Delhi District Court
State vs Mohammad Zahid on 31 January, 2025
SC No.3780/2019 State Vs. Mohd. Zahid
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 3780/2019
FIR No. 219/2019
Under Section 135 Electricity Act
PS Jafrabad
State
versus
Mohd. Zahid
S/o Mohd. Sabir
R/o H.No.1336, Gali No.43,
Jafrabad, Delhi-110053
.... Accused
Date of institution 26.11.2019
Judgment reserved on 28.11.2024
Judgment Pronounced on 31.01.2025
Decision Convicted
JUDGMENT
1. Accused Mohd. Zahid is facing trial upon the allegations
that he was owner of the inspected premises at the time of
inspection and he allowed/permitted/abetted his
tenant/user/co-accused Zahid (since not arrested) to
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:32
Judgment+0530
1 of 22
SC No.3780/2019 State Vs. Mohd. Zahidcommit direct theft of electricity and thereby, accused
committed an offence punishable under Section 135 r/w
Section 150 of Electricity Act 2003 (hereinafter referred to
as ‘the Act’).
Brief Facts
2. On 14.02.2019, at about 13.08 pm, an inspection was
conducted by the inspection team of BSES Yamuna Power
Limited (hereinafter referred as complainant company)
headed by Sh. R.B. Yadav (Assistant Manager) in the
residential premises of accused i.e. at in front of H.No.951-
A, Gali No.39, Jafrabad, Pole No.YVR-X-683,
Delhi-110053.
3. At the time of inspection, no electricity meter was found
installed at the site and the user/tenant Zahid (since not
arrested) was found indulging in direct theft of electricity
with the help of single core yellow colour wire which was
found connected from Distribution Box of BSES YPL.
4. At the time of inspection, accused Mohd. Zahid S/o Mohd.
Sabir was present at the spot and total connected load was
found to be 5.878 KW which was being used for
commercial purposes i.e. jeans stitching work.
Videographer Sh. Jagdeep captured videography of
inspection proceeding. Inspection documents i.e.
Inspection Report, Load Report and Seizure Memo were
prepared at the spot.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:33
Judgment
+0530
2 of 22
SC No.3780/2019 State Vs. Mohd. Zahid
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.4,12,452/-
Accordingly, a theft bill was raised and sent to the accused
but he 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 Jafrabad
for registration of FIR against the accused. Thereafter, FIR
was registered and investigation of the case was marked to
HC Jitender Singh, the IO of the case.
7. After completion of investigation, present charge-sheet
was filed against the accused Mohd. Zahid S/o Mohd.
Sabir being owner of the inspected premises U/s 135 r/w
Section 150 of Electricity Act, 2003.
Notice
8. On 08.05.2025, notice U/s 251 Cr.P.C for commission of
offence punishable under Section 135 r/w Section 150 of
the Act was given to accused. He did not plead guilty and
claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution
examined following three witnesses.
10. PW1 HC Jitender Singh, the IO of the case. He deposed
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:26
Judgment
+0530
3 of 22
SC No.3780/2019 State Vs. Mohd. Zahidthat on 24.04.2019 the complaint was marked to him.
Thereafter, he made endorsement Ex.PW1/A on the
complaint and got registered present FIR No.219/2019. He
proved the FIR asEx.PW1/B, site plan as Ex.PW1/C,
notice U/s 41A Cr.P.C. given to accused as Ex.PW1/D and
interrogation report as Ex.PW1/E. Accused produced copy
of his Adhar Card which is Ex.PW1/F. PW1/IO also
deposed that during investigation it was revealed that at the
time of inspection, one person namely Zahid was tenant in
the inspected premises and he has left the inspected
premises and went to an unknown place. He bound down
the accused Mohd. Zahid vide Pabandinama Ex.PW1/G.
11. PW2 Sh. R.B. Yadav (Assistant Manager) is the
complainant who was heading the inspection team. He
proved the CD of videography of the inspection
proceedings as Ex.PW2/A, inspection report as
Ex.PW2/B, load report as Ex.PW2/C, seizure memo
Ex.PW2/D and theft bill as Ex.PW2/E. He also proved the
complaint as Ex.PW2/F lodged by him. He has also
identified the case property i.e. illegal wire having length
of approx 8 meters as Ex.P1 through which theft of
electricity was being committed by the accused.
12. PW3 Sh. Jagdeep is the videographer who, on the
instruction of team leader Sh. R.B. Yadav, captured
videography of the inspection proceedings. He also proved
the video contained in the CD as Ex.PW2/A and
Certificate U/s 65B of Indian Evidence Act as Ex.PW3/A.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:31
Judgment
+0530
4 of 22
SC No.3780/2019 State Vs. Mohd. ZahidStatement of Accused
13. All incriminating evidence which has come on record,
were put to the accused under Section 313 Cr.P.C. Accused
denied all material allegations and stated that he is
innocent and has been falsely implicated in this case. He
has not committed any theft of electricity. However,
accused did not lead any Defence Evidence.
Arguments
14. Arguments heard from the side of Ld. Addl. PP for the
State as well as Ld. Counsel for accused.
15. Ld. Addl. PP submitted that accused was found indulged in
direct theft of electricity and no electricity meter was
found installed at his premises. It is further submitted that
accused Mohd. Zahid S/o Sabir was owner of the inspected
premises at the time of inspection and he
allowed/permitted/abetted his tenant/user/co-accused
Zahid (since not arrested) to commit direct theft of
electricity. He further submitted that prosecution has
proved allegations against the accused beyond reasonable
doubt through the evidence of prosecution witnesses. He
also emphasized that inspection was conducted as per
Rules and applicable Regulations. Thus, it is prayed that
accused may be convicted.
16. On the other hand, Ld. Defence Counsel submitted that
accused is innocent and he has been falsely implicated in
this case. It was also submitted that accused has not
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:28
Judgment+0530
5 of 22
SC No.3780/2019 State Vs. Mohd. Zahidcommitted any theft of electricity as alleged by the
prosecution. It is also submitted that during pendency of
trial, accused has settled civil liability qua impugned theft
bill and NOC has also been issued to accused.
Analysis
17.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;”
18.In this case, accused Mohd. Zahid S/o Sabir was found to
be owner of the inspected premises and his tenant/co-
accused Zahid (since not arrested) 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, reliance is placed on
judgment of the Hon’ble Delhi High Court reported as
Lokesh Chandela vs State of NCT & Ors. (Crl. Appeal
No.479/2011).
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:28
Judgment
+0530
6 of 22
SC No.3780/2019 State Vs. Mohd. Zahid
19. 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
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
Digitally
employee of the Board or the licensee enters into or
signed by
Ashish
Ashish Rastogi
acquiesces in any agreement to do, abstains from
Rastogi Date:
2025.01.31
15:19:27
Judgment
+0530
7 of 22
SC No.3780/2019 State Vs. Mohd. Zahiddoing, 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.
20. 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.
21.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”.
22.As per prosecution case, at the time of inspection, no
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:29
Judgment
+0530
8 of 22
SC No.3780/2019 State Vs. Mohd. Zahidelectricity meter was found installed in the inspected
premises and accused Mohd. Zahid was found to be owner
of the inspected premises while his tenant/co-accused
Zahid (since not traced) was found indulged in direct theft
of electricity with the help of single core yellow colour
wire which was found connected from Distribution Box of
BSES YPL. Accused Mohd. Zahid who was present at the
time of inspection, was found to be owner of the inspected
premises and he disclosed that one Zahid was his tenant
and was user of the electricity in the inspected premises.
Accused Mohd. Zahid being owner of inspected premises
let/permitted/allowed the user/tenant/co-accused Zahid
(since not arrested) to commit direct theft of electricity.
Thus, the onus was on the prosecution to prove these
allegations against the accused persons beyond reasonable
doubt.
23. 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 ti report a case of theft
and then under Regulation 63 there is assessment of theft
bill.
24. 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
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:35
Judgment
+0530
9 of 22
SC No.3780/2019 State Vs. Mohd. Zahid(1).The Authorized officer shall promptly conduct
inspection of any premises either suo-moto or on receipt
of information regarding theft of electricity:
Provided that the Authorized officer may avail the
assistance of employees of the Licensee for conducting
inspection.
(2) The Authorized officer shall carry his visiting card
bearing his photograph and photo identity card issued
under Regulation 55(3).
(3) Photo ID shall be shown and visiting card bearing his
photograph shall be handed over to the consumer or the
occupier of the premises before entering the premises and
take the acknowledgment.
(4) The Authorized officer shall prepare an inspection
report as per the provisions under these Regulations.
61. Preparation of Report by Authorized officer: –
(1) In the event of detection of theft of electricity, the
Authorized officer shall prepare a detailed Report at site,
in the manner as prescribed in the 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.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:32
Judgment
+0530
10 of 22
SC No.3780/2019 State Vs. Mohd. Zahid(5) If consumer or his representative at site refuses to
acknowledge and accept the copy of the report, a copy of
the report shall be pasted at a conspicuous place in or
outside the premises and photographed and/or video
recorded. Another copy of the same report shall be sent to
the consumer under Registered Post or Speed Post or
electronically on the same day or on the next day of the
inspection.
(6) The inspection report shall form the basis for further
action as per the provisions contained in Regulations.
62. Procedure for prosecution for Theft of Electricity: – (1)
The prosecution for theft of electricity under section 135
of the Act shall be initiated only in the cases where
dishonest intention is evident from the relevant facts,
records and other evidence of the case.
(2) In case sufficient evidence is found to establish theft of
electricity, the Authorized officer under sub-section (2) of
Section 135 of the Act shall seize and seal all material
evidence including wires/cables, meter, service line etc.,
from the premises under a seizure Memo.
(3) The supply of the consumer shall be disconnected
immediately on detection of theft only by such officer of
the Licensee or supplier 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
Digitally
signed by
the consumer or his employee or any other person acting
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:29
Judgment
+0530
11 of 22
SC No.3780/2019 State Vs. Mohd. Zahidon his behalf, shall also constitute theft of electricity
which may be established by analysis of metering data and
by testing of the meter in an accredited laboratory notified
by the Commission or by the agency authorized by the
Commission in this regard.
63. Assessment Bill for theft of electricity: – 1) The
Assessing officer shall assess the energy for theft of
electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall
be for a period of 12 (twelve) months preceding the date
of detection of theft of electricity or the exact period of
theft if determined, whichever is less: Provided further
that period of theft of electricity shall be assessed based
on the following factors: –
(i) actual period from the date of commencement of
supply to the date of inspection;
(ii) actual period from the date of replacement of
component of metering system in which the evidence is
detected to the date of inspection;
(iii) actual period from the date of preceding checking of
installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever
available.
(v) based on the document being relied upon by the
accused person.
(3) The assessment bill shall be prepared on two times the
rate as per applicable tariff.
(4) While making the assessment bill, the Licensee shall
give credit 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.
25. As per prosecution case, at the time of inspection, no
electricity meter was found installed in the inspected
premises and co-accused Zahid who was alleged to be
tenant (of accused Mohd. Zahid) as well as user of the
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:34
Judgment
+0530
12 of 22
SC No.3780/2019 State Vs. Mohd. Zahidelectricity in the inspected premises was indulged in direct
theft of electricity.
26. PW2 Sh. R.B. Yadav (Assistant Manager of the
complainant company) and PW3 Sh. Jagdeep
(Videographer) are prime witnesses of this case being
members of inspection team and PW2 was also heading
the inspection team. PW2 corroborated the allegations
made in the complaint (Ex.PW2/F) and deposed that at the
time of inspection, no electricity meter was found installed
at the inspected premises and that accused was found
indulged in direct theft of electricity with the help of
yellow colour wire which was found connected from
Distribution Box of BSES. PW2 further deposed that at the
time of inspection, accused was present at the spot,
however, he left the spot during inspection after locking
the inspected premises. Accused has not specifically
rebutted these facts during cross-examination of PW2 and
neither any evidence has been produced that he was not the
owner of the inspected premises at the time of inspection.
27. PW2 further deposed that at the time of inspection total
connected load was found to be 5.878 KW which was
being used for commercial purposes i.e. jeans stitching
work and necessary videography of the inspection
proceedings was conducted by PW2 Sh. Jagdeep. Accused
has not rebutted all these facts in the cross-examination of
PW2. Furthermore, to the query of Ld. Counsel, PW2 in
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:31
Judgment+0530
13 of 22
SC No.3780/2019 State Vs. Mohd. Zahidhis cross-examination specifically stated that at the time of
inspection no electricity was being used from the
electricity meter and entire electricity appliances/load were
running through illegal wire.
28. PW2 also deposed that on his instruction, PW3 Sh.
Jagdeep (videographer) conducted the videography of the
Inspection Proceedings in which the commission of theft
of electricity at the inspected premises was recorded. PW2
was duly cross-examined by Ld. Counsel for accused was
unable to bring out any contradiction in his testimony. Ld.
Counsel for accused has not disputed the inspection and
has merely put suggestions to witness that at the time of
inspection no theft of electricity was detected at the
premises of the accused which were categorically denied
by the witness. Accused has not disputed the load
mentioned in the load report.
29. As per load report, certain electrical appliances were found
installed at the inspected premises. In the load report,
calculation of the load has been mentioned and accused
person has not disputed the calculation of the load as
mentioned in the load report. Accused has not rendered
any alternative explanation. Accused Mohd. Zahid claimed
himself to be owner/landlord of the inspected premises at
the time of inspection. Tenant Zahid is stated to be the user
of the electricity at the relevant time. So it is evident that
accused Mohd. Zahid knew that co-accused/tenant/user of
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:30
Judgment+0530
14 of 22
SC No.3780/2019 State Vs. Mohd. Zahidelectricity Zahid (since not arrested) also shared the
intention alongwith accused Mohd. Zahid to indulge into
acts constituting direct theft of electricity. Furthermore,
accused Mohd. Zahid knew very well that there was no
electricity meter in the inspected premises despite that he
let out the inspected premises (if version of accused Mohd.
Zahid is presumed to be correct that Zahid was his tenant
and was using electricity in the inspected premises) or
allowed the co-accused to use inspected premises which
shows malafide intention of the accused to commit direct
theft of electricity causing loss to exchequer.
30. 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.
31.It is further 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 prosecution’s version that the accused was found
indulged in direct theft of electricity through illegal wire
and these facts have been well proved by PW2.
32. During evidence, CD (Ex.PW2/A) containing videography
of the inspection proceedings was played before the court
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:33
Judgment+0530
15 of 22
SC No.3780/2019 State Vs. Mohd. Zahidwhich depicted the manner in which the accused was
found indulged in direct theft of electricity through illegal
wires. Accused has neither disputed the contents of the
video nor the identity of the inspected premises shown in
the video contained in the CD. Furthermore, it is admitted
position of fact that there was no electricity meter available
at the premises of the accused at the time of inspection.
33. Nothing has been brought on record to indicate that
officials of complainant company had any animosity with
the accused and therefore, under these circumstances, non-
joining of public witness does not affect the authenticity of
the prosecution case. In this regard, this Court is supported
with the case law reported as ‘Punjab State Electricity Board
& Ors vs Ashwani Kumar, 2010 (7) SCC 569′. In this case,
the Hon’ble Supreme Court has made the following
observations:
“…..The report prepared by the officers of the
Electricity Board is an act done in discharge of their
duties and could not be straightway reflected or
disbelieved unless and until there was definite and
cogent material on record to arrive at such a finding.
The inspection report is a document prepared in
exercise of his official duty by the officers of the
corporation. Once an act is done in accordance with
law, the presumption is in favour of such act or
document and not against the same. Thus there was
specific onus upon the consumer to rebut by leading
proper and cogent evidence that the report prepared by
the officers was not correct.”
34. 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-
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:27
Judgment
+0530
16 of 22
SC No.3780/2019 State Vs. Mohd. Zahidexamination 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.
35. In addition, nothing incriminating 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.
36.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.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:30
Judgment+0530
17 of 22
SC No.3780/2019 State Vs. Mohd. Zahid
37. Coming to the Presumption as envisaged U/s 135 of
Electricity Act, it is to be noted that it uses the word “shall
presume”. Regarding the purport of the said expression, it
has been observed by the Hon’ble Supreme Court in
Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: –
“………Courts are authorized to draw a particular
inference from a particular fact, unless and until the
truth of such inference is disproved by other facts.
The court can, under Section 4 of the Evidence Act,
raise a presumption for purposes of proof of a fact.
It is well settled that a presumption is not in itself
evidence but only makes a prima facie case for a
party for whose benefit it exists. As per English
Law, there are three categories of presumptions,
namely, (i) presumptions of fact or natural
presumption; (ii) presumption of law (rebuttable and
irrebuttable); and (iii) mixed presumptions i.e.,
“presumptions of mixed law and fact” or
“presumptions of fact recognized by law”. The
expression “may presume” and “shall presume” in
Section 4 of the Evidence Act are also categories of
presumptions. Factual presumptions or discretionary
presumptions come under the division of “may
presume” while legal presumptions or compulsory
presumptions come under the division of “shall
presume”.
“May presume” leaves it to the discretion of the
court to make the presumption according to the
circumstances of the case but “shall presume” leaves
no option with the court, and it is bound to presume
the fact as proved until evidence is given to disprove
it, for instance, the genuineness of a document
purporting to be the Gazette of India. The
expression “shall presume” is found in Sections 79,
80, 81, 83, 85, 89 and 105 of the Evidence Act.”
38. 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
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:35
Judgment
+0530
18 of 22
SC No.3780/2019 State Vs. Mohd. Zahidreproduced 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’.”
39.In view of the settled law, now it is to be seen if the
accused has taken any defence to rebut the aforesaid
statutory presumption. Accused did not lead any defence
evidence nor he has brought anything on record which
could suggest that accused 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 has not explained as to from where he was
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.
40. Furthermore, it is clear from the evidence of PW2 that in
regard to the electricity theft, the complainant company
had raised a bill of Rs.4,12,452/- (Ex.PW2/E) against the
accused and during the course of arguments, Ld. Counsel
for accused submitted that that accused has settled the
matter qua civil liability and also deposited the settlement
amount and NOC has also been issued. In case, the
officials of the complainant company would not have
carried out the inspection as deposed by prosecution
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:32
Judgment+0530
19 of 22
SC No.3780/2019 State Vs. Mohd. Zahidwitnesses and complainant company would have raised a
false and baseless claim by way of theft bill ( Ex.PW2/E),
then instead of going for settlement, accused would have
raised his protest and would have initiated appropriate
proceedings against complainant company for raising a
false claim against him. This conduct of the accused also
fortifies the allegations of the direct theft of electricity
against him.
41.Notwithstanding, if the accused was not indulged in direct
theft of electricity or he was using the electricity through
legal sources then the easiest way to rebut the statutory
presumption for the accused was to prove on record that at
the time of inspection, he was drawing electricity through
his own electricity meter. However, accused has not
brought anything on record to disprove the allegations
brought on record by the prosecution. In view of these
discussions, it is held that accused has failed to rebut the
statutory presumption.
42. 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
Digitally
signed by
producing the electricity bills paid by the appellant
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:28
Judgment
+0530
20 of 22
SC No.3780/2019 State Vs. Mohd. Zahidto 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”.
43. Accused did not lead any defence evidence. If the tenant
i.e. Zahid was not indulged in direct theft of electricity or
that he was using the electricity through any legal means,
then the accused Mohd. Zahid, who claimed himself to be
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 Mohd. Zahid at the relevant time,
which was let out to co-accused Zahid (not traceable).
Accused has not brought any material on record or lead
any evidence to disprove the prosecution case.
44. In view of aforesaid discussions, it is held that the
prosecution has proved beyond reasonable doubt that
user/tenant/co-accused Zahid (since not arrested)
dishonestly indulged in direct theft of electricity through
illegal wire. It is also proved on record that accused Mohd.
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:26
Judgment
+0530
21 of 22
SC No.3780/2019 State Vs. Mohd. ZahidZahid was the owner/landlord of inspected premises at the
relevant time and co-accused/user/tenant Zahid has been
proved to have indulged in direct theft of electricity with
the help of illegal wire connecting the same with BSES
Distribution Box. Accused Mohd. Zahid being the
owner/landlord let/permitted/consciously allowed the
tenant/user/accused Zahid to commit direct theft of
electricity. Thus, accused Mohd. Zahid is guilty of
abetment of offence of direct theft of electricity.
Accordingly, Mohd. Zahid S/o Mohd. Sabir is convicted
for the offence punishable U/s 135 r/w Section 150 of the
Electricity Act 2003. File be taken up again as and when
user/co-accused Zahid is arrested.
Let convict be heard on quantum of sentence.
Announced in the Open Court on 31.01.2025.
(Ashish Rastogi)
Addl. Sessions Judge-05 (Electricity)
East/Karkardooma Courts/Delhi
Digitally
signed by
Ashish
Ashish Rastogi
Rastogi Date:
2025.01.31
15:19:34
Judgment
+0530
22 of 22