That There Was Theft/Abstraction Of ... vs . on 3 July, 2019

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Delhi District Court

That There Was Theft/Abstraction Of ... vs . on 3 July, 2019

      IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
               ADDITIONAL SESSIONS JUDGE,
       SPECIAL COURT (ELECTRICITY), EAST DISTRICT,
              KARKARDOOMA COURTS, DELHI

SC No : 577/18
FIR No : 177/18
P.S : MAYUR VIHAR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003

STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)

      VS.


   1) Hafiz
      S/o Late Habib Ali
      R/o 26/434, Ground Floor,
      Trilokpuri, Delhi.
   2) Rakesh
      S/o Sh. Dalchand
      R/o 29/429, Trilokpuri,
      Delhi.
                                       ........... Accused persons


DATE OF INSTITUTION OF THE CASE                   : 11.02.2019
DATE ON WHICH JUDGMENT WAS RESERVED               : 01.07.2019
DATE OF PASSING OF JUDGMENT                       : 03.07.2019
NATURE OF JUDGMENT                               : CONVICTED

JUDGMENT

A Criminal Complaint addressed to the Station House Officer, Mayur Vihar Police Station, Delhi was filed by Sh. Pravin SC No : 577/19 BSES YPL VS. HAFIZ & ANR 1/45 Kumar, the then Assistant Manager/Authorized Officer of BSES YPL Company (in short to be called as Complainant Company hereinafter) against accused persons namely Hafiz and Rakesh for the offence punishable u/s 135 of the Electricity Act, 2003 (in short called as Act hereinafter) r/w Sec.379/34 of Indian Penal Code (in short IPC) for an offence of electricity theft against accused persons.

(A) FACTS :

2. The main allegation made in the said complaint were to the effect, inter alia, that on 23.10.2017 at about 11:50 a.m, an inspection was carried out by the joint Enforcement Team of BSES YPL comprising of Sh. Pravin Kumar (Assisttant Manager), Sh. Sandeep (DET), Sh. Narsi (Lineman) & Sh. Amar Singh (Technician) at the premises i.e DSIDC Park, Near Shed No.3/134, Ground Floor, DSIDC Block - 35, Himmatpuri, Trilokpuri, Delhi - 91(in short referred as inspected premises hereinafter) where both the accused persons were found indulged in direct theft of electricity using supply illegally through illegal wire connected from BSES Feeder pillar which was open through red colour aluminum wire in the extension and 13 boards of 3 pin plug were found fixed including 12 E rickshaws which were being charged and same was being used for nondomestic purposes; no meter was found installed at the inspected premises at the time of inspection.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 2/45

3. It has been further alleged in the Complaint that a total connected load of 9.6KW/NX/DT (in short KW) running through illegal wires was checked & assessed during the course of said inspection which was illegally being used by both the accused persons through artificial means not authorized by the complainant company. It has been further alleged that during the inspection videography of the illegal tapping and connected load has been taken in presence of the accused Hafiz. It has been further alleged that illegal material used for direct theft of electricity was seized from the spot in the presence of the accused/user Hafiz. It has been further alleged that the inspection report and load report were prepared at the spot. The Videography of the inspected site showing irregularities were also taken and both the accused persons were found committing direct theft of electricity at the time of inspection by using electricity illegally connected from BSES Feeder Pillar of the Complainant Company. Hence, the present Complaint dt.15.12.2017 was filed against the accused persons for initiating legal action as per law including the determination of civil liability against them as per the provision of Section 154(5) of the Act. Upon the said complaint, the present FIR No.177/18 for offence punishable U/Sec.135 of Act r/w Sec.379 of IPC was registered on 31.05.2018 against both the accused persons.

SC No : 577/19    BSES YPL VS.     HAFIZ & ANR                 3/45
 (B)   INVESTIGATION :

4. After registration of FIR, investigation was conducted.

During investigation, I.O recorded the statement of the witnesses, arrested the accused persons, seized the case property and after completion of investigation, present chargesheet U/Sec.173 of Criminal Procedure Code (in short Cr.P.C) was filed against both the accused persons.

5. Upon filing of the chargesheet in the present case before the Court, further investigation was directed vide order dt.11.02.2019 and in compliance of the said directions, supplementary chargesheet was filed on 19.02.2019. Thereafter, accused persons were summoned.

6. After compliance of provision U/Sec.207 of Cr.P.C on 05.03.2019, a notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against both the accused by this Court for the offence punishable u/s 135 of the Electricity Act to which they pleaded not guilty and claimed trial.

(D) PROSECUTION EVIDENCE :

7. In support of its case, the Prosecution has examined five (5) witnesses in order to substantiate the allegation : SC No : 577/19 BSES YPL VS. HAFIZ & ANR 4/45

1. HC Dharmender, Duty Officer was examined as PW1, who got FIR of the present case registered and has tendered carbon copy of FIR during his examinationinchief as Ex.PW1/A. He has also identified the endorsement made by him on the rukka as Ex.PW1/B.

2. Sh. Praveen Kumar, Asstt. Manager (Enforcement - I) BSES YPL was examined as PW2, who has deposed that on 23.10.2017 he alongwith the inspecting team had conducted raid at the inspected premises and accused persons were found indulged in direct theft of electricity by using supply illegally connected from BSES feeder pillar which was opened through red colour aluminum wires. He has further deposed that at site, 13 extension board connected WITH three pin plug was found and 12 ERickshaw's were also found at the site. He has further deposed that accused Hafiz was present at the site and he himself disclosed alongwith other persons present at the site that at night about 25 rickshaws (battery) were charged. He has further deposed that the employees who were engaged in charging of E rickshaw disclosed that they are charging at the inspected premises on behalf of accused Hafiz and Rakesh. No other source of electricity supply or electricity meter was found installed at the inspected premises and entire load of the premises was found running through the said illegal wires illegally connected through the BSES Feeder Pillar. He has SC No : 577/19 BSES YPL VS. HAFIZ & ANR 5/45 relied upon documents i.e. seizure memo as Ex.PW2/A, inspection report as Ex.PW2/B, Load report as Ex.PW2/C, Enforcement evidence material receipt as Ex.PW2/D, the complaint written to SHO P.S. Mayur Vihar with regard to present case as Ex.PW2/E. He has relied upon the CD of the videography of the inspection proceedings as Ex.PW 5/A.

3. Sh. Sanjay, public witness working as Welder in DSIDC Market has been examined as PW3, who has deposed that he is working at the DSIDC market for the last 2530 years and came to know about the raid at the inspected premises.

He further deposed that there was a parking lot, where lots of ERickshaws used to park and used to be charged and they used to pay the charging fee to accused Rakesh alongwith his coaccused. PW3 correctly identified the accused Rakesh present before the court.

4. Sh. Narender Singh Bhist, a public witness has been examined as PW4. He deposed that he knew nothing with regard to the present case and admitted that his statement was recorded before the Police U/Sec.161 of Cr.P.C and proved the same as Ex.PW4/A. This witness has been crossexamined by Ld. Addl. P.P for the State and confronted with his statement made before SC No : 577/19 BSES YPL VS. HAFIZ & ANR 6/45 the Police U/Sec.161 of Cr.P.C Ex.PW4/A.

5. HC Narender Kumar was examined as PW5 to whom the Complaint of the present was marked for investigation. He has relied upon the documents i.e CD of the videography of the inspection proceedings as Ex.PW5/A; notice U/Sec.41(A) of Cr.P.C served upon the accused Hafiz as Ex.PW5/B; statement of accused Hafiz as Ex.PW5/C; statement of Qutubdeen, who was surety of the accused Hafiz as Ex.PW5/D; Statement of witness Sanjay as Ex.PW 5/E, notice U/Sec.41(A) of Cr. P.C served upon accused Rakesh as Ex.PW5/F, Copy of Aadhar card of accused Hafiz as Ex.PW5./H, Copy of Aadhar card of accused Rakesh as Ex.PW5/J; CD of video circulated by accused Hafiz on social media as Ex.PW5/K and DD entry 81A as Ex.PW5/L. He has correctly identified both the accused Hafiz and Rakesh before the Court. He has further deposed that he has served notice upon the members of the raiding party and had recorded statement of BSES YPL officials/raiding party members and filed the present challan after completion of investigation against the accused persons before the Court.

All the aforesaid material witnesses were cross examined at length on behalf of the accused persons.

8. No other witness was produced or examined on behalf of the prosecution's side. Hence, on 07.05.2019 as per SC No : 577/19 BSES YPL VS. HAFIZ & ANR 7/45 their oral submission, P.E was closed.

(E) STATEMENT OF ACCUSED :

9. After closing prosecution evidence, on 10.05.2019 statement of both the accused Hafiz and Rakesh were recorded U/sec.281 r/w Sec.313 of Cr.P.C explaining all the incriminating evidence against them on record which they denied as false & incorrect. Accused Hafiz has asserted in his statement that he has been falsely implicated in the present case by the complainant company. He has further asserted that he has no concern with the parking as alleged by the prosecution nor he is doing any E rickshaw charging business with coaccused Rakesh. He has further asserted that on the date of inspection, he went to DSIDC Park as he used to go there for purchase of some goods and repair parts for his auto and when he reached at the spot, he saw BSES Officials recording videography and upon inquiry from those BSES Officials he came to know that a raid was conducted by them and they further asked him about his credentials as to why he came to DSIDC park. He has further asserted that he asked those BSES officials to show their identity card which might be the reason for false implication of him in the present case by the BSES officials as till date nobody asked them to show their identity card. On the other hand accused Rakesh asserted that he made a complaint regarding an electricity theft at the inspected site on 12.08.2017 i.e about 2/3 months prior to the SC No : 577/19 BSES YPL VS. HAFIZ & ANR 8/45 present inspection to the Local Area Councilor Ms. Saroj Singh, hence, he has been falsely implicated in the present case by the complainant company. However, he admitted that the premises Shed bearing No.3/134 is allotted in his name, but he denied having any knowledge about any inspection/raid at the inspected premises. He has also admitted that there was electricity theft at the spot for the purpose of Erickshaw charging. Accused Rakesh admitted it to be correct that accused Hafiz is appearing in the CD of the videography of the inspected premises. Both the accused denied any statement recorded before the I.O.

Accused Rakesh preferred to lead defence evidence. Hence, case was fixed for defence evidence.

(F) DEFENCE EVIDENCE :

10. Accused Rakesh examined himself as DW1 and has deposed that in January 2018, he had received a notice from the Complainant Company and was called at their office at Patparganj, Delhi and when he reached at their office he was shown a video recording and on the basis of said video recording BSES Officials suggested him to approach the Lok Adalat to resolve his matter as he (accused Rakesh) was not appearing in the CD. He has further deposed that thereafter on 23.03.2018 some police officials came and informed him about registration of a case FIR against him regarding electricity theft and when he SC No : 577/19 BSES YPL VS. HAFIZ & ANR 9/45 reached at P.S Mayur Vihar, a notice U/Sec.41(A) of Cr. P.C was served upon him. He has relied upon the telephonic calls made by the police officials of P.S. Mayur Vihar with regard to present FIR to him with regard to period between June 2018 to January 2019, i.e. Mark DW1/A (colly). He has also submitted his regular electricity bill mentioning his address as 134/3, DSIDC Market, Opposite 35 Block, Trilok Puri as DW1/1. He has been crossexamined at length by Ld. Addl. P.P for the State.

11. During his crossexamination, he has admitted that DW2 Lal Babu is known to him as his shop is situated in the back side of his shop. He has further testified that presently he is doing the business of property dealing, however, in the year 2017 he was doing the business of ERichshaw charging which he started in the month of April 2017 and thereafter closed down the same in the month of November/December 2017 itself when the business of Erickshaw charging was started by some other persons in the open ground. He has further testified that initially he was working as a Distributor and having business of batteries prior to April 2017. He has further deposed that there was one tube light and one fan installed at his shop since the year 2015 till his business of ERickshaw charging. He has further deposed that he was doing the business of ERickshaw charging through the meter installed in his name and used to charge around 15 SC No : 577/19 BSES YPL VS. HAFIZ & ANR 10/45 rickshaw's in a day at that time.

12. During crossexamination of witness, the electricity bills pertaining to the period i.e. April to July 2017 were shown to him, which he admitted to be bills raised against the meter installed in his name as Ex.DW1/P1 (Colly). He was also confronted with the unit consumption pattern and MDI shown in the electricity bills, upon which he deposed that the business of Erickshaw charging did not pick up in April 2017. The accused has denied having any business of Erickshaw charging alongwith coaccused Hafiz in the open ground; that he had shifted his illegal business of Erickshaw charging in the open ground; that he was involved in any kind of theft of electricity for business of ERickshaw charging alongwith coaccused Hafiz.

13. The next defence witness examined on behalf of the accused is DW2 Sh. Lal Babu. He has deposed that there was a business of Erickshaw charging running from the ground of DSIDC Market, Trilok Puri, Delhi and he came to know about a raid conducted there on Monday somewhere last month of year 2017. He has further deposed that accused Rakesh is known to him as he was member of the Market Association. He has further admitted it to be correct that there were 4/5 Erickshaw's used to be parked outside his shop but he is not aware as to who was carrying the business of Erickshaw charging from the open SC No : 577/19 BSES YPL VS. HAFIZ & ANR 11/45 ground backside of the market. He has further deposed that the the person namely Sanjay who appeared before this Court as a witness was not working at his shop nor does he remember if he worked at his shop or not at the time of raid after selling out his shop in the year 2017 and started working casually for 5/6 months at his shop. He has further deposed that accused Rakesh stopped his work of erickshaw charging from his shop when same work was started in the open ground. This witness has been crossexamined by Ld. Addl. P.P for the State.

14. During his crossexamination, he has testified that he does not remember the exact shop number of the accused, however, he has testified that accused Rakesh was doing the business of selling the batteries of the vehicles and of Erickshaw charging from his shop. He has further testified that there is only one bulb and one fan fixed at the shop of the accused Rakesh and no charger for for charging the battery is there. He has further testified that there is meter installed at the shop of the accused Rakesh and he was performing his business of E Rickshaw charging through said meter and there were 4/5 E rickshaw's being charged at his shop at that time. He has denied that accused Rakesh was doing the business of Erickshaw charging continuously till the time of raid and being known to him he is falsely deposing in his favour.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 12/45

15. Thereafter, on 23.05.2019 defence evidence was closed as per the statement made by the accused Rakesh and matter was fixed for final arguments.

(G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :

16. I have heard final arguments advanced on behalf of the parties. I have also gone through the record as well as contents of CD which was played during final arguments, written submissions filed on behalf of the prosecution/complainant company and relevant provisions of law as well as case law filed on behalf of the parties.

17. The main submissions made during the course of final arguments on behalf of the Prosecution/Complainant were inter alia, to the effect that the both the accused herein were found indulged in direct theft of electricity using supply illegally through illegal wire connected from BSES Feeder pillar which was open through red colour aluminum wires in the extensions and further 13 boards with 3 pin plug was found fixed without any authority in this regard; that there was no meter found installed at the subject premises at the time of inspection; that accused herein had not taken any permission from the complainant company for using electricity in such a way; that SC No : 577/19 BSES YPL VS. HAFIZ & ANR 13/45 due to illegal theft of electricity committed by the accused persons, the complainant company suffered huge monetary loss; that such illegally extracted electricity was used by the accused persons for nondomestic purposes; that all the relevant papers like inspection report, load report, seizure memo etc. were prepared at the spot but accused Hafiz present there refused to sign the same; that all the material witnesses have been examined in this case by the prosecution and that they have duly proved the case against the accused persons herein by way of cogent evidence, both oral as well as documentary; that ultimately, a theft bill to the extent of Rs.14,32,276/ was sent to the accused persons but they deliberately failed to pay any amount out of it to the complainant company; that all the necessary formalities like conducting of inspection, preparation of inspection report, load report, seizure memo etc. were done by the team of the complainant company at the spot as per rules; that copies of all the documents prepared at the spot were tendered to the accused Hafiz but he refused to accept and sign the same deliberately for the reasons best known to him; that both the accused are liable to be convicted as per law; that accused were also liable for civil liability as per law. In the end, a prayer was made for convicting the accused Hafiz and Rakesh strictly as per law for the offence punishable U/Sec.135 of the Electricity Act, 2003 as well as for making them liable for civil liability as per provisions of Section 154(5) of the Act.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 14/45

18. On the other hand, the main submissions advanced during the course of final arguments/written submissions on behalf of the accused persons were, interalia to the effect that accused persons had no concern with the inspected premises/park and initially the investigating officer had submitted his report in a hushhush manner without presenting any eye witness from the inspection site on 11.02.2019. However, the Ld. Court had noticed the discrepancies and shortfalls in the chargesheet and directed the Investigating officer to further investigate the case regarding the display board installed at the ERickshaw charging site. It was further submitted on behalf of the accused persons that again on 19.02.2019 I.O further submitted supplementary charge sheet without investigating the display board installed at the site and cited three eye witnesses, namely Sanjay @ Kallu, Narender and Kutubuddin(however, he has been dropped lateron by the prosecution) and on the basis of which the Hon'ble Court took congnizance of the offence punishable U/Sec.135 of the Electricity Act, 2003 against both the accused persons. It was further submitted that while framing of notice, accused Hafiz contended before the ld. Court that he had no concern with the inspected premises nor he is working with coaccused Rakesh or operating any business of Erickshaw charging, he was merely framed in the present case as accidentally he came to the spot at SC No : 577/19 BSES YPL VS. HAFIZ & ANR 15/45 the time of inspection and inquired from the BSES Officials as to what is going on, upon which said officials inquired him as to what he (accused Hafiz) was doing at the spot by that time and upon asking of their identity by accused Hafiz, they falsely implicate him in the present case.

19. It was further submitted that accused Rakesh has no concern with the ERickshaw charging site; that actually he was an active member of RWA of the market and was trying to develop the market and made several complaints and representations to the Local MLA, Corporator and State Government regarding illegal work of ERickshaw charging in the park of DSIDC; that accused Rakesh being member of the RWA, social worker in the vicinity, hence, due to enmity, he has been falsely implicated in the present case; that no inspection was carried out at the subject premises as alleged by the complainant company; that no documents like inspection report, load report, seizure memo etc. were prepared in presence of the accused persons; that videography of the subject premises was not taken in presence of the accused; that accused persons have been falsely implicated in this case by the officials of the Complainant Company; that none of the prosecution witness have proved beyond doubts that the accused persons were involved in the theft of electricity; that both the public witnesses cited by the prosecution i.e. PW3 Sanjay and PW4 Narender Singh have not SC No : 577/19 BSES YPL VS. HAFIZ & ANR 16/45 at all supported the case of the prosecution; or that accused Rakesh has never been involved in any kind of theft of electricity nor he was present at the time of inspection; or that CD is not supported by Certificate U/Sec.65(B) of the Evidence Act and no transcript is filed with CD of its contents; or that accused Rakesh is not appearing in CD; or that accused persons are not liable to be convicted in this case for any offence or that accused persons are not liable for any civil liability in this case. In the end, a prayer was made for acquittal of the accused persons for the offence U/Sec.135 of the Act as well as for discharging them from civil liability as per provision of Section 154(5) of the Act.

20. Before going through the facts of the present case, it will 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 SC No : 577/19 BSES YPL VS. HAFIZ & ANR 17/45

(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

(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.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 18/45 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........................................................

21. Thus, from the aforesaid provision of law, it is clear that the Complainant Company is required to prove as under :

1. 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.

2. That it was being done by the accused/consumer in the inspected premises.

22. The law is well settled that in case the aforesaid ingredients are proved, there is presumption under 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 SC No : 577/19 BSES YPL VS. HAFIZ & ANR 19/45 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".

(H) FINDINGS :

23. In the present case, both the accused have been charged with the allegation that they were involved in direct theft of electricity on 23.10.2017 at about 11.50 a.m., when an inspection was conducted at premises is DSIDC Park, near Shed No.3/134, Ground floor, DSIDC Block No.35, Himmatpuri, Trilokpuri, Delhi - 110 091. There is further allegation that no meter was found installed at the inspected premises and said electricity was being used for nondomestic purposes i.e.E rickshaw charging and connected load was found to be 9.600KW. However, the accused Hafiz has denied to have any concern with the inspected premises or he was anyway involved in the electricity theft. His further defence is that he has gone to the DSIDC park on the date of inspection only to buy some goods and repairs part for his auto. The defence of accused Rakesh is that he was never involved in the business of ERichshaw charging and since he made complaints regarding the electricty theft in the DSIDC market in parking area and tried to develop the park, therefore, he has been falsely implicated in the present case.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 20/45

24. From the statement of both the accused recorded U/Sec.281 r/w Sec.313 of Cr.P.C, it is clear that there was electricity theft at the parking area of DSIDC market i.e. at the inspected premises. From the statement of accused Hafiz, it is clear that the raid was conducted by the officials of the complainant company and he was also present at the time of raid at the site on 23.10.2017. Further from the statement of accused Rakesh, it is clear that Erirckshaw charging work was being done in the parking area of DSIDC and even otherwise electricity theft was going on on the spot for Erickshaw charging.

25. Also from the testimony of witness PW2 Sh.Pravin Yadav, who was the team leader of the inspection team, it is proved that a raid was conducted at the inspected premises/site on 23.10.2017 and no meter was found installed at the inspected premises. He has further proved that there was direct theft of electricity using supply illegally through illegal wire connected from BSES Feeder pillar and accused Hafiz was found present on the spot. He has correctly identified the accused Hafiz in the Court. He has also correctly identified the illegal wires being used for electricity theft as Ex.P1(colly). He has further proved the illegal material removed at site and seized vide seizure memo as Ex.PW2/A, inspection report as Ex.PW2/B. He has further proved the load report Ex.PW1/C for illegal use of the electricity SC No : 577/19 BSES YPL VS. HAFIZ & ANR 21/45 for nondomestic purpose i.e. ERickshaw charging with connected load to the tune of 9.6KW. He has further proved the videography of the inspection proceedings vide CD Ex.PW5/A. He has also proved the filing of the present complaint Ex.PW2/E by him.

26. Thus, it stands proved on record that on the date of inspection i.e.23.10.2017 there was no meter installed at the inspected premises i.e DSIDC Park, Near Shed No.3/134, Ground Floor, DSIDC Block - 35, Himmatpuri, Trilokpuri, Delhi - 91 and the accused Hafiz was found present at the time of inspection. It has been further proved that there was direct theft of electricity at the inspected premises for nondomestic purposes to the tune of 9.6KW. This fact is also proved from the perusal of the CD which shows that there was no meter installed at the inspected premises and llegal electricity supply was there using supply illegally through illegal wire connected from BSES Feeder Pillar, which was open through red colour aluminum wires in extensions and further 13 boards 3 pin plug was found fixed and 12 ERickshaw's were found present there at the spot being charged through electricity theft.

27. The bone of contention raised on behalf of the accused Hafiz is that he has no concern with the inspected premises and on behalf of the accused Rakesh is that no raid was SC No : 577/19 BSES YPL VS. HAFIZ & ANR 22/45 conducted at his premises nor he was involved in any kind of theft of electricity. However, witness PW3 in his testimony has proved that a raid of electricity theft was conducted and there was parking in the DSIDC market where the Erickshaw's were being charged. He has further testified that it was being done on behalf of the accused Rakesh and he has correctly identified the accused Rakesh before the Court. He has further testified that they also used to receive the charging fees on behalf of the accused Hafiz but he cannot identify the accused Hafiz. In his crossexamination, he testified that he has never seen accused Hafiz or accused Rakesh receiving the ERichshaw charging money from the rickshaw pullers. The suggestion has been given to him that accused persons used to receive charging money even from PW3 and he also used to park his ERichshaw in the parking and witness PW3 has denied both the suggestion. Thus, from the testimony of PW3 it stands proved that ERichshaw charging business was being done at the spot on behalf of the accused persons as there is no suggestion to the witness that no charging fees was being collected from Erickshaw puller on their behalf. Instead from the suggestion given to the witness that there was demand of charging fees from him, it is clear that both the accused were running Erickshaw charging business.

28. Witness PW4 Narender Singh Bhist has appeared in the Court and in his opening examinationinchief he has deposed SC No : 577/19 BSES YPL VS. HAFIZ & ANR 23/45 that he does not know anything about the present case. In his further examinationinchief, he has deposed that he is running a shop in DSIDC market and some police officials asked him to become a witness and thereafter, they wrote something on a plain paper and obtained his signatures upon it. He has further deposed that after reading the contents of the document, he had signed the same and witness was shown his statement recorded U/Sec.161 of Cr. P.C Ex.PW4/A and he identified his signatures upon it. In his crossexamination on behalf of the State, he had correctly identified the accused Rakesh but testified that he does not know the accused Hafiz. In his further crossexamination, he has testified that he has studied upto 10 th class and made protest to the I.O/PW5 HC Narinder regarding his statement Ex.PW4/A but he did not make any complaint in this regard to any of the superior officers. Here it is to be noted that voluntarily he has deposed that he was told by HC Narender that his statement was being recorded as the matter has already been settled. This voluntary statement of the witness PW4 itself shows that the witness PW4 did not disclose the true facts of the present case in his initial statement made in his examinatioininchief stating that he does not know anything about the present case. The perusal of his statement Ex.PW4/A makes it clear that in parking area of DSIDC market, a raid of electricity theft was conducted in October 2017 where the illegal business of Erickshaw charging was being done and the charging fees was being collected by SC No : 577/19 BSES YPL VS. HAFIZ & ANR 24/45 both the accused persons in the Office bearing shed No.3/134, DSIDC market, Block35, Trilok Puri, Delhi belonging to accused Rakesh.

29. It is well settled principle of law even that if the witness is declared hostile, his statement can be relied upon and it is difficult to overlook the relevancy and value of the evidence of a hostile witness while considering as to what extent his evidence could be allowed to be relied upon and used by the prosecution. Further, it could not be ignored that when a witness is declared hostile, his entire statement could not be rejected in toto when in his crossexamination by the opposite party, his testimony is not shaken. It is further well settled principle of law that Court is not precluded from taking into account the statemet of a hostile witness altogether and his staement can be relied upon if same is found corroboration from the testimony already available on record and in such circumstances, his entire testimony cannot be thrown out as wholely unreliable. It is further well settled law that hostile witness is not necessarily a false witness and granting permission by the court to cross examine a witness does not amount to adjudication by the Court as to the vercacity of the witness but it only means a declaration that the witness is adverse or unfriendly to the parties calling him and not that the witness is untruthful. It is further well settled principle of law that testimony of a hostile witness is acceptable SC No : 577/19 BSES YPL VS. HAFIZ & ANR 25/45 and can be relied upon to the extent it is corroborated by that of a reliable witness. In this regard reliance may be placed upon .judgement titled as "Attar Singh Vs. State of Maharastra" in Crl. Appeal No.1091/2010 by the Hon'ble Supreme Court decided on 14.12.2012.

30. Relying upon the above principle of law, it is clear that in the crossexaminaiton on behalf of the accused persons, the testimony of this witness PW4 has not shaken up to the extent that he has not made his statement to the police U/Sec. 161 of Cr.PC or that his statement made to the police U/Sec. 161 of Cr.P.C is false or incorrect. Even this witness in his cross examinaiton on behalf of the State had not stated that his statement Ex.PW4/A was false or incorrect, but he had given the clarification that it was so recorded with the understanding given to him that matter has already been settled. However, this clarification of the witness itself makes it clear that he has made this statement understanding the contents of the statement Ex.PW4/A and therefore, his statement that the charging fees were being collected in the office of the accused Rakesh by both the accused appears to be correct and thus, it stands proved that both the accused were running the business of Erickshaw charging.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 26/45

31. The witness PW1 has proved the registration of FIR No.177/18 Ex.PW1/A and his endorsement as Ex.PW1/B upon the rukka.

32. Witness PW5 HC Narender Kumar was the I.O who has proved that during investigation from local inquiry, he came to know that both the accused were running the business of E rickshaw charging and after playing the CD Ex.PW5/A he came to know about the address of the accused Hafiz. He has further testified that during investigation, he recorded the statement of both the accused. He has further deposed that he had recorded the statement of witness PW3 Sanjay and PW4 Narender. He has further deposed that after filing of the present chargesheet accused Hafiz has circulated a video on social media and filed a CD of the said video Ex.PW5/A with DD entry No.81A dt. 04.04.2019 Ex.PW5/L before the Court. This witness was cross examined at length by Ld. Defence counsel.

33. In his crossexamination he has testified that there was a gap of about 5 months in registration of the FIR after receiving of the complaint. He has admitted that a notice U/Sec.41A of Cr.P.C dt.21.03.2018 Ex.PW5/D1 was prepared by him bearing the FIR number of the present case. He has admitted the correctness of site plan Ex.PW5/D2 filed by the accused Rakesh. He has denied that confessional statement of SC No : 577/19 BSES YPL VS. HAFIZ & ANR 27/45 accused Hafiz was recorded after showing him CD Ex.PW5/A stating him that since he is appearing in the CD therefore, he should confess his guilt. He has denied in his cross examination that all the public witnesses were arrayed to frame the accused persons. Thus, from his testimony nothing material has come out except preparation of notice Ex.PW5/D1 with the date which is prior to the registration of the FIR of present case. From this fact, it can not be said that the entire investigation is faulty as there may be mistake regarding the date. Moreover, this preparation of the notice Ex.PW5/D1 having FIR number upon it of the present case clearly shows that there might be a fault in writing the date and otherwise also that fact does not go to the roots of the present case or in any way adversely affects the interest of any of the accused or cause any prejudice against them.

34. Though, the defence taken by the accused Hafiz is that he had no concern with the inspected premises and he was falsely implicated in the present matter but perusal of the CD Ex.PW5/A makes it clear that he is narrating to the raiding team about the nubmer of Erickshaw's being charged at the parking and this fact itself makes it clear that he was well connected with the affairs of the Erickshaw charging business on the spot and his defence that he was implicated only because he asked the raiding team to show their identity card appears to be after thought as no such defence has been taken by him at the time of SC No : 577/19 BSES YPL VS. HAFIZ & ANR 28/45 framing of notice or in his anticipatory bail application. He has stated that he came to know about the present case only after the service of the notice U/Sec.41A of Cr.P.C on 21.07.2018 and further his defence is that he was present at the spot as he had gone there to purchase some goods and to get his auto repaired also appears to be after thought as the witness DW2 has stated that it was weekly holiday. Thus, being weekly holiday, the defence of the accused Hafiz about his visit to the spot for purchase appears to be unreliable and since he was present at the time of inspection, therefore, his knowledge about the present case was from the date of raid.

35. Further, the defence of the accused Rakesh is that he had no concern with the Erickshaw charging business appears to be after thought. Appearing as DW1 he has not uttered a single a word in his examinationinchief that he was doing the business of Erickshaw charging on the line of same defence taken by him at the time of framing of notice. However, in his cross examination he has admitted that in the year 2017 he was doing the business of Erickshaw charging which he started in April 2017 and closed in November/December 2017. This fact shows that the accused Rakesh was having the business of Erickshaw charging during the relevant period in the month of October 2017 when the present raid was conducted. In his further cross examination accused Rakesh/DW1 has testified that he was SC No : 577/19 BSES YPL VS. HAFIZ & ANR 29/45 doing the business of Erickshaw charging through the meter and he used to charge 15 Erickshaw's in a day at that time and he was confronted with electricity bills from the month of April to July 2017 of the meter installed in his name and bills have been collectively Ex.DW1/P1 (colly). Perusal of the bills Ex.DW1/P 1 reveals that during the period starting from April 2017 to July 2017 the consumption pattern of electricity was about 45units, 37units, 8 units and lastly 0 units which bellies the defence of the accused Rakesh that he was doing the business of ERickshaw charging through valid source of electricity. It also corroborate the prosecution case that there was electricity theft for running the business of Erickshaw charging by the accused Rakesh.

36. Witness DW2 Lal Babu was examined by the accused Rakesh in his defence and he in his examinationinchief has deposed that 4/5 Erickshaw's used to be parked outside the shop of the accused Rakesh and he has further deposed that accused Rakesh stopped his work of Erickshaw from his shop when the E rickshaw charging work was started from the open ground. He has further deposed that the accused Rakesh did the business of ERickshaw charging for 2/3 months in the starting of the year 2017. In his crossexamination he has testified that the E rickshaw charging was being done by the accused through meter. Thus, his testimony is entirely contrary to the testimony of accused Rakesh regarding the period of business of Erickshaw SC No : 577/19 BSES YPL VS. HAFIZ & ANR 30/45 charging by the accused Rakesh. So far as running the said business of Erickshaw charging through meter by the accused Rakesh is concerned, even the accused Rakesh has failed to prove this fact even on preponderance of probability. Thus, the defence of the accused in this regard appears to be unbelievable.

37. Thus, from the above testimonies of the witnesses and since nothing has come out in the crossexamination of any of the witnesses to disbelieve their testimonies coupled with the documents, it has been proved on record beyond doubt that the inspected premises was belonging/occupied by the accused persons. Further, the Act does not provide that person using illegal electricity must be owner or tenant. In the present case, both the accused have failed to prove their case Thus, their defence that they are not aware about any such raid or that they have no concern with the inspected premises appears to be after thought and cannot be believed.

38. Further argument advanced on behalf of the accused is that the CD Ex.PW5/A cannot be read into evidence for want of any supporting Certificate U/Sec. 65(B) of the Indian Evidence Act or in absence of transcript of the video recording. This argument has no force. There was no objection raised on behalf of the accused persons when the documents i.e. CD Ex.PW5/A exhibited regarding the mode of proof that it can not be read into SC No : 577/19 BSES YPL VS. HAFIZ & ANR 31/45 evidence for want of filing of Certificate U/Sec. 65(B) of Indian Evidence Act and that there is no law that the CD must be filed alongwith transcript of its contents. In this regard, reliance may be placed upon judgment reported in 2017(3) RCR(Criminal) 786 in case titled as "Sonu Vs. State of Haryana". The relevant para is reproduced for ready reference as under : "26 Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.

The objections as to admissibility of documents in evidence may be classified into two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later SC No : 577/19 BSES YPL VS. HAFIZ & ANR 32/45 proposition is a Rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insistng on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court".

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 33/45 It would be relevant to refer to another case decided by this Court in P.C. Purshothama Reddiar Vs. S. Perumal, MANU/SC/0454/1971:(1972) 1 SCC 9. The earlier cases referred to are civil cases while the case pertains to police reports being admitted in evidence without objection during the trial. The Court did not permit such an objection to be taken at the appellant stage by holding that :

"Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the Respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the HeadConstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the Respondent now to object to their admissibility".

39. It was also argued that public witnesses have not supported the case of the prosecution and one witness was dropped without any reason. There is no law which mandates that in all the cases, all public witnesses must be examined in the proceedings.

40. It was also argued that proper invesitation was not conducted by the I.O even after direction by this Court and SC No : 577/19 BSES YPL VS. HAFIZ & ANR 34/45 supplementary challan have been filed without proper investigation. This arguments has no force. No doubt the I.O was directed to investigate further regarding the display board and mobile number etc. However, in the supplementary challan the statement of independent witnesses were recorded and in the said statement, both the accused were found indulged in direct theft of electricity and thus, it cannot be said that I.O did not investigate the matter properly.

41. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to disbelieve the testimonies of the witnesses as their testimony remained unrebutted and unshakened despite their lengthly cross examination. Instead in their crossexamination, witnesses have clearly proved that there was electricity theft at the inspected premises/site through illegal wires by illegal tapping for non domestic purposes by the accused persons.

42. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution/complainant, it is proved that there was direct electricity theft using supply illegally through illegal wire connected from BSES Feeder Pillar, which was open through red colour aluminum wires in extensions and further 13 boards 3 pin plug was found fixed for illegal supply by accused for non SC No : 577/19 BSES YPL VS. HAFIZ & ANR 35/45 domestic purposes i.e. ERickshaw charging.

43. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that they were not involved in electricity theft in any manner or that they were neither consumer/user of the electricity.

44. 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 22/29 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".

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 36/45

45. It is to be noted that the accused Rakesh has placed bills Ex.DW1/1 for the bill month of April/May 2017, where the consumption is of 37 units and this bill coupled with the bills Ex.DW1/P1(colly) makes it clear that the business of Erickshaw charging was being done by the accused Rakesh without any valid source of electricity. Had the electricity been going to the place of business of the accused persons through meter, the easiest way to prove it was by producing the electricity bills paid by the accused to the complainant company. The very fact that the accused did not prove a single bill showing payment of electricity charges to the extent of his business of runing E rickshaw charging since the month of April 2017 fortifies the plea of the complainant company that electricity was being used by the accused persons directly through illegal wires connected from BSES Feeder Pillar by committing theft.

46. So far as the validity of the inspection is concerned, complainant has a right to prove theft of electricity done by the accused persons irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. The Hon'ble Supreme Court in "State and Ors Vs. N.M.T Joy Immaculate 2004(5) SCC 729 has observed that admissibility or otherwise of a piece of evidence SC No : 577/19 BSES YPL VS. HAFIZ & ANR 37/45 has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C or any other law excludes relevant evidence on the ground that it was obtained under an illegal search or seizure. Therefore, even if the inspection was not conducted by an Officer as designated under the notification, the members of the inspection team who had visited the site and found the electricity being stolen are competent witnesses to depose in the Court about the theft of electricity and the manner in which electricity was being stolen.

47. Further, it has to be kept in the mind that the conclusion of theft after trial can not be made merely on the basis of an inspection report. If the law had been that the inspection report in itself would have been conclusive evidence of the theft of electricity and no further evidence would have been required, it would have been possible for the counsel for the accused to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be attached too much of SC No : 577/19 BSES YPL VS. HAFIZ & ANR 38/45 importance.

48. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or nonfiling of photographs are not a serious infirmity in any electricity theft case since the case can be proved by oral testimony supported by photographs showing the theft of electricity. Instead, in the present case, the CD of the Videography Ex.PW5/A was put in crossexamination of the witnesses to substantiate the defence. In this regard, reliance may be placed upon the judgment reported in case titled as "Mukesh Rastogi Vs. NDPL" decided on 23.10.2007 by the Hon'ble High court of Delhi in Criminal Appeal No.531/2007.

49. 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 SC No : 577/19 BSES YPL VS. HAFIZ & ANR 39/45 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 appeal in case of theft of electricity.

50. In view of the aforesaid case law laid down by the Hon'ble Supreme court, it can be safely held that accused persons have failed to rebutt the presumption arising against them under the ProvisoIII of the Electricity Act that they were 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 Hafiz was very much present at the inspected premises and was using the electricity for nondomestic purposes without having any valid licence/source of electricity to consume it and accused Rakesh's Office was being used to run the said business. Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused persons appears to be without any substance.

51. 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 persons that they were was falsely implicated. During the evidence, the accused persons were duly identified by the witnesses.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 40/45

52. There is nothing on record to suggest that there was any enmity between accused persons and officials of Complainant Company or they have been falsely implicated in the present case. Their defence is that even prior to the registration of the FIR the investigation was being conducted by the I.O and I.O was making several calls to the accused persons vide Mark DW1/A and Ex.PW5/D1. Making calls prior to the registration of the FIR or making even preliminary inquiry prior to the registration of the case is not prohibited under the law. It is to be noted here that the offence alleged in the present case is compoundable in nature and therefore, it is often seen that the police inquires from the parties about the compounding of the present case. Even in the present case, accused Rakesh had already approached to the Permanent Lok Adalat and in the said circumstances, calling by the I.O to the accused can not be taken otherwise for false implication. 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 SC No : 577/19 BSES YPL VS. HAFIZ & ANR 41/45 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 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"

53. It is also well settled principal of law that there must be reasonable doubt and not the doubt which are fanciful. In the present case, the accused persons have tried to raise doubt upon the veracity of the investigation and testimony of the witnesses by raising the minor discrepancies here and there regarding the manner of investigation, notice to the accused persons which does not go to the root of the case to discredit the investigation or testimony of the witnesses. Moreover, joining the employees in investigation after raid when none of the accused has disclosed their names appears to be impossible for I.O.

54. The Hon'ble Supreme Court in K. Gopal Reddy Vs. State of A.P. has observed as under : "It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 42/45 If two reasonably probable and even balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may fit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons".

(I) CONCLUSION :

55. From the aforesaid discussion, it is clearly proved beyond any doubt by the complainant from the cogent evidence that an inspection was carried out on 23.10.2017 at about 11:50 a.m. at DSIDC Park, Near Shed No.3/134, Ground floor, DSIDC Block No.35, Himmatpuri, Trilokpuri, Delhi - 110 091 and that the said premises belongs to the accused Rakesh and accused SC No : 577/19 BSES YPL VS. HAFIZ & ANR 43/45 Hafiz was present at the spot and there was direct theft of electricity as no meter was found installed at the inspected premises and there was direct theft of electricity using supply illegally through illegal wire connected from BSES Feeder pillar which was open through red colour aluminum wires in the extensions and further 13 boards with 3 pin plug was found fixed. Further the said direct supply was being used for non domestic purposes i.e. Erickshaw charging.

56. In the light of the aforesaid discussion, it has been proved on record that it was the accused persons, who were directly involved in the electricity theft and this fact has been proved beyond any reasonable doubt from the testimony of PWs coupled with inspection report, assessment of connected load, seizure memo and CD of Videography that in the inspected premises electricity was being used by the accused persons without having any valid source of electricity and connected load was found to be 9.600KW. Accordingly, both the accused namely Hafiz and Rakesh are held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and are also held liable for the civil liabilities for using electricity illegally for domestic purpose under section 154(5) of the Electricity Act.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 44/45 Copy of the judgment be supplied to the accused free of costs.

At joint request of the parties, be put up for arguments on the point of sentence today itself.





ANNOUNCED IN THE OPEN COURT
TODAY ON 3rd JULY, 2019 DEVENDRA                      Digitally signed by
                                                      DEVENDRA KUMAR
                                   KUMAR              SHARMA
                                                      Date: 2019.07.03
                                   SHARMA             16:23:01 +0530
                                  (DEVENDRA KUMAR SHARMA)
                               ASJ/ SPECIAL ELECTRICITY COURT
                               EAST DISTT./ KKD COURTS/DELHI
(Total no.45 of pages)
(One Spare copy is attached)




SC No : 577/19     BSES YPL VS.       HAFIZ & ANR                45/45
        IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
                ADDITIONAL SESSIONS JUDGE,

SPECIAL COURT (ELECTRICITY), EAST DISTRICT, KARKARDOOMA COURTS, DELHI SC No : 577/18 FIR No : 177/18 P.S : MAYUR VIHAR, DELHI U/S 135 OF THE ELECTRICITY ACT, 2003 STATE (THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED) VS.

1) Hafiz S/o Late Habib Ali R/o 26/434, Ground Floor, Trilokpuri, Delhi.

........... Convict ORDER ON SENTENCE :

03.07.2019 Pr.: Sh. S.K. Tripathi Ld. Addl. P.P for the State.

Sh. Mukesh Sharma, AR for the Complainant Company. Convict Hafiz is present alongwith Ld. Counsel Sh. Vipin Chandra.

Arguments on sentence is heard.

Perused the record.

It has been submitted on behalf of the convict Hafiz that he is SC No : 577/19 BSES YPL VS. HAFIZ & ANR 46/45 aged about 38 years old and is the sole bread earner of the family consisting of 3 minor children and his wife and they are dependent solely upon the convict. The convict has no permanent source of income but he is an auto driver and he has hired the same on rent basis and is earning any how to take care of his family. It has been further submitted that he is not the previous convict and is not involved in any other case except the present case. Thus, it is prayed that a lenient view may kindly be taken.

On the other hand, it is submitted on behalf of the State/complainant that no leniency should be shown to such offender who is committing economic offences and burdening the society as a whole by his conduct. It is further submitted on behalf of the State that direct theft of electricity was going on from tapping from the nearby BSES Pole for 9.6KW for non domestic purpose without any authorisation. It is further submitted that no meter was found installed at the inspected premises at the time of inspection. Thus, it is prayed that maximum sentence may kindly be awarded to the convict.

I have perused the record.

Law on the point of sentence is settled in the Ankush Maruti Shinde vs. State of Maharashtra, IV (2009) SLT 470= III (2009) DLT (Crl.) 16 (SC) (2009) 6 SCC 667, the Hon'ble Supreme Court relying upon its earlier judgment and in particular upon the following extract from the judgment rendered in State of Madhya Pradesh vs. Munna Choube, I (2005) SLT 628=I (2005) CCR 105 (SC)= 2 SCC 710:

(SCC, Page 714) has held as under : "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons SC No : 577/19 BSES YPL VS. HAFIZ & ANR 47/45 and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.

Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that : 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep seated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reducing the death sentence observed thus:

(SCC p.82, para 6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when SC No : 577/19 BSES YPL VS. HAFIZ & ANR 48/45 faced with such evidence and such cruel facts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.

10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.

1. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations.

Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic result of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.

12. Proportion between crime and punishment SC No : 577/19 BSES YPL VS. HAFIZ & ANR 49/45 is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court."

In the light of law laid down and particularly considering the facts and circumstances of the present case, I am of the considered opinion that electricity theft is an economic offence wherein the society as a whole is the victim and the honest payers of electricity charges are the sufferers on account of the proved conduct of the convict. Such convict is getting unearned benefit at the costs of others who are the legitimate consumers and they have to bear the costs of electricity theft. Even the theft of electricity not only put the convict SC No : 577/19 BSES YPL VS. HAFIZ & ANR 50/45 at the risk of his own life but it causes danger to the life of other persons also.

One can imagine that there may be people in the country who may be genuinely not in a position to pay like the persons below the poverty line or farmers who can also come into this category atleast in times of distress due to famine or hailstorm if not at all time. But the persons falling in the other category i.e. being in a capacity to pay, if involved in electricity theft, can not be said to be person in whose favour the leniency should be taken. Initially the persons in authority were found involved in electricity theft. But over a period of time, the privilege of these elite class got extended to their kith and kin. Now it has spread like cancer and the mass theft of power has reached frightening proportions to say the least. As of today about 12 % distribution loss/loss due to electricity theft is reported and if it is converted into the revenue it is in crores. It may be summarised in the word' of Song by Billy Joely from his "Storm Front album" titled "We didn't start the Fire", "It was always burning, since the world's been turning", goes the next line. People can say the same about the power theft situation in India today. We didn't start it. It seems like it's been always happening.

In the present case also, the Convict was found indulged in direct theft of electricity through illegal wires from feeder pillar of BYPL for nondomestic purposes. It is kept to be mind that in the present case, convict was found involved in illegal use of electricity through tapping that too with the help of illegal wires to the tune of 9.6 KW. Thus, there is no reason to take any lenient view.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 51/45 Accordingly, the interest of justice shall be served particularly considering the age of the convict, by directing the convict as under:

(I) to undergo SI for a period of one year for offence punishable u/s 135 of Electricity Act;

So far as imposing of fine for the offence is concerned, under Section 135 of the Electricity Act, as the connected load was found 9.6 KWs in the present case, as per first proviso to Section 135 of the Electricity Act, there is minimum mandatory fine which is 3 times of financial gain on account of such theft of electricity on first conviction.

The theft bill as per DERC Regulations is calculated on the basis of the formula i.e. the connected load X days x hours x factor (for direct theft the factor is of 100 and for tampering of the meter factor is of 60 for commercial and 40 for domestic purpose and it is prescribed lesser or more for other contingencies of the theft of electricity) X two times penalty X 12 months.

It is submitted on behalf of the State/Complainant that electricity tax and fixed charges are the part of tariff. I am not convinced by the said arguments as the tax and fixed charges can not be calculated towards the actual loss caused to the complainant by the act of the convict.

Now, calculating the fine on the said basis of the theft bill No.YMENF241020170024AO, which is of Rs.14,32,275/, the actual financial loss to the complainant company is of Rs.6,69,354/(after deducting the electricity tax and fixed charges and thereafter, being half of the theft bill after calculating it in the formula prescribed by the rules in the DERC). The three times of the said financial loss SC No : 577/19 BSES YPL VS. HAFIZ & ANR 52/45 comes to Rs.20,08,062/ Accordingly, the convict Hafiz is directed to pay fine of Rs.20,08,062/. In default of payment of fine, the convict shall further undergo SI for a period of one month.

The benefit of Section 428 of Cr.P.C if any, be given to the convict as per law.

At this stage, applications U/Sec. 389 of Cr.P.C on behalf of the convicts is filed for suspension of the sentence and for granting bail till the filing of appeal.

It is submitted on behalf of the convict that he wants to file appeal against the conviction and therefore, he may kindly be given sometime to prefer the appeal.

Heard.

Throughout the trial, the convict was on bail during the trialand there is no report that he has misused his liberty. Therefore, in the interest of justice application filed on his behalf is allowed. Sentence of imprisonment is suspended till 05.08.2019 subject to furnishing a personal bond by convict in a sum of Rs.10,000/ and surety in the like amount.

Bail bond is furnished and accepted till 05.08.2019. Bail bond be again taken up on 05.08.2019 for report of order in appeal.

Copy of this order be given dasti free of costs to the convict forthwith for necessary compliance.

A copy of order be given dasti to the AR for the complainant company for due compliance.

SC No : 577/19     BSES YPL VS.       HAFIZ & ANR                    53/45
                                               Digitally signed
                                DEVENDRA      by DEVENDRA
                                KUMAR         KUMAR SHARMA
                                              Date: 2019.07.03
                                SHARMA
ANNOUNCED IN THE OPEN COURT                   16:23:25 +0530
TODAY ON 3rd July, 2019
                                (DEVENDRA KUMAR SHARMA)
                           ASJ/ SPECIAL ELECTRICITY COURT
                             EAST DISTT./ KKD COURTS/DELHI
(Total 8 no. of pages)
(One Spare copy is attached)




SC No : 577/19   BSES YPL VS.   HAFIZ & ANR           54/45
        IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
                ADDITIONAL SESSIONS JUDGE,

Rakesh S/o Sh. Dalchand R/o 29/429, Trilokpuri, Delhi.

........... Convict ORDER ON SENTENCE :

03.07.2019 Pr.: Sh. S.K. Tripathi Ld. Addl. P.P for the State.

Sh. Mukesh Sharma, AR for the Complainant Company. Convict Rakesh is present alongwith Ld. Counsel Sh. Vipin Chandra.

Arguments on sentence is heard.

Perused the record.

It has been submitted on behalf of the convict Rakesh that he is aged about 46 years old and is the sole bread earner of the family SC No : 577/19 BSES YPL VS. HAFIZ & ANR 55/45 consisting of 2 minor children and his wife. It has been further submitted that there is old aged mother who remains to ill and they all are dependent solely upon the convict. The convict has no permanent source of income being social worker. It has been further submitted that he is not the previous convict and is not involved in any other case except the present case. Thus, it is prayed that a lenient view may kindly be taken.

I have perused the record.

(SCC, Page 714) has held as under : "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of SC No : 577/19 BSES YPL VS. HAFIZ & ANR 56/45 the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.

(SCC p.82, para 6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel facts. To SC No : 577/19 BSES YPL VS. HAFIZ & ANR 57/45 give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.

11. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.

2. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations.

13. Proportion between crime and punishment is a goal respected in principle, and in spite of SC No : 577/19 BSES YPL VS. HAFIZ & ANR 58/45 errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

In the light of law laid down and particularly considering the facts and circumstances of the present case, I am of the considered opinion that electricity theft is an economic offence wherein the society as a whole is the victim and the honest payers of electricity charges are the sufferers on account of the proved conduct of the convict. Such convict is getting unearned benefit at the costs of others who are the legitimate consumers and they have to bear the costs of electricity theft. Even the theft of electricity not only put the convict at the risk of his own life but it causes danger to the life of other SC No : 577/19 BSES YPL VS. HAFIZ & ANR 59/45 persons also.

Accordingly, the interest of justice shall be served particularly SC No : 577/19 BSES YPL VS. HAFIZ & ANR 60/45 considering the age of the convict, by directing the convict as under:

(I) to undergo SI for a period of one year for offence punishable u/s 135 of Electricity Act;

Now, calculating the fine on the said basis of the theft bill No.YMENF241020170024AO, which is of Rs.14,32,275/, the actual financial loss to the complainant company is of Rs.6,69,354/(after deducting the electricity tax and fixed charges and thereafter, being half of the theft bill after calculating it in the formula prescribed by the rules in the DERC). The three times of the said financial loss comes to Rs.20,08,062/ Accordingly, the convict Rakesh is directed SC No : 577/19 BSES YPL VS. HAFIZ & ANR 61/45 to pay fine of Rs.20,08,062/. In default of payment of fine, the convict shall further undergo SI for a period of one month.

The benefit of Section 428 of Cr.P.C if any, be given to the convict as per law.

At this stage, applications U/Sec. 389 of Cr.P.C on behalf of the convicts is filed for suspension of the sentence and for granting bail till the filing of appeal.

It is submitted on behalf of the convict that he wants to file appeal against the conviction and therefore, he may kindly be given sometime to prefer the appeal.

Heard.

Bail bond is furnished and accepted till 05.08.2019. Bail bond be again taken up on 05.08.2019 for report of order in appeal.

Copy of this order be given dasti free of costs to the convict forthwith for necessary compliance.

A copy of order be given dasti to the AR for the complainant company for due compliance.



ANNOUNCED IN THE OPEN COURT
TODAY ON 3rd July, 2019

SC No : 577/19     BSES YPL VS.       HAFIZ & ANR                    62/45
                                                Digitally signed by
                             DEVENDRA
                               (DEVENDRA KUMAR    SHARMA)
                                               DEVENDRA
                             KUMAR             KUMAR SHARMA
                           ASJ/ SPECIAL ELECTRICITY COURT
                                               Date: 2019.07.03
                             SHARMA
                          EAST DISTT./ KKD COURTS/DELHI
                                               16:23:49 +0530
(Total 8 no. of pages)
(One Spare copy is attached)




SC No : 577/19   BSES YPL VS.   HAFIZ & ANR             63/45
        IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
                ADDITIONAL SESSIONS JUDGE,

1) Hafiz S/o Late Habib Ali R/o 26/434, Ground Floor, Trilokpuri, Delhi.

2) Rakesh S/o Sh. Dalchand R/o 29/429, Trilokpuri, Delhi.

........... Convicts JOINT ORDER ON CIVIL LIABILITY OF THE CONVICTS :

03.07.2019 Pr.: Sh. S.K. Tripathi Ld. Addl. P.P for the State.

Sh. Mukesh Sharma, AR for the Complainant Company. Both the Convicts Hafiz and Rakesh are present alongwith Ld. Counsel Sh. Vipin Chandra.

Heard.

SC No : 577/19 BSES YPL VS. HAFIZ & ANR 64/45 Undisputedly the offence has been held as proved against convicts.

Section 154 Sub Clause (5) & (6) and the explanation reads as under : "(5) The Special Court may determine the Civil Liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board of licensee or the concerned person, as the case may be, shall be refunded by the Board of licensee communication of the order of the Special Court together wit interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation - For the purposes of this section, "Civil Liability" means loss or damage incurred by the Board or licensee or the concerned person, s the case may be, due to the commission of an offence referred to in section 135 to 140 and section 50."

It was the onus on the consumer/accused persons/user in sub clause (5) of the Section 154 that they could have shown that they were not using the stolen energy for a period of 12 months preceding the date of detection of theft of energy or onus was on them to prove SC No : 577/19 BSES YPL VS. HAFIZ & ANR 65/45 the exact period of theft whereas if I take that the onus was also on the complainant to prove the exact period of theft then the period of 12 months prescribed would have become redundant and as such the complainant was always given liberty by the said provision to apply the period of 12 months for the determination of civil liability.

As the convicts have failed to discharge their onus that they were not using the energy from last one year, hence, they are directed to pay an amount of Rs.13,38,708/ as civil liability (against the theft bill No.YMENF241020170024AO, which is of Rs.14,13,275/) after deducting electricity tax and fixed charged and if any amount has already been paid/deposited against the said theft bill, the same shall be adjusted towards the said amount of the bill failing which the said amount shall be recoverable from the convicts as if the present order is a decree of a civil court.

Copy of this order be given dasti free of costs to both the convicts forthwith.

Digitally signed

                                            DEVENDRA            by DEVENDRA
ANNOUNCED IN THE OPEN COURT                 KUMAR               KUMAR SHARMA

TODAY ON 3rd July, 2019                     SHARMA              Date: 2019.07.03
                                                                16:24:02 +0530


                                   (DEVENDRA KUMAR SHARMA)
                               ASJ/ SPECIAL ELECTRICITY COURT
                               EAST DISTT./ KKD COURTS/DELHI
(Total 3 no. of pages)
(One Spare copy is attached)




SC No : 577/19     BSES YPL VS.      HAFIZ & ANR                        66/45

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