Delhi District Court
State(Bses) vs Jubeda on 18 March, 2025
SC No.320/2022 State Vs. Jubeda
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 320/2022
FIR No. 38/2020
Under Section 135 Electricity Act
PS Welcome
State
versus
Jubeda
W/o late Sh. Shamsher Singh
R/o C-194, Welcome,
Seelampur, Delhi-110053
.... Accused
Date of institution 24.03.2022
Judgment reserved on 18.03.2025
Judgment Pronounced on 18.03.2025
Decision Convicted
JUDGMENT
1. Accused Jubeda is facing trial upon the allegations that she Digitally indulged in theft of electricity and thereby, committed an signed by Ashish Ashish Rastogi offence punishable under Section 135 of Electricity Act Rastogi Date:
2025.03.18 15:44:29 2003 (hereinafter referred to as 'the Act').
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Judgment 1 of 22
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Brief Facts
2. On 02.12.2019, at about 11.55 am, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by PW3 Sh. Praveen Kumar Verma (Manager) in the residential premises of accused at i.e. H.No.C-194, 2 nd Floor, Welcome, Seelampur, Delhi-110053.
3. At the time of inspection, no electricity meter was found installed at the site and accused was found indulging in direct theft of electricity with the help of two core black colour cables which were found connected from BSES Service Cable.
4. At the time of inspection, total connected load was found to be 1.810 KW which was being used for domestic purposes. Videographer Sh. Rajeev captured videography of inspection proceeding. Inspection documents i.e. Inspection Report, Load Report, Seizure Memo and advisory notice were prepared at the spot.
5. 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.56,476/-
Accordingly, a theft bill was raised and sent to the accused but she did not make payment of the theft bill. Ashish Rastogi 6. On failure to pay the theft bill amount, complainant Digitally signed by Ashish Rastogi company through its Authorized Officer lodged a Date: 2025.03.18 15:44:35 +0530 Judgment 2 of 22 SC No.320/2022 State Vs. Jubeda complaint U/s 135 Electricity Act with SHO, PS Welcome for registration of FIR against the accused. Thereafter, FIR was registered and investigation of the case was initially marked to ASI Sudesh (PW2) who prepared rukka Ex.PW2/A and got registered present FIR. Thereafter, he was transferred and further investigation was marked to HC Navratan Singh (PW1), the IO of the case, who on completion of investigation, filed the present chargesheet before the Court.
Notice
7. On 11.11.2022, notice U/s 251 Cr.P.C for commission of offence punishable under Section 135 & 138 of the Act was given to accused. She did not plead guilty and claimed trial.
Prosecution Evidence
8. In order to substantiate its allegations, the prosecution examined following four witnesses.
9. PW1 HC Navratan Singh is the IO of the case. He proved copy of FIR as Ex.PW1/1, notice U/s 41A Cr.P.C. given to accused as Ex.PW1/2, interrogation report as Ex.PW1/3, copy of Adhar Card of accused which is Ex.PW1/4, statement of neighbour of accused namely Faeem as Ex.PW1/5 and Pabandinama as Ex.PW1/6. Digitally signed by Ashish Ashish Rastogi Rastogi Date: 10. PW2 is ASI Sudesh who prepared rukka Ex.PW2/A on the 2025.03.18 15:44:39 +0530 basis of complaint and got registered present FIR Judgment 3 of 22 SC No.320/2022 State Vs. Jubeda Ex.PW1/1.
11. PW3 Sh. Praveen Kumar Verma is the Manager/complainant who was heading the inspection team. He proved the CD of videography of the inspection proceedings as Ex.PW3/A, inspection report as Ex.PW3/B, load report as Ex.PW3/C, advisory notice as Ex.PW3/D and theft bill as Ex.PW3/E. He also proved the complaint as Ex.PW3/F lodged by him.
12. PW4 is Fahim, the son-in-law of accused, who deposed that accused has been occupying the inspected premises being owner thereof and proved his statement Ex.PW1/5 recorded by the IO.
Statement of Accused
13.All incriminating evidence which has come on record, were put to the accused under Section 313 Cr.P.C. Accused denied all material allegations and stated that she is innocent and has been falsely implicated in this case. She has not committed any theft of electricity. However, accused did not lead any Defence Evidence.
Arguments
14. Ld. Addl. PP submitted that accused was found indulged in direct theft of electricity and no electricity meter was installed at her premises. Ld. Addl. PP further submitted Digitally signed by Ashish that prosecution has proved allegations against the accused Ashish Rastogi Rastogi Date:
2025.03.18beyond reasonable doubt through the evidence of 15:44:47 +0530 Judgment 4 of 22 SC No.320/2022 State Vs. Jubeda prosecution witnesses. He also emphasized that inspection was conducted as per Rules and applicable Regulations. Thus, it is prayed that accused may be convicted.
15. On the other hand, Ld. LAC for accused submitted that accused is innocent and she has been falsely implicated in this case. It was also submitted that accused has not committed any theft of electricity as alleged by the prosecution.
Analysis
16. At the outset, it is observed that the Certificate U/s 65B of Indian Evidence Act, 1872 for the videography proceedings is on record but the same has not been exhibited. Ld. Substitute Addl. PP and AR of the complainant company submit that the videographer left the services of the concerned Photo Studio and hence could not be produced and enter the witness box. Videography has been thus proved by PW3. Be that as it may, the absence of the Section 65B Certificate cannot be fatal to the case of the prosecution as there was no objection raised by the Ld. LAC/defence counsel for the accused at the time the videography was being exhibited. The court, in relation to the said legal position, is supported by the judgement reported as Sonu @ Amar vs State of Haryana, AIR 2017 SC 3441 wherein it is held:
Digitally signed by Ashish 26. That an electronic record is not admissible unless Ashish Rastogi it is accompanied by a certificate as contemplated Rastogi Date:
2025.03.18 15:44:52 under Section 65B (4) of the Indian Evidence Act is no +0530 more res integra. The question that falls for our Judgment 5 of 22 SC No.320/2022 State Vs. Jubeda consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das v. Sri Thakurji, AIR 1943 PC 83, it was held that:
"Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof." In RVE Venkatachala Gounder, this Court held as follows:
"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 Digitally signed by be allowed to be raised at any stage subsequent to the Ashish Ashish Rastogi marking of the document as an exhibit. The later Rastogi Date:
2025.03.18 proposition is a rule of fair play. The crucial test is 15:44:59 +0530 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 Judgment 6 of 22 SC No.320/2022 State Vs. Jubeda 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 insisting 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." [Emphasis supplied] It would be relevant to refer to another case decided by this Court in PC Purshothama Reddiar v. S Perumal, (1972) 1 SCC 9. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate 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 Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is Ashish not open to the respondent now to object to their Rastogiadmissibility."
Digitally signed 27. It is nobody's case that CDRs which are a form of by Ashish Rastogi Date: 2025.03.18 electronic record are not inherently admissible in 15:45:05 +0530 Judgment 7 of 22 SC No.320/2022 State Vs. Jubeda evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
17.Taking into account the law as laid down by the Hon'ble Supreme Court, the videography stands proved even when the certificate U/s 65B of Indian Evidence Act has not Digitally been exhibited.
signed by Ashish Ashish Rastogi
18. Before dealing with the factual aspects of the present case, Rastogi Date:
2025.03.18 15:45:12 +0530 it is deemed appropriate to firstly specify and discuss the Judgment 8 of 22 SC No.320/2022 State Vs. Jubeda 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 & 138 of the Act. The provision of Section 135 & 138 of the Electricity Act is reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Section 138. Interference with meters or works of licensee. - (1) Whoever, -
a) unauthorisedly connects any meter, indicator or apparatus with any electronic line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or
b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being Digitally the property of a licensee when the said electric line signed by Ashish or other works has or have been cut or disconnected;
Ashish Rastogi or
Rastogi Date:
c)
2025.03.18
15:45:19 lays or causes to be laid, or connects up any works
+0530 for the purpose of communicating with any other
Judgment 9 of 22
SC No.320/2022 State Vs. Jubeda
works belonging to a licensee; or
d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering;
shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re- connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
19. There is a presumption mentioned in the third proviso of Section 135(1) of the Electricity Act, 2003 which reads as follows:-
"Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer."
20.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines 'dishonestly' and holds that Digitally Whoever does anything with the intention of causing signed by Ashish Ashish Rastogi wrongful gain to one person or wrongful loss to another Rastogi Date:
2025.03.18 15:45:26 +0530 person, is said to do that thing "dishonestly".
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SC No.320/2022 State Vs. Jubeda
21. Allegations against the accused are about hooking illegal wire with main line of BSES Pole and connecting the same with inspected premises of the accused. Therefore, Section 135(1) of the Act would be relevant and applicable. As mentioned, dishonest intention is primary ingredient to impute any culpability in this matter.
22. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deals with theft of electricity. Regulation 60 empowers authorized Officer to inspect premises. Under Regulation 61 Authorized Officer makes Inspection Report, Regulation 62 lays down procedure to report a case of theft and under Regulation 63 there is assessment of theft bill.
23. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 60. Inspections of the premises and electrical installations by Authorized officer: -
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity: (2) Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(3) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(4) 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.
(5) he Authorized officer shall prepare an inspection report as Digitally signed by Ashish Ashish Rastogi per the provisions under these Regulations.
Rastogi Date:
2025.03.18 15:45:31 +0530
61. Preparation of Report by Authorized officer: - (1) In the event of detection of theft of electricity, the Authorized Judgment 11 of 22 SC No.320/2022 State Vs. Jubeda 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.
(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.
Digitally (2) In case sufficient evidence is found to establish theft of signed by Ashish electricity, the Authorized officer under sub-section (2) of Ashish Rastogi Section 135 of the Act shall seize and seal all material Rastogi Date: evidence including wires/cables, meter, service line etc., 2025.03.18 15:45:37from the premises under a seizure Memo.
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Judgment 12 of 22
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(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 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; Digitally
(iii) actual period from the date of preceding checking of signed by installation by authorized officer to date of inspection;
Ashish Ashish Rastogi (iv) data recorded in the energy meter memory wherever Rastogi Date:
2025.03.18 available;
15:45:42
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(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.
24. As per prosecution case, at the time of inspection, no electricity meter was found installed in the inspected premises and accused was indulged in direct theft of electricity.
25. PW3 Sh. Praveen Kumar Verma is the prime witness of this case being members of inspection team. PW2 corroborated the allegations made in the complaint (Ex.PW3/F) and deposed that at the time of inspection, no electricity meter was found installed for inspected premises and the accused who was present at the spot, was found indulged in direct theft of electricity with the help of black colour wires joined with yellow and black colour two core aluminium cables which were found connected from BSES Service Line. Accused has not specifically denied these facts during cross-examination of PW2. Ashish Rastogi
26. PW3 further deposed that videographer Rajeev conducted Digitally signed by the videography of the Inspection Proceedings in which Ashish Rastogi Date: 2025.03.18 15:45:48 +0530 Judgment 14 of 22 SC No.320/2022 State Vs. Jubeda the commission of theft of electricity at the spot was recorded. PW3 was duly cross-examined by Ld. LAC for accused was unable to bring out any contradiction in his testimony. Ld. LAC for accused merely put suggestions to witnesses that accused never indulged in theft of electricity nor any such inspection documents were prepared at the time of inspection which were categorically denied by witness. Accused has simply denied the inspection documents but she has not denied its contents. Accused has not disputed the load mentioned in the load report.
27. Nothing contradictory emerged in the testimony of prosecution witnesses during cross-examination and the testimony of witnesses has been consistent and thus, the factum of inspection, preparation of inspection documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stands proved. In cross-examination of PW3, accused did not deny her presence at the spot at the time of inspection. PW4 Fahim who is son-in-law of the accused also stated that accused has been occupying the inspect for the last fifteen years.
28. It is further submitted by Ld. LAC that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the testimony of Digitally prosecution witnesses that the accused was found indulged signed by Ashish Ashish Rastogi in direct theft of electricity through illegal wire and these Rastogi Date:
2025.03.18 15:45:53 +0530 facts have been well proved by PW3.
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29. During evidence, CD (Ex.PW3/A) containing inspection proceedings was played before the court which depicted the manner in which the accused was found indulged in direct theft of electricity through illegal wire. Accused has neither disputed her identity nor the identity of the inspected premises shown in the video contained in the CD. Furthermore, it is admitted position of fact that there was no electricity meter found installed in the inspected premises at the time of inspection.
30. Nothing has been brought on record to indicate that officials of complainant company had any animosity with the accused and therefore, under these circumstances, non-
joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court has made the following observations:
".....The report prepared by the officers of the Electricity Board is an act done in discharge of their duties and could not be straightway reflected or disbelieved unless and until there was definite and cogent material on record to arrive at such a finding. The inspection report is a document prepared in exercise of his official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Digitally signed by Thus there was specific onus upon the consumer to Ashish Ashish Rastogi rebut by leading proper and cogent evidence that Rastogi Date:
2025.03.18 the report prepared by the officers was not 15:45:59 +0530 correct."
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31. 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 imparts 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.
32. In addition, nothing incriminating has come on record to show that the inspection was not conducted as per the procedure prescribed under the DERC Regulations pertaining to the theft of electricity. There is not even a suggestion in the cross examination of witnesses that there is any procedural lapse or impropriety and the guidelines as prescribed have not been followed.
33. 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 Digitally presumption. Thus, in view of the proviso of section 135 signed by Ashish Ashish Rastogi (1) of the Act, after the prosecution establishes the charges Rastogi Date:
2025.03.18 15:46:04 of electricity theft against the accused then under the +0530 aforesaid provisions of law, the accused is legally bound to Judgment 17 of 22 SC No.320/2022 State Vs. Jubeda bring some material on record to rebut the statutory presumption.
34. Coming to the Presumption as envisaged U/s 135 of Electricity Act, it is to be noted that it uses the word "shall presume". Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by law". The expression "may presume" and "shall presume"
in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume"
while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the Digitally circumstances of the case but "shall presume"
signed by leaves no option with the court, and it is bound Ashish Ashish Rastogi to presume the fact as proved until evidence is Rastogi Date: given to disprove it, for instance, the 2025.03.18 15:46:10 genuineness of a document purporting to be the +0530 Gazette of India. The expression "shall Judgment 18 of 22 SC No.320/2022 State Vs. Jubeda presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act."
35. Hon'ble Supreme Court, in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee ', has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
36.In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the aforesaid statutory presumption. Accused did not lead any defence evidence nor she has brought anything on record which could suggest that accused was drawing electricity through authorized means or electricity meter. Moreover, it is admitted position of fact that there was no electricity meter for inspected premises. As per load report, certain electric appliances were found in the inspected premises and accused has not explained as to from where she was drawing electricity to run those appliances. Also, it is not the case of the accused that there was any Genset and she was drawing energy from the same.
Ashish
37. Rather in the advisory notice proved as Ex.PW3/D, it is Rastogi Digitally signed by Ashish Rastogi clearly mentioned that in case the accused/user has Date: 2025.03.18 15:46:16 +0530 anything to say against the inspection, she should have Judgment 19 of 22 SC No.320/2022 State Vs. Jubeda filed written objection thereto within four working days but the user/accused chose not to file any objection which indicates the involvement of the accused in direct theft of electricity else she would have raised her objection before the competent authority.
38.If the accused was not indulged in direct theft of electricity or she was using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused was to prove on record that at the time of inspection, she was drawing electricity through her own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Accordingly, it is held that accused has failed to rebut the statutory presumption.
39. 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 Digitally bill showing payment of electricity charges signed by Ashish fortifies the plea of the complainant company Ashish Rastogi that electricity was being used by the appellant Rastogi Date:
2025.03.18 15:46:22 directly from LT Main by committing theft. Paid +0530 electricity bills would have been the best evidence to show that the appellant was using Judgment 20 of 22 SC No.320/2022 State Vs. Jubeda 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".
40. In this case, accused has been served with the notice U/s 251 Cr.P.C for the commission of offence punishable U/s 135 alternatively U/s 138 of the Act. Accused has illegally established connection with BSES Service Line to draw electricity. Accused has intentionally indulged in the alleged act to constitute theft of electricity in order to derive illegal benefit at direct expense of BSES and other honest consumers. Dishonest Intention of accused is inherent in the very act proved against her. Accused was owner as well as user of the electricity in the inspected premises at the relevant time. Act imputed upon the accused is squarely covered under Section 135 of the Act having transcended beyond mere unauthorized interference in the work of BSES. Accused interfered with the supply lines of BSES in a particular manner to draw illegal gain as a purpose and availed advantage which is punishable U/s Digitally135 of the Act.
signed by Ashish Ashish Rastogi
41.
Rastogi Date: In view of aforesaid discussions, it is held that the
2025.03.18
15:46:28
+0530 prosecution has proved its case beyond reasonable doubt
Judgment 21 of 22
SC No.320/2022 State Vs. Jubeda
that no electricity meter was available at the premises of the accused at the time of inspection and accused Jubeda who was found indulging in direct theft of electricity through illegal wire, which is an offence punishable U/s 135 of the Electricity Act, 2003. Consequently, accused Jubeda is convicted U/s 135 of the Electricity Act, 2003.
Let convict be heard on quantum of sentence. Announced in the Open Court on 18.03.2025.
Digitally signed by (Ashish Rastogi) Ashish Ashish Rastogi Addl. Sessions Judge-05 (Electricity) Rastogi Date:
2025.03.18 East/Karkardooma Courts/Delhi 15:46:34 +0530 Judgment 22 of 22