Power Theft: Where Does the Burden of Proof Lie?

Per the Delhi High Court ruling, the prosecution is responsible for demonstrating that an individual has committed electricity theft, using “dishonestly” destroying or damaging an electric meter. The Indian Evidence Act, of 1872, Section 105, does not allow for the transfer of this burden of proof. In an appeal against a trial court ruling clearing the accused of charges under Sections 135 (theft of electricity), 138 (interference with licensee’s metering or works), and 150 (abetment) of the Act, the court was hearing the case of Tata Power Delhi Distribution Ltd (Tata Power). During the hearings before the Delhi Electricity Regulatory Commission (DERC), Tata Power reduced the theft bill it had filed against the accused, which had originally demanded around Rs. 33 lakhs.

Nevertheless, the court ruled against Tata Power, holding that the prosecution will always have the burden of proof, which it must meet by using the standard of “beyond a reasonable doubt.” This burden cannot be placed on the accused by the prosecution. The accused is not required to establish his innocence.

The Court dismissed Tata Power’s attempt to place the burden of proof on the accused by citing Sections 105 (duty of demonstrating that the accused’s case falls within exceptions) and 106 (burden of establishing fact, especially within knowledge) of the Indian Evidence Act, 1872.

The Court decided that as Sections 135, 138, and 140 of the Electricity Act have no exceptions of any kind, Section 105 does not apply in circumstances involving these provisions. Citing the Supreme Court’s ruling in Satye Singh & Anr. v. State of Uttarakhand, (2022) 5 SCC 438), the Court ruled that Section 106 of the Indian Evidence Act does not absolve the prosecution of its burden of proving the case against the accused.

As a result, the bench concluded that “it was the petitioner’s responsibility to establish that the respondent (accused) had ‘dishonestly’ burnt the meter in the current case.” By relying on Section 106 of the IE Act, the petitioner cannot transfer this responsibility to the respondent since they have not been able to substantiate the same. Consequently, the Court denied Tata Power’s request for authorization to appeal.

The Case in Brief

Officials from the Disruption company inspected the electric meter and discovered that the resin-cast CT, the subject meter, and the body of the meter box were all fully burned. The meter had been sent to M/s Truth Lab, which specialises in providing forensic services and is approved by the EQDC, for testing to rule out any malpractices. Reports state that after analysing the subject meter’s consumption pattern, the average reported consumption turned out to be 33.90% of the average computed consumption. Tata Power accused the defendant of stealing power based on this, and they submitted the necessary court documents. Nonetheless, the Trial Court cleared the defendants, concluding that there was insufficient scientific support for M/s Truth Lab’s conclusion.

The arguments

To prove their special defence that the meter burned because of a “short circuit,” the prosecution relied on the Truth Lab’s report and conclusion on the estimated consumption. They also contended that the accused had the burden of evidence in this case. The defence, however, criticised the use of the lab report, claiming that its author was not an expert under Section 45 of the Indian Evidence Act because they were only experts in chemical forensics and not electrical engineering.

The ruling of the court

The Court decided that the fact that the average reported consumption was less than the computed one would “at best raise a doubt against the respondent; it cannot act as a proof beyond a reasonable doubt to hold that the respondent has dishonestly tampered with the meter.”

The lab report’s author acknowledged that no scientific test can determine the true cause of the meter’s burning, and the court concurred with the defence on this point. The statement of the said witness creates more doubts than answers of the same. (Tamperfinder)

Title of Cause: Amit Bansal v. Tata Power Delhi Distribution Ltd.