Inderjeet vs State & Anr
2018 Latest Caselaw 1084 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
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                                   Judgment reserved on: 12.02.2018
                                   Judgment delivered on:15.02.2018
+      CRL.A. 1197/2012

       INDERJEET

                                                                ..... Appellant

                          Through       Mr. D.S.Kauntae, Adv.

                          versus

       STATE & ANR

                                                             ..... Respondents

                          Through       Mr. Amit Ahlawat, APP for the State.

                                        Mr. Sunil Fernandes, Standing
                                        counsel for BSES with Mr. Amav
                                        Vidyarthi and Ms. Anju Thomas,
                                        Advs for R-2.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and order on sentence dated

17.09.2012 and 26.09.2012 respectively wherein the appellant Inderjeet

stood convicted under Section 135 of the Electricity Act, 2003. He had been

sentenced to undergo RI for a period of one year and to pay a fine of

₹37,99,314/- and in default of payment of fine to undergo SI for a period of

six months. The civil liability computed under Section 154 (5) of the Act

had worked out to ₹25,32,876/- which was payable with simple interest @

6% per annum. During the course of this appeal, the appellant had died. His

legal heirs i.e. his widow and son are brought on record. They are contesting

the appeal.

2 The case of the prosecution is that respondent No. 2 had filed a

complaint dated 06.08.2008 alleging that the appellant was guilty of theft of

electricity; this was pursuant to an inspection carried out by the joint

inspection team of respondent No. 2 which was dated 22.11.2007. This joint

inspection had been conducted at premises No. 615, khasra No.126, Saini

Mohalla, Bhootonwali Gali, Nangloi which was besides premises No. 621-A

of the same locality. In the aforenoted premises (615), a connected load of

83.42 KW was found being used for non-domestic purposes; this meter

installed at the premises was found to be fake. Inspection report, seizure

memo and meter details report was prepared at the spot. The appellant was

asked to sign but he refused.

3 The prosecution examined five witnesses of whom the star witnesses

were PW-1, PW-3 and PW-4. They were the members of joint inspection

team. PW-3 & PW-4 had identified the appellant at the spot. The appellant

was also served of the summons dated 04.03.2010 at the same address

substantiating the submission of the complainant that the appellant was the

owner, occupier, user and had a direct link with the premises where the

disputed meter was found installed. No documents/papers were however

produced before the Court to prove the ownership of the appellant.

4 The statement of the accused was recorded under Section 313 of the

Cr.PC. He denied his connection with the aforenoted premises; submission

being that his wife was the owner of shop No. 621-A; he had no connection

with shop No. 615.

5 In evidence two witnesses were produced by the accused; the defence

witnesses produced documents to substantiate his submission that an

electricity meter was installed in the name of his wife at shop No. 621-A

where electricity charges were being paid by her.

6 The Trial Court on the basis of evidence adduced before him was of

the view that there was direct linkage and connection of the appellant with

the premises No. 621-A; an order of conviction had accordingly followed.

7 On behalf of the appellant, it has been argued that in view of the

judgment of the Apex Court reported as (2014) 3 SCC 696 Vishal Agrawal

and Another Vs. Chhattisgarh State Electricity Board and Another

cognizance under Section 135 of the Electricity Act cannot be taken unless

an FIR has been registered; this is a cognizable offence and cognizance on a

complaint is bad. Proceedings are liable to be quashed. His second

submission is that the evidence of the PW-1, PW-3 & PW-4 who were the

members of joint inspection team does not in any manner establish that the

disputed premises (615) where the offending electricity meter was found,

was in manner connected with the appellant; categorical statement of the

appellant being that he was not the owner of this premises. It was for the

prosecution to prove its case to the hilt. The videography proved on record

by the complainant also did not evidence the presence of the appellant at the

spot. The appellant is the owner of the shop No. 621-A for which he has

adduced evidence and his witness has established his submission that he is

paying electricity charges for the electricity being generated in that shop

which is in the name of his wife. Shop No. 615 is not connected to him.

8 These arguments have been refuted. On behalf of respondent No.2, it

is pointed out that the connection of the accused with the aforenoted

premises is writ large and this is gathered not only with the evidence of PW-

1, PW-3 & PW-4 but also the admitted position that summons dated

04.03.2010 had been received by the appellant at the same address i.e. shop

No. 615; if he had no connection with shop No.615, then what he was doing

in the premises has not been answered and explained by him.

9 Arguments have been heard. Record has been perused. Written

submissions of the parties have also been perused.

10 The appellant stands convicted under Section 135 of the Electricity

Act, 2003. Section 135 contained in Chapter IV of the Act deals with the

theft of electricity. The necessary ingredient is that the electricity must have

been illegally used by the dis-honest person. As rightly pointed out by the

learned counsel for the appellant the linkage with the installation of the

illegal meter and the alleged illegal user of the electricity has to be

established before the offence under this Section is made out.

11 PW-1, PW-3 & PW-4 were the members of the joint inspection team

which had carried out the inspection of the premises No. 615, khasra No.126,

Saini Mohalla, Bhootonwali Gali, Nangloi on 22.11.2007. They were all

official witnesses. Their categorical testimony is to the effect that they had

gone to inspect premises No. 615 which is adjacent to shop No. 621-A. The

said premises was being used by Inderjeet and Manoj Kumar both of whom

were present at the spot. PW-1 had not been able to identify the appellant.

PW-3 & PW-4 had identified the appellant. They had prepared a joint

inspection report and a seizure memo. This joint inspection report and

seizure memo had not been signed by the appellant. The co-accused Manoj

Kumar had absconded and in fact had been declared as proclaimed offender

as he had not appeared before the Trial Court. The videography of the

proceedings was also conducted and the CD was proved as CW-2/4. In their

cross-examination, all the witnesses admitted that the users Inderjeet and

Manoj Kumar were present at the spot and they themselves disclosed that

they are users of the said premises. In another part of the cross-examination

of PW-1, he has stated that he cannot say whether the appellant Inderjeet was

the owner of the said premises; in a latter part, PW-1 volunteered by stating

that the appellant had disclosed that he is the owner of the premises. The

testimony of PW-3 & PW-4 is also bordered on the same lines. There was

admittedly no ownership document or any other document to establish that

the appellant was an owner or an occupier or a user of the said premises.

The vehement submission of the learned counsel for the appellant all along

being that he is not the owner of the premises and nor the occupier of the

premises. He was present at the spot only for the reason that his wife is the

owner of shop No. 621-A which shop is adjacent to the disputed shop. He

had refused to sign the inspection report of shop No. 615 as he was not

connected. This was the defence adopted by the appellant right from the

inception i.e. during the cross-examination of the witnesses as also his

categorical statement recorded under Section 313 of the Cr.PC. In defence

the appellant had examined two witnesses of whom DW-1 had produced the

papers relating to ownership of shop No. 621-A; this shop was in the name

of the wife of the appellant where electricity charges were being issued in

her name for which electricity bills were also being paid. The defence of the

appellant all along being that he has no connection with the disputed

premises.

12 In a criminal trial, it is for the prosecution to prove its case beyond all

reasonable doubt; it must stand on his legs. This Court is of the view that the

appellant is right in his submission that there is no document on record to

show that the appellant was either the owner or the occupier or the user of

the said premises and was using the electricity generated from the illegal

meter installed at that premises. It is not the case of the prosecution that this

illegal meter was found installed in the premises of the appellant. Shop No.

621-A is owned by the wife of the appellant. Appellant's connection with

shop No. 615 is not established. Merely because he was found present at the

spot which was natural for the reason that shop No.621-A was adjacent to

shop No. 615 does not make out a case that the appellant was occupying

shop No. 615 as well. What was the activity being carried out at shop No.

615 has also not been spelt out by the prosecution. It is also not the case of

the prosecution that shop No. 621-A is connected with shop No. 615 which

could in any manner evidence the connectivity of the appellant with shop

No. 615.

13 Prosecution having failed to prove this necessary ingredient, the case

of the prosecution must fail. Section 135 of the Electricity Act positively pre-

supposes a situation that a dishonest abstraction of electricity and its use

must be established against the party before that party can be nailed. At the

cost of repetition, there is nothing on record which could establish the

ownership/occupation of disputed shop (615) with the appellant. The mere

bald statement of PW-1, PW-3 & PW-4 that they had noted the presence of

the appellant at the time of inspection would not be sufficient to nail the

appellant. The appellant was the owner of the adjacent shop. For the

prosecution to establish user of alleged illegal abstraction of electricity in the

disputed shop, it would be incumbent upon them to establish that shop No.

615 was owned/occupied/used by the appellant. This onus has not been

discharged by the prosecution.

14 The summons dated 04.03.2010 heavily relied upon by the

prosecution, which was also a piece of evidence noted by the trial Court to

hold the appellant liable, is also a document which has to be noted to be

rejected. The summons dated 04.03.2010 were addressed to the appellant

and the address mentioned in the summons is shop No. 615 adjacent to shop

No. 621-A. These summon even as per the report of the process server had

been received by the appellant at the adjacent shop No. 621-A. Moreover, if

this was an incriminating piece of evidence, this should have been put to the

accused under Section 313 of the Cr.PC. This is absent.

15 Needless to state that the law on this aspect is well established; every

incriminating piece of evidence has to be put to the accused before he can be

held liable.

16 In 2007 (3) ACR 2884 (SC) Ajay Singh Vs. State of Maharashtra, the

Apex Court in this context has held as under:-

"The importance of observing faithfully and fairly the provisions of

Section 313 of the Code cannot be too strongly stressed. It is not sufficient

compliance to string together a long series of facts and ask the accused what

he to say about them. He must be questioned separately about each material

substance which is intended to be used against him. The questionings must

be fair and couched in a form which an ignorant or illiterate person will be

able to appreciate and understand. Even when an accused is not illiterate,

his mind is apt to be perturbed when he is facing a charge of murder.

Fairness, therefore, requires that each material circumstance should be put

simply and separately in a way that an illiterate mind, or one which is

perturbed or confused, can readily appreciate and understand."

17 Benefit of doubt must accordingly accrue in favour of the appellant as

this Court is of the view that the respondent has failed to prove its case to the

hilt. This Court however does not agree with the first submission made by

the appellant for which he had relied upon the judgment of Vishal Agrawal

(supra). This judgment lays down the law that in addition to a registration of

the FIR for a cognizable offence under Section 135 of the Electricity Act, a

complaint can also be tried by the Trial Court. This submission of the

appellant is without merit.

18 In view of the above narrated discussion, appeal is allowed. The

judgment of the Trial Court is set aside. The appellant is acquitted of the

charges leveled against him.

19     Appeal disposed of in the above terms.




                                            INDERMEET KAUR, J
FEBRUARY 15, 2018
A