Delhi District Court
State vs 1) Fakira on 15 March, 2023
IN THE COURT OF Ms. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.135/2022
FIR No.35/2020
U/s 135/150 of Electricity Act
PS Jafrabad
CASE ID YM031219NE062
State versus 1) Fakira
S/o Late Subrati
R/o 1255A Gali No.39/7, Jafrabad,
Delhi
2) Irfan
S/o Fakira
R/o 1255A Ground Floor,
Gali No.39/7, Jafrabad, Delhi
Date of institution 07.02.2022
Arguments heard 15.03.2023
Date of judgment 15.03.2023
JUDGMENT
1. Accused Fakira @ Faqruddin and Irfan have been facing trial upon the allegations that they were indulged in direct theft of electricity and thereby committed offences under relevant provisions of Electricity Act, 2003 (hereinafter referred to as 'the Act').
Brief facts of the prosecution case:-
2. On 03.12.2019, at 12.25 pm, an inspection was carried out by the inspection team of the complainant company at the premises of accused FIR No.35/2020 State vs Fakira & Anr. 1 of 21 persons 1225-A, Ground Floor, Khasra No.8 & 9, Gali No.39/7, Jafrabad, Delhi-110053. At the time of inspection, one meter bearing no.11565281 with reading 15688 KWH units was found installed at site for ground floor but the user was found indulged in direct theft of electricity through two core black colour illegal PVC aluminium wire which was joined with Distribution Box of BSES Pole. At the time of inspection, total connected load was found to the tune of 4.778 KW/DX/NX/DT which was being used for domestic as well as non- domestic purposes (sewing work). Necessary videography of the inspection proceedings was captured by the videographer Sh. Rajeev. The illegal wire was removed by the lineman and seized at the spot. The electricity meter was not removed as user is stated to have accepted his guilt and also given an undertaking in writing to deposit the theft bill to be raised and request was made not to remove the said meter. The inspection report, load report and seizure memo were prepared at the spot. Accused Fakira was found to be registered consumer and accused Irfan was found to be user.
3. On the basis of connected load and applicable tariff and following the guidelines of DERC, the complainant company assessed the demand to the tune of Rs.1,38,464/-. Accordingly, a theft bill was raised and sent to the accused persons but they did not make payment of the theft bill. On failure to pay the bill amount, BSES Yamuna Power Limited (hereinafter referred as complainant company) through its Authorized Officer Sh. Praveen Kumar Verma (Assistant Manager), lodged a complaint U/s 135 of the Act with the SHO, PS Jafrabad upon whose FIR No.35/2020 State vs Fakira & Anr. 2 of 21 direction FIR No.35/2020 was registered against the accused persons and investigtion was marked to HC Jitendra Singh, the IO of the case.
4. Thereafter, IO visited the inspected premises, prepared site plan and served the accused persons with the notices u/s 41(A) Cr.P.C upon which accused persons joined the investigation. IO interrogated accused persons and prepared interrogation reports. During investigation, it revealed that accused Fakira was the owner of the inspected premises and accused Irfan was the user of electricity and in possession of the inspected premises at the relevant time. IO collected copies of Aadhar cards of the accused persons as well as copies of ownership documents of the inspected premises. IO bound down the accused persons vide Pabandinamas.
5. After completion of investigation, charge-sheet was filed against the accused persons U/s 135 of the Electricity Act.
NOTICE
6. Being registered consumer, accused Fakira abetted accused Irfan to commit direct theft of electricity. The act of the accused Fakira fall within the provisions of Section 135 read with Section 150 of the Act while act of accused Irfan falls within the provision of Section 135 of the Act. Accordingly on 31.05.2022, a notice for the commission of offence U/s 135 r/w Section 150 of the Act was given to accused Fakira @ Faqruddin. A separate notice for the commission of offence U/s 135 of the Act was given to accused Irfan. Both accused persons pleaded not guilty and claimed trial.
FIR No.35/2020 State vs Fakira & Anr. 3 of 21
7. In order to prove its case against the accused, the prosecution examined the following witnesses.
PROSECUTION EVIDENCE
8. PW1 Sh. Praveen Kumar Verma is the then Assistant Manager, who deposed that on 03.12.2019, at about 12.25 pm, an inspection was conducted by enforcement team of BSES YPL comprising of himself, Sh. Sandeep (DET), Sh. Shiv Ratan Singh (Lineman) and Sh. Rajeev (Videographer) at the premises of accused persons i.e H.No.1255-A, Ground Floor, Khasra No.8 & 9, Gali No.39/7, Jafrabad, Delhi-110053. At the time of inspection, one electricity meter no.11565281 with reading 15688 KWH was found installed against CA No.151138315 at the inspected premises in the name of accused Faqruddin @ Fakira, however, the accused persons were found indulged in direct theft of electricity through two core round black colour illegal aluminium cable which was found connected from Distribution Box of BSES Pole. The witness further deposed that at the time of inspection, total connected load was found to the tune of 4.778 KW which was being used for commercial as well as residential purposes at the ground floor. PW1 further deposed that at the time of inspection, accused Irfan was present at the spot and necessary videography of the inspection proceedings was captured by the videographer Sh. Rajeev. The CD containing videography of the inspection proceedings has been proved on record as Ex.PW1/1. During evidence, the CD was played on the laptop and PW1 identified the video which was captured by videographer. PW1 also identified accused Irfan in the said videography. During inspection, FIR No.35/2020 State vs Fakira & Anr. 4 of 21 the inspection report Ex.PW1/2 and the load report Ex.PW1/3 were prepared at the spot. PW1 further deposed that the illegal wire was removed by the Lineman Sh. Shiv Ratan Singh and seized at the spot vide seizure memo Ex.PW1/4, however, the electricity meter was not removed as accused Irfan had given a hand written undertaking Ex.PW1/5 that he will pay the theft bill to be raised and requested not to remove the said meter. On the basis of inspection, a theft bill of Rs.1,38,468/- (Ex.PW1/6) was raised and sent to accused persons. Thereafter, on 02.01.2019, he lodged a complaint (Ex.PW1/7) with the SHO, PS Jafrabad for registration of FIR against the accused persons.
9. PW2 Sh. Shiv Ratan Singh is the Lineman, who was one of the member of the inspection team, corroborated the testimony of PW1 and deposed on the similar lines as testified by PW1.
10. PW3 HC Jitender is the IO of the case. This witness deposed that on 02.01.2020, the complaint lodged by Sh. Praveen Kumar Verma (Assistant Manager of the complainant company) was marked to him. On 11.02.2020, he made endorsement Ex.PW3/1 on the complaint and handed over the complaint to Duty Officer for registration of FIR. Accordingly, the Duty Officer registered FIR No.35/2020 and marked the investigation of the case to him. The copy of FIR has been brought on record as Ex.PW3/2. On 11.04.2020, he visited the inspected premise, prepared site plan Ex.PW3/3 and served the accused persons with the notices u/s 41.1(A) Cr.P.C (Ex.PW3/4 and Ex.PW3/5) upon which accused persons joined the investigation. He interrogated the accused persons and prepared interrogation reports Ex.PW3/6 and FIR No.35/2020 State vs Fakira & Anr. 5 of 21 Ex.PW3/7. PW3 also deposed that during investigation, it revealed that accused Fakira @ Faqruddin was the Registered Consumer as well as owner of the inspected premises and accused Irfan was the user of electricity and was in possession of the inspected premises at the relevant time. Accused persons produced copies of their Aadhar Cards as well as copies of ownership documents which are Mark A (colly). Thereafter, he bound down both the accused persons vide Pabandinamas Ex.PW3/8 and Ex.PW3/9. After completion of the investigation, he filed the charge-sheet.
11.Thereafter prosecution evidence was closed vide order dated 21.11.2022 and matter was posted for recording of statements of accused persons.
STATEMENTS OF ACCUSED
12.All incriminating materials which have come on record in the testimony of prosecution witnesses were put to the accused persons in their statements U/s 313 Cr.P.C. Accused persons denied all the material allegations. However, accused persons chose not to lead any evidence to their defence.
FINAL ARGUMENTS
13.Final arguments were advanced by the Ld. Addl. PP as well as Ld. Counsel for the accused persons.
14.Ld. Addl. PP argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses. AR of the complainant company FIR No.35/2020 State vs Fakira & Anr. 6 of 21 also argued that accused Irfan dishonestly indulged in direct theft of electricity by connecting wire from electrical supply of his house to nearby BSES supply Pole, thus bypassed the metering process of electrical energy being used through theft wire. He also emphasised that inspection was conducted as per Rules and applicable Regulations. It is prayed that accused persons be convicted under appropriate provisions of law.
15.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 impugned theft bill has already been settled with the complainant company and settlement amount has already been paid and NOC has already been issued by the complainant company. It is prayed that accused persons may be acquitted.
DISCUSSION
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: "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 Fakira was found to be registered consumer as well as owner of the inspected premises and his son Irfan was found to FIR No.35/2020 State vs Fakira & Anr. 7 of 21 be user at the relevant time. Perusal of Section 2 (15) of the Act shows that both the user and the owner of the premises are covered under the definition of the 'consumer' and thus, they are liable for punishment if illegal abstraction of energy is found at the premises of accused. In this regard, this court is also supported with the judgment of the Hon'ble Delhi High Court reported as 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 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:
FIR No.35/2020 State vs Fakira & Anr. 8 of 21 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.
19.Under the Act, Regulations are framed by the Delhi Electricity Regularity Commission. Regulation 60 to 63 deal with theft of electricity, which are reproduced hereunder: "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.
FIR No.35/2020 State vs Fakira & Anr. 9 of 21 (4) The Authorized officer shall prepare an inspection report as per the provisions under these Regulations.
61. Preparation of Report by Authorized officer:-
(1) In the event of detection of theft of electricity, the Authorized officer shall prepare a detailed Report at site, in the manner as prescribed in the Commission's Orders.
(2) All the material evidences such as tampered meter, tampered meter seal and artificial means used for illegal abstraction of energy and the documentary evidences etc., which are relevant to the case and found during the inspection, shall be seized under a seizure memo and sealed in the presence of the consumer or his authorized representative and be kept as a proof along with photography and video recording of the premises.
(3) A detailed description of the material seized, including date, time and place and name & address of witnesses to the seizure shall be recorded on the exterior of the cover and signatures of all witnesses shall be affixed on the sealing points:
Provided that if the witness refuses to sign, the same shall be recorded in the report and captured in the videography.
(4) The inspection Report shall be signed by the Authorized officer and a copy of the same shall be handed over to the consumer or his representative at the site immediately under proper acknowledgement. The other persons present at site 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 subsection (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.
FIR No.35/2020 State vs Fakira & Anr. 10 of 21 (3) The supply of the consumer shall be disconnected immediately on detection of theft only by such officer of the Licensee or supplier as authorised for the purpose by the Commission, under sub-section (1A) of Section 135 of the Act:
Provided that such officer shall lodge a complaint in writing in Police Station having jurisdiction over the site of occurrence of the offence within twenty four hours from time of such disconnection: Provided further that such officer shall also send to the consumer a copy of complaint lodged in Police Station, copy of speaking order under Regulation 64 along with a copy of videography of inspection within 2 (two) days of such disconnection.
(4) No case for theft shall be booked only on account of missing of the seals on the meter or on account of breakage of glass window of the meter, unless dishonest intention is corroborated by consumption pattern of consumer or any other evidence.
(5) Interference with the accurate registration of energy 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;
FIR No.35/2020 State vs Fakira & Anr. 11 of 21
(iv) data recorded in the energy meter memory wherever available.
(v) based on the document being relied upon by the accused person.
(3) The assessment bill shall be prepared on two times the rate as per applicable tariff.
(4) While making the assessment bill, the Licensee shall give credit to the consumer for the electricity units already paid by the consumer for the period of the assessment bill.
(5) The assessment order shall be served upon the consumer or the person in occupation or possession or in charge of the place or premises, as the case may be, within 7 (seven) days of disconnection of supply or within 2 (two) days from the date of receipt of request of such person, whichever is earlier.
20. As per prosecution case, at the time of inspection, one electricity meter No.11565281 was found installed at the inspected premises in the name of accused Fakira and and accused Irfan was found to be occupying inspected premises as tenant/user at the relevant time. At the time of inspection, accused/user Irfan was found indulged in direct theft of electricity through illegal wire. Accused Fakira @ Faqruddin, being registered consumer as well as owner of inspected premises let/permitted/allowed the user/accused Irfan commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
21.PW1 Sh. Praveen Kumar Verma (Manager) and PW2 Sh. Shiv Ratan Singh (lineman) are the material witnesses in this case. PW1 and PW2 corroborated the allegations made in the complaint (Ex.PW1/7) and their testimony are in conformity with the documents i.e. inspection report (Ex.PW1/2), load report (Ex.PW1/3) and seizure memo (Ex.PW1/4). PW1 has also proved the handwritten undertaking FIR No.35/2020 State vs Fakira & Anr. 12 of 21 Ex.PW1/5 which was given by user/accused Irfan requesting therein not to remove the meter. PW1 and PW2 also identified the user/accused Irfan in the video contained in the CD (Ex.PW1/1). Ld. Counsel for the accused persons has merely put suggestions to PW1 and PW2 that no inspection took place and any such documents not were prepared, which were denied by witnesses.
22.The depositions by PW1 and PW2 were about same incident of inspection and those were consistent in basic details with necessary corroboration from material documents proved. During evidence, the CD of the inspection proceedings was played before the court and PW1 and PW2 identified the user/accused Irfan present at the spot in the video contained in the CD Ex.PW2/1. The contents of the video as well as presence of the accused Irfan at the spot at time of inspection, have not been disputed. Accused Irfan has neither disputed his identity nor the identity of the inspected premises shown in the video contained in the CD Ex.PW2/1. As per PW1 and PW2, accused Irfan was indulged in direct theft of electricity through illegal wires and said wires were removed by the lineman and seized at the spot and this fact has not been disputed by the accused persons in the cross-examination. Accused persons have also not disputed the correctness of the assessment of the load assessed by the officials of complainant company which is mentioned in the load report (Ex.PW1/3). Nothing contradictory could be extracted from the testimony of prosecution evidence.
23.PW1 and PW2 proved the relevant documents i.e. inspection report, FIR No.35/2020 State vs Fakira & Anr. 13 of 21 load report, seizure memo and electricity bill. Load Report and Inspection Report were prepared as per applicable Regulation of the Regulation No.61 and 63(2) of the Regulation. Load x Days x Hours x Factor (LDHF) formula as provided in Appendix 1 in terms of Regulation 63 for preparation of Assessment Bill was applied and theft bill was raised accordance to Regulations. During the course of arguments, AR of the complainant has submitted that matter was settled in Lok Adalat qua civil liability and at that time, the complainant company has given a credit to the accused persons for the electricity unit already paid by the accused persons for the period of assessment as per mandate of Regulation 63(4) of the Regulation.
24. It is submitted by Ld. Counsel for accused persons that preparation of documents and seizure of illegal wires have not been shown in the videography. PW1 and PW2 have given detailed deposition about removal of wires, its seizure as well as preparation of of inspection documents in the testing sheet. Videography also has been proved by PW1 and PW2. It is note worthy that removal of wire or its seizure has not been created doubt upon, rather theft recovered was well- videographed. It is settled that videography proceedings or even seizure of illegal cable or device used for commission of direct theft is only to lend corroboration to the oral testimony. There was nothing put to the witness which he was unable to explain being member of Inspection Team. Documents prepared bear signature of PW1 and PW2 as prime member of Inspection Team. Those documents have been placed in FIR No.35/2020 State vs Fakira & Anr. 14 of 21 original in the court and proved by PW1 and PW2. Just because removal of illegal cable or seizure was not videographed, it would not falsify the testimony of PW1 and PW2 which squarely indicates and explains about Inspection Proceedings. Similarly, preparation of Inspection Documents cannot be questioned on the sole premise that preparation was not videographed. No doubt videography of removal and seizure of wire as well as preparation of Inspection Documents are recommended under applicable Regulation but propriety of process without any major lacunae cannot thwart the genuineness of entire proceedings. These are minor fallouts which cannot discredit the entire process and do not hit at the root because establishment of theft is based upon oral testimony which has been able to withheld the test of cross-examination.
25.It was also submitted on behalf of the accused that prosecution case is highly doubtful as no public witness was joined during the inspection of the premises. It is clear from the aforesaid discussions that the user/accused was found indulged in direct theft of electricity through illegal wire and these facts have been well proved by PW1 and PW2. The video contained in the CD Ex.PW2/1 also depicted the manner in which the accused was found indulged in direct theft of electricity through illegal wire. It is not disputed by the accused that at the time of inspection certain electrical appliances as mentioned in the load report were installed at the inspected premises and connected load was running through illegal wire by connecting the said illegal wire from Distribution Box of BSES Pole. Thus, it is clear from the record that FIR No.35/2020 State vs Fakira & Anr. 15 of 21 the officials of complainant company who had no animosity with the accused, testified in support of prosecution version, 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 of India 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."
26.In the case titled as 'Sushil Sharma vs BSES Rajdhani Power Ltd.' in Crl. Appeal No.1060/10 decided on 22.12.2010, the Hon'ble Delhi High Court has held that non-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.
27.AR of complainant was asked to explain the mode and manner of theft. It is stated that accused persons got two core black colour illegal PVC aluminium wires connected with Distribution Box of BSES Pole FIR No.35/2020 State vs Fakira & Anr. 16 of 21 thereby bypassing the meter no.11565281 which was installed for the use of electricity in the inspected premises. So basically electrical energy which was to be drawn through Output Terminal of Meter after registering the metering was extracted from same supply line connected to load of premises directly while ensuring that Meter does not retain its running position at that time, so meter was bypassed whereas electrical energy was drawn directly from BSES Pole. This is fortified by fact that meter was found bypassed in aforesaid manner at the time of inspection while electrical appliances were available there in running condition. Prosecution has thus been able to prove that accused attached an external device to interfere with the actual metering of consumption of electrical energy which constitute theft of electricity.
28.PW1 and PW2 clearly deposed that illegal wire was removed at the spot, however, electricity meter was not removed as the accused Irfan had given a hand written undertaking Ex.PW1/5 not to remove the said meter and accused persons have not disputed the fact that said undertaking was given by accused Irfan at the time of inspection in order to avoid the removal of the electricity meter. It is not the case of the accused persons that said undertaking Ex.PW1/5 is forged and fabricated one and same was not given by the accused Irfan at the time of inspection which shows that accused Irfan was very well present at the spot at the time of inspection. Furthermore, accused persons have not explained as to how accused Irfan is appearing in the video clip which was allegedly captured by the videographer at the time of inspection, if the accused Irfan was not present at the spot at the time of FIR No.35/2020 State vs Fakira & Anr. 17 of 21 inspection.
29.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 Irfan who was in possession of the inspected premises at the relevant time, indulged in direct theft of electricity, in conscious deliberation with accused Fakira 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 Irfan indulged in direct theft of electricity, in connivance with/having been abeted by accused Fakira, if they are unable to rebut the statutory presumption.
30.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 electricity unless accused brings some evidence on record to rebut the presumption.
31.The said presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 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".
32.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:-
FIR No.35/2020 State vs Fakira & Anr. 18 of 21 "...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'."
33. 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 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 Fakira was found to be the owner and accused Irfan 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 persons were found indulged in direct theft of electricity through illegal wires while electricity meter was also installed at the premises. 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 FIR No.35/2020 State vs Fakira & Anr. 19 of 21 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".
34. As per record, the meter No. 11565281 was sanctioned and installed at the inspected premises for domestic purposes. 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 persons have not disputed the calculation of the load as mentioned in the load report. Accused Fakira was presumably aware that the user/accused Irfan had connected illegal wires from BSES Pole to bypass the actual metering of the energy consumption and it was he whose premises was connected with the BSES Supply line and was supplied with electricity for his own use by licensee. No defence has been projected on behalf of accused Fakira that he was not in conscious knowledge of theft of electricity. Thus, accused Fakira is stated to have FIR No.35/2020 State vs Fakira & Anr. 20 of 21 abetted/allowed/permitted accused Irfan to commit direct theft of electricity.
35. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the user/accused Irfan dishonestly indulged in direct theft of electricity through illegal wire. Accused Fakira being the owner, let/permitted/consciously allowed the user/accused Irfan commit direct theft of electricity. Thus, accused Fakira is guilty of abetment of offence of direct theft of electricity. Accordingly, accused/user Irfan stands convicted for the offence punishable U/s 135 of the Electricity Act and accused Fakira is convicted for the offence punishable U/s 135 r/w Section 150 of the Digitally signed Electricity Act 2003. by SHELLY SHELLY ARORA ARORA Date:
2023.03.15 17:45:53 -0300 (Shelly Arora) Addl. Sessions Judge (Electricity) East/Karkardooma Courts/Delhi Announced in open court on 15.03.2023 FIR No.35/2020 State vs Fakira & Anr. 21 of 21