Delhi District Court
State(Bses) vs Nooruddin on 15 October, 2024
SC No.694/2023 State Vs. Nooruddin
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 694/2023
FIR No. 551/2020
Under Section 135 r/w Section 150
Electricity Act
PS Jafrabad
State
versus
Nooruddin
S/o Sh. Sirajuddin
R/o H.No.557, Gali No.54, Jafrabad,
Delhi-110053
.... Accused
Date of institution 14.09.2023
Judgment reserved on 15.10.2024
Judgment Pronounced on 15.10.2024
Decision Convicted
JUDGMENT
1. Accused Nooruddin is facing trial upon the allegations that his tenant/user Abrar (since not traceable) indulged in theft of electricity in the inspected premises and accused Nooruddin being owner of the inspected premises, committed an offence punishable under Section 135 r/w Digitally signed by Ashish Section 150 of Electricity Act 2003 (hereinafter referred to Ashish Rastogi as 'the Act').
Rastogi Date:
2024.10.15 16:30:31 +0530 Judgment 1 of 23 SC No.694/2023 State Vs. Nooruddin Brief Facts
2. On 08.10.2020, at about 11.52 am, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by Sh. R.B. Yadav (Assistant Manager) in the residential premises of accused at House No.557, Ground Floor, Gali No.54, Jafrabad, Delhi-110053
3. At the time of inspection, no electricity meter was found installed for the inspected premises and accused was found indulged in direct theft of electricity with the help of single core black and red colour wires which were found connected from AB Conductor of BSES YPL.
4. At the time of inspection, one person namely Abrar was present who disclosed that he is occupant of the inspected premises being tenant of accused and the owner of the inspected premises is accused Nooruddin.
5. At the time of inspection, total connected load running on direct theft was found to be 1.722 KW which was being used for commercial purposes. Videography of the connected load was recorded by the videographer Sh. Mohsin Ali. Inspection documents i.e. Inspection Report, Load Report, Seizure Memo and Advisory Notice were prepared at the spot.
Digitally signed by
6. On the basis of connected load, applicable tariff and Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:30:40 +0530 following the guidelines of DERC, the complainant Judgment 2 of 23 SC No.694/2023 State Vs. Nooruddin company assessed the demand to the tune of Rs.1,11,522/- Accordingly, a theft bill was raised and sent to the accused but he did not make payment of the theft bill.
7. On failure to pay the theft bill amount, complainant company through its Authorized Officer lodged a complaint U/s 135, 138 & 150 Electricity Act with SHO, PS Gandhi Nagar for registration of FIR against user Abrar (since not arrested being not traceable) and Nooruddin being owner of the inspected premises U/s 135, 138 & 150 of the Electricity Act.
8. On the said complaint, present FIR was registered and investigation was marked to HC Joginder Singh. During investigation, it was revealed that Nooruddin was owner of the inspected premises while Abrar (since not traceable) was his tenant and he has left the inspected premises. Accordingly, Nooruddin being owner of the inspected premises was charged as one of the accused in this case. After completion of investigation, charge-sheet was filed against the accused Nooruddin U/s 135/138/150 of Electricity Act.
Notice
9. On 22.12.2023, notice U/s 251 Cr.P.C for commission of offence punishable under Section 135 r/w Section 150 of Ashish Rastogi the Act was given to accused Nooruddin. He did not plead Digitally signed guilty and claimed trial.
by Ashish Rastogi Date: 2024.10.15 16:30:46 +0530 Judgment 3 of 23
SC No.694/2023 State Vs. Nooruddin
Prosecution Evidence
10.In order to substantiate its allegations, the prosecution examined following three witnesses.
11. PW1 Sh. Mohsin Ali is the videographer who, on the instruction of team leader Sh. R.B. Yadav (Assistant Manager), captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW1/A.
12. PW2 HC Jogindeer Singh, is the IO of the case, who proved copy of FIR as Ex.PW2/1, site plan as Ex.PW2/2, notice U/s 41A Cr.P.C. given to accused as Ex.PW2/3, notice U/s 91 Cr.P.C given to the accused as Ex.PW2/4 and its reply as Ex.PW2/6 and interrogation report Ex.PW2/5. He also proved copy of Aadhar Card of accused and copy of ownership documents of the inspected premises as Ex.PW2/7. He also proved Pabandinama Ex.PW2/8.
13. PW3 Sh. R.B. Yadav is Team Leader/complainant who was heading the inspection team. He proved CD of videography of the inspection proceedings as Ex.PW1/A, inspection report as Ex.PW3/1 load report as Ex.PW3/2 seizure memo Ex.PW3/3, Advisory Notice as Ex.PW3/4 and theft bill as Ex.PW3/5. He also proved the complaint as Ex.PW3/6 and the case property i.e. two red and black colour wires of 6 mm size having length of 2 meters each Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.10.15 as Ex.P1 colly.
16:30:53
+0530
Judgment 4 of 23
SC No.694/2023 State Vs. Nooruddin
Statement of Accused
14. All incriminating evidence which has come on record, were put to the accused under Section 313 Cr.P.C. Accused denied all material allegations and stated that he is innocent and has been falsely implicated in this case. He has not committed any theft of electricity. However, accused did not lead any Defence Evidence.
Arguments
15. Ld. Chief PP submitted that user Abrar was tenant of accused Nooruddin who is owner of the inspected premises. It is also argued that no electricity meter was found installed for inspected premises and entire load of ground floor was found running through direct theft of electricity. Accused Nooruddin being owner of the inspected premises was well aware of all these facts and he abetted his tenant Abrar to commit direct theft of electricity and thus, he being owner of the inspected premises, is liable for the alleged offences. Ld. Chief. PP further submitted that prosecution has proved allegations against the accused beyond reasonable doubt through the evidence of prosecution witnesses. He also emphasized that inspection was conducted as per Rules and applicable Regulations. Thus, it is prayed that accused may be convicted.
Digitally signed by Analysis Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:31:02 +0530
16. On the other hand, Ld. Defence Counsel submitted that Judgment 5 of 23 SC No.694/2023 State Vs. Nooruddin accused is innocent and he has been falsely implicated in this case. It submitted that accused has not committed any theft. It is also submitted that during pendency of trial, accused has settled civil liability qua impugned theft bill and NOC has also been issued to accused.
17.At the outset, it would be appropriate to reproduce the definition of 'consumer'. The relevant provision of Section 2 (15) of the Act is produced as under:-
"Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;"
18. In this case, accused Nooruddin was found to be owner of the inspected premises and his tenants Abrar (since not traced) was found to be user of electricity at the relevant time. Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises/registered consumer are covered under the definition of the 'consumer' and thus, they are liable for punishment if illegal abstraction of energy is found at the premises of accused. In this regard, this court is also supported with the judgment of the Hon'ble Delhi High Court reported as Digitally signed by Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:31:08 +0530 No.479/2011).
Judgment 6 of 23 SC No.694/2023 State Vs. Nooruddin
19. Before dealing with the factual aspects of the present case, it is deemed appropriate to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to Section 135 r/w Section 150 of the Act.
The provision of Sections 135 & 150 of the Electricity Act are reproduced as under:
Section 135 Theft of electricity - (1) Whoever, dishonestly, (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the Digitally signed by punishment provided for the offence. Ashish Ashish Rastogi Rastogi Date:
2024.10.15 (2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which 16:31:15 +0530 Judgment 7 of 23 SC No.694/2023 State Vs. Nooruddin may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both. (3) Notwithstanding anything contained in sub-
section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub- section (1) of section 135, sub-section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
20. 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.
21. Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines 'dishonestly' and holds that Digitally Whoever does anything with the intention of causing signed by Ashish Ashish Rastogi Rastogi Date:
2024.10.15
16:31:22
+0530
Judgment 8 of 23
SC No.694/2023 State Vs. Nooruddin
wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
22. As per prosecution case, at the time of inspection, no electricity meter was found installed at the site and Abrar (since not arrested) was found to be tenant of the accused Nooruddin. Tenant/user Abrar was found to be user of electricity in the inspected premises at the time of inspection. Accused Nooruddin being owner of inspected premises let/permitted/allowed the user/his tenant to commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
23. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deals with theft of electricity. Regulation 60 empowers authorized Officer to inspect premises. Under Regulation 61 Authorized Officer makes an Inspection Report, Regulation 62 lays down procedure ti report a case of theft and then under Regulation 63 there is assessment of theft bill.
24. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 60. Inspections of the premises and electrical installations by Authorized officer: -
Digitally signed by (1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of Ashish Ashish Rastogi Rastogi Date:
2024.10.15 information regarding theft of electricity:
16:31:29 +0530 Judgment 9 of 23 SC No.694/2023 State Vs. Nooruddin Provided that the Authorized officer may avail the assistance of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing his photograph and photo identity card issued under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his photograph shall be handed over to the consumer or the occupier of the premises before entering the premises and take the acknowledgment.
(4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations.
61. Preparation of Report by Authorized officer: - (1) In the event of detection of theft of electricity, the Authorized officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission's Orders.
(2) All the material evidences such as tampered meter, tampered meter seal and artificial means used for illegal abstraction of energy and the documentary evidences etc., which are relevant to the case and found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his authorized representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points: Provided that if the witness refuses to sign, the same shall be recorded in the report and captured in the videography.
(4) The inspection Report shall be signed by the Authorized officer and a copy of the same shall be handed over to the consumer or his representative at the site immediately under proper acknowledgement. The other persons present at site Digitally may also sign the inspection report. signed by Ashish Ashish Rastogi (5) If consumer or his representative at site refuses to Rastogi Date:
2024.10.15 16:31:36 +0530 Judgment 10 of 23 SC No.694/2023 State Vs. Nooruddin acknowledge and accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or outside the premises and photographed and/or video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection.
(6) The inspection report shall form the basis for further action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity: -
(1) The prosecution for theft of electricity under section 135 of the Act shall be initiated only in the cases where dishonest intention is evident from the relevant facts, records and other evidence of the case.
(2) In case sufficient evidence is found to establish theft of electricity, the Authorized officer under sub-section (2) of Section 135 of the Act shall seize and seal all material evidence including wires/cables, meter, service line etc., from the premises under a seizure Memo.
(3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act: Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty-four hours from time of such disconnection: Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy Digitally signed by consumed by resorting to external methods involving remote Ashish Ashish Rastogi Rastogi Date:
2024.10.15 control, high voltage injection etc., committed by the consumer 16:31:43 +0530 or his employee or any other person acting on his behalf, shall Judgment 11 of 23 SC No.694/2023 State Vs. Nooruddin also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the Commission or by the agency authorized by the Commission in this regard.
63. Assessment Bill for theft of electricity: -
(1) The Assessing officer shall assess the energy for theft of electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall be for a period of 12 (twelve) months preceding the date of detection of theft of electricity or the exact period of theft if determined, whichever is less: Provided further that period of theft of electricity shall be assessed based on the following factors: -
(i) actual period from the date of commencement of supply to the date of inspection;
(ii) actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
(iii) actual period from the date of preceding checking of installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever available.
(v) based on the document being relied upon by the accused person.
(3) The assessment bill shall be prepared on two times the rate as per applicable tariff.
(4) While making the assessment bill, the Licensee shall give credit to the consumer for the electricity units already paid by the consumer for the period of the assessment bill. (5) The assessment order shall be served upon the consumer or the person in occupation or possession or in charge of the place or premises, as the case may be, within 7 (seven) days of disconnection of supply or within 2 (two) days from the date of receipt of request of such person, whichever is earlier.
25. PW1 Sh. Mohsin Ali (Videographer) and PW3 Sh. R.B. Yadav (Assistant Manager) are prime witnesses of this Digitally signed by case being members of inspection team. PW3 corroborated Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:31:49 +0530 the allegations made in the complaint ( Ex.PW3/6) and Judgment 12 of 23 SC No.694/2023 State Vs. Nooruddin deposed that during inspection, it was found that there was no electricity meter installed for inspected premises and the accused was found indulged in direct theft of electricity with the help of single core black and red colour wires which were found connected from AB Conductor BSES YPL. PW3 further deposed that at the time of inspection one person was present at the spot who disclosed his name as Abrar and further disclosed that he has occupied the inspected premises being tenant of accused and the owner of the inspected premise is Nooruddin. Accused has not specifically denied all these facts during cross-examination of PW3. Rather from perusal of cross-examination of PW3, inspection of the inspected premises appears to have been admitted by the accused as mere suggestion that the inspection was not done at the premises can at no rate suffice to rebut the statutory presumption.
26. PW3 further deposed that at the time of inspection, total connected load was found to be 1.722 KW which was being used for commercial purposes. He further deposed that the videography of the inspection proceedings was captured by videographer Sh. Mohsin Ali in presence of Abrar. He also deposed that the illegal wires were removed by the lineman and seized at the spot vide seizure memo Ex.PW3/3. Again accused has not rebutted these facts in Ashish the cross-examination of PW3. Load report and its Rastogi Digitally signed by Ashish Rastogi contents have not been disputed by the accused.
Date: 2024.10.15 16:31:55 +053027. PW1/videographer conducted the videography of the Judgment 13 of 23 SC No.694/2023 State Vs. Nooruddin Inspection Proceedings in which the commission of theft of electricity at the inspected premises was recorded. PW1 & PW3 were duly cross-examined by Ld. Counsel for accused was unable to bring out any contradiction in their testimony. Accused has not specifically disputed the factum of inspection. Ld. Counsel for accused has simply put suggestion that no documents were prepared at the spot and the case property is planted upon the accused to drag him in false case which facts have been denied by PW3. Further, to the question of Ld. Counsel, PW3 stated that entire premises of the accused inspected by him on the day of inspection and the said fact has been mentioned in the inspection report as well as seizure memo. Accused has not disputed the load mentioned in the load report.
28. As per load report, certain electrical appliances were found installed at the inspected premises. In the load report, calculation of the load has been mentioned and accused person has not disputed the calculation of the load as mentioned in the load report. Accused has not rendered any alternative explanation. Accused Nooruddin is admittedly the owner of the inspected premises. Abrar is stated to be user of the electricity at the relevant time and accused has not disputed that Abrar was not his tenant and user of electricity in the inspected premises at the time of inspection. Therefore, it is evident that accused knew that Ashish co-accused also shared the intention alongwith accused to Rastogi Digitally signed indulge into acts constituting direct theft of electricity.
by Ashish Rastogi Date: 2024.10.15 16:32:02 +0530Judgment 14 of 23 SC No.694/2023 State Vs. Nooruddin
Furthermore, accused was well known that there was no electricity meter installed in the inspected premises despite that he let out the inspected premises to Abrar and also permitted his tenants/user Abrar to use the inspected premises which shows malafide intention of the accused to commit direct theft of electricity causing loss to exchequer.
29. Nothing contradictory emerged in the testimony of prosecution witnesses during cross-examination and the testimony of witnesses has been consistent and thus, the factum of inspection, preparation of documents as well as presence of the accused at the spot and videography of inspection proceedings done by videographer stands proved.
30. It is submitted on behalf of accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the accused was found indulged in direct theft of electricity through illegal wire and these facts have been well proved by PW1 & PW3.
31. During evidence, CD (Ex.PW1/A) containing inspection proceedings was played before the court which depicted the manner in which the user was found indulged in direct theft of electricity through illegal wires. Accused has not disputed the identity of the inspected premises shown in the video contained in the CD. Furthermore, it is not Digitally signed by Ashish Ashish Rastogi disputed at all by the accused that there was no electricity Rastogi Date:
2024.10.15 16:32:11 +0530 Judgment 15 of 23 SC No.694/2023 State Vs. Nooruddin meter in the inspected premises and entire load of the premises i.e. ground floor, first floor, second floor and third floor as deposed by the PW3 in his examination chief, was running with the help of illegal cables by hooking the same from AB Conductor of BSES YPL.
32. Nothing has been brought on record to indicate that officials of complainant company had any animosity with the accused and therefore, under these circumstances, non- joining of public witness does not affect the authenticity of the prosecution case. In this regard, this Court is supported with the case law reported as 'Punjab State Electricity Board & Ors vs Ashwani Kumar, 2010 (7) SCC 569'. In this case, the Hon'ble Supreme Court has made the following observations:
".....The report prepared by the officers of the Electricity Board is an act done in discharge of their duties and could not be straightway reflected or disbelieved unless and until there was definite and cogent material on record to arrive at such a finding. The inspection report is a document prepared in exercise of his official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. 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."
33. In the case titled as 'Sushil Sharma vs BSES Rajdhani Power Ltd.' in Crl. Appeal No.1060/10 decided on 22.12.2010, the Hon'ble Delhi High Court has held that non- Digitally signed by Ashish Rastogi Ashish Rastogi Date:
examination of independent/public witness is no infirmity 2024.10.15 16:32:19 +0530 Judgment 16 of 23 SC No.694/2023 State Vs. Nooruddin as the members of the inspection team who deposed in the court, were having no enmity against the appellant and their testimonies are trustworthy. In the present case also, there is no material to show that the BSES officials who inspected the premises of the accused were inimical to the accused.
34. In addition, nothing has come on record to show that the inspection was not conducted as per the procedure prescribed under the DERC Regulations pertaining to the theft of electricity. There is not even a suggestion in the cross examination of witnesses that there is any procedural lapse or impropriety and the guidelines as prescribed have not been followed.
35.Once the prosecution successfully establishes the charges against the accused regarding theft of electricity then in view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act it is to be presumed that accused has committed direct theft of electricity if accused fails to bring some evidence on record to rebut the presumption. Thus, in view of the proviso of section 135 (1) of the Act, after the prosecution establishes the charges of electricity theft against the accused then under the aforesaid provisions of law, the accused is legally bound to bring some material on record to rebut the statutory presumption.
Digitally signed by
36. Coming to the Presumption as envisaged U/s 135 of Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:32:26 +0530 Judgment 17 of 23 SC No.694/2023 State Vs. Nooruddin Electricity Act, it is to be noted that it uses the word "shall presume". Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and
(iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act."
37. 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 Digitally presumption. Relevant portion of the para no.16 is signed by Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:32:35 +0530 Judgment 18 of 23 SC No.694/2023 State Vs. Nooruddin reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
38. In view of the settled law, now it is to be seen if the accused has taken any defence to rebut the aforesaid statutory presumption. Accused did not lead any defence evidence nor he has brought anything on record which could suggest that his tenant/user Abrar (since not traced) was drawing electricity through authorized means or electricity meter. Moreover, it is admitted position of fact that there was no electricity meter installed in the inspected premises. As per load report, certain electric appliances were found in the inspected premises and accused has not explained as to from where user/accused was drawing electricity to run those appliances. Also, it is not the case of the accused that there was any Genset and accused/user was drawing energy from the same.
39. Rather in the advisory notice proved as Ex.PW3/4, it is clearly mentioned that in case the accused/user has anything to say against the inspection, he should have filed written objection thereto within four working days but the user/accused chose not to file any objection which indicates the involvement of the accused in direct theft of Digitally signed by Ashish Ashish Rastogi Rastogi Date: electricity else she would have raised her objection before 2024.10.15 16:32:43 +0530 Judgment 19 of 23 SC No.694/2023 State Vs. Nooruddin the competent authority.
40. If the accused/user was not indulged in direct theft of electricity or he was using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused was to prove on record that at the time of inspection, user/his tenant Abrar (since not arrested being not traceable) was drawing electricity through his own electricity meter and was paying bills commensurate to the consumption. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. Accordingly, it is held that accused Nooruddin has failed to rebut the statutory presumption.
41. Furthermore, it is clear from the evidence of PW2 that in regard to the electricity theft, the complainant company had raised a bill of Rs.1,11,522/- (Ex.PW3/5) against the accused and during the course of arguments, Ld. Counsel for accused submitted that that accused has settled the matter qua civil liability and also deposited the settlement amount and NOC has also been issued. In case, the officials of the complainant company would not have carried out the inspection as deposed by prosecution witnesses and complainant company would have raised a false and baseless claim by way of theft bill (Ex.PW3/5), Digitally signed by then instead of going for settlement, accused would have Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:32:49 +0530 raised his protest and would have initiated appropriate Judgment 20 of 23 SC No.694/2023 State Vs. Nooruddin proceedings against complainant company for raising a false claim against him. This conduct of the accused also fortifies the allegations of the direct theft of electricity against him.
42. Notwithstanding, if the user/tenants were not indulged in direct theft of electricity or they were using the electricity through legal sources then the easiest way to rebut the statutory presumption for the accused was to prove on record that at the time of inspection, his tenant Abrar was drawing electricity through his own electricity meter. However, accused has not brought anything on record to disprove the allegations brought on record by the prosecution. In view of these discussions, it is held that accused has failed to rebut the statutory presumption.
43. In this regard, this court is supported by the judgment of Hon'ble High Court of Delhi reported as Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:32:56 been the best evidence to show that the appellant +0530 Judgment 21 of 23 SC No.694/2023 State Vs. Nooruddin was using electricity through mere. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
44. Accused did not lead any defence evidence. If the tenant Abrar was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused Nooruddin, who claimed himself to be owner of the inspected premises, was liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is admitted position of fact that inspected premises was belonging to accused Nooruddin at the relevant time, which was let out to co-accused Abrar (not traceable). Accused has not brought any material on record or lead any evidence to disprove the prosecution case.
45. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that user Abrar (since not arrested being not traceable) dishonestly indulged in direct theft of electricity through illegal wires. It is also proved on record that accused Nooruddin was the owner of inspected premises and user/tenant Abrar has Digitally signed by Ashish been proved to have indulged in direct theft of electricity Ashish Rastogi Rastogi Date:
by attaching illegal wires with AB Conductor of BSES.
2024.10.15
16:33:03
+0530
Judgment 22 of 23
SC No.694/2023 State Vs. Nooruddin
Accused Nooruddin being owner of the inspected premises let/permitted/consciously allowed the user/tenant/co- accused Abrar (not arrested being not traceable) to commit direct theft of electricity. Thus, accused Nooruddin is guilty of abetment of offence of direct theft of electricity. Accordingly, accused Nooruddin is convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003.
46. User/tenant Abrar has since not been arrested. Necessary legal action may be taken against him as and when he is traced out.
Let convict be heard on quantum of sentence. Announced in the Open Court on 15.10.2024.
Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.10.15 16:33:09 (Ashish Rastogi) +0530 Addl. Sessions Judge-05 (Electricity) East/Karkardooma Courts/Delhi Judgment 23 of 23