Occupancy and benefit from electricity theft incur liability under Section 135 of the Electricity Act regardless of ownership, shifting the burden of proof to the accused.

JUDGMENT :

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (the Cr.P.C) read with Section 156 of the Electricity Act, 2003 (the Act), the 1st accused in CC No. 505/2014 on the file of the Additional Sessions Judge, Special Electricity Court, Saket Courts, New Delhi, assails the judgment dated 07.11.2017 as per which he has been convicted for the offence punishable under Section 135 of the Act.

2. In the complaint filed under Section 151 of the Act, it was alleged by the complainant (respondent herein) thus:- on 07.03.2014, an inspection was conducted by the complainant, namely, P. Bhaskar, Assistant Manager (PW1), Tausif Ahmad, Engineer and Anoop, Lineman(PW3) at a jhuggi, situated near Shri Mata Kirtan Mandali, B 15711, Freedom Fighter Enclave, New Delhi 110068. The jhuggi was found to be in use and occupation of the 1st and 2nd accused. During the inspection, it was found that the accused persons were indulging in theft of electricity for domestic purposes with a connected load of 6.775 KW by illegally tapping electricity from the complainant’s service cable, thereby causing loss and damage to the complainant.

2.1. After the inspection and raid, the inspection team prepared the inspection report, load report and seizure memo dated 07.03.2014at the site. Videography was also carried out. As it was a case of direct theft of electricity, a theft bill dated 12.03.2014 was raised to the tune of Rs. 2,22,445/-, assessed in accordance with the provisions of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 and as per the applicable tariff prevalent at the time of the inspection, against the accused persons, which was served on them. As the accused persons failed to pay the same, the complaint was filed alleging commission of the offence punishable under Section 135 of the Act.

3. On receipt of summons from the trial court, the 1st accused entered appearance. However, the 2nd accused absconded and hence was declared a proclaimed absconder. The substance of the accusation was read over and explained to the accused, to which he pleaded not guilty. A1 submitted that it is a false and fabricated case made against him by the complainant and that he was not liable to pay any loss or damage to the complainant.

4. On behalf of the prosecution, PWs.1 to 4 were examined and Exts. PW. PX, PW. PY, CW.1/A-B, CW. 2/A-G, P-1, EX.PX were marked in support of the case.

5. After the close of the prosecution evidence, the 1st accused was questioned under Section 313 Cr.P.C regarding the incriminating circumstances appearing against him in the evidence of the complainant. The 1st accused denied all those circumstances and maintained his innocence. He submitted that he did not commit any theft of electricity. The premises do not belong to him. It belongs to the 2nd accused. A1 is residing at B 125A, Freedom Fighter Colony, Maidan Garhi, Neb Sarai, New Delhi and that at the time of inspection, he was merely present at the jhuggi, as A2, the owner had gone to his native place. No oral or documentary evidence was adduced by the accused.

6. Upon consideration of the oral and documentary evidence on record and after hearing both sides, the trial court, vide the impugned judgment dated 07.11.2017 held the 1st accused guilty of the offence punishable under Section 135 of the Act and hence sentenced him to undergo rigorous imprisonment for a period of three months and to pay fine of Rs. 3,20,958/-, and in default of payment of fine, to undergo simple imprisonment for two months and also directed to pay an amount of R