Delhi District Court
State vs . Vipin Shokeen on 30 November, 2022
IN THE COURT OF SH. JITENDRA SINGH: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTT. NORTH WEST, ROHINI COURTS, DELHI
CNR No. DLNW01-009320-2018
SC No. 593/2018
FIR No. 1357/2017
P.S. Mangolpuri
U/S. 135 OF THE ELECTRICITY ACT, 2003
STATE VS. VIPIN SHOKEEN
1. Date of Commission of Offence : 06.04.2017
2. Date of institution of the case : 25.08.2018
3. Name of the complainant : Sh. M.K. Singh
(TPDDL).
4. Name of accused, parentage
& address. :Sh. Vipin Shokeen S/o
Sh. Krishan Kumar
Shokeen, R/o; C-5/205,
Sector-07, Rohini, Delhi.
5. Offence complained of : U/s. 135 of Electricity
Act.
6. Plea of the accused : Pleaded not guilty.
7. Final Order : Convicted
8. Judgment reserved on : 25.11.2022
9. Date of Judgment : 30.11.2022
FIR No.1357/2017, State Vs. Vipin Shokeen Page 1 of 14
JUDGMENT
BRIEF FACTS OF THE CASE:-
1. Briefly stated, the facts of the present case are that on 06.04.2017, a team of Tata Power Delhi Distribution Limited (hereinafter referred to as 'TPDDL')visited the premises i.e. Khasra No. 70/1/2, First Floor, near outer ring road, Village Mangolpur Kalan, Delhi-85 (premises in question). During inspection, direct theft of electricity was being committed from TPDDL LV Connectors of LTABC/LT Network of Pole no. 551-
1/33/9/1 by using illegal two core black colour wire by completely by passing the meter and the entire load was found running by committing direct theft. At the time of inspection, one connection was found installed in the name of accused Vipin Shokeen and he was also found to be user of electricity. Tenant of accused Vipin Shokeen namely Rajender was found present at the time of inspection who stated that the accused Vipin Shokeen is also the user of electricity. Total load of 14.923 KW was found connected at site out of which load of 10.047 KW was being used for domestic purpose. Load of 4.876 KW was being used for non domestic purpose i.e. for the welding shop at the ground floor under the staircase of tenant Mr. Rajender. The seizure memo of wire was prepared, vide Ex. PW-2/2. The inspection report was prepared, vide Ex. PW-2/1. Thereafter, the police complaint was made, and FIR No.1357/2017, State Vs. Vipin Shokeen Page 2 of 14 accordingly an FIR was got registered under Section 135 of the Electricity Act.
CHARGE AGAINST THE ACCUSED:
2. After completion of investigation, the charge sheet under Section 135 of Electricity Act was filed against the accused Vipin Shokeen. The charge under Section 135 of The Electricity Act, 2003.
PROSECUTION EVIDENCE :
3. PW1 Sh. Mukesh Kumar Singh, is the complainant, who made the complaint to the police station Manolpuri. The complaint is Ex.PW1/A.
4. PW2 Sh. Netra Pal Singh, who was the member of the inspecting team. He deposed that on 06.04.2017, he was working as senior manager and on that day, he alongwith Shri Ravi Kishan and photographer Sunil Kumar of M/s Shanti Studio inspected the premises in question bearing to the accused Vipin Shokeen. He has further deposed that accused was found to be the registered consumer and user of the electricity and one person namely Sh.
Rajender was present at site, who stated to be the tenant. At the time of inspection, direct theft of electricity was being committed at site by the direct taping of TDPPL LB Connectors of LT ABC/LT Network of the pole, which was further connected to the internal wiring of the premises by completely by-passing the meter and the FIR No.1357/2017, State Vs. Vipin Shokeen Page 3 of 14 entire load was being run by committing direct theft. At the time of inspection, a load of approximately 14 KW was found connected for residential and commercial purposes. The inspection was prepared at site, vide memo Ex. PW2/1. Illegal wire, which being used for committing theft was removed, vide seizure memo Ex. PW-2/2. The site sketch of the site was also prepared, vide Ex. PW2/3 and place of commission of theft was shown at point X in the site sketch. The photographs were taken by the photographer at the time of inspection, vide Ex. PW2/3/A1 to Ex. PW2/3/A26, which depicts that the direct theft of electricity was committed at site. The photographs of Sh. Rajender and his ID proof were also taken. Videography of the site was also done. He correctly identified the case property in the court vide Ex. P-1, which was submitted by him to the IO, vide memo Ex. PW2/3.
5. PW-3 Sh. Sunil @ Sonu is the photographer, who had taken 26 photographs (Ex. PW2/3/A1 to Ex. PW2/3/A26) of the site on the instruction of the inspecting team members. He also relied upon the CD of photographs vide Ex. PW-3/A and certificate under Section 65-B of Indian Evidence Act, Ex. PW3/B.
6. PW-4 is Sh. Ravi Kishan, who was working as an officer with the complainant company. He was the member of the inspecting team and he deposed on the same lines as deposed by PW-2 Shri Netra Pal Singh.
FIR No.1357/2017, State Vs. Vipin Shokeen Page 4 of 147. PW-5 HC Narender, who deposed that on 29.10.2017, investigation of the present was marked to him after registration of FIR. On 15.11.2017, he made enquiry form the witnesses and recorded their statement. He recorded the statement of Sh. Netrapal, Sr. Manager, Ravi Kishan Sr. Officer and photographer Sunil. Seizure memo Ex. PW2/2 and the photograph Ex. PW2/3 A-1 to PW2/3 A-26 and the CD Ex. PW3/A were on the case file, when case was received by him for investigation. He further deposed that on 04.12.2017, accused was formally arrested, vide arrest memo Ex. PW5/A and his personal search was also conducted, vide personal search memo, Ex. PW5/B.
8. PW-6 HC Navdeep Tyagi, who registered the FIR Ex. PW6/A and issued certificate under Section 65-B of Indian Evidence Act, Ex. PW6/B and he also made endorsement on the rukka, Ex. PW1/A. STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C:-
9. After culmination of prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. The accused denied the charge of direct theft of electricity and stated that it is a false case as some hot arguments took place between him and TPDDL officials for electricity supply and he was subsequently falsely implicated in the case. The accused led the defence evidence.
FIR No.1357/2017, State Vs. Vipin Shokeen Page 5 of 14DEFENCE EVIDENCE:-
10. DW-1 is the accused Vipin Shokeen, who deposed that his father was the owner of the premises in question and he got installed two electricity meters in the premises i.e. one commercial meter, vide CA No. 600118343073 in the name of his tenant Manoj Kumar and another meter for domestic purpose vide CA No. 60012776021 in his name. The consumption bill for the energy recorded from time to time is exhibited as Ex. DW1/2 to Ex. DW1/11. He deposed that he did not commit theft of electricity and he has been falsely implicated in the present case while the theft was being committed in the adjacent premises. He further deposed that the officials of the complainant company had planted four meters wire to falsely implicate him in the present case. The distance between the LV mains and his premises in question 69.5 meters whereas the officials of the complainant company had allegedly seized four meter wire.
11. DW-2 Architect Shri Rishabh Jain, who deposed that the present accused contacted him in the month of April to measure the distance between the pole and his house. He visited the premises in question at about 5.45 pm. He used lazor measurement to measure the distance between the TPDDL Pole No. 551-1/33/9/1 & 551- 1/33/9/2 and the location of the electricity meters which have been installed at the entry point of the staircase leading to the first floor. Both the poles are on Kanjhawala Road. He deposed that the distance of the electricity meter from the pole no. 551-1/33/9/1 was FIR No.1357/2017, State Vs. Vipin Shokeen Page 6 of 14 69.5 meters and from the pole No. 551-1/33/9/2 distance was found 14.5 meters. He further deposed that the existing lay out plan carries his signature at point A and his stamp containing License No. CA/2021/139453 is at point B. The plan is Ex. DW2/A. APPRECIATION OF EVIDENCE:-
12. Before dealing with the factual aspect of the present case, it is deemed appropriate to specify the relevant provision of the Act which are required to be gone into for appropriate disposal of the cases pertaining to section 135 of Electricity Act. The provisions of section 135 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may FIR No.1357/2017, State Vs. Vipin Shokeen Page 7 of 14 extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of FIR No.1357/2017, State Vs. Vipin Shokeen Page 8 of 14 electricity has been dishonestly caused by such consumer.
13. As per prosecution case, the accused was indulged in direct theft of electricity. Allegedly accused had tampered the electricity supply system of the complainant company as he had connected illegal wire with TPDDL cable. Thus, the onus was on the prosecution to prove and establish beyond reasonable doubt :-
(i) That the accused Vipin Shokeen has indulged in theft of electricity by direct tapping of TPDDL LV connectors of LT ABC/LT Network of the pole by using illegal black colour wire.
(ii) That the alleged black colour wire was further connected to the internal wiring of the premises by completely by-passing the meter and the entire load was being used by committing direct theft.
14. PW2 Sh. Netra Pal Singh (AGM) and PW4 (Sh. Ravi Kishan) are the most material and crucial witnesses in the present case as both these witnesses were members of the inspection team. The said witnesses have corroborated the allegations mentioned in the complaint, which is Ex. PW1/A and deposed that during the inspection accused was found indulged in direct theft of electricity by tapping of TPDDL LV connectors of LT ABC/LT Network of the pole as mentioned in the inspection report by using illegal black colour wire. They further deposed that internal wiring of the premises by completely by-passing the meter as entire load was running by direct theft. PW2 also deposed that at the time of FIR No.1357/2017, State Vs. Vipin Shokeen Page 9 of 14 inspection, direct theft of electricity was being committed by site by direct tapping of TPDDL LV connectors of LT ABC/LT Network of the pole as mentioned in the inspection report Ex. PW2/A by using illegal black colour wire and illegal wire was removed from the site, vide seizure memo Ex. PW2/2. PW2 and PW4 deposed that inspection report, load report and seizure memo of illegal wires were prepared at the spot. They have also proved on record the inspection report as Ex.PW2/1, seizure memo as Ex.PW2/2 and the site sketch of the site as Ex. PW2/3. The black colour wire which was allegedly used for committing direct theft has been brought on record as Ex. P-1. The site plan Ex. PW2/3 laid out how the wire Ex. P-1 was connected from the pole and running to the premises of the accused. The accused has failed to dispute the authenticity of the site plan, therefore, the site plan stands proved as it remained uncontroverted by the accused. Both these witnesses were cross- examined on behalf of accused, but nothing fruitful came out in favour of the accused. The photographs, which were taken at the time of inspection has been brought on record in the examination of PW-3 as Ex. PW2/3/A-1 to Ex. PW2/3/A-26. The accused who has been examined as DW-1 has admitted the said photographs by stating that the said photographs pertains to his premises. The relevant extract of the cross examination of DW-1 is reproduced below for ready reference:-
"....it is correct that photographs Ex. PW2/3A1 to Ex. PW2/3A26 pertains to my premises. Again said all FIR No.1357/2017, State Vs. Vipin Shokeen Page 10 of 14 photographs do not pertains to my premises. Again said the photograph at serial No. Ex. PW2/3A8, Ex. PW2/3A9, Ex. PW2/3A10, Ex. PW2/3A11, Ex.
PW2/3A12, Ex. PW2/3A13, Ex. PW2/3A14, Ex. PW2/3A16, Ex. PW2/3A17, Ex. PW2/3A18, Ex. PW2/3A19, Ex. PW2/3A20, Ex. PW2/3A21 and Ex. PW2/3A25 pertains to my premises..".
15. The photographs Ex. PW2/3/A-1 to A-7 demonstrate how the black colour wire Ex. P-1 was being used for tapping of TPDDL LV connectors from the Network of the pole and is running from the pole to the premises of the accused. Moreover, the photographs Ex. PW2/3/A-9 and A-16 clearly shows that the said wire was further connected to the internal wiring by completely by-passing the meter. 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".
16. The Hon'ble Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist FIR No.1357/2017, State Vs. Vipin Shokeen Page 11 of 14 or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
17. In view of the statutory presumption, once the prosecution successfully establishes the charges against the accused regarding the direct theft of electricity, it is to be presumed that accused has committed direct theft of electricity unless accused brings some evidence on record to rebut the presumption. The accused has taken the contradictory defence as on one hand, he claims that the wire through which the theft has been alleged was going to the back side of the premises and the theft was being committed by the neighbor of the accused. On the other hand, the accused claims that the length of the wire Ex. P-1, was just 4 meter which was not sufficient to reach his premises. Though, the accused has proved on record that the distance between the Pole No. 551-1/33/9/1 and his electricity meter was 69.5 meter by examining DW-2. However, PW- 2 during his cross examination has explained that the inspection team could only seize the part of the wire as there was resistance at the time of the inspection. Therefore, the said defence does not seems to be probable to discard the testimony of the inspection team. The accused has also taken the defence that there was no mark of spark on the hook of the wire which was allegedly connected to the pole for committing direct theft. This defence has also been explained by PW- 4 in his cross examination wherein he has stated that if the hook is properly tied with the wire then there is no possibility of mark. It is FIR No.1357/2017, State Vs. Vipin Shokeen Page 12 of 14 pertinent to mention here that the accused admitted in his statement recorded under section 313 of Cr.P.C. that the electricity connection bearing CA No. 60018343073 was connected from the Pole No. 551- 1/33/9/1 and one Sh. Rajender was having a small shop under the stairs and who was in the business of welding and used to work on site after receiving the orders from different parties. He has also admitted that another electricity connection bearing CA no. 6001276021 is in his name and same was being used by his tenants at first floor of the premises in question. There has been categorical admission by the accused regarding the presence of electricity meter at the premises in question.
18. It has to be seen whether the accused has been su c ce s s f u l to rebut the presumption existed against him ? It is clear from the deposition of PW1, PW2, PW-3 and PW4 that an inspection was carried out at the premises of accused on 06.04.2017 by the inspecting team members/officials of complainant company and the accused was found indulged in direct theft of electricity. In the regard, this Court is supported with the Judgment of Hon'ble Supreme Court titled 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 FIR No.1357/2017, State Vs. Vipin Shokeen Page 13 of 14 prepared in exercise of his official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct....".
19. Moreover, accused has not disputed the correctness of the assessment of the load assessed by the officials of complainant company, as in this regard no question was put on behalf of the accused either to PW-2 or PW-4 during their cross- examination before the court. Therefore, this court has no hesitation to hold that the defence taken by the accused as discussed above seems to be afterthought and devoid of any merits. Thus, it is held that accused has failed to rebut the statutory presumption.
CONCLUSION:-
20. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the accused was indulged in direct theft of electricity which is punishable under section 135 of the Electricity Act, 2003. Consequently, accused is convicted under section 135 of the Electricity Act, 2003.
21. Put up for determination of civil liability and order on Digitally signed by sentence on 12.12.2022. JITENDRA JITENDRA SINGH SINGH Date: 2022.11.30 Announced in the open court (JITENDRA SINGH) 15:45:56 +0530 today i.e. on 30.11.2022 ASJ (Electricity)/ Distt. N/W Rohini Courts, Delhi FIR No.1357/2017, State Vs. Vipin Shokeen Page 14 of 14