Delhi District Court
That There Was Theft/Abstraction Of ... vs . on 20 December, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
SC No : 1893/18
FIR No : 330/17
P.S : FARSH BAZ, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
N.K. SHARMA
598-B, Pandav Road,
Karan Gali, Vishwas Nagar,
Shahdara, Delhi - 110 032.
........... Accused
DATE OF INSTITUTION OF THE CASE : 24.09.2018
DATE ON WHICH JUDGMENT WAS RESERVED: 20.12.2018
DATE OF PASSING OF JUDGMENT : 20.12.2018
NATURE OF JUDGMENT : CONVICTED
JUDGMENT :
A Criminal Complaint addressed to the Station House
Officer, Farsh Bazar, Police Station, Delhi was filed by Sh.
Rambhadra Yadav, the then Assistant Manager, Authorized
Officer of BSES YPL company (in short to be called as
Complainant Company hereinafter) against accused namely N. K.
Sharma for the offence punishable u/s 135 of the Electricity Act,
SC No : 1893/18 STATE VS. N.K. SHARMA 1/ 28
2003 (in short called as Act hereinafter) r/w Sec.379/34 IPC for
an offence of electricity theft against accused.
(A) FACTS :
2. The main allegation made in the said complaint are to
the effect, interalia that on 04.05.2016 at about 07 : 50 a.m, an
inspection was carried out by the officials of BSES YPL
comprising of Sh. Rambhadra Yadav (Asstt. Manager), Sh. Hari
Prakash (Engineer), Sh. Kapil (Technician) alongwith
Survelliance team and one lady guard namely Ms. Pinky at the
premises i.e. 598B, Pandav Road, Karan Gali, Vishwas Nagar,
Shahdara, Delhi 110 032 (in short called as inspected premises)
where accused N. K. Sharma was found indulged in direct theft of
electricity from the nearby BSES Pole through two core black
colour aluminum wires. It has been further stated that accused
was using said illegal electricity supply for domestic purposes.
3. It has been further alleged in the Complaint that a
total connected load of 04.418KW was checked & assessed during
the course of said inspection which was being illegally used by
accused by directly tapping from the nearby BSES Pole through
illegal wires at the inspected premises. It has been further
alleged that the inspection report, load report and seizure memo
were prepared at the spot. The necessary videography of the
inspected premises showing irregularities were also done and the
accused was found committing direct theft of electricity at the
SC No : 1893/18 STATE VS. N.K. SHARMA 2/ 28
time of inspection by using electricity illegally from the nearby
pole of the Complainant Company for domestic purpose, though,
total videography and connected load of some portion of the
inspected premises could not taken due to resistance of the
accused. It has been further alleged that during inspection,
accused was found stealing electricity for an amount of
Rs.81,595/ (Rupees Eighty One Thousand Five Hundred Ninety
Five only) and a theft bill was also raised. Hence, the present
Complaint dt.10.05.2016 was filed against the accused for
initiating legal action as per law including the determination of
civil liability against him as per the provision of Section 154(5) of
the Act. Upon the said complaint, the present FIR No.202/13 for
offence punishable U/Sec.135 of Act r/w Sec.379 of Indian Penal
Code (for short IPC) was registered on 25.07.2017 against
accused namely N. K. Sharma.
(B) INVESTIGATION :
4. After registration of FIR, investigation was conducted.
During investigation, I.O recorded the statement of the witnesses
and after completion of investigation, present chargesheet
U/Sec.173 of Criminal Procedure Code (in short Cr.P.C) was filed
against the accused. Thereafter, accused was summoned.
(C) NOTICE :
5. After compliance of provision U/Sec.207 of Cr.P.C, on
26.10.2018 a notice of accusation was framed against the
SC No : 1893/18 STATE VS. N.K. SHARMA 3/ 28
accused by this Court for the offence punishable u/s 135 of the
Electricity Act to which he pleaded not guilty and claimed trial.
(D) PROSECUTION EVIDENCE :
6. In support of its case, the Prosecution has examined
two (2) witnesses in order to substantiate the allegation :
(1) Sh. Ram Bhadra Yadav, Asstt. Manager, BSES YPL was
examined as PW1, who has deposed that on 04.05.2016,
he alongwith the inspecting team had conducted raid on
inspected premises and accused N. K. Sharma was found
indulged in direct theft of electricity by tapping from
nearby electricity pole through two illegal wires in the
inspected premises. He has further deposed that no other
source of electricity supply or electricity meter was found
installed at the inspected premises and entire load of the
premises was found running through the said illegal wires.
He has relied upon documents i.e. Inspection Report as
Ex.PW1/A, Load Report as Ex.PW1/B, Seizure memo as
Ex.PW1/C and Complaint filed by him before the P.S.
Farsh Bazar as Ex.PW1/D. He has correctly identified the
accused N. K. Sharma as well as the CD of the videography
of the inspected premises as Ex.P1. He has also correctly
identified the case property of the present case i.e black
colour 2 core aluminum wire as Ex.P2.
(2) ASI Chander Pal Singh/I.O was examined as PW2, who got
registered the FIR No.330/17 of the present case as Ex.PW
SC No : 1893/18 STATE VS. N.K. SHARMA 4/ 28
2/A. He has deposed that he had conducted the
investigation of the present case after making endorsement
Ex.PW2/A upon the complaint and also inspected the
premises of the accused and initially informed by the
accused N. K. Sharma that a civil case was going between
him and the complainant company, hence, he kept the
present case pending for further investigation. However,
after consulting with his senior official, he got registered
the FIR of the present case. He has further deposed that on
01.08.2017 he went to the house of the accused and bound
down him in the present case vide Pabandinama Ex.PW
2/B. He had collected photocopy of the Aadhar Card of
the accused as Ex.PW2/C and documents with regard to
the inspected premises as Ex.PW2/D (Colly). He has
further deposed that on 25.07.2017 he had recorded
statement of BSES YPL officials/raiding party members and
filed the present challan after completion of investigation
against the accused before the Court.
All the aforesaid material witnesses were crossexamined at
length.
7. No other witness was produced or examined on
behalf of the prosecution's side. Hence, on 11.12.2018 as per
their oral submission, P.E was closed and matter was fixed for
recording of statement of the accused N. K. Sharma U/sec.281
r/w Sec.313 Cr.P.C.
SC No : 1893/18 STATE VS. N.K. SHARMA 5/ 28
(E) STATEMENT OF ACCUSED :
8. On 17.12.2018 statement of the accused N. K.
Sharma, U/sec.281 r/w Sec.313 Cr.P.C was recorded explaining
all the incriminating evidence against him on record which he
denied as false & incorrect. Accused has asserted in his statement
that he has been falsely implicated in the present case by the
complainant company. He has further asserted that no connected
load was found at the inspected premises at the time of
inspection. There was no electricity theft through any illegal wire
at his premises at any point of time. He has further denied that
any raid was conducted at his premises. He has denied his
ownership documents as well as judgment Mark PW1/D2
passed in his favour. He asserted that he is innocent.
Accused does not prefer to lead defence evidence.
Hence, case was fixed for final arguments.
(F) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
9. 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 the videography, written submissions filed on
behalf of the accused and relevant provisions of case law.
10. The main submissions made during the course of final
arguments on behalf of the prosecution/complainant were inter
alia, to the effect that the accused herein was found indulged in
SC No : 1893/18 STATE VS. N.K. SHARMA 6/ 28
direct theft of electricity by tapping from the nearby BSES Pole
through illegal aluminum cable 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, the
complainant company suffered huge monetary loss; that such
illegally extracted electricity was used by the accused for
domestic purposes; 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 herein by way of cogent
evidence, both oral as well as documentary; that ultimately, a
theft bill to the extent of Rs.81,595/ was sent to the accused but
he deliberately failed to pay any amount out of it to the
complainant company; that all the necessary formalities like
conducting of inspection, preparation of inspection report, load
report, seizure memo etc. were done by the team of the
complainant company at the spot as per rules; that copies of all
the documents prepared at the spot were tendered to the accused
but he refused to accept and sign the same deliberately for the
reasons best known to him; that accused is liable to be convicted
as per law; that accused is also liable for civil liability as per law.
In the end, a prayer was made for convicting the accused as per
law for the offence punishable U/Sec.135 of the Electricity Act,
2003 as well as for making him liable for civil liability as per
provisions of Section 154(5) of the Act.
SC No : 1893/18 STATE VS. N.K. SHARMA 7/ 28
11. On the other hand, the main submissions advanced by
Ld. defence Counsel during the course of oral final
arguments/written submissions on behalf of the accused were,
interalia to the effect that on 04.05.2016 no raid was conducted
at the inspected premises; that the connected load is stated to be
04.418KW in the inspection documents, but there is contradiction
in this regard in the statement of the witnesses, that the removed
wires is shown to be 1.5 mtrs but inspected premises is shown to
be away from the electricity pole at about 5 to 10 mtrs and thus,
making the story of prosecution improbable as there can be no
theft by the alleged 1.5 mtrs wire from such a distance; that there
is a delay of 6 days in lodging the complaint and there is delay of
about more than one year in registration of the FIR but this delay
remained unexplained in the testimony of the witnesses; that
testimony of PW1 has not been corroborated by any other
member of raiding team; that there is no proper investigation by
the I.O as there is discrepancy in the statement regarding
connected load of witness PW1 U/Sec.161 of Cr.P.C; that there
is contradictory statement of videographer recorded U/Sec.161
Cr.P.C Ex.PW2/D3 & D4 respectively, who has not been
examined. It has been further submitted that even I.O has failed
to give any explanation regarding the delay in registration of FIR
and interestingly the I.O started investigation without registration
of the FIR that there was direction to the complainant company
to install the meter vide judgment dt. 24.02.2018 Mark PW1/D
2 but no meter was installed; that no documents like inspection
SC No : 1893/18 STATE VS. N.K. SHARMA 8/ 28
report, load report, meter detail report, seizure memo etc. were
prepared at the spot; that complainant company has raised a
false bill against the accused; 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; that no independent
witnesses of the locality were joined by the inspecting party
during the alleged inspection conducted in this case; that
accused is not liable to be convicted in this case for any offence
or that accused is not liable for any civil liability in this case. In
the end, a prayer was made for acquittal of the accused for the
offence U/Sec.135 of the Act as well as for discharging him from
civil liability as per provision of Section 154(5) of the Act.
12. Before going through the facts of the present case, it
will be relevant to reproduce the relevant provisions of
Electricity Act for ready reference :
Section 135 Theft of electricity - (1) Whoever,
dishonestly, (a) taps, makes or causes to be made any connection
with overhead, underground or under water lines or cables, or
service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current
reversing transformer, loop connection or any other device or
method which interferes with accurate or proper registration,
calibration or metering of electric current or otherwise results in a
manner whereby electricity is stolen or wasted; or
SC No : 1893/18 STATE VS. N.K. SHARMA 9/ 28
(c) damages or destroys an electric meter, apparatus, equipment, or
wire or causes or allows any of them to be so damaged or destroyed
as to interfere with the proper or accurate metering of electricity,
(d)uses electricity through a tampered meter;or
(e) uses electricity for the purpose other than for which the usage of
electricity was authorized,
so as to abstract or consume or use electricity shall be punishable
with imprisonment for a term which may extend to three years or
with fine or with both;
Provided that in a case where the load abstracted, consumed,
or used or attempted abstraction or attempted consumption or
attempted us :
(i) does not exceed 10 kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on account of
such theft of electricity and in the event of second or subsequent
conviction the fine imposed shall not be less than six times the
financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall
not be less than three times the financial gain on account of such
theft of electricity and in the event of second or subsequent
conviction, the sentence shall be imprisonment for a term not less
than six months, but which may extend to five years and with fine
not less than six times the financial gain on account of such theft of
electricity.
Provided further that in the event of second and subsequent
SC No : 1893/18 STATE VS. N.K. SHARMA 10/ 28
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........................................................
13. 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.
14. The law is well settled that in case the aforesaid
ingredients are proved, there is presumption under Proviso III of
Section 135(1) of the Electricity Act, 2003 which is reproduced
for ready reference :
"Provided also that if it is proved that any
artificial means or means not authorised by
the Board or licensee or supplier, as the case
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
SC No : 1893/18 STATE VS. N.K. SHARMA 11/ 28
electricity has been dishonestly caused by such
consumer".
(G) FINDINGS :
15. In the present case, the accused has been charged
with the allegation that on 04.05.2016 at about 7 : 50 a.m. he
was found involved in direct theft of electricity by tapping from
nearby BSES Pole through 2 core black colur aluminum wires,
when a raid was conducted at the inspected premises bearing
no.598B, Pandav Rod, Karan Gali, Vishwas Nagar, Shahdara,
Delhi 110 032. There is further allegation that the stolen
electricity was being used for domestic purposes and connected
load was found to be 04.418KW. However, accused N. K.
Sharma has denied to have committed any such theft but has
stated that there is no Karan Gali and he was not committing any
electricity theft but he was consuming the electricity from his
neighbours namely Amit Kumar and Anil Kumar as per his
explanation at the time of framing of notice.
16. The registration of the FIR Ex.PW2/A has been
proved in the present case by witness PW2.
17. Witness PW1 has proved that on 04.05.2016 he
alongwith other members of the raiding team and videographer
raided the inspected premises i.e.598B, Pandav Road, Karan
Gali, Vishwas Nagar, Shahdara, Delhi 32. He has further proved
SC No : 1893/18 STATE VS. N.K. SHARMA 12/ 28
that they inspected the premises where there was direct theft of
electricity by tapping from the nearby BSES Pole through illegal
wires. He has further proved that connected load was found to
be 04.418KW and said illegal electricity supply was being used
for domestic purposes. He has further proved the CD of the
videography of the inspected premises as Ex.P1, Inspection
Report as Ex.PW1/A, Seizure Memo as Ex.PW1/C, Load Report
prepared by the Hari Prakash as Ex.PW1/B and Complaint filed
against the accused as Ex.PW1/D.
18. He has further proved that inspection documents
were prepared at the spot. He has further proved that illegal
wires were removed and were seized vide seizure memo Ex.PW
1/C. He has also proved the filing of complaint Ex.PW1/D. He
has correctly identified the case property i.e wire removed from
the spot as Ex.P2 and has also correctly identified the accused
N. K. Sharma in the Court.
19. Witness PW2 has further proved that on receiving
the complaint, he conducted the preliminary inquiry and came to
know that a civil case was pending between the parties and
therefore, complaint was kept pending. He has further proved
that later after discussion with his seniors the present FIR
PW2/A was recorded. He has further proved the document of
identity proof of the accused i.e. Aadhar Card as Ex.PW2/C.
SC No : 1893/18 STATE VS. N.K. SHARMA 13/ 28
20. In his crossexamination, he has testified that he can
not tell the reason for delayed complaint on behalf of the
complainant. However, no such question has been put to the
witness PW1, who made complaint. He was the person who
could have explained the reason for delayed complaint. Thus,
witness PW2 was not aspected to explain the reason. Further, he
was not crossexamined on the point that as to whether he
investigated this factum of delay from complainant or not.
Hence, his testimony in this regard remained untested.
21. PW2 has denied that the present case FIR was not
lodged upon his rukka and that is why duty officer was not
examined. He has also identified the accused as well as case
property correctly before the Court.
22. In the present case, Witness PW1 has clearly
deposed and proved that accused N.K. Sharma was present at the
time of inspection and he himself is appearing in the videography
of the inspection proceedings i.e CD Ex.P1. During the final
arguments the CD was run and accused was found appearing in
the CD.
23. There is arguments advanced on behalf of the accused
that there cannot be any electricity theft with the help of 1.5
meters as alleged in the present case. However, it is not the case
of the State/complainant that the exact distance between the
SC No : 1893/18 STATE VS. N.K. SHARMA 14/ 28
inspected premises and from the pole was about 5 /10 meters.
But it was the estimation of the witness. It is clear from the CD
that there is distance between the inspected premises and pole.
However, it is to be noted here that it is the admitted case of the
accused that there was no meter installed at his premises at the
time of inspection. The initial defence of the accused was that he
was using the electricity from his neighbours. However, no such
neighbour has been examined in the present case in the defence
that they were supplying the electricity to the accused. Even the
accused did not appear in the witness box to prove this fact of the
electricity supply by his neighbours.
24. From the contents appearing in the CD Ex.P1, it is
clear that there was electricity supply at the inspected premises at
the time of inspection and it is the admitted case that there was
no meter installed at the inspected premises at the time of
inspection. Even though accused has denied any videography of
inspected proceedings in his statement but said denial is against
the record as he himself is appearing in the CD Ex.P1. He
himself has denied ownership documents of inspected premises
placed on record which has been signed by the accused himself.
This shows that accused has denied all the facts all together with
a view to give false statement.
25. It is clear from the record and evidence that there was
no electricity meter installed at the inspected premises at the
SC No : 1893/18 STATE VS. N.K. SHARMA 15/ 28
time of inspection but electricity was being used at premises.
Therefore, the arguments advanced on behalf of the accused that
he was taking the electricity from neighbours appears to be false.
26. So far as connected load is concerned, as per contents
of CD Ex.P1, accused and his family did not allow the inspection
team to enter into the inspected premises and take the connected
load. In such circumstances, there is no reason to disbelieve the
connected load recorded by the inspection team after oral inquiry
as no suggestion has been given that the accused or his family did
not disclose the oral version of connected load. Even the witness
PW2 has explained that the connected load was wrongly
mentioned in the statement U/Sec.161 of Cr.P.C due to
typographical error and there is no reason to disbelieve his
explanation.
27. 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, it has been proved on
record beyond doubt that the inspected premises was
belonging/occupied by the accused in view of the judgment mark
PW1/D2 and in view of the ownership documents Ex.PW2/D.
Thus, his plea that no raid was conducted at the inspected
premises does not hold much water.
SC No : 1893/18 STATE VS. N.K. SHARMA 16/ 28
28. The next argument advanced on behalf of the accused
is that the CD of the videography Ex.P1 and FIR Ex.PW2/A
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 when the documents i.e. CD of the videography
Ex.P1 was exhibited regarding the mode of proof that it can 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
SC No : 1893/18 STATE VS. N.K. SHARMA 17/ 28
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
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,
SC No : 1893/18 STATE VS. N.K. SHARMA 18/ 28
acquiescence would be no bar to raising the
objection in superior Court".
29. It would be relevant to refer to another case decided by
this Court in P.C. Purshothama Reddiar Vs. S. Perumal,
MANU/SC/0454/1971:(1972) 1 SCC 9. The earlier cases referred
to are civil cases while the case pertains to police reports being
admitted in evidence without objection during the trial. The Court
did not permit such an objection to be taken at the appellant stage
by holding that :
"Before leaving this case it is necessary to refer
to one of the contentions taken by Mr.
Ramamurthi, learned Counsel for the
Respondent. He contended that the police
reports referred to earlier are inadmissible in evidence as the HeadConstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the Respondent now to object to their admissibility".
30. 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 that delay in filing the complaint or registration of FIR ha;s caused any prejudice to his case. Moreover, the witness PW2 has explained that complaint was kept pending due to civil litigation between the accused and the complainant company. There is no denial of this fact by the SC No : 1893/18 STATE VS. N.K. SHARMA 19/ 28 accused. Thus, issue of preliminary inquiry and delay in registration of FIR in no way prejudiced the interest of accused.
31. It was also argued that no public persons were joined during the raid or investigation and that testimony of PW1 was not corroborated by the testimony of other team member. There is no law which mandates that in all the cases, public persons must join the proceedings or that all the team members must be examined as a witness. It is to be noted that other members are the witness of same facts and therefore, their nonexamination in no way give rise any adverse presumption against the State. Thus, nonjoining of public persons or nonexamination of all team members in no way marred the interest of the accused in any manner.
32. The witnesses PW1 and PW2 in their testimonies have clearly proved the inspection on 04.05.2016 at the inspected premises bearing No.598B, Pandav Road, Karan Gali, Vishwas Nagar, Shahdara, Delhi 110 032 by proving the inspection report Ex.PW1/A, Connected Load report Ex.PW1/B They have also proved the seizure memo vide Ex.PW1/C. The proceedings of the Inspection were videographed and CD of the same has been proved as Ex.P1. They have correctly identified the case property as Ex.P2 as well as the accused. They have also proved the mode of electricity theft by illegal tapping by the accused for domestic purpose. They have proved that there was SC No : 1893/18 STATE VS. N.K. SHARMA 20/ 28 direct theft of electricity at the inspected premises through illegal wires connected from nearby BSES Pole.
33. Nothing material has come out in the cross examination of any of the witnesses except typographical error in recording of statements of witnesses U/Sec. 161 of Cr.P.C which was sufficiently explained nor there is anything on record to dis believe the testimonies of the witnesses as their testimony remained unrebutted and unshakened despite their lengthly crossexamination.
34. Thus, from the above testimonies of PWs coupled with the documentary evidence led on behalf of the prosecution, it is proved that there was electricity theft by direct tapping through illegal wire for illegal supply by accused.
35. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that he was not involved in electricity theft in any manner or that he was not the consumer of the electricity.
36. 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 SC No : 1893/18 STATE VS. N.K. SHARMA 21/ 28 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".
37. It is to be noted that the accused had not placed any bill regarding the payment of regular bill of the meter installed in the inspected premises nor he has examined any witness that he was taking electricity supply from neighbours. 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 by tapping from the nearby BSES Pole through illegal wire. Paid electricity bills would have been the best evidence to show that the accused was using electricity through meter or examining witness to prove that SC No : 1893/18 STATE VS. N.K. SHARMA 22/ 28 accused was using electricity from neighbours. Though any supply from the neighbour is unauthorised but in such situation it could not be held illegal. 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 or to examine witness in his defence from neighbours. But he has failed to prove any such bill on record or to examine any such witness.
38. 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 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, 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. Moreover, pendency of SC No : 1893/18 STATE VS. N.K. SHARMA 23/ 28 Civil Litigation does not give any license to the accused to use electricity without meter.
39. Further, it has to be kept in the mind that the conclusion of theft after trial can not be made merely on the basis of an inspection report. If the law had been that the inspection report in itself would have been conclusive evidence of the theft of electricity and no further evidence would have been required, it would have been possible for the counsel for the accused to argue that since the inspection report was the conclusive evidence of theft, the inspection report must strictly comply with the rules. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection Report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the Court by cogent evidence therefore, the validity of the inspection report cannot be attached too much of importance.
40. Similarly, even non production of the case property i.e. wires through which electricity was being stolen or are not a serious infirmity in any electricity theft case since the case can be proved by oral testimony supported by photographs/videography showing the theft of electricity. Instead, in the present case, the videography has been proved to substantiate the allegation of SC No : 1893/18 STATE VS. N.K. SHARMA 24/ 28 theft. 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. Thus, if for the sake of arguments, it is the accepted that no wire was removed as contended on behalf of the accused, it does not make any difference upon the merits of the case unless and until accused himself is able to prove that he was consuming the electricity through valid source for domestic purpose.
41. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like 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 or removal of full length wire do not appeal in case of theft of electricity.
SC No : 1893/18 STATE VS. N.K. SHARMA 25/ 28
42. In view of the aforesaid 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 him under the ProvisoIII of the Electricity Act that he was 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 was very much present at the inspected premises and was using the illegal electricity supply without having any valid licence/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.
43. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused that he was falsely implicated. The accused has taken a vague plea that he has been falsely implicated in the present case. Despite opportunity accused has failed to bring any witness that he was using the electricity through valid source. Even in the videography, he is appearing and there is resistance not to enter into in the inspected premises.
44. 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.
SC No : 1893/18 STATE VS. N.K. SHARMA 26/ 28 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 judgement that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
(H) CONCLUSION :
45. From the aforesaid discussion, it is proved beyond any shadow of doubt by the prosecution from the cogent evidence that an inspection was carried out on 04.05.2016 at about 7 : 50 a.m. at the premises No.598B, Pandav Road, Karan Gali, Vishwas Nagar, Shahdara, Delhi 110 032 and that the said premises belongs to the accused N. K. Sharma and there was direct theft of electricity by tapping from nearby BSES pole SC No : 1893/18 STATE VS. N.K. SHARMA 27/ 28 through illegal wires. Further, there was no meter found installed at the inspected premise.
46. In the light of the aforesaid discussion, it has been proved on record that it was the accused who was 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, load report, seizure memo and Videography of the inspected premises which was being used for domestic purpose by the accused without having any valid source of electricity and connected load was found to be 04.418KW. Accordingly, the accused N. K. Sharma is held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and is also held liable for the civil liabilities for using electricity illegally for commercial purpose under section 154(5) of the Electricity Act.
Be put up on 21.12.2018 for arguments on the point of sentence.
ANNOUNCED IN THE OPEN COURT TODAY ON 20th December, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 28 no. of pages) (One Spare copy is attached) Digitally signed by DEVENDRA DEVENDRA KUMAR KUMAR SC No : 1893/18 SHARMA STATE VS. N.K. SHARMA 28/ 28 Date: 2018.12.21 16:37:28 SHARMA +0530