Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 32, Cited by 0]

Delhi District Court

State vs . on 20 May, 2019

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

SC No : 1660/19 (Old Misc. D.J No.1027/17)
FIR No: 1089/14
P.S. PANDAV NAGAR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003

STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
     VS.
  1. Uma Jain
     W/o Late Shikhar Chand Jain
  2. Sh. Sanjeev Jain @ Rajesh Jain
     S/o Late Sh. Shikhar Chand Jain
     Both R/o B­94, Gali No.10,
     Shashi Garden, Mayur Vihar Phase­I,
     Delhi.
                                   ........... Accused persons

DATE OF INSTITUTION OF THE CASE     :                         11.12.2017
DATE ON WHICH JUDGMENT WAS RESERVED :                         14.05.2019
DATE OF PASSING OF JUDGMENT         :                         20.05.2019
NATURE OF JUDGMENT                  :                         CONVICTED

JUDGMENT

A Criminal Complaint addressed to the Station House Officer Pandav Nagar, Police Station, Delhi was filed by Sh. Naval Singh, the then Manager/Authorized Officer of BSES YPL Company (in short to be called as Complainant Company hereinafter) against accused persons namely Uma Jain and SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 1 of 55 Sanjeev Jain @ Rajesh Jain, both resident of B­94, Gali no.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi for the offences punishable u/s 135/150 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. Succinctly stated allegations made in the said complaint were to the effect, inter alia, that on 16.12.2011 at about 12:20 p.m, an inspection was carried out by the Enforcement Team of BSES YPL comprising of Sh. K. L. Kain (Senior Manager, Sh. Sapan Kumar (DET), Sh. Chandresh Kumar (Lineman) and Sh. Shri Om Raghav (Lineman) alongwith local police personnel from P.S. Pandav Nagar, Delhi at the premises i.e B­94, Gali no.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi (in short called as inspected premises hereinafter) where both the accused persons were found indulged in direct theft of electricity by using the electricity supply directly through illegal wires which were connected directly to the service line of electricity supply system of BSES YPL before the meter from the back side of the meter board and the entire load of the premises was running through illegal tapping done by them and same was being used for domestic purposes; one meter No.14197133 with reading of SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 2 of 55 4491KWH was found installed at the inspected premises but same was found by­passed.
3. It has been further alleged in the Complaint that a total connected load of 23.056 KW/DX/DT (in short KW) was checked & assessed during the course of said inspection which was being illegally 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 inspection proceedings were conducted, however, complete videography could not be done due to the hindrance created by the accused/user Sanjeev Jain who represented himself as Rajesh Jain before the inspecting team. 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 Sanjeev Jain. It has been further alleged that the inspection report and load report were prepared at the spot. The Videography of the inspected premises 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 from the system of the Complainant Company. Hence, the present Complaint dt. 11.12.2014 was filed against the accused persons for initiating legal action as per law including the determination of civil liability against them as SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 3 of 55 per the provision of Section 154(5) of the Act. Upon the said complaint, the present FIR No.1089/14 for offences punishable U/Sec.135/150 of Act r/w Sec.379 of I.P.C. was registered on 14.12.2014 against both the accused persons.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted.

During investigation, I.O recorded the statement of the witnesses, seized the illegal wires and meter. 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.

(C) NOTICE :

5. After compliance of provision U/Sec.207 of Cr.P.C on 23.02.2018, a notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against both the accused for the offence punishable u/s 135 of the Electricity Act to which they pleaded not guilty and claimed trial.

On 21.08.2018, an additional Charge of accusation was framed against the accused Sanjeev Jain @ Rajesh Jain for the offence punishable u/s 416 of IPC r/w Section 419 of IPC to which he pleaded not guilty and claimed trial.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 4 of 55 (D) PROSECUTION EVIDENCE :

6. In support of its case, the Prosecution has examined 7 witnesses in order to substantiate the allegation : ­
(a) ASI Dharam Pal, Duty Officer 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 also got identified endorsement made by him on the rukka as Ex.PW­1/B.
(b) Sh. K. L. Kain (Retired Senior Manager of BSES YPL as PW­2 who was the Team Leader of the inspection team and has deposed on the lines of the Complaint. He has also relied upon documents i.e seizure memo of the illegal wires and meter removed and seized from the inspected premises as Ex.PW­2/1, Meter Detail report as Ex.PW­2/3, Inspection report consisting of site plan of the inspected premises as Ex.PW­2/4 (colly) and CD containing videography of the inspection proceedings as Ex.PW­ 2/5. He has correctly identified the illegal wires and meter installed at inspected premises as Ex.P­1 (colly).

(c ) The next witness examined in this case by the prosecution is PW­3 Sh. Naval Singh, Senior Manager. He has proved his complaint dt.11.12.2014 as Ex.PW­3/1.

(d) First I.O/ASI Sanjeev Kumar was examined as PW­4 to whom the Complaint of the present was firstly marked for investigation. He has relied upon the documents i.e seizure memo as Ex.PW­4/1, the anticipatory bail application of the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 5 of 55 accused persons, which was dismissed by the Court as Ex.PW­ 4/2. During investigation, he had recorded statement of members of the raiding team on 04.04.2015 & 18.04.2015 and thereafter, he was transferred from the P.S. Pandav Nagar, Delhi.

(e) Second I.O/ASI Ravinder Kumar was examined as PW­5 to whom the investigation of the present case was further marked after transfer of earlier I.O/ASI Sanjeev Kumar. He has relied upon photocopy of Election ID cards of accused persons namely Sanjeev Jain and Uma Jain as Ex.PW­5/1 & PW­5/2 respectively. He has correctly identified the accused Sanjeev Jain before the Court. He has further deposed that he had recorded statement of remaining members of the inspection team and filed the present challan after completion of investigation against the accused persons before the Court.

(f) The next witness examined in this case by the prosecution is PW­6 Sh. Devender Panwar, DGM (Enforcement­ II), who had relied upon the documents i.e. Representation made by the accused Rajesh Jain against recording of wrong load of his premises by the inspection team as Ex.PW­6/1, legal notice sent by the panel advocates of the complainant company against the theft bill as Ex.PW­6/2, reply dt.25.01.2012 filed by the accused Sanjeev jain @ Rajesh Jain to the aforesaid legal notice as Ex.PW­ 6/3, Representation dt.10.07.2012 sent by the accused to the CEO of the complainant company as Ex.PW­6/4, Copy of SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 6 of 55 complaint dt.15.02.2013 given by accused Uma Jain addressed to Chief Vigilance Officer as Ex.PW­6/5 (Colly) and Statement given by the accused Sanjeev Jain before the Vigilance Officer as EX.PW­6/6. He has also relied upon the revised bill prepared by the department as Mark PX­1.

(g) The next witness examined in the present case by the prosecution is Sh. Tej Singh, Asstt. Clerk from the Office of DERC. He has relied upon documents i.e. the copy of Complaint U/Sec.142 of Electricity Act dt.19.02.2013 alongwith annexures filed against the BSES YPL/complainant company by accused Uma Jain as Ex.PW­7/1(colly); Copy of complaint dt.03.04.2014 filed against BSES YPL by accused Sanjeev Jain as Ex.PW­7/2 (colly) and the Complaint dt.08.05.2015 alongwith orders as Ex.PW­7/3 (colly). 

      (h)    Witnesses PW6 and PW7 were examined upon
application filed u/s 311 of Cr.P.C.
      (i)    All the witnesses were cross­examined at length on
behalf of accused persons.

7. No other witness was produced or examined on behalf of the prosecution's side. Hence, on 10.10.2018 as per their oral submission, P.E was closed and matter was fixed for recording of Statement of the accused persons U/sec.281 r/w Sec.313 Cr.P.C.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 7 of 55 (E) STATEMENT OF ACCUSED :

8. On 13.11.2018, statement of both the accused U/sec.281 r/w Sec.313 Cr.P.C were recorded separately explaining all the incriminating evidence or record against them which they denied as false & incorrect. Accused have asserted in their separate statements that they have been falsely implicated in the present case. It is further stated by the accused Sanjeev Jain @ Rajesh Jain that he was not present at the inspected premises nor he was residing at the inspected premises but he was called by his mother i.e. co­accused Uma Jain to the spot. However, it was admitted by the accused Uma Jain that meter was installed at the inspected premises in her name. They further denied their representation dt.13.01.2012 Ex.PW­6/1 upon which the connected load was revised, infact they simply refused that they filed such representation before the DERC. They further asserted that as such suo motto the complainant company themselves had revised the bill as they (accused persons) had came to know about the folly made by them later on. They further denied having any illegal wires connected with the meter installed at the inspected premises or any document was prepared by the officials at the spot or that any question of denial to sign or receive arise or that any police official visited their premises for arresting them or having knowledge about dismissal of any bail application against them; they also denied supplying SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 8 of 55 of their Election ID cards to the I.O Ex.PW­5/1 and Ex.PW.5/2; However, accused Uma Jain admitted that on the day of inspection her electricity meter was removed alongwith the wires which were connecting her rooms.

9. Accused Uma Jain has further stated that her tenant was present at the time of inspection who disclosed his name as Rajesh and further deposed that her son accused Sanjeev Jain was not present at the spot at the time of inspection. It has been further stated by the accused Sanjeev Jain that he has written the statement Ex.PW­6/6 bearing his signatures, however, portion written in English language on the top of the document was edited by someone and it was never handed over by him and same is missing from his record. He has further stated that he was made to write statement Ex.PW­6/6, but thereafter, he found it incriminating against him and so he did not hand over the same to anyone. It has been further stated by the accused Sanjeev Jain that he was not summoned in a complaint case as there was no evidence against him. It has been further alleged by the accused Sanjeev Jain that when inspecting team did not find any electricity theft at the inspected premises on 16.12.2011, they falsely implicate them in a false case and set their some own terms for setting him free for which he refused and upon this they raised a false bill of Rs.3,37,979/­, which was revised again SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 9 of 55 and again and finally it came down to Rs.2153/­. Accused Sanjeev Jain @ Rajesh Jain preferred to lead defence evidence and thereafter case was fixed for defence evidence.

(F) DEFENCE EVIDENCE :

10. Accused Sanjeev Jain has examined himself as DW­1. He has deposed that on 16.12.2011 BSES officials in his absence visited their house, upon which his mother telephonically informed him about the same. He has further deposed that the meter and the meter boards were removed before his reaching at his house. He asked them as to how their meter and board were removed in his absence and further told one official namely Sh. K. L. Kain that if they found any theft at his premises then why do not they prepare report for the same. But despite request of the DW­1/accused Sanjeev Jain, they had not prepared any report or document at the site and left the spot alongwith their removed meter and meter board. He has further deposed that BSES officials again visited/made inspection at their premises and checked and noted down the connected load and installed electric appliance. He has produced the document i.e. order passed in the petition bearing No.13/2013, u/Sec.142 of Electricity Act 2003 filed by him before the DERC as Ex.DW­1/A. He has also produced the complaint dt.15.02.2013 written to the SHO P.S. Pandav Nagar as Ex.DW­1/B; complaint dt.14.02.2013 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 10 of 55 addressed to B.M. Sh. Amit Gaur, BSES YPL, Mayur Vihar as Ex.DW­1/C; bill raised by the complainant company upon his meter connection duly paid by him on 10.01.2013 as Ex.DW­ 1/D ; bill with printout dt.14.02.2013 withdrawn by him from the company showing zero balance on his meter connection in his name as Ex.DW­1/E; Site verification sheet dt.11.04.2012 as Ex.DW­1/F; bill with due date of 12.01.2012 for an amount of Rs.3,37,979/­ against CA No.101088002 as Ex.DW­1/G; Letter issued from the Office of Chief Minister of Delhi upon his letter/complaint as Ex.DW­1/H; The printouts of E­mail sent to Mr. Anil Ambani for personal hearing as Ex.DW­1/I (Colly); Printout of E­mail received from Sh. Kirti Vasisth of BSES YPL as Ex.DW­1/J; Complaint dt.07.01.2014 filed by him before the SHO, P.S. Pandav Nagar as Ex.DW­1/K; An interim order dt.24.04.2014 by DERC as Ex.DW­1/L; Notice dt.17.07.2014 as Ex.DW­1/M; Printout of E­mails sent to Mr. Anil Ambani on different dates as Ex.DW­1/N(colly); letter dt.30.09.2014 from Vigilance Cell as Ex.DW­1/O; letter dt.10.10.2014 sent to Mr. Anil Ambani as Ex.DW­1/P; Complaint dt.14.10.2014 alongwith photocopies of I­D cards of BSES officials as Ex.DW­1/Q (Colly); a letter No.3909 dt.17.10.2014 sent by SI Manu Sahrawat of P.S. Pandav nagar to CEO BYPL as Ex.DW­1/R; Complaint dt.08.12.2014 written to Sh. P.K. Tripathi (Chairman), Public Grievance Commission as Ex.DW­1/S; A complaint made to P.S. SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 11 of 55 Pandav Nagar as Ex.DW­1/T; Complaint dt.18.12.2014 to C.P of Delhi police filed by him as Ex.DW­1/U; Complaint dt.30.12.2014 written to SHO Pandav Nagar and DCP East District as Ex.DW­ 1/V(colly); Final Order dt.30.12.2014 passed by the DERC upon his complaint as Ex.DW­1/W (Colly); an order dt.30.12.2014 passed by the DERC upon a peition No.13/13 filed by the co­ accused Uma Jain as Ex.DW­1/X (Colly); Copy of the order dt.12.01.2015 as Ex.DW­1/Y(Colly); Notice received by co­ accused Uma Jain as Ex.DW­1/Z; another notice received by co­ accused Uma Jain as Ex.DW­1/AA; Copy of Emails as Ex.DW­ 1/AB(Colly); Copy of complaint made to SHO Pandav Nagar as Ex.DW­1/AC; Reply of RTI as Ex.DW­1/AD (Colly); the complaint made to DCP East as Ex.DW­1/AE (colly); Complaint to Joint C. P. (Vigilance) alongwith photograph as Ex.DW­1/AF(colly); Complaint dt.03.01.2017 made to the C.P Delhi Police alongwith I­Card of BSES Officils are Ex.DW­1/AG (Colly); Copy of E­mail sent to Sh. Anil Ambani and Amal Sinha Director of BSES YPL as Ex.DW­1/AH(colly); Copy of the notice dt.12.07.2017 issued against the accused Uma Jain as Ex.DW­1/AI; Complaint dt.25.08.2017 alongwith photographs as Ex.DW­1/AJ (Colly); the copy of E­mail written to Chairman of Complainant Company Sh. Lalit Jalan as Ex.DW­1/AK (colly); Copy of complaint made to Joint C. P of Delhi police regarding the incident dt.24.08.2017 as Ex.DW­1/AL; notice/show cause dt.15.09.2017 received by the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 12 of 55 accused as Ex.DW­1/AM; another notice dt.10.11.2017 sent by the complainant company through their counsel as Ex.DW­1/AN; A copy of the e­mail sent on 01.12.2017 to Sh. Anil Ambani, Chairman Sh. Lalit Jalan, CEO Sh. Prem Ranjan Kumar and Vice President Sh. Naveen Vats as Ex.DW­1/AO(colly); copies of pabandinama as Ex.DW­1/AP (Colly).

11. He has been cross­examined at length by Ld. Addl. P.P for the State. During his cross­examination, he has produced his original Voter Identity Card and after comparing the same with the document Ex.PW­5/1 i.e. copy of identity card attached with charge­sheet, same was found one and same. During his cross­examination, prosecution has put the documents to the accused to establish his occupation of inspected premises i.e. inspection report, load report, seizure memo, show cause notice all dt.24.09.2009 as Ex.DW­1/P­1 (Colly), photographs of inspection proceedings collectively marked as Mark DW­1/P­2 (colly) and photograph in which accused Sanjeev Jain is appearing as Mark­X­P; Show cause notice dt.21.10.2009 as Ex.DW­1/P­3; the original reply of the accused dt.18.11.2009 bearing his signatures alongwith photocopy of driving license as Ex.DW­1/P­4 (colly); a copy of No Dues Certificate as Mark DW­ 1/P­5; the copy of application form regarding voluntary declaration regarding meter tempering bearing connection SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 13 of 55 No.1240Q8181591 in the name of accused Uma Jain filed by the accused Sanjeev Jain bearing his signatures at point A as Ex.DW­ 1/P­6. The DW1 admitted his signatures upon the Ex.DW­1/P­6, however, he denied to have knowledge about filing of said application and he further testified that the particulars filled in thereof are not in his handwriting; photocopy of Daily Log sheet for Enforcement Team dt.24.08.2017 as Ex. DW­1/7, witness denied to have knowledge about the said document; videography of inspection proceeding vide CD dt. 25.05.2016 as Ex.DW­1/P­8 and CD dt.24.08.2017 as Ex.DW­1/P­9.

12. The next witness examined on behalf the accused in their defence is DW­2 ASI Sanjeev Kumar, who has proved the entry bearing DD No.50B dt.11.12.2014 upon which the complaint Ex.PW­3/1 of present case was received as Ex.DW­2/1; he has also proved the entry bearing DD No.24A dt.14.12.2014 regarding registration of FIR of the present case.

13. The next witness examined on behalf of the accused in their defence is DW­3 HC Vinay Bhargav, who has proved the entry regarding movement of I.O/HC Sanjeev Kumar on 16.12.2014 which was recorded vide DD No.53B in the present case as Ex.DW­3/1; movement of I.O/HC Sanjeev Kumar on 20.03.2015 recorded vide DD No.63B in the present case as SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 14 of 55 Ex.DW­3/2; departure entry of the I.O as Ex.DW­3/3; record pertaining to entry dt.11.12.2017 as Ex.DW­3/4 and DW­3/5.

14. Thereafter, on 02.04.2019 defence evidence was closed and matter was fixed for final arguments.

(G) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :

15. I have heard final arguments advanced on behalf of the parties. I have also gone through the record as well as contents of CD of videography which was played during final arguments, written submissions filed on behalf of the parties and relevant provisions of law and case laws relied upon.

16. The main submissions advanced during the course of final arguments on behalf of the prosecution/complainant were inter­alia, to the effect that the accused persons herein were found indulged in direct theft of electricity through illegal wires by by­passing the meter which was connected from BSES Service Cable before meter without any authority in this regard; that accused herein had not taken any permission from the complainant company for using electricity in such a way; that 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 15 of 55 persons for domestic purposes; that all the relevant papers like inspection report, meter details report, load report, seizure memo regarding removal of the meter and illegal wires through which electricity theft was going on etc. were prepared at the spot but accused present there refused to sign the same; that due to resistance created by the accused Sanjeev Jain @ Rajesh Jain complete videography of the load could not be done; 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.3,37,979/­ and thereafter, upon various representations of the accused persons, the said theft bill was revised to Rs.70,882/­ 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, meter detail 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 but refused to accept and sign the same deliberately for the reasons best known to them; that the accused Sanjeev jain was present at the site, but he has disclosed his name as Rajesh Jain to cheat by personation and this fact was also captured in SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 16 of 55 videogeraphy Ex.PW­2/5; that witness PW­2 also identified the accused Sanjeev Jain as present at the site; that accused persons are liable to be convicted as per law; that accused persons were also liable for civil liability as per law. It has been further argued that the accused stated to have filed two petitions before the DERC and levelled various allegations against the officials of the complainant company but they never filed any document which shows that they were using the electricity through lawful means. Moreover, accused persons never denied the inspection carried out at their premises and in their own documents, they have admitted that the theft of electricity was going on at the inspected premises. It has been further argued that by proving the document Ex.DW­1/P­1(colly) accused themselves support the case of prosecution in which they compounded an electricity theft case with the complainant company and NOC was issued in their favour Mark DW­1/P­5 and this shows that they are habitual offender.

In the end, a prayer was made for convicting the accused persons namely Uma Jain and Sanjeev Jain 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 and is addition to that prayer was made to convict accused Sanjeev Jain u/s 416 r/w Sec. 419 of I.P.C. for cheating by personation.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 17 of 55 Reliance is placed upon following judgments : ­ (1) Mukesh Rastogi Vs. North Power Limited, reported as Manu/DE/9575/2007.

(2) Raju Vs. BSES Rajdhani Power Ltd. & Anr, reported as 2016 Law Suit (Del.) 2366.

17. On the other hand, the main submissions advanced on behalf of the accused persons during the course of final arguments/written submissions were, inter­alia to the effect that there is delay in filing the complaint for registration of the FIR in the present case, which is against mandatory provision of the Electricity Act, 2003 and that no cognizance could have been taken as the charge­sheet was filed beyond limitation period; that the Complainant Company has filed an undated complaint before the P.S on 11.12.2014 for registration of FIR citing 4 officials of the inspecting team, however, in final report 7 different persons were cited as a witness and finally only one witness Sh. K. L. Kain has been examined in the present case to prove its case; that total four documents have been cited in the Final report, however, same were not proved by the prosecution to prove its case; that as per requirement of Delhi Electricity Regulatory Commission Notification dt.18.04.2007, no notice was ever issued to the accused for alleged theft and same has been admitted by PW­2 Sh. K. L. Kain during his cross­examination; that inspection SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 18 of 55 report dt.16.02.2011 is also forged one since blank report was sent to the accused and this fact has been admitted by PW­2 in his cross­examination; that the CD Ex.PW­2/5 is inadmissible in evidence since Certificate U/Sec.65(B) of the Evidence Act has not been filed regarding the same nor videographer who recorded the same was examined as witness in the present case through cited as a witness; that the alleged theft bill has not been placed on record or proved by the prosecution in support of its case; that there is contradiction in the measurement of the case property i.e illegal wire as same is stated to be measuring as 6mm in the seizure memo, though PW­2 in his cross­examination admitted it to be 4mm; that the inspection report is blank bearing signatures of the BSES officials and upon which accused made a police complaint, however, same has not been investigated by the police, hence, same was proved by the accused in his defence evidence; that the deposition of PW­4 ASI Sanjeev Kumar is generic in nature and is without any specific records as initially he has deposed that case property was handed over to him by one Mr. R.P. Sharma and in his cross­examination he admits it to be handed over by Mr. R..P. Singh, however, no such person by the name of Sh. R.P Sharma or Singh was examined by the prosecution and DW­3 HC of PS. Pandav Nagar also deposed that case property was handed over to them by Sh. K. L. Kain; that no investigation was carried out by the police as SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 19 of 55 no statement of the accused or witnesses were recorded and it itself proved from the case diary Ex.PW­5/P­1 that investigation of the present case was commenced by ASI Sanjeev Kumar on 25.09.2015 and was ended on the same day i.e. 25.09.2015; that accused was not allowed to cross­examine the PW­4 on the seizure memo on 27.04.2019; that no inspection was carried out at the subject premises as alleged in the presence of accused; that no documents like inspection report, load report, meter detail report, seizure memo etc. were prepared in his presence; that videography of the subject premises were not taken in his presence; that accused has been falsely implicated in this case by the officials of the Complainant Company; that all the witnesses of the prosecution/complainant company have deposed falsely in this case; no independent witnesses of the locality were joined by the inspecting party during the alleged inspection conducted in this case; 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 and Sec. 416 r/w Sec.419 of I.P.C. as well as for discharging them from civil liability as per provision of Section 154(5) of the Act.

In support of their case, reliance has been placed upon following judgments : ­ SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 20 of 55

1. In Criminal Appeal titled as "State of Punjab Vs. Sarwan Singh" of Hon'ble Supreme Court of India 1981(3), decided on 02.04.1981.

2. Case of "Sunair Hotels Ltd. VS. Registrar of Companies & Anr," passed by the Hon'ble High Court of Delhi, 2009(109) DRJ 545 decided on 18.03.2009.

3. Case of "Sanjay Gupta Vs. State" 2003 (66)DRJ 146 passed by the Hon'ble High Court of Delhi on 26.09.2002.

4. In Case of "Jatinder Pal Singh Vs. Krishan Kishore Bajaj" of Hon'ble High Court of Chandigarh, decided on 29.10.2018.

18. Before going through the facts of the present case, it will be relevant to re­produce the relevant provisions of Electricity Act/I.P.C. 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
(c) damages or destroys an electric meter, apparatus, equipment, or SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 21 of 55 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.

Provided further that in the event of second and subsequent SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 22 of 55 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........................................................

19. 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.

20. 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 23 of 55 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".

21. Section 416 of IPC, "Cheating by Personation"

"A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is person other than he or such other person really is"

22. Section 419 of IPC "Punishment for Cheating by personation" as under : ­ " Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".

(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 16.12.2011 at about 12 : 20 p.m. when a raid was conducted at premises no. B­94, Gali no.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi. There is further allegation that the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 24 of 55 stolen electricity was being used for domestic purposes and connected load was found to be 23.056KW which was later on revised as 7.976KW for domestic purposes. Additionally accused Sanjeev Jain @ Rajesh Jain has been charged that during inspection proceedings, he has wrongly disclosed his name as Rajesh Jain to represent that he was not the person/consumer at the inspected premises with a view to cheat by personation. Accused Uma Jain in reply to the notice has admitted that she was the owner of the inspected premises. She has further admitted that BSES Officials came to the inspected premises, while accused Sanjeev Jain @ Rajesh Jain has also admitted that on 16.12.2011, the BSES Officials came to the inspected premises. The common defence of the accused Uma Jain and Sanjeev Jain are that there was no electricity theft and there was illegal demand by the BSES officials and on their refusal, they have been falsely implicated by showing the false connected load. The accused Sanjeev Jain has taken the defence that he was not residing at the inspected premises at the time of inspection. He has also taken a defence that when he was asked the name of his tenant, he disclosed the name of his tenant as Rajesh and he was never asked about his own name. He has further taken the defence that CD of the videography of the inspection proceedings on 16.12.2011 is tempered one with 12 cuts.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 25 of 55

24. The registration of the FIR Ex.PW­1/A has been proved in the present case by witness PW­1. He has also proved that he has made DD entry No.24A dt. 14.12.2014 in respect to the present complaint.

25. Witness PW­2 Sh. K. L. Kain has deposed that on 16.12.2011 at about 12 : 20 p.m., he alongwith raiding party members raided the inspected premises i.e. B­94, Gali No.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi. He has further deposed that they inspected the premises where there was direct theft of electricity through illegal wires directly connected through the service line of electricity supply system of BSES YPL before the meter bearing No.14197133P/R with the reading 4491 from the back side of the meter board. He has further deposed that videography of the meter and source of direct illegal theft was done but connected load could not be recorded in videography due to the resistance of the accused who disclosed his name as Rajesh Jain on the spot. He has further deposed that physical load has been verified in the presence of the user. He has further deposed that illegal wires and meter were removed and seized vide seizure memo Ex.PW­2/1, the connected load report was prepared vide Ex. PW­2/2(colly), meter detail report Ex.PW­ 2/3 and inspection report consisting site plan as Ex.PW­2/4 were also prepared at the site. He has further deposed that the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 26 of 55 documents of inspection were offered to the accused but he refused to sign. He has further deposed that the inspection proceedings were videographed vide CD Ex.PW­2/5. This witness has correctly identified the accused Sanjeev Jain @ Rajesh Jain in the Court. The identity of the accused Uma Jain was not disputed at the time of testimony of PW­2. He has also correctly identified the Electronic meter bearing No.14197133, 2 core illegal PVC wire of black colour having length of about 17 meters, two illegal PVC wires of black and yellow colour about half meter each as Ex.P­1 (colly).

26. This witness was cross­examined at length on behalf of the accused. The entire cross­examination of this witness is regarding the connected load, preparation of documents of inspection on the spot, CD of videography and complaint made against him to the Vigilance Department. During his cross­ examination one blank copy of inspection report Ex.PW­2/D­1 was shown to the witness and witness admitted that it was bearing the signatures of Mr. Raghav, Mr. Kamlesh and Mr. Tapan Kumar i.e other team members but he denied that said inspection report was sent to the accused persons by post. Here it is to be noted that at the time of exhibition of CD Ex.PW­2/5 , no objection was raised. In the entire cross­examination, no suggestion is there that on 16.12.2011 no inspection was carried SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 27 of 55 out at the inspected premises or that both the accused persons were not present at the site. Suggestion has been given to the witness PW­2 that the inspection was carried out in accordance with rules and regulation of DERC which the witness has denied. It is further to be noted that the copy of the inspection report Ex.PW­2/D­1 is a coloured copy and the original of the same was never exhibited and since mode of proof of Ex.PW­2/D­1 was objected to, hence, in absence of original same cannot be read into evidence. Moreover, it was for the accused to prove that this document was received by them by post. But no such evidence was led. Further, this blank copy does not bear the signature of PW2.

27. Witness PW­3 Sh. Naval Singh, who filed the present complaint Ex.PW­3/1 at Police station has proved the filing of the complaint on 11.12.2014 at P.S. Pandav Nagar. He has been cross­examined at length.

28. In his cross­examination, he has admitted that he has no knowledge that any complaint case was filed in respect to the inspection carried out at the inspected premises. He has further testified that he did not enquire the reason for delay in filing the complaint Ex.PW­3/1. He has admitted that from record, he came to know that the inspection was carried out on 16.12.2011 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 28 of 55 and he has no personal knowledge about the present case.

29. PW­4 ASI Sanjeev Kumar who was the first I.O has deposed that on 14.12.2014 investigation of the present was marked to him and on that day, he went to the inspected premises to search the accused persons and the accused persons were not found present as they were absconding. He has further deposed that on inquiry in the locality, he came to know that accused Uma Jain is the owner of the inspected premises and accused Sanjeev Jain was residing with co­accused Uma Jain who is his mother . He has further testified that on 16.12.2014 the case property of the present case was taken from Sh. R. P. Sharma in duly sealed condition which was deposited in Malkhana by him. He has further deposed that he has recorded the statement of the witnesses during investigation. This witness was first cross­examined on 19.09.2018 and he had admitted that he was not aware about any complaint case filed in respect to the present matter nor he was the member of the raiding team. He has further testified that he received the case property on 16.12.2014 and prepared the seizure memo Ex.PW­4/1. He has further admitted that the CD Ex.PW­2/5 was not sent to the FSL. He has also admitted that he did not inquire about the delay in filing the complaint. He has denied the suggestion that chargesheet was shown to the BSES officials to make a strong SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 29 of 55 and false case against the accused persons.

30. This witness PW­4 was again cross­examined on 27.04.2019 and he clarified that he had made a mistake while making DD No.53B dt.16.12.2014 Ex.DW­3/1 regarding the entry of receiving of the case property from Sh. K. L. Kain. He has denied the suggestion that case property was never handed over to him nor was deposited in Malkhana. He has further admitted that in his cross­examination dt. 19.09.2018, he has made the statement that "Case property was handed over by Mr. R. P. Singh and I do not remember the name of other person". He has further testified that he came to know later on about the wrong entry in DD Ex.DW­3/1 but since there can be no cutting in the Rojnamcha Register, he did not cut the entry in the register. He has admitted that the case property was never produced by him in the Court but voluntarily stated that it was produced by MHC(M).

31. Witness PW­5 ASI Ravinder Kumar, Second I.O of the present case has deposed that on 21.09.2016 investigation has been handed over to him and during the investigation he was told that the original documents are already placed alongwith the complainant case and he recorded statement of the witnesses, collected the photocopy of the election identity card of the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 30 of 55 accused persons i.e. copy of accused Sanjeev Jain Ex.PW­5/1 and Uma Jain as Ex.PW­5/2 respectively and filed the charge­sheet.

32. In his cross­examination, he has testified that on inquiry he was told that the delayed complaint was filed due to pendency of complaint case in the present matter. He has admitted that CD of the videography of the present case was never sent to the FSL or CFSL nor he obtained any opinion of the expert about the authenticity of the CD. He has further testified that on inquiry from accused Sanjeev Jain that any document in the name of Rajesh Jain is there, accused Sanjeev Jain told that he has all the documents in the name of Sanjeev Jain. He has further testified that he had made entry in the case diary regarding the explanation for delay in FIR and copy of said case diary was placed as Ex.PW­5/P­1 on judicial record. He denied the suggestion that no such entry was made in the case diary. Here it is to be noted that in the present case, the complaint case bearing CC No.18/12 was filed on 16.02.2012 but pre­ summoning evidence could not be concluded and vide order dt. 05.08.2016 this complaint case was adjourned sine­die by Ld. Predecessor Court upon the registration of the FIR in the present case on the request of the complainant company that the complaint case file be attached with the chargesheet as and when same is filed.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 31 of 55

33. To prove the revised load witness PW­6 Devender Panwar, DGM, BSES YPL was examined, who has deposed that on 13.01.2012 user Rajesh Jain made a representation in his Office regarding wrong load vide Ex.PW­6/1, thereafter, a legal notice dt.16.01.2012 demanding theft bill for Rs.3,37,979/­ Ex.PW­6/2 was sent to the consumer, reply of which dt.25.01.2012 Ex.PW­6/3 was sent by the consumer. He has further deposed that again a representation dt. 10.07.2012 Ex.PW­6/4 was sent by the consumer to the office of the complaint, upon which revised bill Mark PX­1 was prepared. He has further deposed that a complaint dt.15.02.2013 Ex.PW­6/5 to the Chief Vigilance Officer of the Complainant company was made and on the basis of said complaint, a statement Ex.PW­6/6 of the complainant Sanjeev Jain was recorded before the Vigilance Officer. This witness was cross­examined at length on behalf of the accused.

34. In his cross­examination, the witness PW­6 has admitted that he has not personally verified the connected load before the revision of the bill. He has further testified that there is no provision for calling the consumer for the revision of the bill and admitted that there is huge difference of amount in the original bill. He has further testified that there are difference of SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 32 of 55 the connected load in both the bills. He has further testified that in application dt.13.01.2012 Ex.PW­6/1 and dt.25.01.2012 Ex.PW­6/2 the name of user is written as Rajesh Kumar and Nivedankarta as Sh. Sanjeev Jain. He has denied the suggestion that the consumption pattern of the electricity in the inspected premises prior to the inspection and after the inspection were almost same or that the theft bill has been prepared without any basis.

35. PW­7 Sh. Tej Singh, Assistant Clerk from the office of the DERC was examined to prove the complaint made by the accused persons.

36. The bone of contention raised on behalf of both the accused persons is that there was no theft of electricity at the inspected premises However, it has been proved on record in the testimony of PW­2 Sh. K. L. Kain that both the accused were present at the inspected premises at the time of inspection on 16.12.2011

37. Further, it is clear from the evidence on record that there was electricity meter installed in the name of the accused Uma Jain at the inspected premises. The installation of the meter in the name of accused Uma Jain has not been denied by any of SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 33 of 55 the accused. Even in the entire cross­examination of PW­2, there is no suggestion that the accused persons were not present or no meter was installed nor any suggestion was put to the witness PW2 that there was no bypass of the meter for the purpose of electricity consumption or that the accused Sanjeev Jain did not disclose his name as Rajesh Jain at the time of inspection. Even this witness PW2 has not been cross­examined regarding his testimony about illegal connection from the back side of the meter nor any suggestion has been given to him that any other Rajesh Jain was in occupation of the inspected premises as tenant. Even accused Uma Jain has admitted in his statement recorded U/Sec.313 of Cr. P.C that meter was installed in her name at the inspected premises and both the accused have admitted in their statements that they were present at the spot in the inspected premises on the date of inspection. Even in the statement Ex.PW­6/6 made before C.V.O. of complainant company by accused Sanjev Jain, there is admission of electricity theft at the inspected premises and he himself has admitted that said statement Ex.PW­6/6 was made in his own handwriting. Though he has stated in his statement before the Court u/s 281 r/w Sec. 313 of Cr.P.C. that he was made to write it and he did not handover it but appearing as DW1, he has not denied making this statement nor he has uttered any compulsion of making this statement. Thus, it appears to be an after thought defence in his SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 34 of 55 statement u/s 281 r/w Sec. 313 of Cr.P.C.

38. Further, accused Sanjeev Jain himself has appeared in the witness box as DW­1 and in his examination­in­chief he has admitted the visit of PW­2 Sh. K. L. Kain on 16.12.2011 at the inspected premises. He has further admitted that after the said visit there was re­visit/inspection of his house and the officials of the complainant company noted down the connected load. However, in the entire examination­in­chief he has not denied that he did not disclose his name as Rajesh on the spot or that there was any tenant in the name of Rajesh at the inspected premises or that there was no bypass of the meter from back side.

39. In his examination­in­chief, he has deposed that he was supplied the 40 pages of the copy of the chargesheet but later on, on receiving the certified copy, he came to know that total 41 pages were attached in the chargesheet (Here it is to be noted that a letter is sent to the undersigned by the Ld. District Judge dt. 15.05.2019 written by the accused Sanjeev Jain to the Hon'ble Chief Justice of Hon'ble High Court of Delhi/the Registrar Vigilance and to the Ld. District Judge, Karkardooma Courts in which there is allegation of obtaining 46 pages as certified copy and there is allegation that 6 pages have been inserted by the I.O/PW­5 ASI Ravinder Kumar in collusion with SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 35 of 55 the court staff). This conduct of the accused Sanjeev Jain shows that he takes mutually contradictory defence/stand at different stages of proceedings.

40. In his further examination­in­chief though he has deposed regarding making many complaints to the police and to the Delhi Electricity Regulation Commission (In short DERC) but there is no denial of his presence nor there is any assertion that any tenant was in occupation of the inspected premises at the time of inspection. In his cross­examination also he has admitted that the inspected premises was owned by his mother i.e.accused Uma Jain. He has admitted in his cross­examination that there is signatures upon the application for voluntary declaration of application for meter tempering Ex.DW­1/P­6. In his further cross­examination, he has testified that he does not know whether any police verificatioin of the tenant was done or there was any written tenancy agreement or that any rent receipt was issued. He has further testified that he does not remember when he had met the said tenant nor do he remember his physical appearance or age as it was about 8 years back but he denied the suggestion that there was no tenant.

41. Perusal of statement Ex.PW­6/6 makes it clear that the accused Sanjeedv Jain in his own statement has admitted SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 36 of 55 direct electricity theft at the inspected premises on 16.12.2011 in the visit of Sh. K. L. Kain alongwith his team.

42. Perusal of petition made before the DERC Ex.PW­7/1 makes it clear that the accused Uma Jain herself has alleged in the petition that a raid was conducted on 16.12.2011 and at the time of raid she and co­accused Sanjeev Jain were at home. Though, in the petition there is allegation against the team leader, but there is admission of making representation dt.13.01.2012 and 25.01.2012, though in the statement made before this court u/s 281 r/w Sec. 313 Cr.P.C. the accused Sanjeev Jain has denied of making any such representation which is against record. In its finding upon petition No.13/2013 made by the accused Uma Jain dt.30.12.2014 Ex.DW­1/X in para.7 the Hon'ble Commission has held that the petitioner herself has admitted that direct theft was being committed by her tenant Rajesh Jain and she has no knowledge about it and since this fact was being committed in her premises, she has to face the consequences and it will be adjudicated by the concerned Special Court where the case was pending and for the purpose of violation of the regulations, warning was issued against complainant company.

Though, accused persons have relied upon the other petitions filed by the co­accused Sanjeev Jain, but perusal of the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 37 of 55 documents/petitions/order/police complaints reveals that petition/order has no concern with inspection of the present case. But it is in respect of the removal of meter later on installed in the name of accused Sanjeev Jain and thus it appears that he has tried to mix up separate issue with present case.

43. 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 testimony coupled with the documents relied upon by the accused persons themselves, it has been proved on record that the inspected premises was belonging/occupied by both the accused. Thus, their plea that there was tenant who was in occupation of the inspected premises is bound to fail taking notice of the fact that no such evidence has been led on record that any person in the name of Rajesh was in occupation of the inspected premises. Moreover, this fact of occupation of the alleged Rajesh was well within in the knowledge of both the accused persons and in view of Provision U/Sec.101, 105 and 106 of the Evidence Act, 1872, it was for them to prove the occupation of the tenant Rajesh, the fact being asserted and being specially within the knowledge of the accused persons but they have failed to prove that said person was in occupation of the inspected premises on the day of inspection. Moreover, the Act does not provide that person using SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 38 of 55 illegal electricity must be owner or tenant. In the present case, both the accused have been charged that they were user of illegal electricity.

44. So far as number of witnesses is concerned, it has been proved on record that witness PW­2 had conducted the raid alongwith other members. There is no law which mandates that all the members of the raiding team must be examined. The law is well settled that even the testimony of one member of the raiding team is sufficient, if the testimony is cogent and trustworthy. In the present case, it has been proved on record from the testimony of PW­2 Sh. K. L. Kain and from the testimony led on behalf of the accused that there was inspection conducted on 16.12.2011 at the inspected premises belonging to the accused persons. Thus, to examine other witness was a futile exercise to prolong the matter.

45. The next argument advanced on behalf of the accused persons is that the videography of the inspection proceedings vide CD Ex.PW­2/5 cannot be read into evidence for want of any supporting Certificate U/Sec. 65(B) of the Indian Evidence Act. This argument has no force. There was no objection raised on behalf of the accused persons when the documents i.e. CD Ex.PW­2/5 was exhibited regarding the mode of proof that it can SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 39 of 55 not be read into evidence for want of filing of Certificate U/Sec. 65(B) of Indian Evidence Act. 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 proposition is a Rule of fair play. The crucial SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 40 of 55 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".

It would be relevant to refer to another case decided by this Court in P.C. Purshothama Reddiar Vs. S. Perumal, SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 41 of 55 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".

46. The other arguments that there is no explanation for delay in filing the complaint to the police is of no consequence. Even it is not the case of the accused persons that delay in filing the complaint or registration of FIR has caused any prejudice to their case. Moreover, the witness PW­5 has explained that delay took place as there was pending complaint case which is clear from the record as discussed hereinabove. This explanation is itself sufficient.

47. The plea taken that there was delay in filing of SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 42 of 55 chargesheet and being time barred, congnizance could not have been taken. In this regard, the reliance has been placed upon the judgment on behalf of the accused which I have perused. There is no dispute with the preposition of law that the cognizance cannot be taken without condonation of delay in filing the chargesheet if it has been filed after limitation period. However, in the present case the FIR was registered on 14.12.2014. The inspection was carried out on 16.12.2011 and chargesheet was filed on 11.12.2017. The testimony of witness PW­4 makes it clear that on the day of registration of FIR, he visited the house of the accused persons. Thus, this visit was well within 3 years from the date of the commission of the offence. As per testimony of PW­4, both the accused were not found present at their house and they were hiding. Thus, in the facts of the present case, the period of limitation got extended from that day i.,e. 14.12.2014. Not a single suggestion has been given that no such visit was done by PW­4 nor any evidence has been brought to prove that the accused persons met the I.O on or before 14.12.2014. Record also reveals that the anticipatory bail application was filed on behalf of the accused in the year 2015, which was dismissed and before that the accused did not join the investigation and thus, it is clear that they have avoided their arrest by absconding and thus, the period of limitation will be taken into account in accordance with provision U/Sec.470 of the Cr.P.C. Thus, it is SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 43 of 55 clear from the record that the chargesheet was filed within the limitation period.

48. It was also argued that no public persons were joined during the raid or investigation. There is no law which mandates that in all the cases, public persons must join the proceedings. Moreover, considering the facts of the case, it cannot be said that there was any public persons present at the time of inspection. Thus, non­joining of public persons in no way adversely affected the interest of any of the accused in any manner.

49. The witnesses PW­2, PW­4, PW­5 and PW­6 in their testimonies have clearly proved the inspection on 16.12.2011 at the inspected premises bearing No. B­94, Gali no.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi by proving the inspection report Ex.PW­2/4, Meter Detail Report Ex.PW­2/3. They have also proved the seizure memo of the illegal wires and meter with meter board vide Ex.PW­2/1. The proceedings of the Inspection were videographed and the CD of the same has been proved as Ex.P­2/5. PW­2 has correctly identified the illegal wires and meter with meter board as Ex.P­1 (colly) as well as the accused persons. They have also proved the mode of electricity theft by bypassing the meter through illegal tapping by the accused persons for domestic purposes. They have also proved that at the SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 44 of 55 inspected premises, there was meter installed at the time of inspection, however, it was by­passed. The witness has also proved on the record that the accused Sanjeev Jain intentionally disclosed his name as Rajesh which can be clearly heard in C.D. Ex.PW2/5 so as to cheat the complainant company by personation to avoid his prosecution as accused.

50. 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, they have proved that both the accused were present on the spot and were found indulged in direct theft of electricity and the manner of electricity theft by illegal tapping for a connected load of 7.976KW for domestic purposes.

51. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution read with the testimony relied upon by the accused, it is proved that there was direct electricity theft by connecting illegal wires from the service line of electricity supply system of BSES YPL before the meter from the back side of the meter board for illegal supply by accused persons.

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 45 of 55

52. 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 not the consumer of the electricity.

53. 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.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 46 of 55

54. One argument has been advanced on behalf of the accused that the judgment of Mukesh Rastogi Case has no application to the facts of the present case. However, there is no ground mentioned as to why the said judgment has no application to the present case. It is to be noted that the both the accused have not placed any bill regarding the payment of regular bill of the meter installed in the inspected premises. Had the electricity been going to the accused premises 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 fortifies the plea of the complainant company that electricity was being used by the accused directly by bypassing from the supply system of BSES through illegal wires from the back side of the meter. Paid electricity bills would have been the best evidence to show that the accused were using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the accused to produce and prove such bills paid for the use of electricity.

55. The accused had taken the stand that the inspection was not valid inspection. So far as the validity of the inspection is concerned, complainant has a right to prove theft of electricity done by the accused irrespective of the status of inspection. The SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 47 of 55 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 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 or there was any irregularity which does not go to the root of case invalidating the inspection, 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.

56. 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 48 of 55 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 importance.

57. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or non­filing of photographs/CD or minor contradiction regarding the seizure or size of the illegal wires 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 inspection proceedings has been proved as Ex.PW­2/5 which clearly shows the manner of electricity theft and even the concealment of the real name by the accused Sanjeev Jain. 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.

Even it is well settled law that minor discrepancies on trivial matters not touching the core of the case, SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 49 of 55 hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements or statement of witnesses are never considered to be fatal. Small/Trivial omissions would not justify a finding by Court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. The present case is well covered under the second situation.

58. 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 50 of 55 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 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.

59. In view of the aforesaid discussion and case law laid down by the Hon'ble Supreme court, it can be safely held that accused has 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 were very much present at the inspected premises and using the electricity by bypassing valid source of electricity to consume it. Thus, in the light of aforesaid discussion, the defence raised on behalf of the accused appears to be without any substance.

60. 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 51 of 55 been brought on record by the accused persons that they were falsely implicated. The accused have taken a vague plea that they have been falsely implicated in the present case. During the evidence, the accused were duly identified by the witnesses.

61. There is nothing on record to suggest that there was any enmity between accused and officials of Complainant Company or he has been falsely implicated in the present case. 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 was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgment 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"

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 52 of 55

62. 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 proceedings and testimony of the witnesses by raising the minor discrepancies here and there regarding the manner of investigation, signatures upon the chargesheet/pabandinama etc., which does not go to the root of the case to discredit the investigation or testimony of the witnesses.

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. 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 SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 53 of 55 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 :

63. From the aforesaid discussion, it is clearly proved beyond any doubt by the prosecution from the cogent evidence that an inspection was carried out on 16.12.2011 at about12 : 20 p.m. at the premises No.B­94, Gali no.10, Shashi Garden, Mayur Vihar, Phase­I, Delhi and that the said premises belongs to the accused Uma Jain and Sanjeev Jain @ Rajesh Jain and there was direct theft of electricity at the inspected premises by bypassing the meter installed in the name of accused Uma Jain. Further the said direct supply was being used for domestic purposes.

64. 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, meter detail report and videography coupled with documents/petitions filed by accused SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 54 of 55 Uma Jain before the DERC and that in the inspected premises electricity was being used for domestic purpose by the accused persons and connected load was found to be 7.976 KW. Accordingly, both the accused persons Uma Jain and Sanjeev Jain @ Rajesh Jain 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 industrial purpose under section 154(5) of the Electricity Act.

65. In addition to that accused Sanjeev Jain is held guilty and convicted for the offence punishable u/s 416 r/w Sec. 419 of I.P.C. for cheating by personation as Rajesh Jain.

Main file be consigned to record room.

Ahlmad to prepare the misc. file for the purposes of arguments on sentence.

Copy of the judgment be supplied to both the convicts free of costs.

Be put up for arguments on sentence on 22.05.2019. 

ANNOUNCED IN THE OPEN COURT              Digitally signed
TODAY ON 20th May, 2019                  by DEVENDRA
                          (DEVENDRA KUMARKUMAR
                                             SHARMA)
                         DEVENDRA        SHARMA
                        ASJ/ SPECIAL ELECTRICITY COURT
                         KUMAR           Location:
                        EAST DISTT./ KKD COURTS/DELHI
                                         Karkardooma
                                   SHARMA                 Court
(Total 55 number of pages)                                Date:
                                                          2019.05.20
(One Spare copy is attached)                              16:37:02 +0530

SC No.:1660/19 (Old Misc. D.J No.1027/17) STATE VS. UMA JAIN & ANR. 55 of 55