Delhi District Court
State vs 1) Sonu on 20 July, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.130/2021
FIR No.448/2019
U/s 135/150 of Electricity Act
PS Shastri Park
State versus 1) Sonu
S/o Bijender
R/o 2nd LHS of H.No.113
Village Old Usmanpur, Delhi
Also at:-
H.No.A-153 Gali No.3,
2nd Pusta Usmanpur, Delhi
2) Shahrukh
S/o Julfikar
R/o 2nd LHS of H.No.113
Village Old Umsnapur, Delhi
Also at:-
H.No.838 Gali No.4, Chauhan Bangar,
Jafrabad, Delhi
Date of institution 02.03.2021
Arguments heard 20.07.2023
Date of judgment 20.07.2023
JUDGMENT
1. Accused Sonu and Shahrukh have been facing trial on the allegations that they indulged themselves in an act amounting to 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 18.06.2018, at 1.50 pm, an inspection was carried out by the FIR No.448/2019 State vs Sonu & Anr. 1 of 22 inspection team of the complainant company at the premises of accused persons i.e. H.No.113, Village Old Usmanpur, Pole NoYVR J-076, Delhi-110053. At the time of inspection, no electricity meter was found installed for the inspected premises and user/accused was found indulged in direct theft of electricity through two core black colour illegal wire which was found connected from BSES service cable by cutting the said service cable. At the time of inspection, one Mokul, representative of the accused was stated to be present at the inspected premises. At the time of inspection, total connected load was found to the tune of 3.425 KW which was being used at ground floor of the inspected premises for non-domestic purposes i.e. for running chicken store. Necessary videography of the inspection proceedings was captured by the videographer Sh. Rajiv. Illegal wire could not be seized due to excessive height. Necessary documents like inspection report, load report and seizure memo were prepared at the spot.
3. On the basis of connected load, applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.2,84,091/-. Accordingly, a theft bill was raised and sent to the accused but they failed to deposit the theft bill amount. Accordingly, BSES Yamuna Power Limited (hereinafter referred as complainant company) through its Authorized Officer/Manager Sh. R.B. Yadav, lodged a complaint with the SHO, PS Shastri Park upon whose direction, case FIR No.448/2019 was registered and investigation of the case was marked to ASI Upkar, the IO of the case.
4. During investigation, it was revealed that Sonu was owner of the FIR No.448/2019 State vs Sonu & Anr. 2 of 22 inspected premises while Shahrukh was user in the inspected premises at the relevant time. As per prosecution version, accused Sonu being owner of the inspected premises abetted user/co-accused Shahrukh to commit direct theft of electricity. Accordingly, both accused persons were charge-sheeted in this case. After completion of investigation, charge-sheet was filed against the accused persons.
NOTICE
5. On 21.09.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Sonu. A separate notice for the commission of offence U/s 135 of the Act was given to accused Shahrukh. Both accused persons did not plead guilty and claimed trial.
6. In order to prove its case against the accused persons, the prosecution examined the following witnesses.
PROSECUTION EVIDENCE
7. PW1 ASI Upkar is the IO of the case, who deposed that after registration of FIR, investigation of the case was marked to him. The copy of FIR is Ex.PW1/1. Thereafter, on 06.09.2019, 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.PW1/2 and Ex.PW1/3) upon which they joined the investigation and produced copies of their Aadhar Card which are Mark A Colly. PW1 also deposed that during investigation, it was revealed that accused Sonu was the owner of the inspected premises and accused Shahrukh was his tenant as well as user of electricity in the inspected premises at the relevant time. Thereafter, FIR No.448/2019 State vs Sonu & Anr. 3 of 22 he bound down both the accused persons vide Pabandinamas Ex.PW1/6 and Ex.PW1/7. After completion of the investigation, he filed the charge-sheet.
8. PW2 Sh. R.B. Yadav is the Assistant Manager of the complainant company, who deposed that on 18.06.2018, at about 1.50 pm, an inspection was conducted by the Enforcement Team of BSES YPL comprising of myself, Sh. Sanjeev Sagar (DET), Sh. Rajinder (Lineman), Sh. Rajeev (Videographer) alongwith lady guard Ms. Lalita and Operation & Maintenance Staff at the premises of accused persons i.e. H.No.113, Village Old Usmanpur, Delhi-110053. At the time of inspection, no electricity meter was found installed at the inspected premises and the user/accused was found indulged in direct theft of electricity with the help of two core black colour cable which was found connected from BSES service cable. PW2 further deposed that representative of the accused was found present at the time of inspection who disclosed his name as Mokul. At the time of inspection, total connected load was found to the tune of 3.425 KW which was being used for commercial purposes. PW2 also deposed that necessary videography of the inspection proceedings was captured by videographer Sh. Rajiv. 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. Inspection Report Ex.PW2/2 and Load Report Ex.PW2/3 were prepared at site. PW2 further deposed that the illegal wire could not be FIR No.448/2019 State vs Sonu & Anr. 4 of 22 removed and seized due to excessive height. On the basis of inspection, a theft bill of Rs.2,84,091/- (Ex.PW2/4) was raised and sent to the accused. Thereafter, on 22.07.2019, he lodged a complaint Ex.PW2/5 with SHO, PS Shastri Park for registration of FIR.
9. Thereafter prosecution evidence was closed and matter was posted for recording of statements of accused persons.
STATEMENTS OF ACCUSED
10.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
11.Final arguments were advanced by the Ld. Addl. Substitute PP as well as Ld. Counsel for the accused persons.
12. Ld. Substitute 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 Shahrukh dishonestly indulged in direct theft of electricity with the help of two core black colour illegal wire by connecting the same with BSES service cable after cutting the same. While accused Sonu who permitted Shahrukh to use the inspected premises and drew benefit but of such usage abetted him to commit theft of electricity. He also emphasised that inspection FIR No.448/2019 State vs Sonu & Anr. 5 of 22 was conducted as per applicable rules and applicable regulations. It is prayed that accused persons be convicted under appropriate provisions of law.
13.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 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
14.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;"
15.In this case, accused Sonu was found to be owner of the inspected premises and accused Shahrukh 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 FIR No.448/2019 State vs Sonu & Anr. 6 of 22 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). Accused Sonu is stated to be owner of the inspected premises, thus, he is primarily answerable for any illegal activity/theft of electricity being carried out in his premises.
16.Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to 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:
17. Dishonest intention has not been defined in Electricity Act. As per section 24 of IPC, it implies an act done with intention of causing FIR No.448/2019 State vs Sonu & Anr. 7 of 22 wrongful gain to one or wrongful loss to another. The allegations against the accused are about hooking illegal wires with overhead BSES supply line and connecting the same with wiring of inspected premises. Therefore, Section 135(1) would be relevant and applicable. As mentioned, dishonest intention is primary ingredient to impute any culpability in this matter.
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence.
(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both.
(3) Notwithstanding anything contained in sub-section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub-section (1) of section 135, sub-section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
18.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:-
FIR No.448/2019 State vs Sonu & Anr. 8 of 22 (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 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.
FIR No.448/2019 State vs Sonu & Anr. 9 of 22 (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 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 FIR No.448/2019 State vs Sonu & Anr. 10 of 22 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.
19.As per prosecution case, at the time of inspection, no electricity meter was found installed at the inspected premises and accused Shahrukh was found to be occupying inspected premises as user and tenant of accused Sonu at the time of inspection and was found indulged in direct theft of electricity through illegal wire connecting the same with BSES service cable by cutting the same. Accused Sonu, being owner of inspected premises allegedly let/permitted/allowed the user/accused Shahrukh commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons FIR No.448/2019 State vs Sonu & Anr. 11 of 22 beyond reasonable doubt.
20. PW2 Sh. R.B. Yadav (Assistant Manager) is the material witness in this case. PW2 corroborated the allegations made in the complaint (Ex.PW2/5) and deposed having witnessed the factum, mode and manner of commission of theft. User/accused Shahrukh was found to be indulged in direct theft of electricity. During cross-examination of PW2, accused persons did not put to witness any suggestion that electricity meter was available at the inspected premises. PW2 deposed on the material points and state that on his instruction, videographer Sh. Rajiv videographed the Inspection Proceedings which recorded the commission of theft of electricity at the inspected premises. PW2 was duly cross-examined by Ld. Counsel for accused persons who was unable to cull out any contradiction in their testimony. There is no material contradictions or infirmity in the testimony of prosecution witnesses. Ld. counsel for accused merely put suggestions to material witness who was part of inspection team that no inspection took place and any such documents were not prepared which were categorically denied by witness.
21. It is also argued by the Ld. Counsel for accused persons that the illegal wire was not removed and seized. It is also argued that even preparation of documents at the spot has not been videographed. PW2 has given detailed reasons having witnessed the wire connecting BSES supply source and inspected premises illegally as well as non-removal of illegal wire duly corroborated by videography proved as PW2/1. It is settled that videography proceedings or even seizure of aforesaid illegal FIR No.448/2019 State vs Sonu & Anr. 12 of 22 cable used for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the witness which he was unable to explain being member of Inspection Team. Preparation of these documents have not been specifically disputed by the accused. Documents Ex.PW2/2 and Ex.PW2/3 bear signature of PW2 as prime members of Inspection Team. Those documents have been placed in original in the court and proved by the witnesses. Preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. Further, same is not recommended under applicable Regulations. It is settled that 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. Nothing contradictory could be extracted from the testimony of prosecution witnesses during cross-examination and the testimony of witnesses has been consistent and thus, the factum of inspection, preparation of documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stand proved.
22. 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 wire by connecting the same with BSES service cable by cutting FIR No.448/2019 State vs Sonu & Anr. 13 of 22 the said service cable and these facts have been well proved by PW2. 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 with BSES service cable. Accused Sonu has not stated that he was not aware of what was happening or that he was regularly paying the bill. He did not try to distance himself from the act indulged by co-accused. Furthermore, accused Sonu was well aware that there was no electricity in the inspected premises despite that he let out the same to co-accused Shahrukh who was found to be user of the electricity in the said premises. 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.448/2019 State vs Sonu & Anr. 14 of 22 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."
23.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.
24.It is not the case of accused persons that inspection team was not authorized to conduct inspection or that it indulged in any illegality which thwarts the entire process of inspection proceedings. Accused persons have not explained as to how and from where the user was drawing electricity, if the prosecution story is incorrect. Accused persons have not brought any document or evidence on record which could suggest that any authorized electricity meter was available at the inspected premises at the time of incident. If there was any electricity meter available at the inspected premises or that the accused/user was drawing electricity through any authorized meter, they ought to have brought some document or give details of the electricity meter to disprove the prosecution story but they have not brought any such document on record which indicates that no electricity meter was available for inspected premises at the time of inspection while electrical appliances can be seen to be running during inspection FIR No.448/2019 State vs Sonu & Anr. 15 of 22 proceedings.
25.During the course of arguments, Ld. Defence counsel admitted that accused Sonu was owner of the inspected premises and he had let out the inspected premises to accused Shahrukh. It is further submitted that accused persons had not committed any theft of electricity. It is further submitted that accused Shahurkh had sublet the inspected premises to another person who was user of electricity in the inspected premises at the relevant time. However, this plea of the accused appears to have been taken just for the sake of defence because this submission has been made for the first time before this court and prior to that he has never such defence either at the time of framing of notice or at the time of recording of statement of accused persons U/s 313 Cr.P.C. Accused Shahurkh has also not produced any such document to show that inspected premises was in use and occupation of another person to whom he had sublet the inspected premises.
26. Ld. Counsel for accused persons have further argued that videographer who captured the inspection proceedings has not been examined. AR of the complainant company submitted that Sh. Rajeev was the videographer who captured the inspection proceedings. He further submitted that videographer Sh. Rajeev has left the service of the complainant company and his whereabouts are not known or available with the complainant company and due to this reason videographer Sh. Rajeev could not be examined. Videography proceedings along with certificate U/s 65B of Indian Evidence Act has been proved by PW2 who instructed Sh. Rajeev, the videographer to videograh manner of FIR No.448/2019 State vs Sonu & Anr. 16 of 22 commission of theft during inspection proceedings. Further as already stated, videography is corroborative to oral testimony and cannot replace it.
27.Accused persons have taken one another plea that they were not present at site at the time of inspection. It is trite that mere presence or absence of accused persons would not define contours of theft of electricity. Accused admittedly was owner and in possession of inspected premises and mere absence at the time of inspection cannot discredit the prosecution case. In fact it makes the spontaneity of inspection proceedings. Videography about inspection having taken place and manner of commission of direct theft also has been proved by PW2.
28.PW2 proved the relevant documents i.e. inspection report, load report CD containing videography of inspection proceedings 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. The testimony of prosecution witnesses coupled with proven documentation prove that accused indulged in direct theft of electricity.
29.It is evident from the deposition of prosecution witnesses that on 18.06.2018, at 1.50 pm, an inspection was carried out at the premises of accused by the inspecting team members/officials of complainant FIR No.448/2019 State vs Sonu & Anr. 17 of 22 company. It is also clear that no electricity meter was available at the inspected premises and the user/accused was found indulged in direct theft of electricity through illegal wire. The inspection proceedings were recorded by the videographer and the CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/1. PW2 proved the relevant documents i.e. inspection report as Ex.PW2/2, load report as Ex.PW2/3 and electricity bill as Ex.PW2/4. Oral testimony led by competent witness coupled with proved documentation and failure of accused to even put across his version or explanation of events or to falsify/discredit the prosecution version proves the factum of inspection which unearthed the illegal act of user/accused having indulged in direct theft of electricity.
30.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. The said presumption is reproduced 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".
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:-
FIR No.448/2019 State vs Sonu & Anr. 18 of 22 "...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 discussions made in the preceding paras, it is held that the prosecution has proved the charges against the accused persons that the user/accused Shahrukh who was in possession of the inspected premises at the relevant time, indulged in direct theft of electricity, in conscious deliberation with accused Sonu 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 Shahrukh indulged in direct theft of electricity, in connivance with/having been abetted by accused Sonu, if they are unable to rebut the statutory presumption.
33. 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 co-accused/user for FIR No.448/2019 State vs Sonu & Anr. 19 of 22 commercial purposes i.e. running chickens store while accused Sonu was found to be the owner/land lord who rented the premises to Shahrukh without ensuring installing of electricity meter or any legal source of usage of electricity. It is clear from the evidence led by prosecution that at the time of 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".
34.As per record, no electricity meter was available at the inspected premises. As per load report, certain electrical appliances were found installed at the inspected premises. In the load report, calculation of the FIR No.448/2019 State vs Sonu & Anr. 20 of 22 load has been mentioned and accused persons have not disputed the calculation of the load as mentioned in the load report. There was no electricity meter available for the inspected premises and electricity supply of the inspected premises was running with the help of illegal wire as can be seen from videography proved on record as Ex.PW2/1. Accused Sonu was aware that no electricity meter was available in the inspected premises and that electricity was being drawn by the user/co- accused Shahrukh with the help of illegal wire connecting with BSES service cable.
35. In view of aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt that no electricity meter was available at the inspected premises at the time of inspection. The very act of drawing electricity by connecting illegal wire with BSES service cable without having to pay for consumption of electrical energy has dishonest intention inherent in it. Accused persons have not tried/attempted to reason or distance themselves from their act. They have not stated that they were not aware of their liability of pay for the usage of electricity energy. Videography was duly recorded that electrical appliances were in use at the inspected premises. There is no explanation even on the face of it qua its usage. The only reasonable conclusion is that accused persons, deliberately, consciously being aware of malafide of their illegal acts, indulged in getting connections to use electricity in premises being owner/user and in immediate possession of the inspected premises. It is established that user/co- accused Shahrukh dishonestly indulged in direct theft of electricity FIR No.448/2019 State vs Sonu & Anr. 21 of 22 through illegal wire having established connection with service cable of BSES which is punishable U/s 135 of the Electricity Act, 2003. Consequently, accused Shahrukh is convicted U/s 135 of the Electricity Act, 2003.
36. Accused Sonu is admitted to be owner of the inspected premises, thus, he is primarily answerable for any illegal activity/theft of electricity being carried out in his premises. Accused Sonu was well aware that there was no electricity meter installed in the inspected premises despite that he intentionally and deliberately let out the inspected premises to user/co-accused Shahrukh who was running commercial activity in the inspected premises. By doing so he was well aware of the malafide intention and illegal activity of the user/co-accused. Accused Sonu being the owner let/permitted/consciously allowed user/accused Shahrukh commit direct theft of electricity. Thus, accused Sonu is guilty of abetment of offence of direct theft of electricity. Accordingly, accused Sonu is convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003.
Digitally signed by SHELLYSHELLY ARORA ARORA Date:
2023.07.20 17:02:25 +0530 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 20.07.2023 FIR No.448/2019 State vs Sonu & Anr. 22 of 22