Delhi High Court
Rameshwar @ Kanwar Singh vs Bses Rajdhani Power Limited on 20 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 31st January, 2017
Decided on: 20th March, 2017
+ CRL.M.C. 1700/2016 & Crl.M.A. 7200/2016 (stay)
RAMESHWAR @ KANWAR SINGH ..... Petitioner
Represented by: Mr. Fanish K. Jain, Adv.
versus
BSES RAJDHANI POWER LIMITED ..... Respondent
Represented by: Mr. Puneet K.G., Mr. Sunil
Fernandes, Advs.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. A complaint case was filed by the respondent under Section 151 read
with Section 154 for offences punishable under Sections 135 read with
Section 150 of the Electricity Act, 2003 (in short 'the Act') and for
determination of civil liability under Section 154(5) of the Act. In the said
complaint being CC No.148/2012 the petitioner was arrayed as respondent
Nos. 2 and 3 with the name Kanwar Singh as owner and Rameshwar as
registered consumer.
2. Learned counsel for the petitioner does not dispute that the petitioner
Rameshwar @ Kanwar Singh is the owner and registered consumer of the
premises in question. Vide the impugned order dated 5 th December, 2015,
notice was directed to be framed for the offences alleged against the
petitioner. Hence the present petition.
3. Learned counsel for the petitioner contends that though the petitioner
is owner and registered consumer of the premises however in view of the
fact that the petitioner was not the user at the relevant time when the
inspection was carried out and the property in question was on rent with the
tenant who was found to be user, the petitioner cannot be fastened with
vicarious liability for the offences punishable under Sections 135 read with
Section 150 of the Act.
4. Learned counsel for the petitioner relying upon the decision of this
Court reported as (1999) 51 DRJ 31 D.D. Chadha Vs. State (NCT, Delhi)
contends that Section 39 of the Indian Electricity Act which is para materia
Section 135 of the Electricity Act, 2003 contends that mens rea is essential
ingredient of the offence and the word "whoever" indicate that only a person
who dishonestly abstracts or consumes or uses the electricity by
unauthorized mean is liable to be punished for the offences. In the absence of
proof of mens rea, merely because the petitioner is the registered consumer,
he cannot be fastened with the liability. Distinguishing the decision of this
Court reported as 138 (2007) DLT 679 Hindustan Petroleum Corporation
Vs. BSES Rajdhani Ltd. & Anr. learned counsel for the petitioner contends
that the same has no application to the facts of the present case.
5. Learned counsel for the respondent on the other hand referring to the
third proviso to Section 135 (1) of the Act submits that in view of the
presumption raised, it would be for the petitioner to rebut the same in the
course of trial that as registered consumer he was not aware and had no
control on the acts of the tenants and at this stage, there is no illegality in
framing of notice against the petitioner. Reliance is placed on the decision in
Hindustan Petroleum Corporation (supra) and the decision of this Court
reported as 2012 Crl.LJ 1418 Lokesh Chandela Vs. State NCT of Delhi &
Ors.
6. Before adverting to the legal issue it would be relevant to note
accusation of the respondent in the complaint as under-
"7. That as per the direction of DGM Enf. the joint inspection
team inspected the abovesaid premises and following
observations were made.
a) At the time of inspection one number three phase CT meter
bearing no-29010066, C/R 154.6 Kwh, 212.2 Kvah was
found installed at site, however there was no blinking on
the meter. KIT KAT was found removed but supply was
found running on load position.
b) Joint team traced the service cable & the same was found
at roof of the premises and three no's of illegal tapping
were found in the service cable by means of three no's of
illegal Teflon copper wire through which entire load was
connected. Further recording of meter was done.
c) The total connected load of the premises was assessed and
the same was found to be 71.804 KW/DT/IX.
d) Joint team seized One no. three phase Electronic CT meter
bearing no.29010066 C/R 154.6 Kwh, 212.2 Kvah and
three no. of illegal black colour copper Teflon of size 20
sq.mm and length 3 meter (approx) as material evidence
from the site.
e) Necessary Videography was conducted by Photographer
Anand from M/s Arora Studio at site.
f) The Joint team members prepared Load Report, Inspection
Report & Seizure Memo at the site and the same were
offered to the consumer/accused persons but consumer
refused to receive and sign the said reports as evident from
the documents/report. The member of the raiding team
drew the sketch depicting the mode of theft, which is on the
inspection report annexed herewith.
The details of inspection carried out at the site are as
follows:
Case ID : RJ040212WA009
Electronic Meter No. : 29010066
User : RAMESH (PANDIT)
Owner : KANWAR SINGH
R/C : RAMESHWAR
Address : KHASRA NO-05,
OPPOSITE SHIV RAM
DHARAM KANTA,
VILLAGE KAMARUDDIN
NAGAR, NEW DELHI-
110041
Sanction Load : 15.910 KW/IX
Connected Load : 71.804 KW/DT/IX
Category : IX
The joint inspection report (along with meter detail report)
prepared at the time of inspection is annexed as ANNEXURE-
B (Colly.).
8. That the Accused persons were found indulged in the Direct
Theft of the Electricity and illegally using the electricity for
industrial purpose by directly tapping from the BSES service
cable. In view of the submission made herein above and as per
the documents attached herewith clearly show that the Accused
persons have been indulging, inter-alia, in Direct Theft of
Electricity and hence booked a case of Direct Theft against the
Accused named herein above in terms of Section 135 of the
Electricity Act, 2003."
7. Section 135 of the Electricity Act, 2003 reads as under-
"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 authorised,
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:
Provided that in a case where the load abstracted, consumed, or
used or attempted abstraction or attempted consumption or
attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the
event of second or subsequent conviction the fine imposed
shall not be less than six times the financial gain on
account of such theft of electricity;
(ii) exceeds 10 Kilowatt, the fine imposed on first conviction
shall not be less than three times the financial gain on
account of such theft of electricity and in the event of
second or subsequent conviction, the sentence shall be
imprisonment for a term not less than six months, but
which may extend to five years and with fine not less than
six times the financial gain on account of such theft of
electricity:
Provided further that in the event of second and subsequent
conviction of a person where the load abstracted, consumed, or
used or attempted abstraction or attempted consumption or
attempted use exceeds 10 kilowatt, such person shall also be
debarred from getting any supply of electricity for a period which
shall not be less than three months but may extend to two years
and shall also be debarred from getting supply of electricity for
that period from any other source or generating station:
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.
(1A) Without prejudice to the provisions of this Act, the licensee
or supplier, as the case may be, may, upon detection of such theft
of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as
authorised for the purpose by the Appropriate Commission or any
other officer of the licensee or supplier, as the case may be, of the
rank higher than the rank so authorised shall disconnect the
supply line of electricity:
Provided further that such officer of the licensee or supplier, as
the case may be, shall lodge a complaint in writing relating to the
commission of such offence in police station having jurisdiction
within twenty four hour from the time of such disconnect: Provided
also that the licensee or supplier, as the case may be, on deposit or
payment of the assessed amount or electricity charges in
accordance with the provisions of this Act, shall, without prejudice
to the obligation to lodge the complaint as referred to in the
second proviso to this clause., restore the supply line of electricity
within fortyeight hours of such deposit or payment;]
(2) [Any officer of the licensee or supplier as the case may be,
authorised] in this behalf by the State Government may -
(a) enter, inspect, break open and search any place or
premises in which he has reason to believe that electricity
[has been or is being], used unauthorised;
(b) search, seize and remove all such devices, instruments,
wires and any other facilitator or article which 1[has been
or is being], used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which
in his opinion shall be useful for or relevant to, any
proceedings in respect of the offence under subsection (1)
and allow the person from whose custody such books of
account or documents are seized to make copies thereof or
take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his
behalf shall remain present during the search and a list of all
things seized in the course of such search shall be prepared and
delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic
places or domestic premises shall be carried out between sunset
and sunrise except in the presence of an adult male member
occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2
of 1974) relating to search and seizure shall apply, as far as may
be, to searches and seizure under this Act."
8. The third proviso to Section 135 (1) of the Electricity Act, 2003
provides that if it is proved that by any artificial mean or means not
authorized by the Board or licensee or supplier 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. Thus, the same being a
rebuttable presumption is required to be discharged by the petitioner/accused
during the course of trial.
9. In the present case, notice framed against the petitioner is not for
offence punishable under Section 135 of the Electricity Act simplicitor but
with the aid of Section 150 which defines abetment of offence punishable
under Section 135 of the Electricity Act. Further Section 2(15) of the Act
defines the word "consumer" to mean 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
the 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. Thus, Section 2(15) read with Section 135 of the
Electricity Act, 2003 fasten the liability both on the user as well as registered
consumer/owner of the premises in case illegal abstraction of energy is found
at the premises.
10. Whether the petitioner had the mens rea of dishonest abstraction by
illegal means or not cannot be ascertained in a petition under Section 482
Cr.P.C. and can be examined only after witnesses are examined. Since the
third proviso to Section 135 (1) of the Act raises a presumption though
rebuttable, it will be for the petitioner to discharge the burden during the
course of trial.
11. In D.D.Chadha (supra) relied upon by learned counsel for the
petitioner, the complaint itself noted that as per the inspection report M/s
Ravi Sun printers were found dishonestly abstracting the electricity and the
offending meters were in the custody and control of M/s Ravi Sun Printers
yet M/s Ravi Sun Printers were not charge sheeted under Sections 39/44 of
the Indian Electricity Act and it is on these facts this Court held that there
was no material before the Courts below to come to the conclusion that the
petitioner therein was committing theft of electricity. As noted above in the
present case, petitioner has been charged for abetment of the offence
punishable under Section 135 of the Electricity Act, 2003 and not for the
substantive offence.
12. In Lokesh Chandela (Supra) this Court dealing with the similar
situation held that the registered consumer was required to rebut the
presumption and prove during the course of trial that the premises was in
possession of a tenant and since the appellant therein failed to rebut the said
presumption he was held guilty of the offence punishable under Section 135
read with 150 of the Electricity Act, 2003.
13. In Hindustan Petroleum Corporation Ltd. (Supra) relied upon by both
the sides this Court noted that the electricity connection was in the name of
Hindustan Petroleum Corporation Ltd. and the license was issued by the
Company to its agent, in such a situation the responsibility of Hindustan
Petroleum Corporation Ltd. and the duty to do regular inspection and keep a
check at the petrol pump was not absolved. In view of the presumption, this
Court declined to quash the complaint in exercise of its jurisdiction under
Section 482 Cr.P.C.
14. In view of the discussion aforesaid this Court finds no merit in the
present petition. Petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 20, 2017
'v mittal'
