AI Structured Summary
Not yet generated for this judgment
Judgment
Present petition has been preferred by the petitioner against the inaction on part of respondents whereby despite recording the finding by the Special
Judge (Electricity), Gwalior in relation to non occurrence of theft of electricity, respondents are raising the demand and acting upon that demand,
disconnected the electricity connection.
Precisely stated facts of the case are that petitioner is owner of premises situate at 59-B, Mayur Market, Thatipur Gwalior and electricity connection
is also in the name of petitioner. In the said premises, son of petitioner was running a hospital. On 24-09-2008 at about 2:00 pm, a vigilance team
inspected the premises and found that there was electricity theft in the form of tampering in the electricity meter. On the basis of aforesaid
allegations, complaint was filed by the respondents company against the son of petitioner which was registered as Special ST No.1552/2009 which
was ultimately dismissed by learned Special Judge (Electricity), Gwalior.
According to learned counsel appearing for the petitioner, once the Special Judge (Electricity), Gwalior passed the judgment holding that no theft
has taken place then the act of respondents/ company for raising the demand of Rs.3,37,823/-, is illegal and exceedment of jurisdiction. It is further
submitted that the Special Judge held that the complaint filed by the respondents company is not proved as no authority letter for the purpose of
checking the premises of petitioner, has been produced and when the meter was seized at that time, admittedly, no specimen impression of seal over
Panchnama has been made. Thus, no theft was ever committed either by petitioner or her son. It is further submitted by learned counsel for the
petitioner that the earlier demand raised by the respondents company was under civil liability in lieu of criminal liability in relation to theft and since
criminal liability i.e. theft was not found proved then respondents company cannot raise any civil liability over the petitioner. He relied upon the
judgment of Baijanti Bai Vs. M.P. Kshetriya Vidyut Vitran Co. Ltd. and others, 2014 (3) JLJ 40.
Learned counsel for the respondents opposed the prayer made by the petitioner and submitted that the acquittal recorded by the Special Judge
(Electricity) Gwalior is not a clean acquittal, it is merely a decision on technical ground and it does not absolve the petitioner from her liability. No
finding in relation to not commissioning of electricity theft at all is recorded by the Special Judge (Electricity), Gwalior. Purpose of criminal prosecution
and that of supplementary bill which is compensatory in nature, is altogether different. The purpose of criminal trial is to punish the accused
while the purpose of bill is to compensate the supplier of energy. Thus, prayed for dismissal of petition.
Heard learned counsel for the parties and perused the documents appended thereto.
In the case in hand, petitioner is aggrieved by the demand raised by the respondents whereby demand of Rs.3,37,823/- has been raisedÂ
against her on the pretext of electricity theft under Section 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Act'). Sheet anchor of
the case of petitioner is the order dated 01-02-2012 passed by the Special Judge (Electricity), Gwalior whereby the complaint filed by the respondents
Company has been dismissed on the ground that the offence against the accused {Manish Shrivastava (son of petitioner)} is not proved. Therefore,
petitioner relied upon the judgment rendered by the Coordinate Bench of this Court in the case of Baijanti Bai (supra) and referred para 12 of the
said judgment whereas learned counsel for the respondents have pressed over the judgment rendered by the Hon'ble Apex Court in the matter of
J.M.D. Alloys Ltd. Vs. Bihar State Electricity Board and others, AIR 2003 SC 1354.
On duly vetting both the judgments, it appears that the respondents company appears to be logical and legal when it says that the case in
respect of Baijanti Bai (supra) move in different factual realm because in the said case of Baijanti Bai (supra), criminal case was registered
against then petitioner and she contested the trial. In para 10 of the said judgment, it has been specifically mentioned that:
“In the present case, the petitioner / accused was summoned before the Special Court. Evidence was led and after marshaling the evidence,
charges were not found proved against the petitioner. It is not a case where acquittal is based on acceptance of closure report. Thus, in the present
factual scenario; judgment of JMD Alloys and Allahabad High Court in Rais Ahmad (supra) cannot be pressed into service.â€
Whereas in the instant case, Special Judge vide order dated 01-02-2012 (Annexure P/2) dismissed the complaint on the basis of technical defect.
Relevant discussion on which the complaint is dismissed reads as under:
“In view of aforesaid reason, I come to this conclusion that the complainant was authorized to file the complaint is not proved as no authority
letter is on the record, therefore, cognizance and trial both are vitiated. The Panchnama is not witnessed by any independent witness. The meter
testing report is not on the record, therefore, the whole complainant case collapses on this sole ground because in the absence of meter testing report,
the meter cannot be found to be tempered with. No specimen impression seal is found on the Panchnama though Panchama mentions that it was
sealed on the spot. Therefore offence against accused is not proved, hence he is acquitted of the offence u/s 135(1)(K), Electricity Act, 2003. The
bail and bond of the accused are cancelled.â€
Perusal of the above discussion, makes it clear that the complaint was dismissed on technical ground and not after marshaling the evidence. In
the case of J.M.D. Alloys Ltd. (supra), the Hon'ble Apex Court in para 13 has held as under:
“In our opinion, the mere acceptance of final report by the Magistrate cannot amount to a finding by the criminal Court that theft of electricity was
not committed. The accused was not even summoned, no charge was framed nor any evidence was recorded. In such a situation, it cannot be held
that the criminal Court has recorded any finding to the effect that the petitioner has not committed theft of electricity. That apart, the purpose of a trial
under Section 39/44of the Indian Electricity Act is entirely different and the object is to punish and sentence the person who is alleged to have
committed the offence. The trial of an accused in a criminal case can have no bearing in the matter of assessment made in accordance with the tariff
of the value of electricity dishonestly abstracted or consumed. Therefore, the contention raised on the basis of alleged acceptance of the final report in
the criminal case has absolutely no merit.â€
Reading the said extract vis a vis finding given by the trial Court, it is established that the order of acquittal passed by the Special Judge does
not amount to finding by the Criminal Court that theft of electricity was not committed. The fact of theft has not been out rightly rejected.
It may still exist (subject to trial), only difference is that due to technical defect, the respondents company could not establish its case
before the trial Court earlier.
Besides that, one glaring aspect in the present controversy is status of petitioner. Here, the petitioner is Consumer under Section 2(15) of the Act
which defines consumer as under:
Consumer:
“2(15). ""consumer"" means 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 this 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.
Petitioner is consumer whereas trial was conducted by the respondents company against Manish Shrivastava (son of petitioner) who was
occupying the premises for running hospital and in the said hospital theft of electricity was reported. If Manish Shrivastava is acquitted
from the charges, it does not mean that it impliedly absolved the petitioner also from the criminal liability out rightly. It is surprising to note
that the respondents company never proceeded for registration of criminal case against the petitioner, being consumer, nevertheless
respondents corrected their mistake by issuing the notice under Section 126/135 of the Act and suggested the petitioner for compounding also
under Section 152 of the Act. Therefore, it is a case where the respondents intend to compound the matter, if petitioner pays the amount asÂ
assessed by the respondents company and has given a chance to the petitioner as consumer to compound the same.
From reply, it further appears that bill was given to the petitioner not based upon solely on penalty of theft but half portion of the bill containsÂ
energy charges assessed in accordance with Electricity Supply Code and that is based on load and appliances found in the premises. Thus,
half portion of the bill comprising of Energy Charges is not penalty. Therefore, on this ground also respondents company established their
case for initiating proceeding under Section 126 and 135 read with Section 152 of the Act. The purpose of criminal proceeding and that of
supplementary bill which is compensatory in nature are altogether different. Here, the respondents company have issued the bill to compensate
supply of energy.Â
The arguments of petitioner was that once the criminal case is dismissed then no civil liability exists. It may be true, in respect of a person who is
facing the assessment of the respondents company and got acquitted from the Criminal Court that too after marshaling the evidence with
clear finding that no theft took place whereas the case was dismissed on technical pretext and no specific finding has been recorded by the
trial Court that no electricity theft ever took place over the premises in question. Therefore, loss or damage incurred by the respondents company or
licensee or concerned person is still intact.
Civil liability has been defined in explanation of Section 154(6) of the Act which reads as under:
 “Section 154(6): ***
Explanation:- For the purpose of this section, “civil liability†means loss or damage incurred by the Board or licensee or the concerned
person, as the case may be, due to the commission of an offence referred to in Section 135 to 140 and Section 150.â€
The tenor and texture of civil liability is wide enough to incorporate the instant incident of inspection made by the respondents company.
Therefore, from the cumulative analysis, it appears that the petitioner being consumer has been noticed for compounding the offence and
if she pays the amount referred in the notice else initiation of criminal proceeding was contemplated in the notice itself. Therefore, in the considered
opinion of this Court, the order dated 01-02-2012 recorded by the Special Judge in respect of Manish Shrivastava (son of petitioner) has noÂ
binding effect and respondents company can very well proceed against the petitioner in respect of notice as referred above. No illegality or mala
fide on part of respondents as  alleged by the petitioner is visible in the present case.
Petition stands dismissed.