Delhi District Court
State vs Kuldeep Singh on 5 September, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.207/2022
FIR No.448/2019
U/s 135/138 of Electricity Act
PS Krishna Nagar
State versus Kuldeep Singh
S/o late Sh. Balwant Singh
R/o H.No.83/2/E/1, Gali No.8
East Azad Nagar, Delhi
Date of institution 23.02.2022
Arguments heard 31.08.2022
Date of judgment 05.09.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. Anil Kumar, made a complaint U/s 135/138 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') to the SHO, PS Krishna Nagar for registration of an FIR against the accused Kuldeep Singh U/s 135/138 of the Act.
2. Succinctly, the facts of the case are that on 14.10.2019, at about 11.15 am, an inspection was conducted by the Enforcement team of BSES YPL at the premises of accused i.e. 83/2/E/1, First Floor, East Azad Nagar, Delhi-110051. The inspection team was comprised of Sh. Anil Kumar FIR No.448/2019 State vs Kuldeep Singh 1 of 14 (Assistant Manager), Sh. Rajeev Kumar (DET) and Sh. Rashid Ali (Lineman) alongwith videographer Sh. Parveen. At the time of inspection, meters No.35191745 & 25313899 were found installed at site but the user/accused was found indulged in direct theft of electricity through illegal shunt wires which were found connected at phase to phase & neutral to neutral of the meter no.35191745. The meter box seal and meter terminal seals of the meter no.35191745 were found tampered. Hence, meter no.35191745 was removed by the Meter Management Group and electricity supply of the inspected premises was restored through new meter no.55228413. At the time of inspection, total connected load was found to the tune of 9.016 KW which was being used for domestic purposes. Necessary documents namely inspection report, load report and seizure memo were prepared at the spot. An advisory notice was also issued to the accused. Public persons were requested to join the inspection proceedings but none agreed. Entire set of documents prepared at the site was tendered to the accused/user for signature and he signed the documents. Necessary videography of the inspection proceedings was done by the videographer Sh. Parveen. Following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.2,24,453/-. Accordingly, a theft bill was raised and sent to the accused but accused did not make payment of the theft bill. The CD of the said videography and Certificate U/s 65B of the Evidence Act were also submitted alongwith the complaint. Thus, a prayer was made for registration of an FIR against the user/accused.
3. The SHO marked the said complaint (Ex.PW2/6) to HC Anand FIR No.448/2019 State vs Kuldeep Singh 2 of 14 Pal. Thereafter, HC Anand Pal made endorsement on the complaint and handed over the complaint to Duty Officer for registration of an FIR.
Accordingly, the Duty Officer registered FIR No.448/2019 and assigned the investigation of the case to HC Anand Pal, the IO of the case. On 28.12.2019, IO visited the inspected premises and served the accused with the notice U/s 41.1(A) Cr.P.C. Accused joined the investigation and produced copy of his Aadhar Card and copy of electricity bill in his name. IO bound down the accused vide Pabandinama. After completion of investigation, the charge-sheet was filed against the accused.
4. On 11.05.2022, a notice for the commission of offence U/s 135 of the Act was given to the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first:-
(5.1) PW2 Sh. Anil Kumar is the Assistant Manager of the complainant company. This witness deposed that on 14.10.2019, at about 11.15 am, an inspection was conducted by the enforcement team comprising of himself, Sh. Rajeev Kumar (DET), Sh. Rashid Ali (lineman) and Sh. Parveen (Videographer) at the premises of accused i.e. H.No.83/2, E-1, East Azad Nagar, Delhi-110051. At the time of inspection, one meter No.35191745 with reading 20424 units was found installed in the name of accused at the inspected premises, however, the accused was found FIR No.448/2019 State vs Kuldeep Singh 3 of 14 indulged in direct theft of electricity through illegal shunt wires which were connected at phase to phase and neutral to neutral at the terminal of the aforesaid meter and the meter box seal and terminal seal were found tampered. The said meter was removed by the lineman and seized at the spot vide seizure memo Ex.PW2/4 and the electricity supply of the inspected premises was restored with new meter no.55228413. At the time of inspection, total connected load was found to the tune of 9.016 KW which was being used for domestic purposes at ground floor. PW2 further deposed that at the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Parveen. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/1. During evidence, the CD was played on the laptop and PW2 identified the video which was recorded by the videographer during inspection. PW2 also identified the accused in the said video. The inspection report Ex.PW2/2 and the load report Ex.PW2/3 were prepared at the spot. Entire seet of documents was prepared at the site in presence of the accused and the same was tendered to the accused who signed all the inspection documents. On the basis of inspection, a theft bill of Rs.2,24,350/-
(Ex.PW2/5) was raised and sent to the accused. Thereafter, on 14.11.2019, he lodged a complaint (Ex.PW2/6) with the SHO, PS Krishna Nagar for registration of an FIR against the accused.
(5.2) PW3 Sh. Rajeev Kumar is the Diploma Trainee Engineer (DET). This witness was one of the members of the inspection team and he has corroborated the testimony of PW2 and deposed on the similar lines of FIR No.448/2019 State vs Kuldeep Singh 4 of 14 testimony of PW2.
(5.3) PW4 Sh. Parveen Kumar is the Videographer. This witness deposed that on 14.10.2019, at about 11.15 am, an inspection was conducted at the premises of accused and during inspection, on the instruction of team leader Sh. Anil Kumar (Assistant Manager), he did videography of the inspection proceedings. During evidence, the CD was played and PW4 identified the video contained in the CD Ex.PW2/1 as the same which was recorded by him at the time of inspection.
(5.5) PW1 HC Anand Pal is the IO of the case. This witness deposed that on 15.11.2019, SHO marked the complaint lodged by Sh. Anil Kumar (Assistant Manager) to him. On 24.12.2019, he made endorsement on the complaint and handed over the same to Duty Officer for registration of an FIR. Accordingly the Duty Officer registered FIR No.448/2019 and marked the investigation of the case to him. The copy of the FIR has been brought on record as Ex.PW1/1. PW1 further deposed that on 28.12.2019, he visited the inspected premises, served the accused with the notice u/s 41(A) Cr.P.C (Ex.PW1/2). Accused joined the investigation and produced copy of his Aadhar Card and electricity bill which was issued in his name and these documents have been brought on record as Mark A colly. He also recorded statement of neighbours namely Sh. Devender Pal Singh S/o Yashpal Singh U/s 161 Cr.P.C in respect to ownership of the inspected premises and it came to notice that accused was in possession of the inspected premises at the relevant time. He bound down the accused to appear before the court vide Pabandinama Ex.PW1/3. After completion of investigation, PW4 filed the charge-sheet.
FIR No.448/2019 State vs Kuldeep Singh 5 of 14
6. After completion of prosecution evidence, statement of the accused was recorded U/s 313 Cr.P.C. Accused did not deny the factum of inspection of his premises. He also admitted the fact that the electricity meter No.35191745 was lying installed at the inspected premises and the said meter was removed by the lineman during inspection and electricity supply of his premises was restored with new meter No.55228413. Accused also did not deny the fact that he was present at the spot at the time of inspection and necessary videography of the inspection proceedings was done by the videographer. However, accused denied that he committed direct theft of electricity. Accused stated that he has already settled the matter and settlement amount has been paid and an NOC has also been issued. Accused did not lead any evidence to his defence.
7. I have heard the final arguments from the Ld. Addl. PP as well as Ld. Counsel for the accused and gone through the record of the case. During the course of arguments, it was submitted by Ld. Addl. PP that at the time of inspection, electricity meter No.35191745 was found installed at the inspected premises despite that accused was found indulged in direct theft of electricity. Ld. Addl. PP further submitted that the prosecution has proved the allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. On the other hand, Ld. Defence Counsel submitted that accused is innocent and he has been falsely implicated in this case. It was submitted that accused has not committed any theft.
8. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and FIR No.448/2019 State vs Kuldeep Singh 6 of 14 discuss the relevant provision of the Act which is required to be gone into for appropriate disposal of the case. The present case pertains to section 135 of the Act. The provision of section 135 of the Electricity Act is 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:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(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, FIR No.448/2019 State vs Kuldeep Singh 7 of 14 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 debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized 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.
9. There is a presumption mentioned in the third proviso of section 135 (1) of the Electricity Act, 2003 which reads as follows:-
"Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
10. As per prosecution case, at the time of inspection, electricity meter No.35191745 was found installed at site in the name of accused but the user/accused was found indulged in direct theft of electricity through illegal shunt wire which was connected at phase to phase and neutral to neutral at the terminal of the said meter and meter box seal and terminal seal were found tampered. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
11. PW2 Sh. Anil Kumar (Assistant Manager), PW3 Sh. Rajeev Kumar (DET) and PW4 Sh. Parveen Kumar (videographer) are the FIR No.448/2019 State vs Kuldeep Singh 8 of 14 material witnesses. These witnesses were members of the inspection team which was being headed by Sh. Anil Kumar (Assistant Manager). PW2 and PW3 have corroborated the allegations made in the complaint (Ex.PW2/6) and deposed that at the time of inspection, one electricity meter No.35191745 was found installed in the name of accused and accused was found indulged in direct theft of electricity with the help of illegal shunt wire which was connected at phase to phase and neutral to neutral at the terminal of the said meter. PW2 and PW3 further deposed that the said meter was removed by the lineman and seized at the spot and this fact has not been disputed by the accused during the cross- examination of PW2 and PW3. PW2 and PW3 also deposed that at the time of inspection, accused was present at the spot and necessary videography of the inspection proceedings was done by PW4 Sh. Parveen and accused has not disputed this fact in his statement recorded U/s 313 Cr.P.C. PW2 and PW3 also deposed that the documents namely inspection report, load report and seizure memo were prepared at the spot and PW2 and PW3 have brought on record the inspection report as Ex.PW2/2, load report as Ex.PW2/3 and seizure memo as Ex.PW2/4. PW2 has also brought on record the electricity bill as Ex.PW2/6. PW2 and PW3 also deposed that the inspection documents were prepared at the spot and same were tendered to the accused who signed the same at point Z and accused has not disputed this fact in the cross-examination of PW2 and PW3 as well as in his statement U/s 313 Cr.P.C. In his statement recorded U/s 313 Cr.P.C, accused has not disputed the authenticity of the video contained in the CD Ex.PW2/1. Accused has also not disputed the correctness of the FIR No.448/2019 State vs Kuldeep Singh 9 of 14 assessment of the load assessed by the officials of complainant company which is mentioned in the load report (Ex.PW2/3). Thus, the factum of inspection, preparation of inspection documents, presence of accused at the spot at the time of inspection, removal of the meter no.35191745 and videography of the inspection proceedings done by videographer stand proved.
12. It is clear from the deposition of PW2 and PW3 that on 14.10.2019, at about 11.15 am, an inspection was carried out at the premises of accused by the inspecting team members/officials of the complainant company. It is also clear that electricity meter No.35191745 was found installed at the inspected premises in the name of accused and the said meter was removed by the lineman and electricity supply of the inspected premises was restored by a new meter no.55228413 as the user/accused was indulged in direct theft of electricity through illegal shunt wires. The inspection proceedings were recorded by the videographer and the CD containing videography of the said inspection proceedings has been brought on record as Ex.PW2/1. PW2 and PW3 have also proved the relevant documents namely inspection report as Ex.PW2/2, load report as Ex.PW2/3 and seizure memo as Ex.PW2/4. Even otherwise, accused has not disputed these documents in the cross- examination of PW2 and PW3. PW2 also proved the electricity bill as Ex.PW2/5.
13. It was also submitted on behalf of the accused that the prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions FIR No.448/2019 State vs Kuldeep Singh 10 of 14 that the user/accused was found indulged in direct theft of electricity through illegal shunt wires and these facts have been well proved by PW2 and PW3. Furthermore, it is admitted position of fact that electricity meter No.35191745 was lying installed at the spot and said electricity meter was removed by the lineman at the time of inspection as the accused was indulged in direct theft of electricity. Thus, it is clear from the record that the officials of the complainant company who had no animosity with the accused, have proved the allegations beyond reasonable doubt 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."
14. 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 FIR No.448/2019 State vs Kuldeep Singh 11 of 14 the BSES officials who inspected the premises of the accused were inimical to the accused.
15. 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.
16. 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'."
17. 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. It is clear from the record that in his statement recorded U/s 313 Cr.P.C, the accused has simply stated that that he has already settled the matter with the complainant company and settlement amount has already been paid. It is clear from the record that the accused did not lead any defence evidence. If FIR No.448/2019 State vs Kuldeep Singh 12 of 14 the accused 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, he was drawing electricity through his own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. 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.2,24,350/- (Ex.PW2/5) against the accused and it is further clear from the statement of accused recorded U/s 313 Cr.P.C that the accused settled the matter qua the theft bill with the complainant company and paid the settlement amount. In case, the officials of the complainant company would not have carried out the inspection as deposed by the prosecution witnesses and the complainant company would have raised a false and baseless claim by way of theft bill (Ex.PW2/5), then instead of going for settlement, the accused would have raised his protest and would have initiated appropriate proceedings against the officials of the 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. In view of these discussions, it is held that accused has 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 FIR No.448/2019 State vs Kuldeep Singh 13 of 14 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".
18. In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that despite having an electricity meter, accused was indulged in direct theft of electricity through illegal wires, which is punishable U/s 135 of the Electricity Act, 2003. Consequently, accused is convicted U/s 135 of the Electricity Act, 2003.
Digitally
signed by
AJAY GUPTA
AJAY Date:
GUPTA 2022.09.05
17:08:13 -
0400
(Ajay Gupta)
Addl. Sessions Judge (Electricity)
East/Karkardooma Courts/Delhi
Announced in open
court on 05.09.2022
FIR No.448/2019 State vs Kuldeep Singh 14 of 14