Delhi District Court
State (Bses) vs Mohd Riyaz on 4 May, 2026
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
In the matter of:-
SC No. 415/2022
FIR No. 671/2019
Under Section 135/150 Electricity Act
PS Welcome
State
versus
1) Mohd. Riyaz
S/o Mohd. Irshad
2) Firoza Begum
W/o Mohd. Riyaz
Both R/o E-49/F-303, Old No.49/F-203,
Janta Mazdoor Colony, Welcome,
Seelampur, Delhi-110053.
.... Accused
Date of institution 07.04.2022
Arguments heard 04.05.2026
Judgment Pronounced on 04.05.2026
Decision Convicted
JUDGMENT
1. Accused Mohd. Riyaz and Firoza Begum are facing trial
upon the allegations that Mohd. Riyaz (user of electricity)
was indulged in theft of electricity and accused Firoza
Begum who was found to be registered consumer, is stated
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to have abetted said Mohd. Riyaz to commit theft of
electricity and thereby, accused Mohd. Riyaz committed an
offence punishable U/s 135 of the Electricity Act, 2003
and accused Firoza Begum committed an offence
punishable U/s 135 r/w section 150 of Electricity Act 2003
(hereinafter referred to as ‘the Act’).
Brief Facts
2. On 19.11.2019, at about 11.24 hours, an inspection was
conducted by the inspection team of BSES Yamuna Power
Limited (hereinafter referred as complainant company)
headed by Sh. Inder Pal Singh (DGM of the complainant
company) in the residential premises of accused i.e.
H.No.E-49/F-303, First Floor (Old No.E-49/F-203), Janta
Mazdoor Colony, Welcome, Seelampur, Delhi-110053.
3. At the time of inspection, one electricity meter bearing
no.1174409 with reading 17799 KWH was found installed
at the premises in the name of accused Firoza Begum but
the said meter was found in stopped condition and co-
accused Mohd. Riyaz was found indulged in direct theft of
electricity with the help of illegal wire which was
connected in supply cable to load (service cable tampered).
4. At the time of inspection, accused Mohd. Riyaz was
present and connected load was found to the tune of 3.181
KW which was being used for domestic purposes. It is
further alleged that Mohd. Riyaz was found to be user of
electricity while accused Firoza Begum was found to be
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registered consumer and abetted the accused Mohd. Riyaz
to commit theft of electricity. Videographer Sh. Sandeep
captured videography of inspection proceeding. Inspection
documents i.e. Inspection Report, Load Report, Seizure
memo and Advisory notice 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.56,314/-
Accordingly, a theft bill was raised and sent to the accused
persons but they did not make payment of the theft bill.
6. On failure to pay the theft bill amount, complainant
company through its Authorized Officer lodged a
complaint U/s 135 Electricity Act 2003 against the accused
Mohd. Riyaz and U/s 135 r/w section 150 of the Electricity
Act, 2003 against the accused Firoza Begum, with SHO,
PS Welcome for registration of FIR against the accused
persons.
7. On the said complaint, present FIR No.671/2019 was
registered and investigation of the case was marked to HC
Narender, the IO of the case. After completion of
investigation, IO filed the charge-sheet against the accused
persons.
Notice
8. On 02.02.2023, notice U/s 251 Cr.P.C for commission of
offence punishable U/s 135 of Electricity Act 2003 against
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the accused Mohd. Riyaz and U/s 135 r/w Section 150 of
Electricity Act 2003 against the accused Firoza Begum
was given to both accused persons to which they pleaded
not guilty and claimed trial.
Prosecution Evidence
9. In order to substantiate its allegations, the prosecution
examined following witnesses.
10. PW1 Sh. Inder Pal Singh is the DGM of the Complainant
Company who was heading the inspection team. He
proved CD of 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, Advisory
notice as Ex.PW1/E and theft bill as Ex.PW1/F. He also
proved the complaint lodged by him as Ex.PW1/G. He
also proved the case property i.e. aluminium cable which
was removed from the spot and seized as Ex.P1.
11. PW2 Sh. Sandeep is the videographer who, on the
instruction of team leader Sh. Inder Pal Singh/PW1,
captured videography of the inspection proceedings. He
proved the video contained in the CD as Ex.PW1/A.
12. PW3 ASI Narender (then HC) is the IO of the case. He
proved the FIR as Ex.PW3/1, site plan as Ex.PW3/2,
notice U/s 41A Cr.P.C given to accused Firoza Begum as
Ex.PW3/3 and that of accused Mohd. Riyaz as Ex.PW3/4,
disclosure statement of accused Mohd. Riyaz as
Ex.PW3/5. He also proved copy of Aadhar Cards of the
Judgment 4 of 26
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accused persons as Ex.PW3/6 and Ex.PW3/7. He also
proved the Pabandinamas of the accused persons as
Ex.PW3/8 and Ex.PW3/9. He further deposed that during
investigation, accused persons were found in possession of
the inspected premises and in this regard he recorded the
statements of their neighbours namely Mohd. Sarfaraz and
Sajia which are proved on record as Ex.PW3/10 and
Ex.PW3/11.
Statement of Accused
13.All incriminating evidence which has come on record,
were put to the accused persons under Section 313 Cr.P.C.
Accused persons denied all material allegations and stated
that they are innocent and have been falsely implicated in
this case. Accused persons opted not to lead any defence
evidence and accordingly opportunity to lead defece
evidence was closed and matter was posted for final
arguments.
Arguments
14.Ld. Addl. PP assisted by AR of the complaint company
submitted that accused Mohd. Riyaz was found to be user
of electricity, was found indulged in direct theft of
electricity. It is further deposed that one electricity meter
bearing no.1174409 was found installed at the premises in
the name of accused Firoza Begum but the said meter was
found in stopped condition and co-accused Mohd. Riyaz
was found indulged in direct theft of electricity with the
Judgment 5 of 26
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help of illegal wire which was connected in supply cable to
load. It is further submitted that accused Firoza Begum
being registered consumer allowed/abetted user Mohd.
Riyaz to commit direct theft of electricity and accused
Firoza Begum being registered consumer is responsible for
the said act. 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 persons may be convicted.
Analysis
15. Ld. Amicus Curiae, on the other hand, submitted that
accused persons are innocent and have been falsely
implicated in this case. It was submitted that accused have
not committed any theft of electricity. It is also submitted
that during pendency of trial, accused Mohd. Riyaz who is
husband of accused Firoza Begum, has settled the civil
liability qua impugned theft bill but due to financial
constraint, settlement amount could not be deposited.
16. At the outset, it is observed that the Certificate U/s 65B of
Indian Evidence Act, 1872 for the videography
proceedings has not been filed on record. Ld. Addl. PP and
AR of the complainant company submit that videography
has been proved by PW3 and therefore, the non-exhibition
of the certificate Section 65B of Indian Evidence cannot be
Judgment 6 of 26
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fatal to the case of the prosecution as there was no
objection raised by the Ld. Defence counsel for the
accused at the time of proving CD containing videography
of the inspection proceedings. The court, in relation to the
said legal position, is supported by the judgement reported
as Sonu @ Amar vs State of Haryana, AIR 2017 SC 3441
wherein it is held:
26. That an electronic record is not admissible unless it is
accompanied by a certificate as contemplated under
Section 65B (4) of the Indian Evidence Act is no more res
integra. The question that falls for our consideration in
this case is the permissibility of an objection regarding
inadmissibility at this stage. Admittedly, no objection was
taken when the CDRs were adduced in evidence before
the Trial Court. It does not appear from the record that
any such objection was taken even at the appellate stage
before the High Court. In Gopal Das v. Sri Thakurji, AIR
1943 PC 83, it was held that:
“Where the objection to be taken is not that the document
is in itself inadmissible but that the mode of proof put
forward is irregular or insufficient, it is essential that the
objection should be taken at the trial before the document
is marked as an exhibit and admitted to the record. A
party cannot lie by until the case comes before a Court of
Appeal and then complain for the first time of the mode
of proof.” In RVE Venkatachala Gounder, this Court held
as follows:
“Ordinarily an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in
evidence may be classified into two classes: (i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode of
proof alleging the same to be irregular or insufficient. In
the first case, merely because a document has been
marked as ‘an exhibit’, an objection as to its admissibility
is not excluded and is available to be raised even at a later
stage or even in appeal or revision. In the latter case, the
objection should be taken before the evidence is tenderedJudgment 7 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
and once the document has been admitted in evidence and
marked as an exhibit, the objection that it should not have
been admitted in evidence or that the mode adopted for
proving the document is irregular cannot be allowed to be
raised at any stage subsequent to the marking of the
document as an exhibit. The later proposition is a rule of
fair play. The crucial test is whether an objection, if taken
at the appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and resort
to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party tendering
the evidence, for two reasons: firstly, it enables the Court
to apply its mind and pronounce its decision on the
question of admissibility then and there; and secondly, in
the event of finding of the Court on the mode of proof
sought to be adopted going against the party tendering the
evidence, the opportunity of seeking indulgence of the
Court for permitting a regular mode or method of proof
and thereby removing the objection raised by the opposite
party, is available to the party leading the evidence. Such
practice and procedure is fair to both the parties. Out of
the two types of objections, referred to hereinabove, in the
later case, failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting on formal
proof of a document, the document itself which is sought
to be proved being admissible in evidence. In the first
case, acquiescence would be no bar to raising the
objection in superior Court.” [Emphasis supplied] It
would be relevant to refer to another case decided by this
Court in PC Purshothama Reddiar v. S Perumal, (1972) 1
SCC 9. The earlier cases referred to are civil cases while
this case pertains to police reports being admitted in
evidence without objection during the trial. This Court did
not permit such an objection to be taken at the appellate
stage by holding that:
“Before leaving this case it is necessary to refer to one of
the contentions taken by Mr. Ramamurthi, learned
Counsel for the respondent. He contended that the police
reports referred to earlier are inadmissible in evidence as
the Head-constables who covered those meetings have not
been examined in the case. Those reports were marked
without any objection. Hence it is not open to the
respondent now to object to their admissibility.”
Judgment 8 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
27. It is nobody’s case that CDRs which are a form of
electronic record are not inherently admissible in
evidence. The objection is that they were marked before
the Trial Court without a certificate as required by Section
65B (4). It is clear from the judgments referred to supra
that an objection relating to the mode or method of proof
has to be raised at the time of marking of the document as
an exhibit and not later. The crucial test, as affirmed by
this Court, is whether the defect could have been cured at
the stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs
being marked without a certificate, the Court could have
given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which
are per se inadmissible can be taken even at the appellate
stage. Admissibility of a document which is inherently
inadmissible is an issue which can be taken up at the
appellate stage because it is a fundamental issue. The
mode or method of proof is procedural and objections, if
not taken at the trial, cannot be permitted at the appellate
stage. If the objections to the mode of proof are permitted
to be taken at the appellate stage by a party, the other side
does not have an opportunity of rectifying the
deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 of the Cr. P.C.
1973 as an example of documents falling under the said
category of inherently inadmissible evidence. CDRs do
not fall in the said category of documents. We are
satisfied that an objection that CDRs are unreliable due to
violation of the procedure prescribed in Section 65 B (4)
cannot be permitted to be raised at this stage as the
objection relates to the mode or method of proof.
17.Taking into account the law as laid down by the Hon’ble
Supreme Court, the videography stands proved even when
the certificate U/s 65B of Indian Evidence Act has not
been filed/exhibited.
18.At the outset, it would be appropriate to reproduce the
definition of ‘consumer’. The relevant provision of Section
2 (15) of the Act is produced as under:-
Judgment 9 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
“Consumer” means any person who is supplied with
electricity for his own use by a licensee or the
Government or by any other person engaged in the
business of supplying electricity to the public under
this Act or any other law for the time being in force
and includes any person whose premises are for the
time being connected for the purpose of receiving
electricity with the works of a licensee, the
Government or such other person, as the case may be;”
19.In this case, accused Firoza Begum was found to be
registered consumer and co-accused Mohd. Riyaz was
found to be user of electricity at the relevant time. Perusal
of Section 2 (15) of the Act shows that both the user and
the owner of the premises/registered consumer are covered
under the definition of the ‘consumer’ and thus, accused
Firoza Begum is liable for punishment if illegal abstraction
of energy is found at the premises of accused. In this
regard, this court is also supported with the judgment of
the Hon’ble Delhi High Court reported as Lokesh
Chandela vs State of NCT & Ors. (Crl. Appeal
No.479/2011).
20.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 Section 135 r/w Section 150 of the Act.
The provision of Sections 135 & 150 of the Electricity Act
are 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, orJudgment 10 of 26
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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 which
may extend to three years or with fine or with both:
Section 150. Abetment. – (1) Whoever abets an
offence punishable under this Act shall,
notwithstanding anything contained in the Indian
Penal Code (45 of 1860), be punished with the
punishment provided for the offence.
(2) Without prejudice to any penalty or fine which
may be imposed or prosecution proceeding which
may be initiated under this Act or any other law for
the time being in force, if any officer or other
employee of the Board or the licensee enters into or
acquiesces in any agreement to do, abstains from
doing, permits, conceals or connives at any act or
thing whereby any theft of electricity is committed,
he shall be punishable with imprisonment for a term
which may extend to three years, or with fine or
with both.
(3) Notwithstanding anything contained in sub-
section (1) of section 135, sub-section (1) of section
136, section 137 and section 138, the license or
certificate of competency or permit or such other
authorization issued under the rules made or deemed
to have been made under this Act to any person who
acting as an electrical contractor, supervisor or
worker abets the commission of an offence
punishable under sub-section (1) of section 135, sub-
section (1) of section 136, section 137, or section
Judgment 11 of 26
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138, on his conviction for such abetment, may also
be cancelled by the licensing authority:
Provided that no order of such cancellation shall be
made without giving such person an opportunity of
being heard.
21. 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.
22.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”.
23.As per prosecution case, at the time of inspection, one
electricity meter bearing no.1174409 was found installed
at the premises in the name of accused Firoza Begum but
the said meter was found in stopped condition and co-
accused Mohd. Riyaz was found indulged in direct theft of
electricity with the help of illegal wire which was
connected in supply cable to load. Accused Firoza Begum
as well as co-accused Mohd. Riyaz were found indulged in
direct theft of electricity with the help of illegal wire which
was connected in supply cable to load. Accused Mohd.
Judgment 12 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
Riyaz was found to be user of the electricity and accused
Firoza Begum was found to be registered consumer.
Accused Firoza Begum being registered consumer
permitted/allowed the user Mohd. Riyaz to commit direct
theft of electricity. Thus, the onus was on the prosecution
to prove these allegations against the accused persons
beyond reasonable doubt.
24. 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 an Inspection Report,
Regulation 62 lays down procedure to report a case of theft
and then under Regulation 63 there is assessment of theft
bill.
25. 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:
Provided that the Authorized officer may avail the
assistance of employees of the Licensee for conducting
inspection.
(2) The Authorized officer shall carry his visiting card bearing
his photograph and photo identity card issued under Regulation
55(3).
(3) Photo ID shall be shown and visiting card bearing his
Judgment 13 of 26
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photograph shall be handed over to the consumer or the
occupier of the premises before entering the premises and take
the acknowledgment.
(4) The 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 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.
Judgment 14 of 26 SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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
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
Judgment 15 of 26
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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.
(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.
26. As per prosecution case, at the time of inspection, user
Mohd. Riyaz was found to be user of the electricity in the
inspected premises and was indulged in direct theft of
electricity.
27. PW1 Sh. Inder Pal Singh (DGM) and PW2 Sh. Samdeep
(Videographer) are prime witnesses of this case being
members of inspection team. PW1 corroborated the
allegations made in the complaint ( Ex.PW1/A) and
deposed that at the time of inspection, one electricity meter
Judgment 16 of 26
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bearing no.1174409 with reading 17799 KWH was found
installed at the premises in the name of accused Firoza
Begum but the said meter was found in stopped condition
and co-accused Mohd. Riyaz was found indulged in direct
theft of electricity with the help of illegal wire which was
connected from service line of above said electricity meter.
This fact has not been rebutted by the accused persons in
the cross-examination of PW1.
28. PW1 further deposed that at the time of inspection,
accused Mohd. Riyaz was present at the spot and total
connected load was found to be 3.181 KW which was
being used for domestic purposes at first floor. Accused
persons have not disputed the load report, its content and
its genuineness. PW1 further deposed that illegal wire was
removed and seized at the spot vide seizure memo
Ex.PW1/D and this fact has not been disputed by the
accused persons.
29. PW1 further deposed that on his instruction, PW2 Sandeep
conducted the videography of the Inspection Proceedings
in which the commission of theft of electricity at the
inspected premises was recorded. Videography of the
inspection proceedings appears to have been admitted by
the accused persons as accused has not denied the contents
of video and its genuineness. In reply to the question of
Ld. Defence Counsel, PW1 stated that videographer
Sandeep was employed by the complainant company and
PW1 has also identified the accused Mohd. Riyaz in the
Judgment 17 of 26
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said video. Accused Mohd. Riyaz has not explained as to
how he is appearing in the said video if videography of the
inspection proceedings was not done by PW3.
30. PW1 and PW2 were duly cross-examined by Ld. Defence
Counsel for accused persons was unable to bring out any
contradiction in their testimony. Further the inspection of
the premises appears to have been admitted by the accused
persons because Ld. Defence Counsel merely put
suggestions to PW1 that at the time of inspection, no theft
of electricity was detected at the premises which fact has
been denied by the witness. Further, to the question of Ld.
Defence Counsel, PW1 stated the present inspection is a
routine inspection.
31. As per load report, certain electrical appliances were found
installed at the inspected premises. In the load report,
calculation of the load has been mentioned and accused
persons have not disputed the calculation of the load as
mentioned in the load report. Accused persons not
rendered any alternative explanation. Accused Firoza
Begum is admittedly the registered consumer and accused
Mohd. Riyaz is stated to be user of the electricity at the
relevant time. So it is evident that accused Firoza Begum
knew that user Mohd. Riyaz also shared the intention
alongwith accused to indulge into acts constituting direct
theft of electricity. Furthermore, accused Firoza Begum
knew that the said meter was lying in stopped condition
despite that she permitted/allowed to use the electricity in
Judgment 18 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
the inspected premises. 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 and
preparation of documents, videography of inspection
proceedings done by videographer stands proved.
32.It is submitted on behalf of accused that prosecution case
is highly doubtful as no public witness was joined during
the inspection of the premises. It is clear from the
aforesaid discussions that the accused was found indulged
in direct theft of electricity through illegal wire and these
facts have been well proved by PW1 and PW2.
33. 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 cable. Accused
Mohd. Riyaz has neither disputed his identity nor the
identity of the inspected premises shown in the video
contained in the CD. Furthermore, in the entire cross-
examination, accused persons have not disputed or
rebutted the fact that the said meter was lying in stopped
condition as deposed by PW1. It is not the case of the
accused that outgoing supply of the electricity meter were
running/active and electricity in the inspected premises at
the second floor was running through the authorized meter.
34. Nothing has been brought on record to indicate that
Judgment 19 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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.”
35. 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 is 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 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.
36. In addition, nothing has come on record to show that the
Judgment 20 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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.
37.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.
38. 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
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 itselfJudgment 21 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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.”
39. 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 the ‘prudent
man’.”
40. In view of the settled law, now it is to be seen if the
accused taken any defence to rebut the aforesaid statutory
presumption. Accused persons did not lead any defence
Judgment 22 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
evidence nor they have brought anything on record which
could suggest that accused Mohd. Riyaz was drawing
electricity through authorized means or electricity meter.
Moreover, it is admitted position of fact that it is not
denied at all that the said meter was lying in stopped
condition and the electricity supply of inspected premises
was found running directly through service cable of the
said meter. As per load report, certain electric appliances
were found in the inspected premises and accused persons
have not explained as to from where they were drawing
electricity to run those appliances. Also, it is not the case
of the accused persons that there was any Genset and they
were drawing energy from the same.
41. Furthermore, it is clear from the evidence of PW2 that in
regard to the electricity theft, the complainant company
had raised a theft bill of Rs.56,314/- and sent to the
accused persons but they did not make payment of the
theft bill. During the course of arguments, Ld. Defence
Counsel submitted that that accused Mohd. Riyaz has
settled the matter qua civil liability but the settlement
amount could not be deposited 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 complainant company would
have raised a false and baseless claim by way of theft bill
(Ex.PW2/D), then instead of going for settlement, accused
persons would have raised their protest and would have
Judgment 23 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
initiated appropriate proceedings against complainant
company for raising a false claim against them. This
conduct of the accused persons also fortifies the
allegations of the direct theft of electricity against him.
42. Notwithstanding, if the accused persons were not indulged
in direct theft of electricity or they were 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, they were
drawing electricity through their own electricity meter.
However, accused persons have 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 persons have failed to rebut the statutory
presumption.
43. If the user Mohd. Riyaz 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 Firoza Begum was to prove
on record that at the time of inspection, user Mohd. Riyaz
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. Accordingly, it is held that accused persons
have failed to rebut the statutory presumption.
44. In this regard, this court is supported by the judgment of
Judgment 24 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
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 charges
fortifies 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”.
45. Accused persons did not lead any defence evidence. If the
user Mohd. Riyaz was not indulged in direct theft of
electricity or that he was using the electricity through any
legal means, then the accused Firoza Begum, who claimed
herself to be owner/landlord of the inspected premises,
was liable to rebut the statutory presumption by disproving
the allegations made in the complaint by leading relevant
defence evidence. It is admitted position of fact that
accused Firoza Begum was registered consumer but the
said meter was lying in stopped condition and both the
accused were persons were in use and occupation of the
Judgment 25 of 26
SC No.415/2022 State (BSES YPL) vs Mohd. Riyaz & Anr.
inspected premises at the relevant time and they were
indulged in direct theft of electricity in the manner
discussed above. Accused persons have not brought any
material on record or lead any evidence to disprove the
prosecution case.
46. In view of aforesaid discussions, it is held that the
prosecution has proved beyond reasonable doubt that user
Mohd. Riyaz was indulged in direct theft of electricity
through illegal wire. It is also proved on record that
accused Firoza Begum was the registered consumer while
accused Mohd. Riyaz has been proved to have indulged in
direct theft of electricity by attaching illegal external
device. Accused Firoza Begum being the registered
consumer permitted/consciously allowed the user Mohd.
Riyaz to commit direct theft of electricity. Thus, accused
Firoza Begum is guilty of abetment of offence of direct
theft of electricity and accused Mohd. Riyaz is guilty of
offence punishable U/s 135 of Electricity Act. Accordingly,
accused Firoza Begum is held guilty and convicted for the
offence punishable U/s 135 r/w Section 150 of the
Electricity Act 2003 and accused Mohd. Riyaz is held
guilty and convicted for the offence punishable U/s 135 of
Electricity Act 2003.
Let convicts 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 26 of 26
