Delhi District Court
"Punjab State Electricity Board & Anr. vs . Ashwani Kumar" In on 20 November, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
CC NO.2063/16 (Old No.1005/17)
P.S. MANDAWALI, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
B.S.E.S. YAMUNA POWER LIMITED,
SHAKTI KIRAN BUILDING, KARKARDOOMA,
DELHI110032
THROUGH ITS AR MR. JITENDER SHANKAR.
......... Complainant.
VERSUS
Sh. Raju
S/o Sh. Dharam Singh
R/o H.No.412
(Adjoining to H.No.413 of Sh. Prakash),
Gali No.3, Mandawali,
Fazalpur, Delhi.
......Accused.
DATE OF INSTITUTION OF THE CASE : 10.09.2007
DATE ON WHICH JUDGMENT WAS RESERVED : 09.11.2017
DATE OF JUDGMENT : 20.11.2017
J U D G M E N T
(A) FACTS :
1.The Complainant Company i.e. BSES Yamuna Power Ltd. (in short called as complainant company) has filed the 1/25 present Complaint case under Section 135 r/w sections 151 of The Electricity, Act 2003 (hereinafter referred to as 'the Act') against the accused namely Raju (hereinafter called as accused) with a prayer to summon, try and punish the accused as per law with additional prayer to determine the civil liability of accused as per the provisions of Section 154 (5) of the Act.
2. Case of the Complainant Company in brief is that on 12.10.2006 at about 11 : 45 a.m., an inspection team of Complainant Company headed by Sh. Gyaneshwar Singh (Asstt. Manager), had conducted an inspection at the premises i.e. H.No.412 (adjoining to 413 of Sri Prakash), Gali No.3, Mandawali, Fazalapur, Delhi (hereinafter referred to as 'inspected premises') where accused was found indulged in direct theft of electricity by tapping supply from BSES service cable through illegal PVC wire without having any meter at site. It has been further alleged in the Complaint that a total connected load of 6.653KW/DX/DT (in short KW) was checked & assessed during the course of said inspection which was being illegally used for domestic purpose by the accused.
3. It has been further alleged that the inspected premises was photographed with the help of digital camera. It has been further alleged that at the time of inspection, inspection report, load report giving details of the illegally connected load, meter inspection report and seizure memo were prepared at the spot. It has been further alleged that accused remained present at the 2/25 time of inspection and search. It has been further alleged that accused was asked to sign the inspection report and load report but he refused to sign the same. It has been further alleged that complainant company after assessing the energy consumption of the accused as per DERC regulations, got issued a bill to the accused which is still pending towards payment by the accused. It has been further alleged that accused used the electricity through artificial means not authorized by the complainant company and thus, found committing direct theft of electricity at the time of inspection by using electricity illegally from the system of the Complainant Company. Hence, the present Complaint case was filed against the accused for initiating legal action as per law including the determination of civil liability against him as per the provision of Section 154(5) of the Act.
(B) SUMMONING AND NOTICE :
4. In the present case, after recording the pre summoning evidence on behalf of the complainant company, accused was summoned to face trial for the offence punishable u/s 135 of the Act. On 14.05.2012 a notice of accusation as per the provisions of section 251 of Cr.P.C was framed against the accused 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.
(C) COMPLAINT'S EVIDENCE :
5. In support of its case, the Complainant Company has 3/25 examined four witnesses namely CW1 Sh. Gyaneshwar Singh (ASVP, BSES), PW2 Sh. Anand Sagar, PW3 Sh. Mukesh Sharma and PW4 Sh. Vikrant Mohan Seth (Addl. Vice President of the BSES YPL) and thereafter evidence of the Complainant Company was closed as per their oral submission made on 26.05.2017.
6. Now turning to the evidence of Complainant's side on record, CW1 Sh. Gyaneshwar Singh, ASVP, BSES YPL has deposed on the line of complaint and relied upon documents i.e. Inspection report as Ex.CW1/A, Load Report as Ex.CW1/B, Inspection report (Meter Detail report a Ex.CW1/C, Photographs as Ex.CW1/D (colly), Seizure memo as Ex.CW1/E, theft bill as Ex.CW1/F and CD containing photographs as Ex.CW1/G. He has deposed that accused Raju was present at the inspected premises at the time of inspection and he has correctly identified the witness present before the Court. He has also correctly identified the case property i.e. two core black colour PVC cable joined with yellow colour small wire, two pieces of blue colour wires joined with small red colour pieces of wires as Ex.P1 (colly). He has been crossexamined by Ld. Counsel for the accused at length.
6. During his crossexamination, he has testified that at the time of inspection he was posted as an Asstt. Manager and the raid was conducted during mass raid under the supervision of PW4 Sh. Vikrant Seth, Manager (Enforcement). He has further testified that at the time of inspection, accused Raju was found 4/25 indulged in tapping electricity through service cable of BSES. He has further testified that he had also booked other cases , but he does not remember, if inspection was carried out in any other premises of same street. He has further testified that accused Raju himself has disclosed them that he was the owner of the inspected premises. However, he termed it correct that accused Raju is not appearing anywhere in the photographs Ex.CW 1/D(Colly).
7. During his further crossexamination PW1 was shown a receipt No.120813 dt.27.12.1999(Ex.CW1/DI) issued by the DVB in respect of temporary connection to which he replied that he is not aware about such receipt and same was not shown to him at the inspected premises on the day of inspection. He has further testified that he is not able to confirm whether at the relevant time while providing temporary connection, there was a policy of giving electricity meter or not. He denied the suggestion that no meter was installed at the inspected premises as temporary connection was already provided by the DVB as per their policy or that there was provision that consumer can use electricity without meter till installation of electricity meter or that DVB was issuing lumpsum bill towards that temporary connection and consumer was supposed to pay the said bill accordingly. He has further testified that he did not ask anyone, if there was temporary connection or not in the inspected premises at the time of inspection. He has further testified that on the day of inspection, they had also conducted raid in the premises 5/25 bearing No.413. However, he denied the suggestion that in the said premises bearing No.413, there was no meter and temporary connection was installed and for this reason, no case was lodged against owner of the said premises. He has further testified that they demanded documents relating to electricity connection and ownership of the inspected premises but accused failed to do so. He has further termed it correct that LV mains were overhead lines (Open Lines) or that temporary connections were given to the consumers where the overhead lines were not available in the lanes. He has voluntarily stated that the inspected area was electrified.
8. The next witness examined in this case on behalf of the Complainant Company at after notice stage is PW2 Sh. Anand Sagar, DET, who has tendered his affidavit as Ex.PW2/A inlieu of his examinationinchief and has relied upon the same documents which have been relied upon by CW1 i.e.Ex.CW1/A to Ex.CW1/G. He has identified the case property as Ex.P1 and carbon copy of seizure memo as Ex.P2. He has also identified the accused present before the Court. He was crossexamined by Ld. Counsel for the accused.
9. In his crossexamination, PW2 has admitted that on the day of inspection, they had conducted inspection on the premises in question during mass raid. However, he does not remember the exact number of other premises raided by them on the alleged date. It has been further admitted by him that they 6/25 had also conducted inspection on the adjoining premises of the inspected premises i.e. premises bearing No.413 of one Prakash. He has further testified that he was well aware about the government temporary connection scheme, which was being provided to the unelectrified area on "As is where is and as single point delivery basis". It has been further admitted by him that they made enquiries from the neighbours as to who was the owner of the inspected premises, upon which they disclosed that the inspected premises belongs to accused Raju. It has been further testified by PW2 that the team leader demanded temporary connection documents from the tenant present at the inspected premises. It has been further admitted by PW2 that no meter was issued by DVB, while providing temporary connection, however, he again testified that he has no knowledge about the same. PW2 has admitted interalia that no person is appearing in the photograph Ex.CW2/D; that during the inspection no document was supplied by the consumer with regard to temporary connection, hence, they made direct theft case; that no electricity pole was in existence near the inspected premises on the day of inspection; that there were no poles installed on both corners of the gali of the inspected premises; that overhead line was present. He has denied the suggestion that he had not made the DT case upon the adjoining premises no.413 as the documents were shown by the consumer in respect of electricity connection. He has further denied the suggestion that there was no direct theft of electricity found at the inspected premises and accused was already having temporary connection.
7/2510. The next witness examined in this case on behalf of the Complainant Company is PW3 Sh. Mukesh Sharma, Manager BSES YPL, who has tendered his affidavit as Ex.PW3/1 and has relied upon documents i.e. Compliant filed by Sh. Jitender Shankar as Ex.PW3/1, Authority letter issued in favour of Sh. Jitender Shankar as Ex.PW3/2, GPA dt.05.07.2013 issued in his favour as Ex.PW3/3 and copy of Board Resolution as Ex.PW3/4.
11. In his crossexamination, PW3 has testified that he has no personal knowledge about the inspection conducted at the inspected premises and present case was filed on the basis of documents provided by the Complainant Company. It has been denied by PW3 that no case of theft is made out in the present case as the accused was already having temporary connection. He has voluntarily stated that as per record of their company, no electricity connection was provided to the accused at the inspected premises. During his crossexamination, PW3 was shown an original receipt dt.27.12.1999 (as Mark PW3/D1) in the name of Munish Devi, upon which he testified that he is not able to say, whether same is towards temporary electricity connection for unelectrified area. It has been admitted by the PW3 that complainant company i.e. BSES YPL has taken over the DVB/DESU and all the consumers of erstwhile company of DVB became consumer of complainant company after taking charge of distribution area.
8/2512. The next witness examined in this case on behalf of the Complainant Company is PW4 Sh. Vikrant Mohan Seth, Addl. Vice President, BSES YPL, who has tendered his affidavit as Ex.PW4/1 and has relied upon only one document i.e. Seizure memo Ex.PW1/E. He has been crossexamined by Ld. Counsel for the accused.
13. During his crossexamination, he has testified that inspected premises was raided during a mass raid alongwith police and CISF staff. He further termed it correct that the supply in the inspected premises was coming from the pole at the distance of 300 meters approx.. However he has testified that he does not remember, if any other illegal wire was connected from the said pole or not. He has denied the suggestion that at the time of inspection the locality of the inspected premises was unelectrified. He has further testified that the entire division of the complainant company was electrified by the end of 2006, but no such document in this regard has been filed by him on record. He has further denied the suggestion that the house of one neighbour namely Prakash was also inspected during mass raid, but no case of theft of electricity was made out against said property as he has shown the bill for temporary connection to the inspection team. He has further testified that he is not aware, if accused had shown any document pertaining to said temporary connection from DVB at the time of inspection. He has further testified that he has no personal knowledge about any circular issued from DVB that with regard to the premises having 9/25 temporary connection, they will continue to have electricity supply without meter till taking over by the present complainant company. He has denied the suggestion that the premises was having the electricity connection vide ExCW1/D1, therefore, accused is not liable for any kind of theft of electricity or he is not liable for any civil or criminal liability.
14. No other witness was produced or examined on behalf of the Complainant's side. Hence, Complainant's evidence after notice stage was closed on 25.05.2017 and matter was fixed for recording of Statement of the accused U/sec.281 r/w Sec.313 Cr.P.C.
(D) STATEMENT OF ACCUSED :
15. On 17.08.2017, 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 and the witnesses have deposed against him in the present case at the behest of the Complainant Company being their employee. He has further asserted that he was having the temporary connection from the erstwhile DVB in his wife's name, which was provided "as on where as" basis as the area of inspected premises was not properly electrified by the concerned department and he has no outstanding dues towards that temproary connection. He has further asserted that he was not present at the inspected premises at the time of inspection, 10/25 hence, he could not produce any document or receipt with regard to that temporary connection provided by the erstwhile DVB. Accused preferred to lead defence evidence.
(E) DEFENCE EVIDENCE :
16. Now turning to the defence evidence of the accused, wherein accused has examined himself as DW1 and relied upon document Ex.DW1/1 and DW1/2 and Office Order as MarkA. He has been crossexamined by Ld. Counsel for the Complainant Company.
17. During his crossexamination, he has testified that he was not aware about the inspection dt.12.10.2006. He has further termed it correct that at the alleged date of inspection i.e. 12.10.2006, there was no meter installed at his premises. He has voluntarily stated that there was temporary connection at his house. Thereafter, defence evidence was closed as per the oral submission made by Ld. Counsel for the accused and matter was fixed for final arguments.
(F) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
18. I have heard final arguments advanced on behalf of the parties.
During course of arguments, an issue was raised with regard to the fact that there was regular meter connection in the locality alongwith other issue that there was temporary electricity in the name of wife of the accused namely Smt. Mish Devi and 11/25 whether regular bill was paid of temporary connection. Hence, complainant office was directed to produce the relevant documents of K.No.503135669 DL issued in the name of Smt. Munish on behalf of the complainant company and same were filed by the complainant's office on 31.10.2017. Thereafter, accused got recorded his statement with regard to genuineness of documents. I have also perused the record as well as written submissions. I have also gone through the contents of CD which was played at the time of final arguments.
19. 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 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 12/25
(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 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 years and shall also be 13/25 debarred from getting supply of electricity for that period from any other source or generating station;........
20. 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 to the accused.
b) That it was being done by the accused/consumer in the inspected premises.
c) That artificial means or means not authorised by Complainant Company exists for electricity theft.
21. 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".
14/2522. In the present case, it is the case of the complainant that the accused Raju was found indulged in direct theft of electricity without any meter on the date of inspection i.e. 12.10.2006 in premises no. H412 adjoining to premises no. 413 of Sh. Prakash, Gali no.3, Mandwali, Delhi. The defence of the accused is that the accused was is no way connected with the said premises. Further defence is that there was temporary connection vide Ex. CW1/DW1 in the name of wife of the accused.
23. It has been stated on behalf of the complainant's side that in the present case, there is no denial of presence of the accused at the inspected premises at the time of inspection as CW1, PW2 & PW4 have deposed about presence of the accused at the inspected premises at the time of inspection in their examinationinchief and they have also correctly identified the accused before the Court. It has been further submitted that there was no meter installed at the inspected premises at the time of inspection and accused was found indulged in direct theft of electricity by tapping from the BSES service cable and thus, case of electricity theft has been proved against the accused beyond reasonable doubt. On the other hand, accused has denied his presence or any connection with inspected premises and has prayed his acquittal on this ground.
(G) FINDINGS :
24. In the testimony of PW3 Sh. Mukesh Sharma, it has 15/25 been proved on record that the present complaint was filed by Sh. Jitender Shankar, being authorised representative of the Complainant company vide authority letter Ex.PW3/2 and GPA dt. 05.07.2013 Ex. PW3/3 with copy of Board Resolution Ex. PW3/A. It has been further proved in the testimony of PW3 that Sh. Jitender Shankar has filed the present Criminal Complaint Ex.PW3/A. There is no suggestion that he was not authorised representative of the Complainant Company and thus, it has been proved that present complaint was filed by the duly authorised persons and is therefore maintainable.
25. So far as presence of the accused is concerned, the witnesses CW1, PW2 & PW4 have categorically deposed that accused was present at the inspected premises at the time of inspection. In their examination in chief they have correctly identified the accused in the Court as well. Though, it is correct that in none of the photographs filed on record, the accused is shown present on the spot but in the entire cross examinations of the said witnesses nothing has come on record to disbelieve their testimony regarding the presence of accused on the date of inspection at the inspected premises.
26. In the crossexamination of CW1 & PW2, it is testified by them that there was no name plate or number upon the inspected premises. However, this deposition of witnesses cannot be treated to be an admission that the premises in question was not belonging to the accused.
16/2527. It is clear from the cross examination of CW1 wherein the witness CW1 has categorically stated that accused Raju himself disclosed that he is the owner of the inspected premises. Further the suggestion has been given that the wife of the accused was the owner of the inspected premises. However when the accused himself appeared in the witness box as DW1 even in his examination in chief he has not stated that he is not the owner of the inspected premises. His sole defence in his examination in chief is that there was a temporary electricity connection in the inspected premises in the name of his wife Smt. Munish Devi vide receipt no. 120818 dated 29.12.1999 which has been exhibited as Ex. DW1/1. Thus, it stands proved on record in absence of any rebuttal testimony on behalf of accused regarding the ownership, that he was the owner /consumer of the inspected premises at the relevant time of inspection as the witnesses have categorically deposed that it was the accused Raju who was the owner of the inspected premises and thus, its stands proved that it is the accused only who were in occupation of the inspected premises at the time of inspection.
28. Witnesses CW1 & PW2 have further categorically deposed that the accused was involved in the direct theft of electricity in the inspected premises by tapping from BSES Service cable through illegal wires and there was no meter at the site and the total connected load was found to be 6.653 KW. They have further deposed that the electricity was being used for 17/25 domestic purpose by illegal tapping. It is admitted case of the accused that no meter was installed at the inspected premises. Even the suggestion has been given on behalf of the accused that during the inspection, accused could not produce the receipt of temporary connection and regular paid bill. Thus, the onus was upon the accused to prove that there was temporary connection in the inspected premises and regular bill was being paid.
29. However except the receipt dated 29.12.1999 bearing serial no. 120818 Ex.CW1/D1(also DW1/1) the defendant has failed to produce the paid bill of the said temporary connection though he has claimed that he was paying the regular bill.
30. It is to be noted that at the time of final argument this Court called the details of CRN No. 1230038715 pertaining to the said receipt. The accused admitted vide his separate statement the genuineness of duplicate electricity bill and consumer details of the said CRN number as of belonging to his wife as mark Z1 and Z2 (colly.). Mark Z1 & Z2 make it clear that the said receipt number produced by the accused is of not the inspected premises but of different premises. Though it has been argued on behalf of the accused that same is belonging to the inspected premises, and if even for the sake of arguments, it is assumed to be of the inspected premises, it is clear from mark Z2 that the electricity was disconnected on 14.02.2006 i.e. much prior to the date of inspection in the present case which was conducted on 12.10.2006.
18/25One argument has been advanced on behalf of the accused that mark Z1 shows no outstanding against the said connection. However said arguments appears to be without any merit. As per mark Z1 last meter reading was taken on 23.01.2006 and the bill details shows that bill of the said account number was raised regularly upto the month of February 2006 but thereafter since the connection was disconnected, the other details clearly shows there was no bill raised thereafter on consumption basis or inspection of reading basis as the same bill of Rs. 5171.99/ is shown to be in arrears upto April 2009. Thus, from the abovesaid documents it is clearly proved that there was no valid source of electricity in the inspected premises on the date of inspection.
31. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of CW1, PW2 and PW4 as their testimony remained unrebutted and unshakened despite the lengthy cross examination regarding the presence of accused, no meter installed at the site as well as illegal tapping of electricity by the accused in the inspected premises. Thus, from the above testimonies of PWs, it is proved that the accused Raju was present at the inspected premises at the time of inspection, that there was electricity theft by the accused by tapping illegal wires from service cable of the complainant company and no meter was found installed there, that the inspected premises was in occupation of accused and there was artificial means i.e. seized 19/25 illegal wires duly identified by the witnesses, which were being used for theft of electricity.
32. 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 manner being the consumer of the electricity.
33. 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 belief 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".
34. Though rebuttal evidence has been led in defence by the accused but he failed to rebut the presumption arising against 20/25 him of electricity theft. In view of the aforesaid case law laid 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 not 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 without having any valid licence/source of electricity to consume it. Moreover during trial, accused as well as case property have been properly identified by the witnesses.
35. 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 21/25 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"
36. 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. During the evidence, the accused was duly identified by the witnesses.
37. 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 22/25 appeal in case of theft of electricity.
38. Further from the statement of the accused Raju recorded U/sec.281 r/w Sec.313 Cr.P.C, it is clear that according to him there was temporary connection at the inspected premises in the name of his wife who was owner but as discussed hereinabove he has failed to prove that his wife was owner of the inspected premises.
39. There is no dispute regarding inspection though accused has denied that he was not indulged in direct theft of electricity. However, the witnesses CW1, PW2 & PW4 have proved on record that on 12.10.2006 at about 11 : 45 a.m. an inspection was carried out at the premises No. H.No. 412, Gali no.3, Mandawali, Delhi. They have further proved that at the time of inspection, the accused Raju was present at the inspected premises and no meter was found installed at the inspected premises at the time of inspection. .
40. During the inspection, it was found that all the load was directly running through illegal tapping and in this regard an inspection report ExCW1/A was prepared. CD of photographs Ex.CW1/G was also prepared at the spot. The case property was seized from the spot vide seizure memo Ex. CW1/E and the case property have been duly identified by the these witnesses. The case property was collectively exhibited as Ex.P1. Aforesaid all 23/25 the witnesses have also proved the theft bill Ex. CW1/F for an amount of Rs.1,96,132/. Therefore, in view of the aforesaid testimony, the defence taken by the accused that he was not indulged in the any theft of electricity at the inspected premises appears to be a hollow defence.
Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused appears to be without any substance.
(H) CONCLUSION :
41. From the aforesaid discussion, it is clearly proved beyond any doubt that Complainant Company from the cogent evidence that an inspection was carried out on 12.10.2006 at about 11 : 45 a.m at the premises No. 412, Gali no.3, Mandawali Fazalpuri, Delhi and that the said premises belongs to the accused Raju and there was electricity supply directly running through illegal tapping from BSES service cable as there is nothing on record to suggest that there was any meter installed in the name of present accused Raju or any of his family member at the inspected premises and the load was connected from the said meter. Thus, the complainant has been able to prove that there was direct theft of electricity by the present accused Raju at the time of inspection in the inspected premises.
42. In the light of the aforesaid discussion, it has been proved on record that it was the accused Raju who was directly involved in the electricity theft and this fact has been proved 24/25 beyond reasonable doubt from the testimony of CW1, PW2 & PW4 coupled with the seizure of illegal wires from the inspected premises no. 412, Gali no.3, Mandawali Fazalpuri, Delhi as well as the inspection report Ex.CW1/A, assessment of connected load Ex. CW1/B, meter details report Ex. CW1/C, photographs Ex CW1/D as well as CD Ex.CW1/G placed on record coupled with seizure memo Ex.CW1/E. Accordingly, the accused Raju is held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and is also held liable for the civil liabilities for using electricity illegally for domestic purpose 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 arguments on sentence on 28.11.2017.
ANNOUNCED IN THE OPEN COURT TODAY ON 20th NOVEMBER, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 25 no. of pages) (One Spare copy is attached) 25/25