Delhi District Court
State(Bses) vs Jawahar on 23 April, 2025
SC No.383/2019 State Vs. Jawahar & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 1003/2022
FIR No. 383/2019
Under Section 135/150 Electricity Act
PS Shastri Park
State
versus
1. Jawahar
S/o Late Sh. Chanderpal
2. Satpal
S/o Sh. Nathu
Both R/o H.No.82 Mandir Wali Gali No.1.
New Garhi Mendi Village,
Delhi.
.... Accused
Date of institution 13.09.2022
Judgment reserved on 23.04.2025
Judgment Pronounced on 23.04.2025
Decision Convicted
Digitally JUDGMENT
signed by
Ashish
Ashish Rastogi
Rastogi 1.
Date: Accused Jawahar and Satpal are facing trial upon the
2025.04.23
04:27:25
+0530 allegations that accused Jawahar was indulged in direct
Judgment 1 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
theft of electricity and accused Satpal (owner of the
inspected premises) is stated to have abetted the co-accused
Jawahar who was his tenant in the inspected premises, to
commit theft of electricity and thereby, committed an
offence punishable under 135/150 of Electricity Act 2003
(hereinafter referred to as 'the Act').
Brief Facts
2. On 19.12.2018, at about 8.05 am, an inspection was
conducted by the inspection team of BSES Yamuna Power
Limited (hereinafter referred as complainant company)
headed by Sh. Praveen Kumar Verma (Assistant Manager)
in the residential premises of accused persons at House
No.66-A, Khasra No.77, village Old Garhi Maandu,
Delhi-110053.
3. At the time of inspection, no electricity meter was found
installed at the site and user i.e. tenant/co-accused Jawahar
was found indulging in direct theft of electricity with the
help of two core black colour cable which was found
connected from Distribution Box of BSES YPL.
4. At the time of inspection, accused Jawahar and one lady
were present there and total connected load was found to
Digitally be 1.299 KW which was being used for domestic purposes.
signed by
Ashish Videographer Sh. Akshay Kaushik captured videography
Ashish Rastogi
of inspection proceeding. Inspection documents i.e.
Rastogi Date:
2025.04.23
04:27:31 Inspection Report, Load Report and Seizure Memo were
+0530
prepared at the spot.
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SC No.383/2019 State Vs. Jawahar & 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.40,150/-
Accordingly, a theft bill was raised and sent to the accused
persons 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 Shastri
Park for registration of FIR against the accused persons.
7. The said complaint was marked to HC Champat Singh
who made endorsement Ex.PW1/A and got registered FIR
No.383/2019 (Ex.PW1/B). During investigation, it was
revealed that accused persons were in possession of the
inspected premises at the time of inspection and in this
regard, IO recorded statement of neighbour namely Prince.
It was further revealed that accused Satpal was owner of
the inspected premises while co-accused Jawahar was his
tenant and was user of the electricity in the inspected
premises at the relevant time. After completion of
investigation, IO filed the charge-sheet against the accused
Jawahar being user of the electricity and accused Satpal
being user and owner of the inspected premises.
Notice
8. On 28.03.2023, notice U/s 251 Cr.P.C for commission of
Digitally
signed by
Ashish offence punishable under Section 135 of the Act was given
Ashish Rastogi
Rastogi Date: to accused Jawahar and under Section 135 r/w Section
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04:27:36
Judgment
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SC No.383/2019 State Vs. Jawahar & Anr.
150 of the Act was given to accused Satpal. Both accused
persons did not plead guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution
examined following four witnesses.
10. PW1 ASI Champat Singh (then HC) is the IO of the case.
He proved endorsement made on the complaint as
Ex.PW1/A, FIR as Ex.PW1/B, site plan as Ex.PW1/C,
notice U/s 41A Cr.P.C given to accused persons as
Ex.PW1/D and Ex.PW1/E and interrogation reports as
Ex.PW1/F and Ex.PW1/G. He also seized copy of Aadhar
Card of accused which is Ex.PW1/H. He also proved the
statement of nehighbour namely Charan Singh as
Ex.PW1/I and Pabandinamas Ex.PW1/J and Ex.PW1/K.
11. PW2 Sh. Satpal is Diploma Engineer Trainee (DET). He
was one of the members of the inspection team. He proved
CD of videography of the inspection proceedings as
Ex.PW2/1, inspection report as Ex.PW2/2, load report as
Ex.PW2/3 and theft bill as Ex.PW2/4. He also proved the
complaint as Ex.PW2/5 lodged by PW3 Praveen Kumar
Verma (Assistant Manager of the complainant company).
12. PW3 Sh. Praveen Kumar Verma is the complainant/team
Digitally
signed by
leader who was heading the inspection team. He reiterated
Ashish
Ashish Rastogi the facts mentioned in the complaint Ex.PW2/5 and also
Rastogi Date:
2025.04.23
04:27:41 corroborated the testimony of PW2 Satpal.
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Judgment 4 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
13. PW4 Sh. Akshay Kaushik is the videographer who, on the
instruction of team leader Sh. Praveen Kumar Verma,
captured videography of the inspection proceedings. He
proved the video contained in the CD as Ex.PW2/1.
Statement of Accused
14.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
15. At the outset, it is observed that the Certificate U/s 65B of
Indian Evidence Act, 1872 for the videography
proceedings has not been exhibited, though the same is on
record. Ld. Addl. PP and AR of the complainant company
submit that videography has been proved by PW2, PW3
and PW4. Be that as it may, the non-exhibition of the
certificate Section 65B of Indian Evidence cannot be fatal
to the case of the prosecution as there was no objection
Ashish raised by the Ld. Defence counsel for the accused at the
Rastogi time of proving CD containing videography of the
Digitally signed
by Ashish inspection proceedings. The court, in relation to the said
Rastogi
Date: 2025.04.23
04:27:45 +0530
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SC No.383/2019 State Vs. Jawahar & Anr.
legal position, is supported by the judgement reported as
Sonu @ Amar vs State of Haryana, AIR 2017 SC 3441
wherein it is held:
26. That an electronic record is not admissible unless it is
accompanied by a certificate as contemplated under
Section 65B (4) of the Indian Evidence Act is no more res
integra. The question that falls for our consideration in
this case is the permissibility of an objection regarding
inadmissibility at this stage. Admittedly, no objection was
taken when the CDRs were adduced in evidence before
the Trial Court. It does not appear from the record that
any such objection was taken even at the appellate stage
before the High Court. In Gopal Das v. Sri Thakurji, AIR
1943 PC 83, it was held that:
“Where the objection to be taken is not that the document
is in itself inadmissible but that the mode of proof put
forward is irregular or insufficient, it is essential that the
objection should be taken at the trial before the document
is marked as an exhibit and admitted to the record. A party
cannot lie by until the case comes before a Court of
Appeal and then complain for the first time of the mode
of proof.” In RVE Venkatachala Gounder, this Court held
as follows:
“Ordinarily an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in
evidence may be classified into two classes: (i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode of
proof alleging the same to be irregular or insufficient. In
the first case, merely because a document has been
marked as ‘an exhibit’, an objection as to its admissibility
is not excluded and is available to be raised even at a later
stage or even in appeal or revision. In the latter case, the
objection should be taken before the evidence is tendered
and once the document has been admitted in evidence and
marked as an exhibit, the objection that it should not have
been admitted in evidence or that the mode adopted for
Digitally proving the document is irregular cannot be allowed to be
signed by
Ashish raised at any stage subsequent to the marking of the
Ashish Rastogi document as an exhibit. The later proposition is a rule of
Rastogi Date:
2025.04.23fair play. The crucial test is whether an objection, if taken
04:27:49
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SC No.383/2019 State Vs. Jawahar & Anr.
at the appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and resort
to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party tendering
the evidence, for two reasons: firstly, it enables the Court
to apply its mind and pronounce its decision on the
question of admissibility then and there; and secondly, in
the event of finding of the Court on the mode of proof
sought to be adopted going against the party tendering the
evidence, the opportunity of seeking indulgence of the
Court for permitting a regular mode or method of proof
and thereby removing the objection raised by the opposite
party, is available to the party leading the evidence. Such
practice and procedure is fair to both the parties. Out of
the two types of objections, referred to hereinabove, in the
later case, failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting on formal
proof of a document, the document itself which is sought
to be proved being admissible in evidence. In the first
case, acquiescence would be no bar to raising the
objection in superior Court.” [Emphasis supplied] It
would be relevant to refer to another case decided by this
Court in PC Purshothama Reddiar v. S Perumal, (1972) 1
SCC 9. The earlier cases referred to are civil cases while
this case pertains to police reports being admitted in
evidence without objection during the trial. This Court did
not permit such an objection to be taken at the appellate
stage by holding that:
“Before leaving this case it is necessary to refer to one of
the contentions taken by Mr. Ramamurthi, learned
Counsel for the respondent. He contended that the police
reports referred to earlier are inadmissible in evidence as
the Head-constables who covered those meetings have not
been examined in the case. Those reports were marked
without any objection. Hence it is not open to the
respondent now to object to their admissibility.”
27. It is nobody’s case that CDRs which are a form of
electronic record are not inherently admissible in
Digitally evidence. The objection is that they were marked before
signed by the Trial Court without a certificate as required by Section
Ashish
Ashish Rastogi 65B (4). It is clear from the judgments referred to supra
Rastogi Date: that an objection relating to the mode or method of proof
2025.04.23
04:27:54
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SC No.383/2019 State Vs. Jawahar & Anr.
has to be raised at the time of marking of the document as
an exhibit and not later. The crucial test, as affirmed by
this Court, is whether the defect could have been cured at
the stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs
being marked without a certificate, the Court could have
given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which
are per se inadmissible can be taken even at the appellate
stage. Admissibility of a document which is inherently
inadmissible is an issue which can be taken up at the
appellate stage because it is a fundamental issue. The
mode or method of proof is procedural and objections, if
not taken at the trial, cannot be permitted at the appellate
stage. If the objections to the mode of proof are permitted
to be taken at the appellate stage by a party, the other side
does not have an opportunity of rectifying the
deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 of the Cr. P.C.
1973 as an example of documents falling under the said
category of inherently inadmissible evidence. CDRs do
not fall in the said category of documents. We are
satisfied that an objection that CDRs are unreliable due to
violation of the procedure prescribed in Section 65 B (4)
cannot be permitted to be raised at this stage as the
objection relates to the mode or method of proof.
16.Taking into account the law as laid down by the Hon’ble
Supreme Court, the videography stands proved even when
the certificate U/s 65B of Indian Evidence Act has not
been exhibited.
17.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
Digitally
signed by
evidence of prosecution witnesses. He also emphasized
Ashish
Ashish Rastogi that inspection was conducted as per Rules and applicable
Rastogi Date:
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+0530
Judgment 8 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
Regulations. Thus, it is prayed that accused persons may
be convicted.
Analysis
18.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.
19.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;”
20.In this case, accused Satpal was found to be owner of the
inspected premises and his tenant/co-accused Jawahar 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
Digitally
found at the premises of accused. In this regard, this court
signed by
Ashish
Ashish Rastogi
Rastogi Date: is also supported with the judgment of the Hon’ble Delhi
2025.04.23
04:28:02
+0530
Judgment 9 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
High Court reported as Lokesh Chandela vs State of NCT
& Ors. (Crl. Appeal No.479/2011).
21.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,
Digitally
signed by
notwithstanding anything contained in the Indian
Ashish Rastogi Penal Code (45 of 1860), be punished with the
AshishRastogi Date: punishment provided for the offence.
2025.04.23
04:28:09
+0530
(2) Without prejudice to any penalty or fine whichJudgment 10 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
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.
22. 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.
23.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines ‘dishonestly’ and holds that
Digitally
signed by
Ashish Whoever does anything with the intention of causing
Ashish Rastogi
Rastogi Date:
2025.04.23
wrongful gain to one person or wrongful loss to another
04:28:15
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Judgment 11 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
person, is said to do that thing “dishonestly”.
24.As per prosecution case, at the time of inspection, no
electricity was found installed in the inspected premises
and accused Satpal as well as co-accused Jawahar were
found indulged in direct theft of electricity with the help of
illegal wire connecting the same with Distribution Box of
BSES YPL. Accused Jawahar who was present at the time
of inspection, was found to be tenant/user of the electricity
and accused Satpal was found to be owner of the inspected
premises. Accused Satpal being owner of inspected
premises let/permitted/allowed the user/accused Jawahar to
commit direct theft of electricity. Thus, the onus was on
the prosecution to prove these allegations against the
accused persons beyond reasonable doubt.
25. 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.
26. Regulations 60-63 of DERC are as under:-
signed by Theft of Electricity under Section 135 of the Act 60.
Digitally
Ashish Inspections of the premises and electrical installations by
Ashish Rastogi
Rastogi Date: Authorized officer: –
2025.04.23
04:28:21
+0530 (1) The Authorized officer shall promptly conduct inspection
Judgment 12 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
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.
Ashish (4) The inspection Report shall be signed by the Authorized
officer and a copy of the same shall be handed over to the
Rastogi consumer or his representative at the site immediately under
Digitally signed proper acknowledgement. The other persons present at site
by Ashish Rastogi
may also sign the inspection report.
Date: 2025.04.23
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Judgment 13 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
(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
Digitally
signed evidence.
by
Ashish
Ashish Rastogi
Rastogi Date:
(5) Interference with the accurate registration of energy
2025.04.23
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+0530
consumed by resorting to external methods involving remote
Judgment 14 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
control, high voltage injection etc., committed by the consumer
or his employee or any other person acting on his behalf, shall
also constitute theft of electricity which may be established by
analysis of metering data and by testing of the meter in an
accredited laboratory notified by the Commission or by the
agency authorized by the Commission in this regard.
63. Assessment Bill for theft of electricity: –
(1) The Assessing officer shall assess the energy for theft of
electricity as notified in the Appendix I to the Regulations.
(2) The period of assessment for theft of electricity shall be for
a period of 12 (twelve) months preceding the date of detection
of theft of electricity or the exact period of theft if determined,
whichever is less: Provided further that period of theft of
electricity shall be assessed based on the following factors: –
(i) actual period from the date of commencement of supply to
the date of inspection;
(ii) actual period from the date of replacement of component of
metering system in which the evidence is detected to the date
of inspection;
(iii) actual period from the date of preceding checking of
installation by authorized officer to date of inspection;
(iv) data recorded in the energy meter memory wherever
available.
(v) based on the document being relied upon by the accused
person.
(3) The assessment bill shall be prepared on two times the rate
as per applicable tariff.
(4) While making the assessment bill, the Licensee shall give
credit 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
Ashish receipt of request of such person, whichever is earlier.
Rastogi
27. As per prosecution case, at the time of inspection, no
Digitally signed by
Ashish Rastogi electricity meter was found installed in the inspected
Date: 2025.04.23
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Judgment 15 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
premises and Jawahar who was alleged to be tenant of
accused Satpal was found to be user of the electricity in the
inspected premises was indulged in direct theft of
electricity.
28. PW2 Sh. Satpal (DET), PW3 Praveen Kumar Verma
(Assistant Manager) and PW4 Sh. Akshay Kaushik
(Videographer) are prime witnesses of this case being
members of inspection team. PW2 and PW3 corroborated
the allegations made in the complaint ( Ex.PW2/5) and
deposed that at the time of inspection, no electricity meter
was found installed at the inspected premises and that,
accused Jawahar was present at the spot and was
occupying the premises as tenant of the inspected
premises, was found indulged in direct theft of electricity
with the help of two core black colour cable which was
found connected from Distribution Box of BSES YPL.
Accused persons have not specifically denied these facts
during cross-examination of PW2 and PW3
29. PW2 and PW3 further deposed that at the time of
inspection, total connected load was found to be 1.299 KW
which was being used for domestic purposes. Accused
persons have not disputed the load report, its content and
its genuineness.
Ashish
30. PW4 conducted the videography of the Inspection
Rastogi
Digitally signed
Proceedings in which the commission of theft of electricity
by Ashish Rastogi
at the
Date: 2025.04.23
inspected premises was recorded. PW2, PW3 &
04:28:40 +0530
Judgment 16 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
PW4 were duly cross-examined by Ld. Counsel for
accused was unable to bring out any contradiction in their
testimony. Ld. Counsel for accused persons merely put
suggestions to witnesses that no inspection took place and
any such documents were not prepared which were
categorically denied by witnesses. Accused persons have
simply denied the inspection documents but they have not
denied its contents. Ld. Counsel for accused persons
simply put suggestion that accused persons were never
indulged in theft of electricity.
31. 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 disputed the calculation of the load as
mentioned in the load report. Accused has not rendered
any alternative explanation. Accused Satpal is admittedly
the owner of the inspected premises. Co-accused Jawahar
is stated to be user of the electricity at the relevant time.
Although, accused Satpal was stated to be not present at
the site at the time of inspection, accused Jawahar was
admittedly present at site at the time of inspection. So it is
evident that accused Satpal knew that co-accused also
shared the intention alongwith accused to indulge into acts
constituting direct theft of electricity. Furthermore,
accused Satpal was well known that there was no
Digitally
signedelectricity
by meter in the inspected premises despite that he
Ashish
Ashish Rastogi
Rastogi Date: let out the inspected premises (if version of accused
2025.04.23
04:28:44
+0530
Judgment 17 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
Jawahar is presumed to be correct that he 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 persons to commit
direct theft of electricity causing loss to exchequer.
32. 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.
33.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 was found indulged in direct
theft of electricity through illegal wire and these facts have
been well proved by PW2, PW3 and PW4.
34. During evidence, CD (Ex.PW2/1) containing inspection
proceedings was played before the court which depicted
the manner in which the accused Jawhar was found
indulged in direct theft of electricity through illegal cable.
Accused persons has neither disputed identity of accused
Jawhar nor the identity of the inspected premises shown in
Digitally
signed by
Ashishthe video contained in the CD. Furthermore, it is admitted
Ashish Rastogi
Rastogi Date:position of fact that there was no electricity meter available
2025.04.23
04:28:49
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Judgment 18 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
at the premises of the accused at the time of inspection.
35. 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.”
36. 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
Digitally
signedtheir
by testimonies are trustworthy. In the present case also,
Ashish
Ashish Rastogithere is no material to show that the BSES officials who
Rastogi Date:
inspected the premises of the accused were inimical to the
2025.04.23
04:28:53
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SC No.383/2019 State Vs. Jawahar & Anr.
accused.
37. 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.
38.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.
39. 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
Digitally
signed byhas been observed by the Hon’ble Supreme Court in
Ashish
Ashish Rastogi Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: –
Rastogi Date:
2025.04.23
04:29:02 “………Courts are authorized to draw a particular
+0530Judgment 20 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
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.”
40. Hon’ble Supreme Court, in case reported as ‘2001 (6) SCC
16 titled as Hiten P. Dalal vs Bratindranath Banerjee ‘, has
laid down the law related to the rebuttal of statutory
presumption. Relevant portion of the para no.16 is
reproduced as under:-
“…Therefore, the rebuttal does not have to be
conclusively established but such evidence must be
adduced before the court in support of the defence that
the Court must either believe the defence to exist or
Digitally consider its existence to be reasonably probable, the
signed by
Ashish standard or reasonability being that of the ‘prudent
Ashish Rastogi man’.”
Rastogi Date:
2025.04.23
04:29:06
41.
+0530 In view of the settled law, now it is to be seen if the
Judgment 21 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
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 Jawahar 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 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.
42. Furthermore, it is clear from the evidence of PW2 and
PW3 that in regard to the electricity theft, the complainant
company had raised a bill of Rs.40,150/- (Ex.PW2/4)
against the accused persons and in their statements
recorded U/s 313 Cr.P.C as well as 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 as deposed by prosecution witnesses and
complainant company would have raised a false and
Digitally
signed baseless
by claim by way of theft bill ( Ex.PW2/4), then
Ashish
Ashish Rastogiinstead of going for settlement, accused persons would
Rastogi Date:
have raised their protest and would have initiated
2025.04.23
04:29:10
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Judgment 22 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
appropriate proceedings against 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.
43. If the accused Jawahar 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 persons have
not brought anything on record to disprove the allegations
brought on record by the prosecution. Accordingly, it is
held that accused has failed to rebut the statutory
presumption.
44. In this regard, this court is supported by the judgment of
Hon’ble High Court of Delhi reported as Mukesh Rastogi
vs North Delhi Power Limited’ 2007 (99) DRJ108. The
observations made by Hon’ble High Court of Delhi are
reproduced as under:-
“….6. The contention of the appellant is that electricity
supply was going through meter. Had the electricity
been going to the appellant’s premises through meter,
the easiest way to prove it was by producing the
electricity bills paid by the appellant to the complainant
company. The very fact that the appellant did not prove
a single bill showing payment of electricity charges
fortifies the plea of the complainant company that
electricity was being used by the appellant directly
from LT Main by committing theft. Paid electricity bills
Digitally
signed by would have been the best evidence to show that the
Ashish
Ashish
Rastogi appellant was using electricity through mere. Under
Rastogi Date: section 106 of the Evidence Act, the onus was on the
2025.04.23
04:29:15
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Judgment 23 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
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”.
45. Accused persons did not lead any defence evidence. If the
tenant/user i.e. Jawahar was not indulged in direct theft of
electricity or that he was using the electricity through any
legal means, then the accused Satpal, who claimed himself
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 Satpal at the
relevant time, which was let out to co-accused Jawahar.
Accused persons have not brought any material on record
or lead any evidence to disprove the prosecution case.
46. In view of aforesaid discussions, it is held that the
prosecution has proved beyond reasonable doubt that
user/co-accused/tenant Jawahar dishonestly indulged in
direct theft of electricity through illegal wire. It is also
proved on record that accused Satpal was the owner of
inspected premises and accused/user/tenant Jawahar has
been proved to have indulged in direct theft of electricity
Digitally by attaching illegal external device. Accused Satpal being
signed by
Ashish
Ashish Rastogi the owner of inspected premises let/permitted/consciously
Rastogi Date:
2025.04.23
04:29:20
allowed the user/accused Jawahar to commit direct theft of
+0530
Judgment 24 of 25
SC No.383/2019 State Vs. Jawahar & Anr.
electricity. Thus, accused Satpal is guilty of abetment of
offence of direct theft of electricity and accused Jawhar is
guilty of offence of direct theft of electricity. Accordingly,
accused Jawahar is held guilty and convicted for the
offence punishable U/s 135 of Electricity Act 2023 and
accused Satpal 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 23.04.2025.
Digitally (Ashish Rastogi)
signed by
Ashish
Ashish Rastogi
Addl. Sessions Judge-05 (Electricity)
Rastogi Date:
2025.04.23
East/Karkardooma Courts/Delhi
04:29:24
+0530Judgment 25 of 25