The main legal point established in the judgment is the presumption of theft of electricity under the third proviso to Section 135 of the Electricity Act, 2003, and the onus on the accused to rebut this presumption.

SUNITA GUPTA, J.

1. The challenge in this appeal under Section 156 of the Electricity Act, 2003 hereinafter, ‘the Act’) read with Section 374 Cr.P.C is to the judgment dated 29.05.2012 and order on sentence and civil liability dated 03.07.2012 passed by learned Special Judge (Electricity), Saket Courts, New Delhi vide which the appellant – Udai Veer Singh was convicted and held guilty for offence under Section 135 of the Act and was sentenced to undergo rigorous imprisonment for a period of two years and was also directed to pay fine of Rs.35,53,641/-, out of which a sum of Rs.23,69,094/- was to be paid to the respondent no.1 company towards its loss. The civil liability was assessed at Rs.23,69,094/-.

2. The facts giving rise to filing of the present appeal, in nutshell, are that a complaint under Section 151 of the Act was filed by BSES RPL (hereinafter referred to as ‘the company’) against Apollo Foods and Udai Veer Singh (the appellant herein) inter alia on the allegations that on 18.07.2007, a joint inspection team inspected the premises number 407/1, Khasra No.460/1, Neb Sarai, near IGNOU, New Delhi. The Apollo Foods was found to be the user while Udai Veer Singh was found to be the registered consumer of the electricity bearing K. No.2520G 3060601 and meter number 22374133. At the time of inspection, the meter was found disconnected and hanging in idle condition. It was averred that the complainant company was not aware of the constitution of accused number 1 and, therefore, reserved its right to implead the person responsible for day-to-day affairs of the accused number 1. It was also alleged that both the accused, in collusion with each other, were indulging in direct theft of electricity by illegal tapping from BSES LV Lines and the unit was found to be in operation. On seeing the enforcement team, the premises were locked and the users fled away. Illegal wires were used for committing theft and the electric meter and sub meter was seized by the inspecting team. The inspection report, meter detail report, load report and seizure memo were prepared at site. Videography was also carried out. The connected load of 68.534 KW for non-domestic purpose was assessed. On the basis of load applicable tariff, a theft bill of Rs.25,06,307/- was raised. Since the accused persons failed to pay the same, the complaint was filed.

3. After recording pre-summoning evidence, the accused persons were summoned to face the trial. Accused No.2 – Udai Veer Singh entered appearance and submitted that the accused number 1 was a tenant and had vacated the premises. The accused number 1 was dropped due to non-availability of complete details about its identity. The notice of accusation of offence punishable under Section 135 of the Act was served upon the accused number 2 who pleaded not guilty and claimed trial. It was alleged that the meter was in his name which was disconnected by the complainant on 20.10.2004 and he was not using the electricity in any manner and as such was not liable to pay any amount to the complainant.

4. In order to substantiate its case, the complainant examined four witnesses. The entire incriminating evidence was put to the accused while recording his statement under Section 313 Cr.P.C wherein he admitted his ownership of the inspected premises. However, he stated that he had rented out the premises to Apollo Foods for being used as a godown. One Vinod Kumar S/o Sh. Om Prakash was the user and theft of electricity was without his knowledge. He denied his knowledge of gazettes and machines connected to the load and denied the load report for want of knowledge. He also denied that the documents were prepared at site. Removal of wires, meters and sub meter were also denied. He further stated that the premises were rented out to be used only as a godown with no provisions of electricity with a clear understanding that the tenant shall not consume any electricity and use generators for lighting load.

5. Accuse