The main legal point established in the judgment is the appellant's guilt of theft of electricity for domestic purposes under Section 135 of the Electricity Act, 2003, and the court's imposition of a fine due to the appellant's plea as a first offender and family support.

SUNITA GUPTA, J.

1. The appellant impugns the judgment dated 18th January, 2012 passed by the learned Special Electricity Court, Dwarka, New Delhi in CC No.408/10/08 u/s 135 of Electricity Act, 2003 whereby the appellant was held guilty under Section 135 of Electricity Act, 2003 (hereinafter referred to as “the Act”) and order on sentence dated 25th January, 2012 whereby he was sentenced to pay a fine of Rs.1,45,566/- in default to undergo simple imprisonment for four months. He was also liable to pay civil liability u/s 154(5) of the Act which was assessed to Rs.97,044/- along with interest @ 6% per annum from the due date of the bill, i.e., 23.07.2008 till its realization. The amount of civil liability was to be paid out of fine, if realized.

2. A complaint under Section 135 of the Act was filed by the respondent/complainant against the appellant, inter alia, on the allegations that on 17th June, 2008, at 12:55 pm, a joint inspection team headed by Mr. K.P. Solanki, Sr. Managar, Enforcement of the complainant company along with photographer Sh. Jai Prakash from M/s Arora Photo Studio inspected the premises number A-11-12, JJ Cluster, Maya Puri, New Delhi which was used and occupied by accused who disclosed his name as Raju. No electricity meter was found installed at the premises. Accused was indulging in direct theft of electricity by tapping LV mains of the complainant with the help of wires which were connected to the connected load of the premises as shown in diagram prepared at page 3 of inspection report. The connected load was 12.510 KW used for non-domestic purposes. The videography of the premises was done. The wires were removed and taken into possession vide separate seizure memo. Inspection report including meter report and load report were prepared and offered to the accused who refused to receive and sign the same. A theft bill was raised against the accused which remained unpaid. Hence the complainant was filed.

3. Two witnesses were examined by the complainant in pre-summoning evidence. Thereafter the accused was summoned for offence u/s 135 of the Act. Notice under Section 251 Cr.P.C. was given to the accused to which he pleaded not guilty and claimed trial.

4. Four witnesses were examined by the complainant to substantiate its case. All the incriminating evidence put to the accused was denied by him in his statement u/s 313 Cr.P.C. wherein he took the defence that he was not using the premises. One meter was installed in his name in the premises. There was no theft of electricity, however, he did not prefer to lead any defence evidence.

5. After evaluating the oral and documentary evidence led by the complainant, vide impugned judgment it was held that complainant was able to establish that appellant was found indulging in direct theft of electricity but it could not be prove that it was for non-domestic use therefore, he was convicted for committing theft of electricity for domestic purpose, however, no substantive punishment was awarded to him in view of his plea that he was a first offender; he has family to support including his children; the complainant could not prove the non-domestic use of the premises. As such, by taking liberal view, only fine was imposed upon the convict.

6. Challenge is laid by learned counsel for the appellant to the impugned judgment on the ground that there are allegations of direct theft of electricity by the appellant for non-domestic use and it is alleged that videography was done, however, it was admitted in cross-examination by the complainant’s witnesses that the appellant was not shown in the videography. Moreover, no document was collected by the complainant to prove that jhuggi belongs to him. Moreover, there was no pole in the area and, therefore, plea that accused was committing direct theft of electricity is fallacious. No independent witness was joined in the raid, as such, prosecution has failed to bring home the guilt of the accused beyond reasonable doubt