Delhi District Court
State vs 1) Sonu Mohd. on 18 November, 2022
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.484/2022
FIR No.492/2019
U/s 135/150 of Electricity Act
PS Welcome
State versus 1) Sonu Mohd.
S/o Chand Khan
2) Farhim Khan
S/o Chand Khan
Both R/o E-49/F-344,
Janta Mazdoor Colony,
Welcome, Delhi
Date of institution 22.04.2022
Arguments heard 18.11.2022
Date of judgment 18.11.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. Santosh Kumar Singh, lodged a complaint under section 135/150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') with the SHO, PS Welcome, for registration of FIR against the accused (1) Sonu Mohd. (User) and accused (2) Farhim Ahmad (Registered Consumer) U/s 135/150 of the Act.
FIR No.492/2019 State vs Sonu Mohd. etc 1 of 16
2. Succinctly the facts of the case are that on 20.08.2019, at 5.50 am, an inspection was carried out by the joint inspection team of the complainant company at the premises of accused persons i.e. E-49/F-344, Janta Mazdoor Colony, Welcome, Delhi-110053. The inspection team comprised of Sh. Santosh Kumar Singh (Assistant Manager of the complainant company), Sh. Satveer Sharma (DET), Sh. Manish Hans (Lineman) and Sh. Puneet (Videographer) alongwith one lady guard and local police officials. At the time of inspection, one meter bearing no.25354802 with reading 5470 KWH units was found installed at site but the user was found indulged in direct theft of electricity through single core black colour illegal PVC aluminium wires which were joined with AB Conductor of BSES Pole. Total connected load was found to the tune of 2.541 KW which was being used for domestic purposes. The wires were passing through back side of the Gali at the premises and the meter was found stopped. Necessary videography of the inspection proceedings was captured by the videographer Sh. Puneet. The illegal wires were removed by the lineman and seized at the spot. The inspection report, load report and seizure memo were prepared at the spot. It is averred that accused no.1 is the user and accused no.2 is the registered consumer. It further averred that the accused no.2 abetted accused no.1 to commit direct theft of electricity. The act of the accused no.2 fall within the provisions of Section 135 read with Section 150 of the Act while act of accused no.1 falls within the provision of Section 135 of the Act. Thus, a prayer was made in the complaint to register an FIR against the accused persons U/s 135 and 150 of the Act.
FIR No.492/2019 State vs Sonu Mohd. etc 2 of 16
3. The SHO handed over the said complaint to Duty Officer for registration of FIR against the accused persons. Accordingly, the Duty Officer registered the FIR No.492/2019 and marked the investigation of the case to HC Narender (now ASI), the IO of the case. Thereafter, IO visited the inspected premises, prepared site plan and served the accused persons with the notices u/s 41(A) Cr.P.C. Accused persons joined the investigation and IO interrogated them and recorded their disclosure statements. Both accused persons produced copies their Aadhar Cards.
During investigation, it revealed that both accused persons were in possession of the inspected premises at the relevant time and in this regard, IO also recorded statements of neighbourers namely Shabana and Afzal. IO bound down the accused persons vide Pabandinamas. After completion of investigation, PW1/IO filed the charge-sheet.
4. On 04.8.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Farhim. A separate notice for the commission of offence U/s 135 of the Act was given to accused Sonu Mohd. Both accused persons pleaded not guilty and claimed trial.
5. In order to prove its case against the accused, the prosecution examined the following witnesses. In order to put the facts in chronological order, the testimony of members of inspection team is being discussed first.
6. PW2 Sh. Satveer Sharma is the Diploma Trainee Engineer (DET), who deposed that on 20.08.2019, at about 5.50 am, an inspection was conducted by enforcement team of BSES YPL comprising of himself, Sh. Santosh Kumar Singh (Asstt. Manager), Sh. Manish Hans (Lineman), FIR No.492/2019 State vs Sonu Mohd. etc 3 of 16 and Sh. Puneet (Videographer) at the premises of accused persons i.e E- 49/F-344, Janta Mazdoor Colony, Delhi-110053. At the time of inspection, one electricity meter no.25354802 with reading 4507 KWH was found installed at the inspected premises, however, the said meter was found in stopped position and the user/accused was indulged in direct theft of electricity with the help of two wires which were connected from AB Conductor of BSES YPL from backside Gali. PW2 further deposed that at the time of inspection, accused Sonu Mohd. was present at the spot, who disclosed his name as Shan S/o Chand. The total connected load was found to the tune of 2.541 KW which was being used for domestic purposes at the ground and the first floor of the inspected premises. The necessary videography of the inspection proceedings was captured by the videographer Sh. Puneet on the instructions of Team Leader Sh. Santosh Kumar Singh. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW2/1. During evidence, the CD was played on the laptop and PW2 identified the video which was captured by videographer Sh. Puneet. PW2 also identified accused Sonu Mohd. in the said videography. During inspection, the inspection report Ex.PW2/2 and the the load report Ex.PW2/3 were prepared at the spot. PW2 further deposed that the illegal wires were removed by the Lineman Sh. Manish Hans and seized at the spot vide seizure memo Ex.PW2/4. Entire inspection documents were prepared at site during inspection and the same were tendered to the user/accused for signature but the accused refused to sign and accept the same. On the basis of inspection, a theft bill of Rs.46,961/- (Ex.PW2/5) was raised and sent to you. Thereafter, on FIR No.492/2019 State vs Sonu Mohd. etc 4 of 16 24.09.2019, a complaint was lodged by Sh. Santosh Kumar Singh (Asstt. Manager of BSES YPL) with the SHO, PS Welcome.
7. PW3 Sh. Puneet is the Videographer, who deposed that on 20.08.2019, at about 5.50 am, an inspection was carried out by the enforcement team of BSES YPL at the premises of accused and on the instructions of team leader Sh. Satish Kumar Singh (Assistant Manager), he captured the videography of inspection proceedings. He also identified the CD (Ex.PW2/1) played before the court as well as its contents.
8. PW1 ASI Narender (then HC) is the IO of the case. This witness deposed that on 24.09.2019, the complaint lodged by Sh. Santosh Kumar Singh (Assistant Manager of the complainant company) was given to Duty Officer for registration of FIR. Accordingly, the Duty Officer registered FIR No.492/2019 and marked the investigation of the case to him. The copy of FIR has been brought on record as Ex.PW1/1. Thereafter, he visited the inspected premise, prepared site plan Ex.PW1/2 and served the accused persons with the notices u/s 41.1(A) Cr.P.C (Ex.PW1/3 and Ex.PW1/4). During investigation, accused persons produced copies of their Aadhar Cards Mark A. PW1 also deposed that during investigation, it revealed that both the accused persons were in possession of the inspected premises at the relevant time and in this regard, he also recorded statements of neighbours namely Shabana and Afzal U/s 161 Cr.P.C. Thereafter, he bound down both the accused persons vide Pabandinamas Ex.PW1/9 and Ex.PW1/10. After completion of the investigation, he filed the charge-sheet.
FIR No.492/2019 State vs Sonu Mohd. etc 5 of 16
9. After completion of prosecution evidence, statements of accused persons were recorded U/s 313 Cr.P.C. Both accused persons admitted that an inspection was carried out at their aforesaid premises. They also admitted that meter no.25354802 was lying installed at their premises. It is also admitted that at the time of inspection, user/accused was present at the spot at the time of inspection and necessary videography was done by the videographer. However, accused persons denied that they were involved in direct theft of electricity through illegal wires. Accused persons stated that they have settled the matter with the complainant company and they have also made the payment and an NOC has been issued. Accused persons did not lead any evidence to their evidence.
10. Final arguments have been heard from the Ld. Addl. PP as well as Ld. Counsel for the accused persons. During the course of arguments, Ld. Addl. PP submitted that at the time of inspection, one electricity meter No.25354802 was found installed at the inspected premises in the name of accused Farhim Khan but same was lying stopped while illegal wires were found connected by accused Sonu to the conscious knowledge of accused Farhaim, the owner of the premises. It is further argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses.
11. Ld. Defence Counsel, on the other hand, argued that accused persons are innocent and they have been falsely implicated in the present case. Accused persons have not committed any theft of electricity. It is further submitted that matter has already been settled with the complainant company and settlement amount has already been paid and NOC has FIR No.492/2019 State vs Sonu Mohd. etc 6 of 16 already been issued by the complainant company.
12. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to 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 Sections 135 as well as 150 of Electricity Act. The provisions of Section 135 and150 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:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the FIR No.492/2019 State vs Sonu Mohd. etc 7 of 16 sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
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:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
FIR No.492/2019 State vs Sonu Mohd. etc 8 of 16
13. 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".
14. As per prosecution case, at the time of inspection, one electricity meter No.25354802 was found installed at the inspected premises in the name of accused Farhim Khan and and accused Sonu Mohd. was found to be user. At the time of inspection, accused/user Sonu Mohd. was found indulged in direct theft of electricity through illegal wires. Accused Farahim Khan being registered consumer as well as landlord, let/permitted/allowed the user/accused Sonu Mohd. commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused beyond reasonable doubt.
15. PW2 Sh. Satveer Sharma (Manager) and PW3 Sh. Puneet (Videographer) are the material witnesses in this case. PW2 corroborated the allegations made in the complaint (Ex.PW2/5) and his testimony is in conformity with the documents i.e. inspection report (Ex.PW2/2), load report (Ex.PW2/3) and seizure memo (Ex.PW2/4). He has also identified the user/accused Sonu Mohd. in the video contained in the CD (Ex.PW2/1).
16. PW1 IO ASI Narender deposed that during investigation, it was revealed that accused persons were in possession of the inspected premises at the the relevant time and in this regard he proved on record statements FIR No.492/2019 State vs Sonu Mohd. etc 9 of 16 of neighbours of accused persons namely Shabana and Afzal as Ex.PW1/7 and Ex.PW1/8. All these facts have not been disputed by the accused persons in the cross-examination of PW1.
17. It is clear from the testimony of PW2 and PW3 that on 24.09.2019, at about 5.50 am, an inspection was carried out at the premises of accused persons by the inspecting team members/officials of complainant company and at the time of inspection, aforesaid electricity meter was found installed in the name of accused Farhim Khan and this fact has not been disputed by the accused in the cross-examination of PW2. It is further clear from the testimony of PW1/IO as well as statements of accused persons recorded U/s 313 Cr.P.C that they were in possession of the inspected premises and accused Farhim Khan was registered consumer while accused Sonu Mohd. was user in the inspected premises at the relevant time. It is further clear from the testimony of prosecution witnesses as well as video contained in the CD Ex.PW2/1 that the user/accused Sonu Mohd. indulged in direct theft of electricity through illegal wires which were removed and seized by the lineman at the time of inspection. Accused persons have not disputed this fact in the cross- examination of PW2. Inspection proceedings were recorded by videographer and CD containing videography of the said inspection proceedings was brought on record as Ex.PW2/1. In their statements recorded U/s 313 Cr.P.C, it is not denied that user/accused was present at the spot at the time of inspection and necessary videography was done by the videographer. Perusal of cross-examination of PW2 that though, the accused persons endevaoured to dispute the factum of inspection, FIR No.492/2019 State vs Sonu Mohd. etc 10 of 16 preparation of inspection documents, seizure memo and videography of the inspection proceedings in the cross-examination of witnesses, however, they have not specifically disputed the factum of preparation of the relevant documents, the contents and authenticity of the inspection report and CD containing videography of the inspection proceedings. Accused persons have not specifically disputed the genuineness of assessment of load assessed by the complainant as specified in the load report Ex.PW2/3. During evidence, PW2 identified the video recorded by videographer as well as user/accused Sonu Mohd. in the said video. Accused persons have also not disputed the identity of the inspected premises shown in the video contained in the CD Ex.PW2/1. In their statements recorded U/s 313 Cr.P.C, accused persons have also admitted that inspected premises were in their possession at the relevant time and user/accused was user in the inspected premises. The videography of the inspection proceedings was recorded by videographer and user/accused has been identified by PW2 in the video contained in the CD (Ex.PW2/1) during their evidence and accused persons have neither disputed the identity of the user/accused nor disputed the contents of the video. Thus, factum of inspection, presence of accused/user well as videography of the inspection proceedings conducted by the videographer stand proved.
18. In their statements, PW2 and PW3 has clearly deposed that meter no.25354802 was lying installed in the name of accused Farahim Khan and accused/user Sonu Mohd. was indulged in direct theft of electricity through illegal wires with the help of illegal wires which were found connected from BSES AB Conductor. It is also clear from the statement of FIR No.492/2019 State vs Sonu Mohd. etc 11 of 16 PW1 as well as statements of accused persons recorded U/s 313 Cr.P.C that the inspected premises were in possession of the accused persons at the relevant time and at the time of inspection, accused Sonu Mohd. was user. Thus, in view of settled provision of section 150 of the Act, accused Farahim Khan being registered consumer is liable for abetment of the offence of direct theft of electricity as he let the user/accused Sonu Mohd. commit direct theft of electricity through illegal wires. Accused persons endevaoured to deny the fact that the accused/user was not indulged in any type of theft of electricity, however, it is clear that during evidence before the court, CD (Ex.PW2/1) containing video clip of inspection proceedings was played before the court which depicted the manner in which user/accused Sonu Mohd. was found indulged in direct theft of electricity through illegal wires.
19. As per testimony of PW2 as well as statements recorded U/s 313 Cr.P.C, accused Farahim Khan was the registered consumer and thus, it was his duty to ensure that electricity supply of the premises is carried out in the inspected premises only through authorized meter and not through direct theft of electricity. It is clear from the evidence of the prosecution witnesses that the user/accused Sonu Mohd. was indulged in direct theft of electricity through illegal wires. It is not the case of the accused Farahim Khan that he was not aware about the factum of direct theft of electricity being committed by the user/accused Sonu Mohd. Accused Farahim Khan has not specifically denied the factum of direct theft of electricity committed by the user/accused. It is clear from the statements recorded U/s 313 Cr.P.C, that accused persons have settled the matter qua theft bill FIR No.492/2019 State vs Sonu Mohd. etc 12 of 16 with the complainant company and they have already paid the settlement amount and NOC has also been obtained by them. In case, accused Farahim Khan was unaware that user/accused Sonu Mohd. has committed direct theft of electricity then he ought to have brought this fact to the notice of the complainant and he ought to have disassociated himself from the said illegal activity of user/accused. However, it is clear that accused Farahim Khan did not take any action in this regard against the user/accused and his aforesaid conduct speaks for itself that he was well aware of the illegal act of the user/accused. Thus, under these facts and circumstances, it can be very well said that once the accused Farahim Khan had come to know about the said illegal activity of the accused/user, he ought to have taken appropriate action against the user/accused Sonu Mohd. and he was also duty bound to inform the complainant company about the same, however, he did not do the needful though, he was well aware that accused/user is indulged in direct theft of electricity. Being registered consumer as well as landlord, accused Farahim Khan has also remained silent and he did not take any action against the user/accused which indicates that he was also well aware that user/accused was indulged in direct theft of electricity. Thus, under these circumstances, it can be very well said that accused Farahim Khan has abetted the offence of direct theft of electricity and therefore, he is liable U/s 150 of the Act.
20. In view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act, once the prosecution successfully establishes the charges against the accused regarding the theft of electricity, it is to be presumed that accused has committed theft of FIR No.492/2019 State vs Sonu Mohd. etc 13 of 16 electricity unless accused brings some evidence on record to rebut the presumption. In view of the discussions made in the preceding paras, it is held that the prosecution has proved the charges against the accused persons that the user/accused Sonu Mohd. who was in possession of the inspected premises at the relevant time, indulged in direct theft of electricity, in connivance with accused Farahim Khan and therefore, in view of the third proviso of section 135 (1) of the Electricity Act 2003, it is to be presumed that user/accused Sonu Mohd. was indulged in direct theft of electricity, in connivance with accused Farahim Khan, if he is unable to rebut the statutory presumption.
21. The Hon'ble Supreme Court in case reported as '2001 (6) SCC 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
22. In view of the settled law, now it is to be seen if the accused persons have taken any defence to rebut the statutory presumption. Accused persons have simply stated in their statements recorded U/s 313 Cr.P.C that they are innocent and have been falsely implicated in this case. They stated that they have already settled the dispute and settlement amount has already been paid by them and NOC has also been issued. Accused persons did not lead any evidence to their defence. If the user/accused did not indulge in direct theft of electricity or that they were FIR No.492/2019 State vs Sonu Mohd. etc 14 of 16 using the electricity through any legal means, then the accused persons are 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 at the relevant time, inspected premises was being put to use by accused persons while accused Farahim Khan was the registered consumer also and accused Sonu Mohd. was found to be the user in the inspected premises at the time of inspection. It is clear from the evidence led by prosecution that at the time of inspection, accused/user was indulged in direct theft of electricity through illegal wires. Accused persons have not brought any material on record or lead any evidence to disprove all these allegations. Thus, it is held that accused persons have failed to rebut the statutory presumption. 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 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".
FIR No.492/2019 State vs Sonu Mohd. etc 15 of 16
23. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the user/accused Sonu Mohd. dishonestly indulged in direct theft of electricity through illegal wires. It is also proved on record that inspected premises belongs to accused persons whereas accused Farahim Khan was the registered consumer and accused/user Sonu Mohd. Has been proved to have indulged in direct theft of electricity through illegal wires. Accused Farahim Khan being the registered consumer, let/permitted/consciously allowed the user/accused Sonu Mohd. commit direct theft of electricity. Thus, accused Farahim Khan is guilty of abetment of offence of direct theft of electricity. Accordingly, accused/user Son Mohd. Stands convicted for the offence punishable U/s 135 of the Electricity Act and accused Farahim Khan is convicted for the offence punishable U/s 135 r/w section 150 of the Electricity Act 2003. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2022.11.18 17:51:20 -0300 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 18.11.2022 FIR No.492/2019 State vs Sonu Mohd. etc 16 of 16