Delhi District Court
State (Bses) vs Momin on 19 May, 2026
SC No.231/2021 State (BSES YPL) vs Momin & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 231/2021
FIR No. 375/2019
Under Section 135/150 Electricity Act
PS Gandhi Nagar
State
versus
1) Momin
S/o Sh. Noor Mohammad
2) Sabira
W/o Sh. Noor Mohammad
Both R/o E-78/107, Gali No.1,
Chander Puri, Gandhi Nagar,
Delhi-110031.
.... Accused
Date of institution 07.04.2021
Arguments heard 19.05.2026
Judgment Pronounced on 19.05.2026
Decision Convicted
JUDGMENT
1. Accused Momin and Sabira are facing trial upon the allegations that Momin (user of electricity) was indulged in theft of electricity and accused Sabira who was found to be registered consumer, is stated to have abetted said Judgment 1 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
Momin to commit theft of electricity and thereby, accused Momin committed an offence punishable U/s 135 of the Electricity Act, 2003 and accused Sabira committed an offence punishable U/s 135 r/w section 150 of Electricity Act 2003 (hereinafter referred to as 'the Act').
Brief Facts
2. On 26.08.2019, at about 2.15 pm, an inspection was conducted by the inspection team of BSES Yamuna Power Limited (hereinafter referred as complainant company) headed by Sh. Jitender Kumar (Manager of the complainant company) in the residential premises of accused i.e. E-78/107, Gali No.1, Chanderpuri, Dharampura, Delhi-110031.
3. At the time of inspection, one electricity meter bearing no.35031265 was found installed at the premises in the name of accused Sabira, however, accused Momin was found indulged in direct theft of electricity with the single core insulated wires which were found connected from BSES YPL AB Conductor with the help of change over switch.
4. At the time of inspection, accused Momin was present and connected load was found to the tune of 2.102 KW which was being used for commercial purposes i.e. work of automatic collar pasting work. It is further alleged that Momin was found to be user of electricity while accused Sabira was found to be registered consumer and abetted Judgment 2 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
the accused Momin to commit theft of electricity. Videographer Sh. Jasveer Singh captured videography of inspection proceeding. Inspection documents i.e. Inspection Report, Load Report, Seizure memo and Advisory notice were prepared at the spot.
5. On the basis of connected load, applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.1,82,203/- Accordingly, a theft bill was raised and sent to the accused persons but they did not make payment of the theft bill.
6. On failure to pay the theft bill amount, complainant company through its Authorized Officer lodged a complaint U/s 135/138 Electricity Act 2003 against the accused Momin and U/s 135/138 r/w section 150 of the Electricity Act, 2003 against the accused Sabira, with SHO, PS Gandhi Nagar for registration of FIR against the accused persons.
7. On the said complaint, present FIR No.375/2019 was registered and investigation of the case was marked to HC Mohanbir, the IO of the case. After completion of investigation, IO filed the charge-sheet against the accused persons.
Notice
8. On 09.01.2024, notice U/s 251 Cr.P.C for commission of offence punishable U/s 135 of Electricity Act 2003 against Judgment 3 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
the accused Momin and U/s 135 r/w Section 150 of Electricity Act 2003 against the accused Sabira was given to both accused persons to which they pleaded not guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution examined following witnesses.
10. PW2 Sh. Jitender Kumar is the Manager of the Complainant Company who was heading the inspection team. He proved CD of videography of the inspection proceedings as Ex.PW2/A, inspection report as Ex.PW2/B, load report as Ex.PW2/C, seizure memo as Ex.PW2/D, Advisory notice as Ex.PW2/E and theft bill as Ex.PW2/F. He also proved the complaint lodged by him as Ex.PW2/G. He also proved the case property i.e. single core aluminum wires which was removed from the spot and seized as Ex.P1 (colly).
11. PW3 Sh. Jasveer Singh is the videographer who, on the instruction of team leader Sh. Jitender Kumar/PW2, captured videography of the inspection proceedings. He proved the video contained in the CD as Ex.PW2/A and Certificate U/s 65B of Indian Evidence Act as Ex.PW3/A.
12. PW1 ASI Mohanbir (then HC) is the IO of the case. He proved the endorsement made on rukka as Ex.PW1/A, FIR as Ex.PW1/B, site plan as Ex.PW1/C, notices U/s 41A Cr.P.C given to accused Momin and Sabira as Ex.PW1/D Judgment 4 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
and Ex.PW1/E and interrogation report as Ex.PW1/F. He also proved copy of Aadhar Cards of the accused persons as well as electricity bill in the name of accused Sabira as Ex.PW1/G colly. PW1/IO further deposed that during investigation, it was revealed that accused persons were in possession of the inspected premises at the relevant time and in this regard he recorded the statements of their neighbours namely Deepak Kashyap and Ratik Khan which are proved on record as Ex.PW1/H and Ex.PW1/I. He also proved the Pabandinamas of accused persons as Ex.PW1/J and Ex.PW1/K. Statement of Accused
13.All incriminating evidence which has come on record, were put to the accused persons under Section 313 Cr.P.C. Accused persons denied all material allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead any defence evidence and accordingly opportunity to lead defece evidence was closed and matter was posted for final arguments.
Arguments
14.Ld. Addl. PP assisted by AR of the complaint company submitted that accused Momin was found to be user of electricity, was found indulged in direct theft of electricity. It is further deposed that one electricity meter bearing no.35031265 was found installed at the premises in the Judgment 5 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
name of accused Sabira despite that accused Momin was found indulged in direct theft of electricity with the help of single core insulated wires which were found connected from BSES YPL AB Conductor with the help of change over switch. It is further submitted that accused Sabira being registered consumer allowed/abetted user Momin to commit direct theft of electricity and accused Sabira being registered consumer is responsible for the said act. Ld. Addl. 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 persons may be convicted.
Analysis
15. Ld. Counsel for accused, on the other hand, submitted that accused persons are innocent and have been falsely implicated in this case. It was submitted that accused have not committed any theft of electricity. It is also submitted that during pendency of trial, accused persons have settled the civil liability qua impugned theft bill but due to financial constraint, settlement amount could not be deposited.
16.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:-
Judgment 6 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
"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;"
17.In this case, accused Sabira was found to be registered consumer and co-accused Momin 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, accused Sabira is 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 Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal No.479/2011).
18.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 Judgment 7 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
(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 punishment provided for the offence.
(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which 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:
Judgment 8 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
19. There is a presumption mentioned in the third proviso of Section 135(1) of the Electricity Act, 2003 which reads as follows:-
"Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
20.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines 'dishonestly' and holds that Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
21.As per prosecution case, at the time of inspection, one electricity meter bearing no.35031265 was found installed at the premises in the name of accused Sabira but co- accused Momin who is son of accused Sabira was found indulged in direct theft of electricity with the help of single core insulated wires which were found connected from BSES YPL AB Conductor with the help of change over switch. Accused Momin was found to be user of the electricity and accused Sabira was found to be registered consumer. Accused Sabira being registered consumer permitted/allowed the user Momin to commit direct theft Judgment 9 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
22. Under Electricity Act' Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deals with theft of electricity. Regulation 60 empowers authorized Officer to inspect premises. Under Regulation 61 Authorized Officer makes an Inspection Report, Regulation 62 lays down procedure to report a case of theft and then under Regulation 63 there is assessment of theft bill.
23. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 60. Inspections of the premises and electrical installations by Authorized officer: -
(1) The Authorized officer shall promptly conduct inspection of any premises either suo-moto or on receipt of information regarding theft of electricity:
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 Judgment 10 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
Commission's Orders.
(2) All the material evidences such as tampered meter, tampered meter seal and artificial means used for illegal abstraction of energy and the documentary evidences etc., which are relevant to the case and found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his authorized representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points: Provided that if the witness refuses to sign, the same shall be recorded in the report and captured in the videography.
(4) The inspection Report shall be signed by the Authorized officer and a copy of the same shall be handed over to the consumer or his representative at the site immediately under proper acknowledgement. The other persons present at site may also sign the inspection report.
(5) If consumer or his representative at site refuses to acknowledge and accept the copy of the report, a copy of the report shall be pasted at a conspicuous place in or outside the premises and photographed and/or video recorded. Another copy of the same report shall be sent to the consumer under Registered Post or Speed Post or electronically on the same day or on the next day of the inspection.
(6) The inspection report shall form the basis for further action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity: -
(1) The prosecution for theft of electricity under section 135 of the Act shall be initiated only in the cases where dishonest intention is evident from the relevant facts, records and other evidence of the case.
(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 Judgment 11 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act: Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty-four hours from time of such disconnection: Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy consumed by resorting to external methods involving remote control, high voltage injection etc., committed by the consumer or his employee or any other person acting on his behalf, shall also constitute theft of electricity which may be established by analysis of metering data and by testing of the meter in an accredited laboratory notified by the Commission or by the agency authorized by the Commission in this regard.
63. Assessment Bill for theft of electricity: -
(1) The Assessing officer shall assess the energy for theft of electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall be for a period of 12 (twelve) months preceding the date of detection of theft of electricity or the exact period of theft if determined, whichever is less: Provided further that period of theft of electricity shall be assessed based on the following factors: -
(i) actual period from the date of commencement of supply to the date of inspection;
(ii) actual period from the date of replacement of component of metering system in which the evidence is detected to the date of inspection;
(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 Judgment 12 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
to the consumer for the electricity units already paid by the consumer for the period of the assessment bill. (5) The assessment order shall be served upon the consumer or the person in occupation or possession or in charge of the place or premises, as the case may be, within 7 (seven) days of disconnection of supply or within 2 (two) days from the date of receipt of request of such person, whichever is earlier.
24. As per prosecution case, at the time of inspection, user Momin was found to be user of the electricity in the inspected premises and was indulged in direct theft of electricity with single core insulated wires which were found connected from BSES YPL AB Conductor with the help of change over switch.
25. PW2 Sh. Jitender Kumar (Manager) and PW3 Sh. Jasveer Singh (Videographer) are prime witnesses of this case being members of inspection team. PW2 corroborated the allegations made in the complaint ( Ex.PW2/G) and deposed that at the time of inspection, one electricity meter bearing no.35031265 was found installed at the premises in the name of accused Sabira, however, co-accused Momin was found indulged in direct theft of electricity with the help of single core insulated wires which were found connected from BSES YPL AB Conductor with the help of change over switch. This fact has not been rebutted by the accused persons in the cross-examination of PW2.
26. PW2 further deposed that at the time of inspection, accused Momin was present at the spot and total connected load was found to be 2.102 KW which was being used for commercial purposes i.e. automatic collar pasting work.
Judgment 13 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
Accused persons have not disputed the load report, its content and its genuineness. PW2 further deposed that illegal wires were removed and seized at the spot vide seizure memo Ex.PW2/D and this fact has not been disputed by the accused persons.
27. PW2 further deposed that on his instruction, PW3 Jasveer Singh conducted the videography of the Inspection Proceedings in which the commission of theft of electricity at the inspected premises was recorded. Accused persons have not denied the contents of video and its genuineness.
28. PW2 and PW3 were duly cross-examined by Ld. Defence Counsel for accused persons was unable to bring out any contradiction in their testimony. Further the inspection of the premises appears to have been admitted by the accused persons because in reply to the question of Ld. Defence Counsel, PW2 stated that the inspection was conducted on the direction of Assistant Vice President late Sh. Mukesh Sharma, South East Circle and the said direction was oral. PW2 further replied that at the time of inspection, one electricity meter was found installed in the name of accused Sabira, however, accused was committing theft of electricity with the help of wire which was connected from BSES Electricity Network.
29. 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 Judgment 14 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
persons have not disputed the calculation of the load as mentioned in the load report. Accused persons not rendered any alternative explanation. Accused Sabira is admittedly the registered consumer and accused Momin is stated to be user of the electricity at the relevant time. So it is evident that accused Sabira knew that user Momin also shared the intention alongwith accused to indulge into acts constituting direct theft of electricity. Furthermore, accused Sabira knew that the said meter was lying in stopped condition despite that she permitted/allowed to use the electricity in the inspected premises. 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 and preparation of documents, videography of inspection proceedings done by videographer stands proved.
30.It is submitted on behalf of accused persons 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 PW2 and PW3.
31. During evidence, CD (Ex.PW2/A) containing inspection proceedings was played before the court which depicted the manner in which the accused was found indulged in direct theft of electricity through illegal cable. Accused Judgment 15 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
Momin has neither disputed his identity nor the identity of the inspected premises shown in the video contained in the CD. Furthermore, in the entire cross-examination, accused persons have not disputed or rebutted the fact that they were indulged in theft of electricity with the help of single core insulated wires which were found connected from BSES YPL AB Conductor and they were doing so with the help of change over switch as deposed by PW2.
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, Judgment 16 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
the Hon'ble Delhi High Court has held that non- examination of independent/public witness is no infirmity as the members of the inspection team who deposed in the court, were having no enmity against the appellant and their testimonies are trustworthy. In the present case also, there is no material to show that the BSES officials who inspected the premises of the accused were inimical to the accused.
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.
Judgment 17 of 23
SC No.231/2021 State (BSES YPL) vs Momin & Anr.
36. Coming to the Presumption as envisaged U/s 135 of
Electricity Act, it is to be noted that it uses the word "shall presume". Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by law". The expression "may presume" and "shall presume" in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the 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 presumption. Relevant portion of the para no.16 is reproduced as under:-
Judgment 18 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
"...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 taken any defence to rebut the aforesaid statutory presumption. Accused persons did not lead any defence evidence nor they have brought anything on record which could suggest that accused Momin was drawing electricity through authorized means or electricity meter only. It is a matter of record that one electricity meter no.35031265 was installed in the name of accused Sabira simultaneously it is not denied there was a change over switch through which power supply from the electricity meter can be changed that too at the whims of accused. During the course of arguments, AR of the complainant company was asked to explain the mode and manner of theft of electricity. AR of the complainant submitted that accused persons were involved in theft of electricity with the help of change over switch installed in the premises of the accused. He further submitted that an illegal wire was connected from BSES YPL Network to change over switch which was installed in the premises and accused, at any time on his whims, can change outgoing power supply from the electricity meter with the help of said change over switch.
39.In the video contained in the CD Ex.PW2/A, it can be Judgment 19 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
seen that there is a change over switch installed in the premises and illegal wires which were illegally tapped from BSES YPL Netowrk, were connected from change over switch and thus, accused can change the out going supply of the electricity meter at any point of time. This mechanism was done by the accused in such a manner that the same are not visible to any other people except accused persons. It is not the case of the accused that there was any Genset in the premises of accused for which change over switch was required to be used in case of non-availability of power supply from BSES YPL.
40. Furthermore, it is clear from the evidence of PW2 that in regard to the electricity theft, the complainant company had raised a theft bill of Rs.1,82,203/- and sent to the accused persons but they did not make payment of the theft bill. During the course of arguments, Ld. Defence Counsel submitted that that accused persons have settled the matter qua civil liability but the settlement amount could not be deposited due to financial constraints. 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.PW2/F), then instead of going for settlement, accused persons would have raised their protest and would have initiated appropriate proceedings against complainant company for raising a false claim against them. This conduct of the Judgment 20 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
accused persons also fortifies the allegations of the direct theft of electricity against him.
41. Notwithstanding, if the accused persons 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, they were drawing electricity through their own electricity meter. However, accused persons have 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 persons have failed to rebut the statutory presumption.
42. If the user Momin 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 Sabira was to prove on record that at the time of inspection, user Momin was drawing electricity through his own electricity meter. However, accused persons have not brought anything on record to disprove the allegations brought on record by the prosecution. Accordingly, it is held that accused persons have 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 Judgment 21 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
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 been the best evidence to show that the appellant 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 persons did not lead any defence evidence. If the user Momin was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused Sabira, who claimed herself to be registered consumer, 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 accused Sabira was registered consumer but the said meter was lying in stopped condition and both the accused were persons were in use and occupation of the inspected premises at the relevant time and they were indulged in direct theft of electricity in the manner discussed above. Accused persons Judgment 22 of 23 SC No.231/2021 State (BSES YPL) vs Momin & Anr.
have 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 Momin was indulged in direct theft of electricity through illegal wire. It is also proved on record that accused Sabira was the registered consumer while accused Momin has been proved to have indulged in direct theft of electricity by attaching illegal external device. Accused Sabira being the registered consumer permitted/consciously allowed the user Momin to commit direct theft of electricity. Thus, accused Sabira is guilty of abetment of offence of direct theft of electricity and accused Momin is guilty of offence punishable U/s 135 of Electricity Act. Accordingly, accused Sabira is held guilty and convicted for the offence punishable U/s 135 r/w Section 150 of the Electricity Act 2003 and accused Momin is held guilty and convicted for the offence punishable U/s 135 of Electricity Act 2003. Let convicts be heard on quantum of sentence. Announced in the Open Court on 19.05.2026.
(Ashish Rastogi)
Addl. Sessions Judge-05 (Electricity)
East/Karkardooma Courts/Delhi
Judgment 23 of 23