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Delhi District Court
State (Bses) vs Asgari on 7 May, 2025
SC No.114/2022 State Vs. Asgari & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 114/2022
FIR No. 629/2019
Under Section 135/150 Electricity Act
PS Harsh Vihar
State
versus
1. Asgari
W/o Sherdil
R/o H.No.326, Gali No.9, Budh Vihar,
Madeem Masjid, Delhi
2. Chando
S/o Saleem
R/o H.No.326, Gali No.9, Budh Vihar,
Madeem Masjid, Delhi
.... Accused
Date of institution 03.02.2022
Judgment reserved on 07.05.2025
Judgment Pronounced on 07.05.2025
Decision Convicted
JUDGMENT
1. Accused Asgari and Chando are facing trial upon the
Ashish allegations that accused Chando was indulged in direct
Rastogi
Digitally signed theft of electricity and accused Asgari (owner of the
by Ashish Rastogi
Date: 2025.05.07
16:23:48 +0530 inspected premises) is stated to have abetted the co-accused
Judgment 1 of 22
SC No.114/2022 State Vs. Asgari & Anr.
Chando who was user/-co-accused Chando in the inspected
premises, to commit theft of electricity and thereby,
committed offence punishable U/s 135/150 of Electricity
Act 2003 (hereinafter referred to as ‘the Act’).
Brief Facts
2. On 01.11.2019, at about 6.52 am, an inspection was
conducted by the inspection team of BSES Yamuna Power
Limited (hereinafter referred as complainant company)
headed by Sh. Tara Chandra (Assistant Manager) in the
residential premises of accused persons at House
No.85/351, Ground Floor, Gali No.9, Budh Vihar,
Mandoli, Delhi-110093.
3. At the time of inspection, no electricity meter was found
installed at the site and user i.e. user/accused Chando who
was present at the spot, was found indulging in direct theft
of electricity with the help of black colour PVC aluminium
wires which were found connected from Street Light of
BSES YPL Pole No.NNG-W375.
4. At the time of inspection, accused Chando was present
there and total connected load was found to be 1.340 KW
which was being used for domestic purposes at ground
floor. Videographer Sh. Sumit captured videography of
inspection proceeding. Inspection documents i.e.
Digitally
Inspection Report, Load Report, Seizure
signed by Memo and
Ashish
Ashish Rastogi
Rastogi Date: Advisory Notice were prepared at the spot.
2025.05.07
16:23:52
+0530
Judgment 2 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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.38,557/-
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 Electricity Act with SHO, PS Harsh
Vihar for registration of FIR against the accused persons.
7. On the said complaint, present FIR No.629/2019 was
registered and investigation of the case was marked to SI
Illa Khan (then ASI). During investigation, it was revealed
that accused Chando was in possession of the inspected
premises at the time of inspection. It was further revealed
that accused Asgari was owner of the inspected premises
while co-accused Chando was in use and occupation as
well as user of the electricity in the inspected premises at
the relevant time. After completion of investigation, IO
filed the charge-sheet against the accused Chando being
user of the electricity and accused Asgari being owner of
the inspected premises.
Notice
8. On 15.05.2023, notice U/s 251 Cr.P.C for commission of
Ashishoffence punishable under Section 135 of the Act was given
Rastogi
to accused Chando and under Section 135 r/w Section 150
Digitally signedof the Act was given to accused Asgari. Both accused
by Ashish Rastogi
Date: 2025.05.07
16:23:56Judgment
+0530 3 of 22
SC No.114/2022 State Vs. Asgari & Anr.
persons did not plead guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution
examined following witnesses.
10. PW1 Sh. Anuj Varshney is Diploma Engineer Trainee
(DET) of the complainant company who was one of the
members of the inspection team. He proved the CD of
videography of the inspection proceedings as Ex.PW1/A,
inspection report as Ex.PW1/B, load report as Ex.PW1/C,
seizure memo Ex.PW1/D, advisory notice as Ex.PW1/E
and theft bill as Ex.PW1/F. He also proved the complaint
as Ex.PW1/G lodged by Sh. Tara Chandra. He also
identified the case property i.e. illegal wires removed and
seized at the spot as Ex.P1(colly) as well accused Chando
in the videography.
11. PW2 Sh. Sumit is the videographer who, on the instruction
of team leader/Sh. Tara Chandra, captured videography of
the inspection proceedings. He proved the video contained
in the CD as Ex.PW1/A.
12. PW3 SI Illa Khan (then ASI) is the IO of the case. He
proved the FIR as Ex.PW3/A, notice U/s 41A Cr.P.C given
to accused persons as Ex.PW3/B and Ex.PW3/C. He also
seized copy of Aadhar Card of accused persons which are
Digitally Ex.PW3/D and Ex.PW3/E. Accused Asgari produced copy
signed by
Ashish
Ashish Rastogi of ownership documents of the inspected premises which
Rastogi Date:
2025.05.07 is Ex.PW3/F. PW3 deposed that during investigation, it
16:24:01
+0530
Judgment 4 of 22
SC No.114/2022 State Vs. Asgari & Anr.
was revealed that accused Chando was in possession of the
inspected premises at the time of inspection and accused
Asgari was found to be owner of the inspected premises.
PW3/IO also proved Pabandinamas Ex.PW3/G and
Ex.PW3/H.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 has been falsely implicated in
this case. They have also stated that they have not
committed any theft of electricity. However, accused
persons further stated that they have settled the civil
liability qua the impugned theft bill and NOC has also
been issued. They opted not to lead any defence evidence.
Arguments
14. Ld. Addl. PP submitted that accused persons were found
indulged in direct theft of electricity and no electricity
meter was installed at their premises. Ld. Addl. PP further
submitted that prosecution has proved allegations against
the accused persons 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.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.05.07
16:24:04
+0530
Judgment 5 of 22
SC No.114/2022 State Vs. Asgari & Anr.
Analysis
15.Ld. Defence Counsel, on the other hand, submitted that
accused persons are innocent and they have been falsely
implicated in this case. It was submitted that accused
persons not committed any theft. Lastly it is submitted that
accused persons have settled the civil liability qua the
impugned theft bill and NOC has also been issued.
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 Asgari was found to be owner of the
inspected premises and her co-accused Chando was found
to be user of electricity at the relevant time. Perusal of
Section 2 (15) of the Act shows that both the user and the
owner of the premises/registered consumer are covered
under the definition of the ‘consumer’ and thus, they are
liable for punishment if illegal abstraction of energy is
found at the premises of accused. In this regard, this court
is also supported with the judgment of the Hon’ble Delhi
High Court reported as Lokesh Chandela vs State of NCT
Digitally
signed by
Ashish
Ashish Rastogi & Ors. (Crl. Appeal No.479/2011).
Rastogi Date:
2025.05.07
16:24:09
+0530
Judgment 6 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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
(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
Digitally
signed bymay be imposed or prosecution proceeding which
Ashish may be initiated under this Act or any other law for
Ashish Rastogi the time being in force, if any officer or other
Rastogi Date:
2025.05.07employee of the Board or the licensee enters into or
16:24:14
+0530 acquiesces in any agreement to do, abstains fromJudgment 7 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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. 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”.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi 21.As per prosecution case, at the time of inspection, no
Date:
2025.05.07
16:24:20
+0530Judgment 8 of 22
SC No.114/2022 State Vs. Asgari & Anr.
electricity was found installed in the inspected premises
and accused Asgari as well as co-accused Chando were
found indulged in direct theft of electricity with the help of
illegal wires connecting the same with Street Light of
BSES YPL. Accused Chando who was present at the time
of inspection, was found to be user of the electricity and
accused Asgar was found to be owner of the inspected
premises. Accused Asgar being owner of inspected
premises let/permitted/allowed the user/accused Chando to
commit direct theft 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: –
Digitally (1) The Authorized officer shall promptly conduct inspection of
signed by
Ashish any premises either suo-moto or on receipt of information
Ashish Rastogi regarding theft of electricity:
Rastogi Date:
2025.05.07
16:24:23 Provided that the Authorized officer may avail the assistance
+0530
Judgment 9 of 22
SC No.114/2022 State Vs. Asgari & Anr.
of employees of the Licensee for conducting inspection.
(2) The Authorized officer shall carry his visiting card bearing
his photograph and photo identity card issued under
Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his
photograph shall be handed over to the consumer or the
occupier of the premises before entering the premises and
take the acknowledgment.
(4) The Authorized officer shall prepare an inspection report as
per the provisions under these Regulations.
61. Preparation of Report by Authorized officer: – (1) In the
event of detection of theft of electricity, the Authorized
officer shall prepare a detailed Report at site, in the manner
as prescribed in the Commission’s Orders.
(2) All the material evidences such as tampered meter,
tampered meter seal and artificial means used for illegal
abstraction of energy and the documentary evidences etc.,
which are relevant to the case and found during the
inspection, shall be seized under a seizure memo and sealed
in the presence of the consumer or his authorized
representative and be kept as a proof along with photography
and video recording of the premises.
(3) A detailed description of the material seized, including
date, time and place and name & address of witnesses to the
seizure shall be recorded on the exterior of the cover and
signatures of all witnesses shall be affixed on the sealing
points: Provided that if the witness refuses to sign, the same
shall be recorded in the report and captured in the
videography.
(4) The inspection Report shall be signed by the Authorized
officer and a copy of the same shall be handed over to the
consumer or his representative at the site immediately under
proper acknowledgement. The other persons present at site
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
Digitally
copy of the same report shall be sent to the consumer under
signed by Registered Post or Speed Post or electronically on the same
Ashish
Ashish Rastogi day or on the next day of the inspection.
Rastogi Date:
16:24:29 (6) The inspection report shall form the basis for further
2025.05.07
+0530Judgment 10 of 22
SC No.114/2022 State Vs. Asgari & Anr.
action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity: – (1)
The prosecution for theft of electricity under section 135 of
the Act shall be initiated only in the cases where dishonest
intention is evident from the relevant facts, records and other
evidence of the case.
(2) In case sufficient evidence is found to establish theft of
electricity, the Authorized officer under sub-section (2) of
Section 135 of the Act shall seize and seal all material
evidence including wires/cables, meter, service line etc., from
the premises under a seizure Memo.
(3) The supply of the consumer shall be disconnected
immediately on detection of theft only by such officer of the
Licensee or supplier as authorised for the purpose by the
Commission, under sub-section (1A) of Section 135 of the
Act: Provided that such officer shall lodge a complaint in
writing in Police Station having jurisdiction over the site of
occurrence of the offence within twenty-four hours from time
of such disconnection: Provided further that such officer shall
also send to the consumer a copy of complaint lodged in
Police Station, copy of speaking order under Regulation 64
along with a copy of videography of inspection within 2
(two) days of such disconnection.
(4) No case for theft shall be booked only on account of
missing of the seals on the meter or on account of breakage
of glass window of the meter, unless dishonest intention is
corroborated by consumption pattern of consumer or any
other evidence.
\
(5) Interference with the accurate registration of energy
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
Ashish electricity as notified in the Appendix I to the Regulations.
Rastogi (2) The period of assessment for theft of electricity shall be
Digitally signed
by Ashish Rastogi
Date: 2025.05.07
Judgment 11 of 22
16:24:33 +0530
SC No.114/2022 State Vs. Asgari & Anr.
for a period of 12 (twelve) months preceding the date of
detection of theft of electricity or the exact period of theft if
determined, whichever is less: Provided further that period of
theft of electricity shall be assessed based on the following
factors: –
(i) actual period from the date of commencement of supply to
the date of inspection;
(ii) actual period from the date of replacement of component
of metering system in which the evidence is detected to the
date of inspection;
(iii) actual period from the date of preceding checking of
installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever
available.
(v) based on the document being relied upon by the accused
person.
(3) The assessment bill shall be prepared on two times the
rate as per applicable tariff.
(4) While making the assessment bill, the Licensee shall give
credit to the consumer for the electricity units already paid by
the consumer for the period of the assessment bill.
(5) The assessment order shall be served upon the consumer
or the person in occupation or possession or in charge of the
place or premises, as the case may be, within 7 (seven) days
of disconnection of supply or within 2 (two) days from the
date of receipt of request of such person, whichever is earlier.
24. As per prosecution case, at the time of inspection, no
electricity meter was found installed in the inspected
premises and Chando who was alleged to be user of the
electricity in the inspected premises, was indulged in direct
theft of electricity.
25. PW1 Sh. Anuj Varshney (DET) and PW2 Sumit
(Videographer) are prime witnesses of this case being
Digitally
signed by
members of inspection team. PW1 corroborated the
Ashish
Ashish Rastogi allegations made in the complaint (Ex.PW1/G) and
Rastogi Date:
2025.05.07
16:24:38
+0530
Judgment 12 of 22
SC No.114/2022 State Vs. Asgari & Anr.
deposed that at the time of inspection, no electricity meter
was found installed at the inspected premises and that
accused Chando was present at the spot and was occupying
the premises, was found indulged in direct theft of
electricity with the help of two core black colour PVC
aluminium wires which were found connected from Street
Light of BSES YPL Pole No.NNG-W375. Accused
persons have not specifically denied these facts during
cross-examination of PW1.
26. PW1 further deposed that at the time of inspection,
accused Chando was present at the inspected premises and
total connected load was found to be 1.340 KW which was
being used for domestic purposes. Accused persons have
not disputed the load report, its content and its
genuineness. Accused persons have not disputed the
preparation of inspection documents at the spot. Ld.
Counsel has simply put a query regarding duration of
inspection carried out to which PW1 stated that he cannot
tell as to for how much time inspection was conducted at
the premises of the accused.
27. PW2 conducted the videography of the Inspection
Proceedings in which the commission of theft of electricity
at the inspected premises was recorded. PW1 and PW2
were duly cross-examined by Ld. Counsel for accused was
Digitally
signed by unable to bring out any contradiction in their testimony.
Ashish
Ashish Rastogi
Rastogi Date: Ld. Counsel for accused persons merely put suggestions to
2025.05.07
16:24:42
+0530 witnesses that at the time of inspection, no theft of
Judgment 13 of 22
SC No.114/2022 State Vs. Asgari & Anr.
electricity was detected at the premises of accused which
was categorically denied by witnesses. Accused persons
have not denied the inspection documents as well as their
contents. Rather to the query of Ld. Counsel, PW1 has
specifically stated that at the time of inspection, no
electricity was being used from the meter and entire
electricity appliance/load were running through illegal
wires. Ld. Counsel for accused persons simply put
suggestion that false complaint has been lodged against the
accused persons but no incriminating evidence/material
has come on record creating doubt regarding the veracity
of the complaint or the version of prosecution witnesses.
28. As per load report, certain electrical appliances were found
installed at the inspected premises. In the load report,
calculation of the load has been mentioned and accused
persons have not disputed the calculation of the load as
mentioned in the load report. Accused persons have not
rendered any alternative explanation. Accused Asgari is
admittedly the owner of the inspected premises. Co-
accused Chando is stated to be user of the electricity at the
relevant time. Accused Chando was admittedly present at
site at the time of inspection and she has also been
identified by the witness in videography. So it is evident
that accused Asgari knew that co-accused Chando also
Digitally
signed by shared the intention alongwith accused to indulge into acts
Ashish
Ashish Rastogi constituting direct theft of electricity. Furthermore,
Rastogi Date:
2025.05.07
16:24:48 accused Asgari well known that there was no electricity
+0530Judgment 14 of 22
SC No.114/2022 State Vs. Asgari & Anr.
meter in the inspected premises despite that she allowed
the co-accused to use inspected premises which shows
malafide intention of the accused persons to commit direct
theft of electricity causing loss to exchequer.
29. Nothing contradictory emerged in the testimony of
prosecution witnesses during cross-examination and the
testimony of witnesses has been consistent and thus, the
factum of inspection, preparation of documents as well as
presence of the accused at the spot and videography of
inspection proceedings done by videographer stands
proved.
30.It is submitted on behalf of accused that prosecution case
is highly doubtful as no public witness was joined during
the inspection of the premises. It is clear from the aforesaid
discussions that the accused Chando was found indulged in
direct theft of electricity through illegal wires and these
facts have been well proved by PW1 and PW2.
31. During evidence, CD (Ex.PW1/A) containing inspection
proceedings was played before the court which depicted
the manner in which the accused Chando was found
indulged in direct theft of electricity through illegal wires.
Accused persons has neither disputed identity of accused
Chando nor the identity of the inspected premises shown in
Ashish the video contained in the CD. Furthermore, it is admitted
Rastogi
Digitally signed
position of fact that there was no electricity meter available
by Ashish Rastogi
Date: 2025.05.07 in the inspected premises at the time of inspection.
16:24:51 +0530
Judgment 15 of 22
SC No.114/2022 State Vs. Asgari & Anr.
32. Nothing has been brought on record to indicate that
officials of complainant company had any animosity with
the accused persons and therefore, under these
circumstances, non-joining of public witness does not
affect the authenticity of the prosecution case. In this
regard, this Court is supported with the case law reported
as ‘Punjab State Electricity Board & Ors vs Ashwani Kumar,
2010 (7) SCC 569′. In this case, the Hon’ble Supreme Court
has made the following observations:
“…..The report prepared by the officers of the
Electricity Board is an act done in discharge of their
duties and could not be straightway reflected or
disbelieved unless and until there was definite and
cogent material on record to arrive at such a finding.
The inspection report is a document prepared in
exercise of his official duty by the officers of the
corporation. Once an act is done in accordance with
law, the presumption is in favour of such act or
document and not against the same. Thus there was
specific onus upon the consumer to rebut by leading
proper and cogent evidence that the report prepared by
the officers was not correct.”
33. In the case titled as ‘Sushil Sharma vs BSES Rajdhani Power
Ltd.‘ in Crl. Appeal No.1060/10 decided on 22.12.2010,
the Hon’ble Delhi High Court has held that non-
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
Digitally
signed by
Ashish
Ashish Rastogi accused.
Rastogi Date:
2025.05.07
16:24:57
+0530Judgment 16 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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.
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: –
Ashish “………Courts are authorized to draw a particular
Rastogi inference from a particular fact, unless and until
Digitally signed by
Ashish Rastogi
the truth of such inference is disproved by other
Date: 2025.05.07 facts. The court can, under Section 4 of the
16:25:01 +0530
Judgment 17 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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:-
“…Therefore, the rebuttal does not have to be
conclusively established but such evidence must
Digitally be adduced before the court in support of the
signed by
Ashish defence that the Court must either believe the
Ashish Rastogi
Rastogi Date: defence to exist or consider its existence to be
2025.05.07
16:25:06 reasonably probable, the standard or reasonability
+0530
being that of the ‘prudent man’.”
Judgment 18 of 22
SC No.114/2022 State Vs. Asgari & Anr.
38. In view of the settled law, now it is to be seen if the
accused persons have 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 Chando was
drawing electricity through authorized means or electricity
meter. Moreover, it is admitted position of fact that there
was no electricity meter for inspected premises. As per
load report, certain electric appliances were found in the
inspected premises and accused persons have not
explained as to from where they were drawing electricity
to run those appliances. Also, it is not the case of the
accused that there was any Genset and he was drawing
energy from the same.
39. Furthermore, it is clear from the evidence of PW1 that in
regard to the electricity theft, the complainant company
had raised a bill of Rs.38,557/- (Ex.PW1/F) against the
accused persons and during the course of arguments, Ld.
Counsel for accused submitted that accused persons have
settled the matter qua civil liability and also deposited the
settlement amount. In case, the officials of the complainant
company would not have carried out the inspection asAshish deposed by prosecution witnesses and complainant
company would have raised a false and baseless claim by
Rastogiway of theft bill (Ex.PW1/F), then instead of going for
Digitally signed
by Ashish Rastogisettlement, accused persons would have raised their protest
Date: 2025.05.07and would have initiated appropriate proceedings against
16:25:09 +0530Judgment 19 of 22
SC No.114/2022 State Vs. Asgari & Anr.
complainant company for raising a false claim against
them. This conduct of the accused persons also fortifies the
allegations of the direct theft of electricity against them.
40. If the accused Chando was not indulged in direct theft of
electricity or she was using the electricity through legal
sources then the easiest way to rebut the statutory
presumption for the accused persons was to prove on
record that at the time of inspection, she was drawing
electricity through her 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.
41. 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
Digitally
was being used by the appellant directly from LT
signed by Main by committing theft. Paid electricity bills
Ashish
Ashish Rastogi would have been the best evidence to show that the
Rastogi Date: appellant was using electricity through mere.
2025.05.07
16:25:14
Under section 106 of the Evidence Act, the onus
+0530
Judgment 20 of 22
SC No.114/2022 State Vs. Asgari & Anr.
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”.
42. Accused persons did not lead any defence evidence. If the
tenant/user i.e. Chando was not indulged in direct theft of
electricity or that she was using the electricity through any
legal means, then the accused Asgari, who claimed herself
to be owner/landlord of the inspected premises, was liable
to rebut the statutory presumption by disproving the
allegations made in the complaint by leading relevant
defence evidence. It is admitted position of fact that
inspected premises was belonging to accused Asgari at the
relevant time, which was under use and occupation of co-
accused Chando. Accused persons have not brought any
material on record or lead any evidence to disprove the
prosecution case.
43. In view of aforesaid discussions, it is held that the
prosecution has proved beyond reasonable doubt that
user/co-accused Chando dishonestly indulged in direct
theft of electricity through illegal wires. It is also proved
on record that accused Asgari was the owner of inspected
premises and accused/user Chando has been proved to
Ashish have indulged in direct theft of electricity by attaching
Rastogi
Digitally signed
illegal external device. Accused Asgari being the owner of
by Ashish Rastogi
Date: 2025.05.07
Judgment
16:25:18 +0530 21 of 22
SC No.114/2022 State Vs. Asgari & Anr.
inspected premises let/permitted/consciously allowed the
user/accused Chando to commit direct theft of electricity.
Thus, accused Asgari is guilty of abetment of offence of
direct theft of electricity and accused Chando is guilty of
offence of direct theft of electricity. Accordingly, accused
Chando is held guilty and convicted for the offence
punishable U/s 135 of Electricity Act 2023 and accused
Asgari is held guilty and convicted for the offence
punishable U/s 135 r/w Section 150 of the Electricity Act
2003.
Let convicts be heard on quantum of sentence.
Announced in the Open Court on 07.05.2025.
(Ashish Rastogi)
Digitally
signed by
Addl. Sessions Judge-05 (Electricity)
Ashish East/Karkardooma Courts/Delhi
Ashish Rastogi
Rastogi Date:
2025.05.07
16:25:24
+0530Judgment 22 of 22
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