Delhi District Court
State (Bses) vs Mohd Riyaz on 4 May, 2026
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 769/2022
FIR No. 65/2020
Under Section 135 Electricity Act
PS Welcome
State
versus
Mohd. Riyaz
R/o E-49/F-352, Janta Mazdoor Colony,
Welcome, Delhi-110053.
.... Accused
Date of institution 14.07.2022
Arguments heard on 04.05.2026
Judgment Pronounced on 04.05.2026
Decision Convicted
JUDGMENT
1. Accused Mohd. Riyaz is facing trial upon the allegations
that he indulged in theft of electricity and thereby,
committed an offence punishable under Section 135 of
Electricity Act 2003 (hereinafter referred to as ‘the Act’).
Brief Facts
2. On 11.09.2019, at about 11.45 am, an inspection was
conducted by the inspection/Enforcement team of BSES
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
Yamuna Power Limited (hereinafter referred as
complainant company) headed by Sh. Tara Chandra (the
then Manager of the complainant company) at the
premises of accused at i.e. H.No.E-49/F-352, 1st Floor &
2nd Floor, Janta Mazdoor Colony, Welcome, Delhi-110053.
3. At the time of inspection, no electricity meter was found
installed at the premises of accused i.e. first and second
floor. However, one electricity meter bearing No.35002943
was found installed at ground floor which was being used
for ground floor only and accused was found indulging in
direct theft of electricity with the help of two core black
colour cable which was found connected from BSES Pole
No.YVR-Z-646.
4. At the time of inspection, accused was present at the spot
and total connected load was found to be 2.660 KW which
was being used for domestic purposes. Videographer Sh.
Sumit Kumar captured the videography of inspection
proceeding. Inspection documents i.e. Inspection Report,
Load Report and Seizure Memo were prepared at the spot.
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.47,582/-
Accordingly, a theft bill was raised and sent to the accused
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 filed the present
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
complaint U/s 135 Electricity Act.
Notice
7. On 05.04.2024, notice U/s 251 Cr.P.C for commission of
offence punishable under Section 135 of the Act was given
to accused. Accused did not plead guilty and claimed trial.
8. Prosecution Evidence
9. In order to substantiate its allegations, the prosecution
examined following witnesses
10. PW1 Sh. Anuj Kumar Varshaney is the Diploma Trainee
Engineer (DET) of the complainant who was one of the
members of the inspection team. He proved the CD
containing videography of the inspection proceedings as
Ex.PW1/A, inspection report as Ex.PW1/B, load report as
Ex.PW1/C, seizure memo as Ex.PW1/D and theft bill as
Ex.PW1/E. He also proved the complaint as Ex.PW1/F
lodged by PW3 Sh. Tara Chandra (the then Assistant
Manager of the complainant company).
11. PW2 SI Dharamvir Singh (then ASI) is the IO of the case.
PW2/IO proved the FIR as Ex.PW2/A, site plan as
Ex.PW2/B, Notice U/s 41A Cr.P.C given to accused as
Ex.PW2/C, interrogation report as ExPW2/D and
disclosure statement of accused as Ex.PW2/E. He also
proved copy of Adhar Card of accused and electricity bill
in the name of accused Firoza Begum as Ex.PW2/F
(colly) and Pabandinama as Ex.PW2/G.
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
12. PW3 is Sh. Tara Chandra (the then Assistant Manager of
the complainant company) who was heading the inspection
team. He corroborated the testimony of PW1 Sh. Anuj
Kumar Varshney and deposed on the similar lines of PW1.
13. PW4 Sh. Sumit Kumar is the videographer who, on the
instruction of team leader Sh. Tara Chandra, captured
videography of the inspection proceedings. He proved the
video contained in the CD as Ex.PW1/A and Certificate
U/s 65B of Indian Evidence Act as Ex.PW4/A.
Statement of Accused
14.All incriminating evidence which has come on record,
were put to the accused under Section 313 Cr.P.C. Accused
denied all material allegations and stated that he is
innocent and has been falsely implicated in this case. He
has not committed any theft of electricity.
Arguments
15.Ld. Addl. PP submitted that accused was found indulged in
direct theft of electricity and no electricity meter was
found installed at his premises. Ld. Addl. PP further
submitted that prosecution has proved allegations against
the accused beyond reasonable doubt through the evidence
of prosecution witnesses. He also emphasized that
inspection was conducted as per Rules and applicable
Regulations. Thus, it is prayed that accused may be
convicted.
16. On the other hand, Ld. Amicus Curiae for accused
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
submitted that accused is innocent and he has been falsely
implicated in this case. It is further submitted that accused
has not committed any theft of electricity as alleged by the
prosecution. It is also submitted that during pendency of
trial, accused has settled the civil liability qua impugned
theft bill but due to financial constraints, settlement
amount has not been deposited by the accused.
Analysis
17. 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 Sections 135 of the Act. The provision of
Section 135 of the Electricity Act is 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 whichJudgment 5 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyazmay extend to three years or with fine or with both:
18. 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.”
19.Dishonest intention has not been defined in Electricity Act.
Section 24 IPC defines ‘dishonestly’ and holds that
whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another
person, is said to do that thing “dishonestly”.
20.Allegations against the accused are about hooking illegal
wire with main line of BSES Pole and connecting the same
with inspected premises of the accused. Therefore, Section
135(1) of the Act would be relevant and applicable. As
mentioned, dishonest intention is primary ingredient to
impute any culpability in this matter.
21. 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 Inspection Report,
Regulation 62 lays down procedure to report a case of theft
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
and under Regulation 63 there is assessment of theft bill.
22. Regulations 60-63 of DERC are as under:-
Theft of Electricity under Section 135 of the Act 60.
Inspections of the premises and electrical installations by
Authorized officer: –
(1) The Authorized officer shall promptly conduct
inspection of any premises either suo-moto or on
receipt of information regarding theft of electricity:
(2) Provided that the Authorized officer may avail the
assistance of employees of the Licensee for
conducting inspection.
(3) The Authorized officer shall carry his visiting card
bearing his photograph and photo identity card issued
under Regulation 55(3).
(4) 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.
(5) he 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
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
the witness refuses to sign, the same shall be recorded
in the report and captured in the videography.
(4) The inspection Report shall be signed by the
Authorized officer and a copy of the same shall be
handed over to the consumer or his representative at
the site immediately under proper acknowledgement.
The other persons present at site may also sign the
inspection report.
(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
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
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 evidence.
(5) Interference with the accurate registration of
energy consumed by resorting to external methods
involving remote 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.
Judgment 9 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
(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 receipt of request
of such person, whichever is earlier.
23. As per prosecution case, at the time of inspection, no
electricity meter was found installed in the inspected
premises and accused was indulged in direct theft of
electricity.
24. PW1 Sh. Anuj Kumar Varshney, PW3 Sh. Tara Chandra
(Assistant Manager of the complainant) and PW3 Sh.
Sumit Kumar (videographer) are the prime witness of this
case being members of inspection team. PW1 and PW3
corroborated the allegations made in the complaint
(Ex.PW1/F) and deposed that at the time of inspection, no
electricity meter was found installed for inspected
premises and the accused was found indulged in direct
theft of electricity with the help of two core black colour
cable which was found connected from BSES YPL No
YVR-Z-646. PW1 and PW3 also deposed the said illegal
wire was removed and seized at the spot vide seizure
memo Ex.PW1/D. Accused has not rebutted these facts
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FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
during cross-examination of PW1 and PW3.
25. PW1 and PW3 further deposed that at the time of
inspection, accused was present at the spot and total
connected load was found to be 2.660 KW which was
being used for domestic purposes. PW1 and PW3 further
deposed that load report was prepared at the spot vide load
report Ex.PW1/C. Accused has not disputed the load
mentioned in the load report. All these fact were not
rebutted or denied by the accused in the cross-examination
of PW1 and PW3. Rather to the question of Ld. Counsel,
PW1 and PW3 clearly testified that the inspection was
conducted at the premises of the accused in mass raid.
They further testified that the load report was prepared
after seeing the connected load. All these facts clearly
indicate that accused was actively involved in the theft of
electricity and the line of questions clearly points out to the
fact that at least the inspection of premises was conducted
and factum of inspection stands proved beyond doubt. In
this connection, the observations of the Hon’ble Supreme
Court given in the latest judgement of Balu Sudam Khalde
& Ors. v. State of Maharashtra, 2023 INSC 314 can be
beneficially relied upon here. The Hon’ble Supreme Court
in this case observed:
31. In the course of hearing of this appeal, we also noticed
something very important, going to the root of the matter.
32.We noticed that in the cross-examination of the original
first informant, PW 1 Asgar Shaikh (Exh.7), few suggestions
were put to him by the defence counsel. We quote the
relevant part of the cross-examination of the first informant:
Judgment 11 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
“The attack on us was sudden. The first blow was hit
on my head. I was assaulted severely on the head. Due
to assault, I suffered a bleeding injury. It is not true that
I felt giddy due to assault. Yes I however suffered pain.
At that time, I did not feel that I should save my life. I
did not feel that I should run away or I should try to
hide myself. I went towards the side of Lohiya Nagar
Police Chowkey. I did feel that I was being assaulted
without any reason. Abbas was screaming while he was
being assaulted. …”
33.We are of the view from the aforesaid that the suggestions
put by the defence counsel in the cross-examination of the
eyewitnesses establishes the presence of PW1 Asgar Shaikh
at the scene of offence and the factum of assault could also be
said to have been admitted. The reply to the suggestions
answers the submission canvassed by the learned counsel for
the appellants that PW1 Asgar Shaikh should not be believed
or relied upon as there is nothing on record to indicate that he
was an injured eyewitness. The defence could be said to have
admitted the presence of PW Asgar Shaikh. When the
aforesaid part of the cross-examination of PW1 Asgar Shaikh
was brought to the notice of the defence counsel, he
submitted that a suggestion put by defence counsel to a
witness in his cross-examination has no evidentiary value and
even if the same is incriminating in any manner would not
bind the accused as the defence counsel has no implied
authority to admit the guilt of the facts incriminating the
accused.
34.According to the learned counsel such suggestions could
be a part of the defence strategy to impeach the credibility of
the witness. The proof of guilt required of the prosecution
does not depend on the satisfaction made to a witness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam
reported in 2002 Cri. LJ 4076, a three Judge Bench of this
Court was dealing with an appeal against the order passed by
the Designated Court, Guwahati, in TADA Sessions case
wherein the appellant was convicted under Section 365 of the
IPC read with Section 3(1) and 3(5) of the Terrorists and
Disruptive Activities (Prevention) Act, 1987.
36.In the aforesaid case, this Court, while considering the
evidence on record took note of a suggestion which was put
to one of the witnesses and considering the reply given by the
witness to the suggestion put by the accused, arrived at the
conclusion that the presence of the accused was admitted. We
Judgment 12 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
quote with profit the following observations made by this
Court in paragraphs 15, 16 and 17 reply as under:
“15. The witness further stated that during the assault,
the assailant accused him of giving information to the
army about the United Liberation Front of Assam
(ULFA). He further stated that on the third night he was
carried away blind-folded on a bicycle to a different
place and when his eyes were unfolded, he could see
his younger brother-Kumud Kakati (P.W.-2) and his
wife Smt. Prema Kakati (P.W.-3). The place was
Duliapather, which is about 6-7 kms. away from his
village Sakrahi. The witness identified the appellant-
Tarun Bora and stated that it is he who took him in an
ambassador car from the residence of Nandeswar Bora
on the date of the incident.
16. In cross-examination the witness stated as under:
“Accused-Tarun Boradid not blind my eyes nor he
assaulted me.”
17. This part of cross-examination is suggestive of the
presence of accused-Tarun Bora in the whole episode.
This will clearly suggest the presence of the accused-
Tarun Bora as admitted. The only denial is the accused
did not participate in blind-folding the eyes of the
witness nor assaulted him.”
37 In Rakesh Kumar alias Babli v. State of Haryana reported
in (1987) 2 SCC 34, this Court was dealing with an appeal
against the judgment of the High Court affirming the order of
the Sessions Judge whereby the appellant and three other
persons were convicted under Section 302 read with Section
34 of the IPC. While re- appreciating the evidence on record,
this Court noticed that in the cross-examination of the PW 4,
Sube Singh, a suggestion was made with regard to the colour
of the shirt worn by one of the accused persons at the time of
the incident. This Court taking into consideration the nature
of the suggestion put by the defence and the reply arrived at
the conclusion that the presence of the accused namely
Dharam Vir was established on the spot at the time of
occurrence. We quote the following observations made by
this Court in paragraphs 8 and 9 reply as under:
“8. PW 3, Bhagat Singh, stated in his examination-in-
chief that he had identified the accused at the time of
occurrence. But curiously enough, he was not cross-
examined as to how and in what manner he couldJudgment 13 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyazidentify the accused, as pointed out by the learned
Sessions Judge. No suggestion was also given to him
that the place was dark and that it was not possible to
identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated
that the accused Dharam Vir, was wearing a shirt of
white colour. It was suggested to him on behalf of the
accused that Dharam Vir was wearing a shirt of cream
colour. In answer to that suggestion, PW 4 said: “It is
not correct that Dharam Vir accused was wearing a shirt
of cream colour and not a white colour at that time.”
The learned Sessions Judge has rightly observed that the
above suggestion at least proves the presence of accused
Dharam Vir, on the spot at the time of occurrence.”
38.Thus, from the above it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any
manner would definitely bind the accused and the accused
cannot get away on the plea that his counsel had no implied
authority to make suggestions in the nature of admissions
against his client.
39.Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except the
concession on the point of law. As a legal proposition we
cannot agree with the submission canvassed on behalf of the
appellants that an answer by a witness to a suggestion made
by the defence counsel in the cross- examination does not
deserve any value or utility if it incriminates the accused in
any manner.
40.It is a cardinal principle of criminal jurisprudence that the
initial burden to establish the case against the accused beyond
reasonable doubt rests on the prosecution. It is also an
elementary principle of law that the prosecution has to prove
its case on its own legs and cannot derive advantage or
benefit from the weakness of the defence. We are not
suggesting for a moment that if prosecution is unable to
prove its case on its own legs then the Court can still convict
an accused on the strength of the evidence in the form of
reply to the suggestions made by the defence counsel to a
witness. Take for instance, in the present case we have
reached to the conclusion that the evidence of the three
eyewitnesses inspires confidence and there is nothing in their
evidence on the basis of which it could be said that they are
unreliable witnesses. Having reached to such a conclusion, in
Judgment 14 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
our opinion, to fortify our view we can definitely look into
the suggestions made by the defence counsel to the
eyewitnesses, the reply to those establishing the presence of
the accused persons as well as the eyewitnesses in the night
hours. To put it in other words, suggestions by itself are not
sufficient to hold the accused guilty if they are incriminating
in any manner or are in the form of admission in the absence
of any other reliable evidence on record. It is true that a
suggestion has no evidentiary value but this proposition of
law would not hold good at all times and in a given case
during the course of cross-examination the defence counsel
may put such a suggestion the answer to which may directly
go against the accused and this is exactly what has happened
in the present case.
41.The principle of law that in a criminal case, a lawyer has
no implied authority to make admissions against his client
during the progress of the trial would hold good only in cases
where dispensation of proof by the prosecution is not
permissible in law. For example, it is obligatory on the part of
the prosecution to prove the post mortem report by
examining the doctor. The accused cannot admit the contents
of the post mortem report thereby absolving the prosecution
from its duty to prove the contents of the same in accordance
with law by examining the doctor. This is so because if the
evidence per se is inadmissible in law then a defence counsel
has no authority to make it admissible with his consent.
42.Therefore, we are of the opinion that suggestions made to
the witness by the defence counsel and the reply to such
suggestions would definitely form part of the evidence and
can be relied upon by the Court along with other evidence on
record to determine the guilt of the accused.
43.The main object of cross-examination is to find out the
truth on record and to help the Court in knowing the truth of
the case. It is a matter of common experience that many a
times the defence lawyers themselves get the discrepancies
clarified arising during the cross-examination in one
paragraph and getting themselves contradicted in the other
paragraph. The line of cross-examination is always on the
basis of the defence which the counsel would keep in mind to
defend the accused. At this stage, we may quote with profit
the observations made by a Division Bench of the Madhya
Pradesh High Court in the case of Govind s/o Soneram v.
State of M.P. reported in 2005 Cri.LJ 1244. The Bench
observed in paragraph 27 as under:
Judgment 15 of 25 FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
“27. The main object of cross-examination is to find out
the truth and detection of falsehood in human testimony.
It is designed either to destroy or weaken the force of
evidence a witness has already given in person or elicit
something in favour of the party which he has not stated
or to discredit him by showing from his past history and
present demeanour that he is unworthy of credit. It
should be remembered that cross-examination is a duty,
a lawyer owes to his clients and is not a matter of great
personal glory and fame. It should always be
remembered that justice must not be defeated by
improper cross-examination. A lawyer owes a duty to
himself that it is the most difficult art. However, he may
fail in the result but fairness is one of the great elements
of advocacy. Talents and genius are not aimed at self-
glorification but it should be to establish truth, to detect
falsehood, to uphold right and just and to expose
wrongdoings of a dishonest witness. It is the most
efficacious test to discover the truth. Cross-examination
exposes bias, detects falsehood and shows mental and
moral condition of the witnesses and whether a witness
is actuated by proper motive or whether he is actuated
by enmity towards his adversaries. Cross-examination is
commonly esteemed the severest test of an advocate’s
skill and perhaps it demands beyond any other of his
duties exercise of his ingenuity. There is a great
difficulty in conducting cross-examination with
creditable skill. It is undoubtedly a great intellectual
effort. Sometimes cross-examination assumes
unnecessary length, the Court has power to control the
cross- examination in such cases. (See Wrottescey on
cross-examination of witnesses). The Court must also
ensure that cross-examination is not made a means of
harassment or causing humiliation to the victim of
crime [See State of Punjab v. Gurmit Singh, 1996 SCC
(Cri) 316].”
44.During the course of cross-examination with a view to
discredit the witness or to establish the defence on
preponderance of probabilities suggestions are hurled on the
witness but if such suggestions, the answer to those
incriminate the accused in any manner then the same would
definitely be binding and could be taken into consideration
along with other evidence on record in support of the same.
45.However, it would all depend upon the nature of the
suggestions and with what idea in mind such suggestions are
made to the witness. Take for instance in case of a charge of
Judgment 16 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
rape under Section 376 of the Indian Penal Code, the
statement of the accused contained plain denial and a plea of
false implication, a subsequent suggestion by the defence
lawyer to the prosecutrix about consent on her part would
not, by itself, amount to admission of guilt on behalf of the
accused. In cases of rape, it is permissible for the accused to
take more than one defence. In such type of cases a
suggestion thrown by the defence counsel to a prosecution
witness would not amount to an admission on the part of the
accused. At the same time, if the defence in the cross
examination of the prosecutrix, with a view to support their
alternative case of consent procure answers to the questions
in the form of suggestions implicating the accused for the
offence of rape then such suggestions would definitely lend
assurance to the prosecution case and the Court would be
well justified in considering the same. We may give one more
example of a case where the accused would plead right of a
private defence. Such a defence is always available to the
accused but although if such a defence is not taken
specifically during the course of trial yet if the evidence on
record suggests that the accused had inflicted injuries on the
deceased in exercise of his right of private defence then the
Court can definitely take into consideration such defence in
determining the guilt of the accused. However, if a specific
question is put to a witness by way of a suggestion indicative
of exercise of right of private defence then the Court would
well be justified in taking into consideration such suggestion
and if the presence of the accused is established the same
would definitely be admissible in evidence.
26. In his cross-examination, PW1 and PW3 have also
disclosed as how and in what manner, theft of electricity
was being committed by the accused. PW1 and PW3 have
clearly stated that accused was indulged in theft of
electricity with the help of two core black colour cable
which was found connected from BSES YPL Pole
No.YVR-Z-646. Accused, who is stated to be present at
the spot at the time of inspection, has not rebutted or
denied this fact at all.
27. PW4 Sh. Sumit Kumar conducted the videography of the
Judgment 17 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
Inspection Proceedings in which the commission of theft
of electricity at the spot was recorded and this fact appears
to have been admitted as in reply to the question of Ld.
Defence counsel, PW4 clearly stated that the videography
was captured on his instruction by PW3.
28. PW1 and PW3 further deposed that at the time of
inspection, connected load was assessed as 2.218 KW and
necessary videography of the inspection proceedings was
done by PW4 Sh. Sumit Kumar. PW1 and PW3 were duly
cross-examined by Ld. Counsel for accused was unable to
bring out any contradiction in their testimony.
Videography of the inspection proceedings also appears to
have been admitted by the accused because accused has
neither denied the videography nor its content. Rather, in
reply to the question of Ld. Counsel, PW3 testified that he
cannot tell the make of handy-cam which was used for
videography during inspection.
29. In his evidence, PW1 and PW3 further deposed that the
illegal wire was i.e. two black colour cable was removed
and seized at the spot. During evidence before the court,
the case property i.e. one black colour wire of 2×10 mm
square having length of ½ meter was produced and shown
to PW1 who has correctly identified the same as the same
wire which was removed and seized at the spot vide
seizure memo Ex.PW1/D. Accused has not
disputed/rebutted this fact. The theft of electricity by the
accused has been videographed by PW4 and the video
Judgment 18 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
clearly demonstrate the mode and manner of theft of
electricity being committed by the accused.
30. Accused could not specifically bring fourth anything in the
cross-examination which could successfully rebut the
preparation of inspection report as well as load report and
their contents. Accused has simply put suggestion that the
videography is false and fabricated one and that accused
never indulged in theft of electricity and that accused has
been falsely implicated in this case which facts have been
denied by PW1, PW3 and PW4. 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 inspection documents and videography of inspection
proceedings done by videographer stands proved.
31.It is further submitted by Ld. Counsel for accused that
prosecution case is highly doubtful as no public witness
was joined during the inspection of the premises. It is clear
from the testimony of prosecution witnesses that the
accused was found indulged in direct theft of electricity
through illegal wire and these facts have been well proved
by PW1, PW3 and PW4.
32. During evidence, CD (Ex.PW1/A) containing inspection
proceedings was played before the court which depicted
the manner in which the accused was found indulged in
direct theft of electricity through illegal wire. Furthermore,
Judgment 19 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
it is admitted position of fact that there was no electricity
meter found installed in the inspected premises at the time
of inspection.
33. 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.”
34. 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 imparts no
infirmity as the members of the inspection team who
deposed in the court, were having no enmity against the
appellant and their testimonies are trustworthy. In the
Judgment 20 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
present case also, there is no material to show that the
BSES officials who inspected the premises of the accused
were inimical to the accused.
35. In addition, nothing incriminating 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.
36. 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.
37. 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
has been observed by the Hon’ble Supreme Court in
Judgment 21 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: –
“………Courts are authorized to draw a particular
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.”
38. 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 consider its existence to be reasonably probable,
the standard or reasonability being that of theJudgment 22 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz‘prudent man’.”
39. In view of the settled law, now it is to be seen if the
accused has taken any defence to rebut the aforesaid
statutory presumption. Accused did not lead any defence
evidence nor he has brought anything on record which
could suggest that accused 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 has 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. In addition, there is
not even an iota of evidence to suggest that the premises
appearing in videography does not belong to the accused.
40. Furthermore, it is clear from the evidence of PW2 that in
regard to the electricity theft, the complainant company
had raised a bill of Rs.47,582/- (Ex.PW1/E) against the
accused and during the course of trial, accused settled the
civil liability qua the impugned theft bill, although he has
not deposited the settlement amount. During the course of
arguments, Ld. Counsel for accused submitted that
settlement amount has not been deposited by the accused
due to financial constraints. In case, the officials of the
complainant company would not have carried out the
inspection as deposed by prosecution witnesses and
Judgment 23 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyaz
complainant company would have raised a false and
baseless claim by way of theft bill (Ex.PW1/E), then
instead of going for settlement, accused would have raised
his protest and would have initiated appropriate
proceedings against complainant company for raising a
false claim against him. This conduct of the accused also
fortifies the allegations of the direct theft of electricity
against him.
41. Notwithstanding, if the accused 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 has not
brought anything on record to disprove the allegations
brought on record by the prosecution. In view of these
discussions, it is held that accused has failed to rebut the
statutory presumption.
42. 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 chargesJudgment 24 of 25
FIR No.769/2022 State (BSES YPL) vs Mohd. Riyazfortifies the plea of the complainant company that
electricity was being used by the appellant directly
from LT Main by committing theft. Paid electricity
bills would have been the best evidence to show that
the appellant was using electricity through mere. Under
section 106 of the Evidence Act, the onus was on the
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”.
43. In view of aforesaid discussions, it is held that the
prosecution has proved its case beyond reasonable doubt
that no electricity meter was available at the premises of
the accused at the time of inspection and accused Mohd.
Riyaz who was found indulging in direct theft of
electricity through illegal wire, which is an offence
punishable U/s 135 of the Electricity Act, 2003.
Consequently, accused Mohd. Riyaz is convicted U/s 135
of the Electricity Act, 2003.
Let convict be heard on quantum of sentence.
Announced in the Open Court on 04.05.2026
(Ashish Rastogi)
Addl. Sessions Judge-05 (Electricity)
East/Karkardooma Courts/Delhi
Judgment 25 of 25
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