ALLAUDDIN Vs. STATE

JUDGEMENT

(1.) By the present appeal Allauddin challenges the impugned judgment dated 16th December 2017, whereby he was convicted for the offence punishable under Section 135 Electricity Act and the order on sentence dated 18th December 2017 directing him to undergo simple imprisonment for the period of one year six months and to pay a fine of Rs.26,74,422/-, in default whereof to undergo simple imprisonment for a period of three months for the offence punishable under Section 135 Electricity Act.

(2.) Assailing the conviction, Learned Counsel for the appellant submits that as per the proviso to Section 135, a written complaint should be filed in the police station within 24 hours from the time of disconnection due to theft of electricity. In the present case, the same has not been complied with as the inspection and disconnection occurred on 5th January 2007 while the complaint was filed on 19th March 2007 which is a gap of almost two and a half months. As per clause 52 (iii) of the DREC Supply Code, the inspection team is required to carry photo ID card and visiting cards, which should be shown and handed over at the time of inspection. In the present case, respondent no.2 has neither placed on record nor proved any written authority signed by a designated officer or any ID cards that were used to inspect the premises. Furthermore, as per Section 25(vii) of the DERC (Performance Standards - Metering and Billing) Regulations, 2002, the inspection report prepared by the inspecting authority should be signed by each and every member of the inspection team but inspection report in the present case does not carry the signatures and therefore should be disregarded. He further submits that the videography has not been proved as the videographer was not examined as a witness and no affidavit was filed under Section 65B of the IT Act. As per the allegations, the appellant was supplying illegal electricity to 106 jhuggis but only one person from these 106 jhuggis has testified against the appellant who also did not place on record any receipt. The inspection team has also not proved on record the alleged receipt issued by the appellant that was seized by them. The appellant was an employee of Sallauddin, who was the actual owner of the premises.

(3.) Per contra, Learned Counsel for BSES submits that the impugned order and judgment does not suffer from any illegality. The appellant was identified by Vinod Mehto (PW-11) as the person who was supplying electricity and collecting electricity charges from him every month. The appellant was identified by several members of the inspection team who have stated that at the time of inspection there was no valid/authorized source of consumption of electricity at the inspected premises and the same was going on through illegal tapping. He further submits that there was no delay in filing the complaint since as per Section 468(2) Cr.P.C. the period of limitation in filing the complaint shall be 3 years. Proviso to Section 135(1A) was only introduced vide the Electricity Amendment Act, 2007 which came into effect from 15th June 2007 and hence it will not be applicable to the present case. He further submits that the inspection report has been signed by seven members of the inspection team. Even if the inspection is not a valid inspection, the respondent still has a right to prove that theft of electricity has taken place. Reliance was placed upon the decision of the Delhi High Court reported as Mukesh Rastogi v. North Delhi Power Ltd., 2007 99 DRJ 108 He submits that even if the videography is disregarded because a certificate under Section 65B of the IT Act has not been proved, the conviction will still stand since he has been identified by seven witnesses who were part of the investigation team. The appellant cannot escape his criminal liability merely on the ground that the residents of the 106 jhuggis have not been made accused in the present case.