NOC has also been issued. Accused persons did not lead any evidence to their defence. If the user/accused did not indulge in direct theft of electricity or that they were using the electricity through any legal means, then the accused persons are 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 at the relevant time, inspected premises was being put to use by accused persons of running buffalo dairy while accused Rajviri was found to be the owner/registered consumer and accused Dharmender @ Monu was found to be the user in the inspected premises at the time of inspection. It is clear from the evidence led by prosecution that at the time of FIR No.287/2019 State vs Rajviri & Anr. 18 of 20 inspection, accused/user was indulged in direct theft of electricity through illegal wire. Accused persons have not brought any material on record or lead any evidence to disprove all these allegations. Thus, it is held that accused persons have failed to rebut the statutory presumption. In this regard, this court is supported by the judgment of Hon'ble High Court of Delhi reported as 'Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through mere. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
33.As per record, the meter No.70097216 was sanctioned and installed at the inspected premises for domestic purposes. 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. The meter was lying in idle condition as can be seen from videography proved on record as Ex.PW2/1. Moreso, electricity was being used for running a commercial dairy business.
FIR No.287/2019 State vs Rajviri & Anr. 19 of 20 Accused Rajviri was aware that electricity was being drawn with the help of illegal wire connecting with BSES Street Light. Thus, accused Rajviri is stated to have abetted/allowed/permitted accused Dharmender @ Monu to commit direct theft of electricity.
34. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the user/accused Dharmender @ Monu dishonestly indulged in direct theft of electricity through illegal Teflon wires. It is also proved on record that inspected premises belongs to accused persons whereas accused Rajviri was the owner/registered consumer and accused/user Dharmender @ Monu has been proved to have indulged in direct theft of electricity through illegal Teflon wires. Accused Rajviri being the owner/registered consumer, let/permitted/consciously allowed user/accused Dhrmender @ Monu commit direct theft of electricity. Thus, accused Rajviri is guilty of abetment of offence of direct theft of electricity. Accordingly, accused/user Dharmender @ Monu stands convicted for the offence punishable U/s 135 of the Electricity Act and accused Rajviri is convicted for the offence punishable U/s 135 r/w Section 150 of the Digitally signed by SHELLY Electricity Act 2003. SHELLY ARORA ARORA Date:
2023.05.08 17:03:21 -0400 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 08.05.2023 FIR No.287/2019 State vs Rajviri & Anr. 20 of 20