The main legal point established is that the registered consumer/owner of the premises can be held liable for electricity theft under the Electricity Act, 2003, even if not directly involved in the act.

1. A complaint case was filed by the respondent under Section 151 read with Section 154 for offences punishable under Sections 135 read with Section 150 of the Electricity Act, 2003 (in short ‘the Act’) and for determination of civil liability under Section 154(5) of the Act. In the said complaint being CC No.148/2012 the petitioner was arrayed as respondent Nos. 2 and 3 with the name Kanwar Singh as owner and Rameshwar as registered consumer.

2. Learned counsel for the petitioner does not dispute that the petitioner Rameshwar @ Kanwar Singh is the owner and registered consumer of the premises in question. Vide the impugned order dated 5th December, 2015, notice was directed to be framed for the offences alleged against the petitioner. Hence the present petition.

3. Learned counsel for the petitioner contends that though the petitioner is owner and registered consumer of the premises however in view of the fact that the petitioner was not the user at the relevant time when the inspection was carried out and the property in question was on rent with the tenant who was found to be user, the petitioner cannot be fastened with vicarious liability for the offences punishable under Sections 135 read with Section 150 of the Act.

4. Learned counsel for the petitioner relying upon the decision of this Court reported as (1999) 51 DRJ 31 D.D. Chadha Vs. State (NCT, Delhi) contends that Section 39 of the Indian Electricity Act which is para materia Section 135 of the Electricity Act, 2003 contends that mens rea is essential ingredient of the offence and the word “whoever” indicate that only a person who dishonestly abstracts or consumes or uses the electricity by unauthorized mean is liable to be punished for the offences. In the absence of proof of mens rea, merely because the petitioner is the registered consumer, he cannot be fastened with the liability. Distinguishing the decision of this Court reported as 138 (2007) DLT 679 Hindustan Petroleum Corporation Vs. BSES Rajdhani Ltd. & Anr. learned counsel for the petitioner contends that the same has no application to the facts of the present case.

5. Learned counsel for the respondent on the other hand referring to the third proviso to Section 135 (1) of the Act submits that in view of the presumption raised, it would be for the petitioner to rebut the same in the course of trial that as registered consumer he was not aware and had no control on the acts of the tenants and at this stage, there is no illegality in framing of notice against the petitioner. Reliance is placed on the decision in Hindustan Petroleum Corporation (supra) and the decision of this Court reported as 2012 Crl.LJ 1418 Lokesh Chandela Vs. State NCT of Delhi & Ors.

6. Before adverting to the legal issue it would be relevant to note accusation of the respondent in the complaint as under:-

“7. That as per the direction of DGM Enf. the joint inspection team inspected the abovesaid premises and following observations were made.

a. At the time of inspection one number three phase CT meter bearing no-29010066, C/R 154.6 Kwh, 212.2 Kvah was found installed at site, however there was no blinking on the meter. KIT KAT was found removed but supply was found running on load position.

b. Joint team traced the service cable & the same was found at roof of the premises and three no’s of illegal tapping were found in the service cable by means of three no’s of illegal Teflon copper wire through which entire load was connected. Further recording of meter was done.

c. The total connected load of the premises was assessed and the same was found to be 71.804 KW/DT/IX.

d. Joint team seized One no. three phase Electronic CT meter bearing no.29010066 C/R 154.6 Kwh, 212.2 Kvah and three no. of illegal black colour copper Teflon of size 20 sq.mm and length 3 meter (approx) as material evidence from the site.

e. Necessary Videography was conducted by Photographer Anand from M/s Arora Studio at site.

f. The Joint team members prepared Load Repor