Allahabad High Court
Saurabh Agrawal And Another vs State Of U.P.And Others on 19 May, 2017
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 22 Case :- APPLICATION U/S 482 No. - 31955 of 2008 Applicant :- Saurabh Agrawal And Another Opposite Party :- State Of U.P.And Others Counsel for Applicant :- Ranjit Saxena Counsel for Opposite Party :- Govt. Advocate,H.P.Dube,Nripendra Misra,Pankaj Kr. Shukla,V.P.Pandey Hon'ble Amar Singh Chauhan,J.
Heard Sri Ranjit Saxena, learned counsel for the applicants, learned AGA for the State and Sri Priyavrat Tripathi, learned Advocate, holding brief of Sri Nripendra Misra, learned counsel appearing for the Power Corporation.
I have perused the record.
Applicant, Saurabh Agrawal and one other, through this application under section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with a prayer to set aside the charge-sheet dated 09.09.2007 by which the Special Judge (E.C. Act) Muzaffarnagar has taken cognizance and issued summon on 25.10.2007 giving rise to Criminal Case No. 383/9 of 2007 and also quash the non-bailable warrant issued by the Special Judge, (E.C. Act) against the applicants on 17.8.2007 in Case Crime No. 293 of 2007 under section 135 of Electricity Act. It is further prayed that the proceedings in Case No. 383/9 of 2007 under section 135 of the Electricity Act 2003 arising out of First Information Report no. 293 of 2007 under section 135 of Electricity Act, 2003, Police Station Sikhera, District Muzaffarnagar, pending in the court of Special Judge (E.C. Act) Muzaffarnagar be stayed.
Brief facts of the case giving rise to this application are that company of applicants incorporated under Indian Companies Act, 1956 is situated at Jansath Road, Muzaffarnagar. The said company is customer of the petitioners with contracted load of 4000 KVA and running Induction Furnace for manufacture of steel ingots. Supply of energy to the said unit is ensured from 33 KVA sub-station. In order to monitor the consumption of electrical energy availed by the said company, two meters have been installed; one inside premises of the company and the other at the pole outside the premises of company. Case of the petitioner has been that on 16.07.2007 main meter installed at the premises of the company was inspected and during the course of inspection the current transformer and potential transformer's chamber were found open and B phase load side C.T. was found burnt on the secondary side. On 29.07.2007 meter reading of the premises was done and a note was made in the reading slip that metering circuit required to be checked up. On 02.08.2007 inspection was made at the premises and metering system was inspected by the officers of the Corporation together with the officers of M/S Yadav Measurement Private Limited. It has been stated that the said inspection was made in the presence of the representative of the company in question, but refusal was there to sign on the inspection report and sealing certificate was accordingly prepared and the same was duly signed by the officers of the Corporation and M/S Yadav Measurement Private Limited. The meter circuit at the premises of the company was found slow to the extent of 53.14% and the test result was given by M/S Yadav Measurement Pvt. Ltd., which was signed by the representative of the company. On the basis of the check report the theft of electricity under section 135 of the Electricity Act, 2003 offence was said to be constituted and FIR was lodged which is under challenge in this application.
Submission of learned counsel for the applicants is that on 26.6.2007 office of the Paschimanchal Vidyut Vitran Nigam Limited, Muzaffarnagar Checking Team raided in the premises of the applicants' company namely M/s Suneta Ispat (Pvt.) Limited and found there everything is O.K. Subsequently, on 14.7.2007 the said Checking Team raided in the aforesaid company. Very next day on 15.7.2007, the CT and PT blown off and power supply was discontinued immediately thereafter on 15.7.2007 the applicants made a request and opposite party no. 3 to rectify the fault. On 29.7.2007, Executive Engineer, Electricity Distribution Division-I and other officials inspected the both meters (Meter No. 06763190 and Meter UPE 80086) and also Meter No. 0673189 installed at 33 KV Sub-station for measuring and accounting electricity flows to 11 KV feeder but they did not find anything incriminating either with seals of aforesaid meters or with meters at all. On 2.8.2007, Executive Engineer, other Officers of Corporation and Checking Team raided in the premises of the applicants' company and allegedly found that the meter was checked and found defective owing to R Phase C.t. Found saturated and further found that M seal of secondary terminal of R & B phase C.t. Found erased also checked double pole meter as well as meter installed at 33 K.V sub-station Naraiya but nothing incriminating was found either with the pole meter or with meter installed at 33 KV sub-station at all. Although as per the Consumer Inspection Report dated 2.8.2007, there was a clear cut conclusion that the consumer was not found committing theft of electricity and the only allegation against the applicants were with regard to breaking and tempering of the seal and on the question of theft of electricity the reaiding party was of the clear opinion that there has been no theft of electricity in the consumer inspection report it is suspected that there might be attempt by the consumer to effect the meter reading with regard to consumption of the electricity. Merely damaging of the seals will not mean that there is conclusive evidence with regard to theft of electricity and thus entire action of the U.P. Power Corporation Ltd., is illegal. Thus, section 135 of the Electricity Act, 2003 was definitely not applicable and clause 8.1 of the Electricity Supply Code, 2005 was not attracted in which all the proceedings were concluded in fact clause 6.8. of the Electricity Supply Code, 2005 would have been applicable even then in the most arbitrary and illegal manner the Electricity Corporation have lodged a First Information Report against the applicants just to pressurize the applicants. Thereafter the applicants raised serious objection that on the basis of Consumer Inspection Report dated 2.8.2007, the order of provisional assessment passed under clause 8.1 (b) (iii) of the U.P. Electricity Supply Code 2005, is totally incorrect. On 04.08.2007, the Executive Engineer, E.D.D., Anand Bhawan, Muzaffarnagar informed the applicants that a sum of Rs. 97,53,840/- is required to be paid by applicants on the basis of Consumer Inspection Report dated 02.08.2007 for 19 days. Thereafter the applicants raised objection that 19 days was wrongly assessed and in any case calculation cannot be for more than 17 days by assessing officer of the corporation. It may also be noted here that when the applicants challenged the assessment order dated 07.08.2007 before this Court in Writ Petition No. 37706 of 2007 (Suneta Ispat Pvt. Ltd. vs. State of U.P.,) the Hon'ble High Court passed a judgement on 14.8.2007 whereby the applicants were allowed to approach the remedy of filing of appeal against final assessment under section 127 of the Electricity Act 2003. Thereafter the applicants have filed an appeal before the Commissioner, Saharanpur Division, Saharanpur under section 127 of Electricity Act, 2003. During the pendency of appeal before the Commissioner filed in compliance of order of this Court, the applicants deposited half of amount of assessment final order dated 07.08.2007 before the Power Corporation. The applicants also wrote a letter to the Divisional Engineer (Revenue) E.D.D., Muzaffarnagar informing him that in compliance of direction given by High Court in Writ Petition No. 37706 of 2007, an amount of Rs. 43,64,000/- is being deposited towards half of assessed amount. It may also be noted here that the meter company who have manufactured the meter has not been asked to give any report and in the case of unauthorised use of power the company manufacturing the meter has to submit report and without submitting the report of the company manufacturing the meter no action can be taken against the consumer but in the instant case deliberately the case of theft was made against the consumer in the most illegal manner. Further submitted that new meter no. 06763199 was installed by the office of the Electricity Corporation. But when the applicants refused to oblige the Officers of the Electricity Corporation then in that case the old meter no. 06763190 was again installed and again in said meter on the same day it was mentioned that it is a case of tampering of meter and even there was no allegation of theft of electricity in the consumer inspection report no. 1176 in which checking took place at 18 hours on 2.8.2007. The copy of the Consumer Inspection Report showing that the copy of the consumption inspection report was not given to the applicants and the copy of the report of the testing of the meter no. 06763190 shows that the meter no. 067763190 was declared to be technically faulty and that is why new meter no. 06763199 was installed and the cost of the meter was also added in the bill but immediately thereafter on 02.08.2007 the new meter no. 06763199 was taken out and old technically faulty meter no. 06763190 was installed and thereafter the raiding party of Electricity Corporation entered in the premises of the applicants and thereafter for tempering of meter a consumer inspection report dated 02.08.2007 at 6 p.m. no. 1176 was prepared in which there was no allegation of theft of electricity and the report no. 2135 dated 02.08.2007 prepared by Electricity Test Division was showing a faulty report of the meter which is only a technical fault. It is quite clear that the entire case of the Electricity Corporation was fabricated. The charge sheet dated 9.9.2007 on which the cognizance was taken by the Special Judge (E.C. Act) Muzaffarnagar does not show that any offence was committed by the applicants no. 1 and 2 under section 135 of the Electricity Act 2003 and the charge sheet actually does not contain any charge of theft against the applicants and as such in the present case on the charge sheet the learned Special Judge (E.C. Act), Muzaffarnagar was not justified in taking cognizance against the applicants no. 1 and 2 and as such the order of the Special Judge (E.C. Act) dated 25.10.2007 by which he has taken cognizance on the charge sheet is bad in law as there is no offence made out under section 135 of the Electricity Act 2003 and even on the own showing of the charge sheet or First Information Report or Consumer Inspection Report dated 02.8.2007 does not show or attract section 135 of the Electricity Act 2003 and at the most section 126 sub-clause 6(b) of the Electricity Act 2003 is at the most attracted.
Further submission is that formula so far applied against the applicants was with regard to unauthorized use of power and it is also applying against the consumer, the provisions of clause 6.8 of Electricity Supply Code 2005, then in that case it shall be very unfair and illegal action of Corporation in prosecuting the applicants under section 135 of Electricity Act, 2003. It is also submitted that there has been no inspection report with regard to the meter under clause 5.6(d) of Electricity Supply Code, 2005 and without having any report with regard to meter under clause 5.6(d) of testing of meter in a laboratory which is test laboratory and such laboratory should be approved laboratory of the U.P. Electricity Regulatory Commission, Lucknow. Even the consumer inspection report dated 02.8.2007, which is sole basis of prosecution of applicants shows that raiding party, who were on the spot and who were making inspection of premises of consumer, have submitted a report dated 2.8.2007 in which only report was that meter seal appears to be tempered but with regard to theft in column "Gha" there was cutting by raiding party. Thus, raiding party and consumer inspection report which is only document of prosecution shows that report was prepared under section 126 of Electricity Act 2003 and under clause 6.8 of Electricity Supply Code, 2005 and when clause 6.8 has been applied the subsequent action taken under clause 8.1 of Supply Code 2005 was totally illegal and bad in law and is not permissible under the law also on the ground that entire basis of prosecution is consumer inspection report dated 2.8.2007 and the said report is speaking to the contrary and actually is not speaking about theft of electricity. It is also very relevant to note here that for slow running of meter the liability was fixed by the Executive Engineer, Electricity Distribution Division-I, Paschimanchal Vidyut Vitran Nigam Limited for a sum of Rs. 71,95,449/-. Out of the aforesaid amount of Rs. 71,95,449/-, initially the applicants paid Rs. 38,07,463/- regarding aforesaid amount. On 31.8.2007, further a sum of Rs. 10 lacs was paid by the applicants towards bill of Rs. 71,95,449/- through HDFC Bank cheque receipt book no. 166323. On 6.9.2007, a sum of Rs. 6,94,000/- was paid by book no. 166499 through cheque no. 335910 of HDFC Bank regarding the aforesaid bill of Rs. 71,95,000/-. On 30.9.2007, a sum of Rs. 11 lacs was paid by book no. 166596 through cheque no. 491130. On 17.10.2007, vide book no. 166605 for Rs. 5,93,986/- cheque no. 491079 of Indian Overseas Bank was given to the Corporation. Thus, all the payments were made by applicants as a penalty for so called slows running of meter. It is very important to note that consumer agreed to pay for slow running of meter just to avoid any dispute and payment of money made by applicants was much in excess, thus, it is quite clear that now the applicants cannot be penalised on the basis of same consumer inspection report dated 02.08.2007 for theft of electricity. In case of any tempering of seal of meter, the supply code provides action in clause 6.1-F of Supply Code 2005 by which it is provided that at the most section 138 of Electricity Act 2003 could have been invoked but once the payment has been received for slow running of meter it will no further action is required to be taken against the consumer. There is no evidence of theft of electricity and there is no MRI report till date. It is also very shocking that meter which was sealed by licensee and FIR was lodged against the applicants on 02.08.2007 giving rise to Case Crime No. 293 of 2007 under section 135 of Electricity Act 2003, after lodging of FIR, the meter in question was not sent for any meter inspection under supply code 5.6 (d) of Electricity Code 2005 but the meter is lying in the police station Shikera which cannot be done under supply code 2005 as meter is to be sent for testing under supply code 2005. Now the position is that the Commissioner of Saharanpur Division has delegated his power to Additional Commissioner (Judicial)-II, Saharanpur who passed an order in Appeal No. 02/2007-08 (Suneta Ispat Pvt. Ltd. vs. Pachimanchal Vidyut Vitran Nigam Limited) and has held that Section 135 of electricity act 2003 is not applicable in the present case and as such it was clearly mentioned that at the most it is a case of slow metering and therefore in the present case a direction was given by the Additional Commissioner (Judicial)-II, Saharanpur to revise all the bills of the applicants in the light of direction given on 24.10.2008 and it is also to be noted here that under clause 5.6(c)(ii) of Supply Code 2005 if the meter is found slow by the licensee then the provisions is given for as for assessment. It is very important to mention here that the applicants have already paid entire amount of money towards the slow metering amounting to Rs. 71,95,449/- and thus after payment of such huge amount for slow metering and after the judgement of Additional Commissioner (Judicial)-II, Saharanpur dated 24.10.2008 there is no question of any prosecution under section 135 of Electricity Act, 2003. The FIR shows that the allegation is of tempering in that meter which is Bijlighar and now the position is that the applicants cannot be held responsible for tempering in that meter which is in possession of licensee and thus in the present case all the imagination has been done in lodging FIR and in the present case the meter number has not been given in the FIR of Bijlighar and the common meter from which supply is being sent to various consumers has no connection with the applicant.
It was lastly submitted that in the present case, it is apparent that the applicants no. 1 and 2 have not committed any offence under section 135 of electricity Act, 2003 and, therefore, the entire proceedings initiated against the applicants no. 1 and 2 after charge sheet no. 120/07 dated 25.10.2007 was filed in Case Crime No. 293 of 2007 and on the said charge sheet on 25.10.2007, the Special Judge (E.C. Act), Muzaffarnagar has taken cognizance and has issued summons against the applicants no. 1 and 2, therefore, charge sheet no. 120/07 dated 25.10.2007 may be quashed.
Per contra learned counsel for the opposite party no. 3 contends that on 02.08.2007 checking team of the department raided the premises of the applicants and found theft of the electricity (unauthorised use of electricity) therefore prepared the checking report on spot and all the members of the checking team put signature upon it, as a precautionary pasted the same at conspicuous place on the premises and later on same also send to the consumer through registered post. The checking report itself demonstrates the substance of theft and the answering opposite party further categorically mentioned that as per the provision contained under clause 6.8 and 8.1 the department raided the premises of the applicants and, therefore, decided to register the occurrence against the applicants. On 02.08.2007 at about 7.30 P.M. the opposite party no. 3 registered the aforesaid occurrence with the allegation that the department raided the premises and found theft of electricity and department also prepared a videography film and checking report on spot which demonstrates the substance of the theft. The Investigating Officer after collecting the credible evidence i.e. statements of the checking team and other witnesses videography film and checking report etc. and submitted charge sheet before the court concerned. The learned court below after application of his judicial mind taking cognizance upon it and summoned the applicants to contest the case but the applicants deliberately absconding from the courts below and after a great delay came before this Hon'ble Court on the basis of false, fabricated, frivolous pleading and tried to mislead the Hon'ble Court and succeed to obtain stay order of the coercive process and trial of the present commission of the crime is held up since then. For recovered the losses of the department, the answering opposite party issued provisional assessment under clause 6.8 and 8.1 of the Electricity Code and invite objection upon it the applicants did not file any objection of the assessment rather in so many words admitted the factum of theft and prayed for some adjustment which is evident from the letter of the applicants dated 7.8.2007. The said assessment was challenged by means of W.P. No. 37706 of 2007 which was dismissed on the ground of alternative remedy to file appeal before the appropriate forum/Divisional Commissioner. The applicants filed an Appeal No. 2 of 2007-08 before the Divisional Commissioner against the assessment bill dated 07.08.2007 whereby final assessment of Rs. 87,27,120/- was made. It is pertinent to mention here that the assessment bill which was subject matter of appeal before the Divisional Commissioner was made for only 17 days and during pendency of the appeal the corporation realized its mistake that amendment has been made in the Electricity Act, consequently, a notice was given to the applicants for the revised assessment of Rs. 22,81,71,581/- proposing the assessment for 365 days. The applicants did not file any objection to the said proposed assessment. Consequently, the said assessment became final. It is relevant to mention here that the said assessment of Rs. 22,81,71,581/- was neither challenged in the appeal nor any where else and attained finality even in the pending appeal the applicants have neither amended the grounds of appeal nor the final relief. The finding of the appellate authority is illegal and against the provision of law and hit the section 154(4)95) of the Electricity Act, 2003.
From perusal, it is clear that on the basis of the check report dated 02.08.2007 an FIR was lodged under section 135 of the Electricity Act against the applicants and on the basis of the said check report provisional order of assessment for an amount of Rs.97,53,840 was passed and alongwith the same show cause notice dated 04.08.2007 was also issued directing to file objection. After considering the objection of the applicants, the Executive Engineer (Revenue) Electricity Distribution Division, Anand Bhawan, Muzaffarnagar passed final assessment order on 07.08.2007. Feeling aggrieved against the said order, Writ Petition No. 37706 of 2007 had been filed by the applicants which was dismissed on the ground of existence of alternative remedy of appeal being available under Section 127 of the Electricity Act, 2003. Conditional order was also passed for restoration of supply. 50% of the assessed amount was deposited by the applicants and appeal under section 127 of the Electricity Act was filed before the Commissioner. On 09.09.2007 qua the FIR which has been lodged, after investigation, the concerned police submitted charge sheet before the Special Judge (E.C. Act). The said appeal under section 127 of the Electricity Act 2003 has been allowed on 24.10.2008 against which writ petition was filed by the Electricity Department which was dismissed on merit. The appellate court had recorded the finding that present case was not a case of theft. It was also noted that meter in question had not been sent to laboratory which prompt the appellate authority to form the view. The said finding was also confirmed by another Bench of this Court in Writ Petition No. 4222 of 2009. There is no MRI report as required in the case of theft of electricity under clause 8.1. of the U.P. Electricity Supply Code, 2005. The Corporation has imposed slow metering charges on the basis of the Yadav Measurement Company report and also issued bill to slow metering and got the payment deposited. The main evidence was videography but no videography was considered by the Investigating Officer in filing the charge sheet. The applicants have deposited Rs. 71,95,449/- and 43,64,000 + 500 towards slow metering and half amount of theft assessment. The licensee/Electricity Department prepared an inspection report on 02.08.2007 showing the slow metering under clause 5.6(c)(ii) of the Electricity Supply Code 2005 of 53.14% thereafter the electricity company raised bill of slow metering under clause 5.6 (c)(ii) of the Electricity Supply Code, 2005. Entire amount is said to have been deposited. The Additional Commissioner, Saharanpur Division, Saharanpur also passed a detailed order by which the appeal of the applicants was allowed holding that there was no theft of electricity and the order of the Commissioner was confirmed by Writ Petition No. 4222 of 2009 and the said finding attained the finality which has not been challenged before the Hon'ble Apex Court. It is also relevant fact that meter no. allotted to the applicants was 0676310 but the FIR shows meter no. 0576310 which was also indicated in the charge sheet.
Another Bench of this Court in M/s. Modern Rice Mill vs. Madhyanchal Vidyut Vitran Nigam Limited and another, 2012 (1) ADJ 296 observed that "in any case para 5.6 (d) makes imperative upon the licensee or the test laboratory to follow certain procedure before testing of the meter, namely, information to consumer of the proposed date of testing, giving opportunity to consumer or his representative to be present personally at the time of testing, obtaining signature of such person, if he is so present and a right to the consumer to dispute such testing as provided in Clause 5.6 (c)."
A Division Bench judgment of this Court in Smt. Amrawati Devi vs. Purvanchal Vidyut Vitran Nigam Limited, 2009 (1) ADJ 430 had considered the same Clause 5.6 (c) (iii) of the Code 2005. Paragraph 6 of the said judgment is quoted below:
"6. From reading of Clause 5.6 (c) (iii) it is clear that this clause in unequivocal terms declares that the defective meter after sealing in presence of consumer, shall be tested, at licensee's lab/independent lab/Electrical Inspector, as agreed by the consumer. Therefore, the agreement by the consumer is essential for testing of the meter either at the laboratory of the Nigam or at the laboratory of some other independent agency. It further provides that option exercised by consumer once cannot be changed. The clause, therefore, empowers the authorities to seal the meter and get it tested with consumer's agreement. Since the clause operates harshly against the consumer it has to be construed strictly. The consumer has a right to get the meter tested with independent agency. The authorities, therefore, have a corresponding duty to apprise the consumer of the right. Failure to discharge this duty, which flows from sub-clause (c) (iii) by the authorities while exercising their right to send the meter for testing, renders the entire proceedings for sealing the meter irregular and illegal.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".
In view of the above pronouncements and from perusal of the material on record, the said prosecution is nothing but an abuse of the process of law and, therefore, this application is allowed and criminal proceeding arising out of Case Crime No. 293 of 2007 under section 135 of Electricity Act, Police Station Sikhera, District Muzaffarnagar, pending before the Special Judge, (E.C. Act), Muzaffarnagar against the applicants is hereby quashed.
Order Date :- 19.5.2017 Puspendra