Delhi High Court: Tata Power Delhi Distribution Limited, the petitioner filed the present petition under Section 378(3) of the Criminal Procedure Code, 1973 (‘CrPC’) seeking leave to appeal against judgment dated 08-01-2024. Navin Chawla, J.*, after perusal of Sections 135, 138 and 150 of the Electricity Act, 2003 (‘the Act’) opined that to charge a person with the offence of theft of electricity, under Section 135 of the Act, the prosecution must establish that such person had ‘dishonestly’ damaged or destroyed an electric meter. The onus of proof of the same should always lie on the prosecution and such onus must be discharged on the touchstone of ‘beyond reasonable doubt’. The prosecution could not shift this onus on the accused and it was not for the accused to prove his innocence.
The Court opined that appellate court, while considering a leave to appeal, had a duty to satisfy itself if the Trial Court’s view was both possible and plausible. Thus, the Court opined that petitioner had not been able to make out any ground to grant leave to appeal against the impugned order, and accordingly, dismissed the present appeal.
Background
Petitioner was a company engaged in the business of distribution and retail supply of electricity to its consumers in North and North-West parts of the National Capital Territory of Delhi. Respondent was a consumer of the petitioner and availed its services. Petitioner stated that on 09-07-2018, a team of petitioner company (‘the inspecting team’) visited the premises and during the course of the visit, the inspecting team found one meter, which was installed in the name of Jamna Industries, Propriety of Jamna Dass.
The body of the said meter box, resin cast CT was completely burnt and the remnants of the burnt parts of the LT/CT meter were seized. It was stated that the total connected load to the premises was 87.362 KW, used for the industrial purpose of manufacturing plastic dana. It was also contended that at the site, an inspection report and seizure memo was prepared, both of which were duly served upon the respondent, who was present at the site.
Thereafter petitioner issued notice to respondent and called upon him to appear before the Meter Testing Laboratory/Electronics and Quality Development Centre on 17-07-2017. The meter was tested in presence of respondent’s father, whereafter a report was prepared, which advised the meter to be sent to a forensic lab for further testing. Subsequently, the meter was referred to Truth Lab, which specializes in such forensic services and on the basis of the observations, a report dated 21-09-2018 was prepared by Truth Lab.
Petitioner alleged that the consumption pattern of the subject meter was analysed and the average recorded consumption was found to be 33.90% of the average computed consumption. Based on the report of Truth Lab, petitioner, charged the respondent with theft under Section 135 of the Act. As a consequence of the same, a theft bill of Rs. 33,78,327 was raised on the respondent. The said amount was revised to Rs.26,57,771, during the proceedings before the Delhi Electricity Regulatory Commission. Petitioner also filed the above complaint, under Sections 135, 138 and 150 read with Section 151 of the Act.
The Trial Court vide judgment dated 08-01-2024, held that the conclusion arrived in the lab report by Truth Lab was based on surmises and conjectures and did not have any scientific basis. It held that there were inherent and apparent lacunae in petitioner’s case which had remained unexplained. The Trial Court also held that benefit of such lacunae had to be given to respondent, and accordingly acquitted respondent.
Thus, petitioner had filed the present petition.
Analysis, Law, and Decision
The Court after perusal of Sections 135, 138 and 150 of the Act opined that to charge a person with the offence of theft of electricity, under Section 135 of the Act, the prosecution must establish that such person had ‘dishonestly’ damaged or destroyed an electric meter. The onus of proof of the same should always lie on the prosecution and such onus must be discharged on the touchstone of ‘beyond reasonable doubt’. The prosecution could not shift this onus on the accused, and it was not for the accused to prove his innocence.
The Court further opined that opinion under Section 45 of the Evidence Act, 1872 (‘IEA’) had to be of a person who was “especially skilled” in such science. In the present case, the author of the forensic report had admitted in the course of her cross-examination that she did not have the knowledge about electric engineering, but had knowledge related to chemical forensic, which did not include the study related to electric meters. The author specifically admitted that she had no expertise or knowledge about the fire emerging from the electricity/electric meter. This itself made her report irrelevant to the facts of the present case. The Court further referred to the testimony of the author and opined that it was evident that petitioner was unable to prove its case against respondent on the touchstone of beyond reasonable doubt. In fact, the statement of the author created more doubts than answers of the same. The Court agreed with the Trial Court that on the basis of consequent report of Truth Lab, respondent could not be convicted.
Further regarding petitioner’s contention that average recorded consumption being only 33.90% of the average computed consumption was sufficient to convict respondent of the offence. The Court opined that even assuming the recorded consumption to be lesser than the average computed consumption of electricity, it could at best raise a doubt against the respondent. It could not act as a proof beyond reasonable doubt to hold that respondent had dishonestly tampered with the meter.
The Court opined that as far as Section 105 of IEA was concerned, it was applicable only where the accused claimed existence of circumstances bringing the case within any of the General Exceptions in the Penal Code, 1860 (‘IPC’) or within any special exception or proviso contained in the IPC or in any other law defining the offence. In the present case, respondent was not claiming exemption from the offence on any exception or proviso. In fact, there was no exception in Sections 135, 138 or 140 of the Act. Therefore, Section 105 of the IE had no application.
The Court applied the principles laid down in Satye Singh v. State of Uttarakhand, (2022) 5 SCC 438 and opined that in the present case, it was for the petitioner to prove that the meter had been ‘dishonestly’ burnt by respondent. Petitioner, having failed to prove the same, could not shift this burden on the respondent by placing reliance on Section 106 of the IE Act.
The Court further relied on Anwar Ali v. State of H.P, (2020) 10 SCC 166 and opined that a decision of acquittal strengthened the presumption of innocence in favour of the accused. At the same time, appellate court, while considering a leave to appeal, had a duty to satisfy itself if the Trial Court’s view was both possible and plausible. Thus, the Court opined that petitioner had not been able to make out any ground to grant leave to appeal against the impugned order, and accordingly, dismissed the present appeal.
[Tata Power Delhi Distribution Ltd. v. Amit Bansal, 2024 SCC OnLine Del 2698, decided on 16-04-2024]
*Judgment authored by- Justice Navin Chawla
Advocates who appeared in this case :
For the Petitioner: Sudhir Nandrajog, Senior Advocate with Manish Srivastava, Moksh Arora and Santosh Ramdurg, Advocates;
For the Respondent: Sahiba Singh, Advocate.
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