Madras High Court
M/S.Chennai Colour Coatings vs The Tamil Nadu Electricity Board on 27 October, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.10.2017
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.18856 of 2004
M/s.Chennai Colour Coatings,
Nos.1 and 2, Tiny Sector,
Industrial Estate, Guindy,
Chennai-600 032, rep. by one of its Partners
Mr.M.I.Mohamed Hasan Thowfeeq .. Petitioner
Vs.
1. The Tamil Nadu Electricity Board,
No.850, Anna Salai,
Chennai rep. herein by its Chairman.
2. The Executive Engineer,
O & M/Guindy,
CEDC/South,
K.K.Nagar, Chennai-78.
3. The Superintending Engineer,
CEDC/South, 110 KV K.K.Nagar,
SS Complex, K.K.Nagar,
Chennai-78. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari to call for the records of the respondents pertaining to the action initiated against the petitioner and quash the order passed by the second and third respondents with reference Nos.letter No.EE/O & M/GDY/AE.R.46/F.Doc/D.1135/2003, dated 23.10.2003 and Lr.No.SE/CED/S/G1/DM/F.Doc/D.1249/2004, dated 28.05.2004.
For Petitioner : Mr.R.U.Dinesh Rajkumar
For Respondents : Mr.S.K.Raameshuwar
ORDER
The petitioner has come forward with this Writ Petition praying for issuance of a Writ of Certiorari to call for the records of the respondents pertaining to the action initiated against the petitioner and quash the order passed by the second and third respondents with reference Nos.letter No.EE/O & M/GDY/AE.R.46/F.Doc/D.1135/2003, dated 23.10.2003 and Lr.No.SE/CED/S/G1/DM/F.Doc/D.1249/2004, dated 28.05.2004.
2. The case of the petitioner-Company is that the petitioner is a colour coating Company at Guindy, Chennai under the name and style of Chennai Color Coatings, and the Service Connection was given in No.211-02-34, which stood in the name of Justus Paulraj and the electricity consumption charges were paid regularly. On 28.06.2003, the Assistant Executive Engineer/O & M of the TNEB along with the other officers of the Anti-Power Theft Squad, inspected the electricity power connection of the premises of the petitioner-Company. The affidavit filed in support of the petition was sworn to by one of the partners, namely M.I.Mohamed Hasan Thowfeeq, and himself and his brother were absent during inspection. After inspection of the service connection, the officers have alleged that electricity meter/MRT seals affixed by the first respondent, viz., TNEB, have been tampered with and that the Service Connection was severed. A criminal complaint was lodged with the Inspector of Police, J.3 Guindy Police Station, Chennai, for the alleged offences under Sections 39 and 44(c) of the Indian Electricity Act, 1910. The concerned persons also moved anticipatory bail, which was granted by the Court below on certain conditions.
3. Thereafter, a show cause notice, dated 30.06.2003 was issued by the Assistant Executive Engineer, O & M/Guindy/CEDC/South/TNEB, Chennai-32 to the petitioner's father calling upon him to show cause as to why the Bord should not recover the loss caused to it by imposing extra levy and also directed him to appear before the second respondent with relevant documents for enquiry on 16.07.2003. It is stated by the petitioner-Company that they have submitted necessary documents and also appeared for the enquiry. They have also produced the extract of the log book maintained by them to prove that the Units recorded in the meter commensurate with the normal consumption. Thereafter, the second respondent passed the impugned order dated 23.10.2003 imposing extra levy to the tune of Rs.2,28,692/- on the petitioner for the alleged violation of the terms and conditions with a direction to pay the amount in ten instalments. However, the impugned order dated 23.10.2003 stated that the petitioner has a right of appeal, but the petitioner has to pay 40% of the assessed amount, i.e. extra levy, before filing of the appeal and hence, the petitioner filed W.P.No.31785 of 2003 for allowing the petitioner to prefer appeal without depositing any amount. The said Writ Petition was disposed of on 11.11.2003 directing the respondents to collect the amount, viz. Rs.75,000/- deposited before the Court below and to treat the same as deposit for preferring the appeal. The petitioner was directed to deposit the balance amount of Rs.16,477/- with the third respondent, which was duly paid by way of Demand Draft, dated 12.11.2003.
4. The petitioner stated that the extract of the log books with regard to the electricity consumption maintained, was produced along with the new electricity meter card to show that it indicated the consumption after installation of the new meter on par with the consumption recorded in the alleged tampered meter. But, by brushing aside the documents, the impugned order dated 28.05.2004 was passed observing that the petitioner is liable to pay a sum of Rs.1,37,215/- after deducting the amount deposited before preferring the appeal, which has to be paid in six instalments. The petitioner stated that initially, the amount was paid in instalments, and thereafter, the petitioner approached Civil Court for declaration that the said orders are null and void and for consequential injunction. As there is a statutory bar under Section 145 of the Electricity Act, 2003, barring the Civil Courts from entertaining any suit or proceedings, the suit was not entertained and the learned counsel made an endorsement that the suit may be returned with liberty to file a fresh suit on the same cause of action and the suit was returned on 29.06.2004.
5. It is the further case of the petitioner that none of the procedures have been followed by the respondents, more particularly, the records have not been inspected. The respondents have failed to adhere the procedures contemplated under the Indian Electricity Act, 1910 and the Electricity Act, 2003, as the earlier Act under which initiation of proceedings dated 28.06.2003 was done, was repealed and the new Electricity Act of 2003, has come into force on 10.06.2003. It is further averred by the petitioner that the respondents have wrongly applied the formula prescribed under Clauses 8.02 and 8.03 - Table B as per Schedule Part-I of the Board's Terms and Conditions of Supply of Electricity, whereas Section 126 of the Electricity Act, 2003, states that the assessing officer should provisionally assess the electricity charges to be collected to the best of his judgment. It is further stated by the petitioner that after filing of the Writ Petition, the criminal action initiated against the petitioner in C.C.No.11 of 2007 ended in acquittal on 04.02.2015 by the Principal Sessions Court, Chennai. It is further submitted that when once there is acquittal by the Court, the respondents are barred from proceeding further against the petitioner.
6. The respondents have filed detailed counter affidavit and contended that the petitioner being an agreement holder, is bound by the terms and conditions of supply of electricity and is estopped from disputing the confirmation of assessment made by the third respondent. On inspection of the Service Connection of the petitioner, it was found that the MRT seals of the meter, were tampered with and energy theft was made by the petitioner. As there was tampering of the seals, the same was intimated to the petitioner, and he was advised to pay the compounding charges. Since the petitioner refused to adhere the said request, a Police complaint was lodged, apart from initiation of show cause notice proceedings. According to the respondents, the petitioner can be proceeded against for tampering with the electricity meter, both on criminal side and on the recovery side, and both of these proceedings can go parallely. Before conclusion of the criminal proceedings, for tampering of the meter, he was proceeded by issuing show cause notice, followed by enquiry, which ended in finality and that the respondents-TNEB have issued penal levy of Rs.2,28,692/- to be paid in ten equal monthly instalments. It is stated that the first instalment fell due on 10.11.2003. In the meantime, the petitioner obtained anticipatory bail and deposited a sum of Rs.75,000/- before the concerned jurisdictional Magistrate. The Court below further directed the petitioner to pay the balance Rs.16,000/- being 40% of the penal levy charged by the Board.
7. It is further stated by the respondents in the counter that enquiry was conducted and the theft of energy was confirmed and the Board has acted as per the terms and conditions of the supply of electricity and submitted that the Writ Petition is devoid of merits.
8. With regard to the contention that the petitioner was acquitted by the Court below, learned counsel for the respondents submitted that it cannot be a ground to get the relief in the present Writ Petition, as the trial Court, namely the Sessions Court found that the accused is not guilty of the charges and they are acquitted thereof and set at liberty forthwith. Since the acquittal was rendered giving benefit of doubt and not honourable acquittal, the petitioner is liable to pay the amount of theft of electricity. Learned counsel for the respondents further submitted that parallel proceedings can go on simultaneously, i.e. the criminal proceedings as well as recovery proceedings. In support of his submissions, learned counsel for the respondents also relied on a decision of the Supreme Court reported in 2003 (5) SCC 226 (J.M.D.Alloys Ltd. Vs. Bihar SEB).
9. Heard both sides and perused the materials available on record.
10. It is not in dispute that the petitioner is a consumer of the TNEB and is running business under the name and style of M/s.Chennai Colour Coatings. There was consumption of electricity, which according to the petitioner, is in terms of the meter reading, but according to the respondents, the petitioner committed theft of electricity. It is also not in dispute that criminal action had also been initiated against the petitioner, as the petitioner did not want to compromise the issue and separate show cause notice was also issued with regard to the assessment of theft. It is also seen that the criminal Court had acquitted the petitioner. Though in the initial paragraph of the judgment of the Criminal Court, it is stated that the accused is entitled to the benefit of doubt, the previous sentence is very clear that the prosecution has not established the case beyond reasonable doubt. That apart, there is a categorical finding by the Court below that the respondents have not produced any document to substantiate their case. The findings rendered by the Criminal Court may not have a bearing in the Writ Petition, but however, the evidence tendered therefrom, will have to be taken note of, as the witness cannot speak contra. Two witnesses, namely S.Kumaramoorthy, who was examined as P.W.4 and G.Balraj, who was examined as P.W.1, have specifically stated that the meter was in order at the time of inspection. The respondents have not produced any material before the Court below to establish their stand. Here also, the respondents have not produced any documentary evidence to establish that there was actually theft of electricity by tampering with the meter. When there is a categorical evidence to show that there is no tampering of the meter, then the question of theft of electricity may not arise. As the respondents fail to substantiate their case, though the criminal Court has rendered a finding giving the benefit of doubt in favour of the accused, the entire judgment of the Criminal Court, when read as a whole, shows that the evidence is against the TNEB.
11. Learned counsel for the respondents relied on a judgment of the Supreme Court reported in 2003 (5) SCC 226 (cited supra), in which it was held by the Apex Court that the trial of an accused in the 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. Though there is no quarrel over the said proposition of law, but the same has got to be established by the Electricity Board showing that actually there was theft of electricity. It is to be seen as to whether the said decision of the Supreme Court is applicable to the facts of the case on hand. In this regard, it is worthwhile to quote the decision of the Supreme Court reported in 2002 (3) SCC 533 (Padma Sundara Rao Vs. State of T.N.), wherein it has been held as follows:
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board (1972 (2) WLR 537 = 1972 AC 877 (HL) ). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
12. In the above quoted decision of the Apex Court reported in 2003 (5) SCC 226 (cited supra), the Supreme Court held that the accused was not even summoned, no charge was framed, nor was any evidence recorded and in such a situation, it cannot be held that the criminal Court has recorded any finding to the effect that the petitioner therein has not committed theft of electricity. In view of the decision of the Supreme Court reported in 2002 (3) SCC 533 (cited supra), the other decision of the Supreme Court reported in 2003 (5) SCC 226 (cited supra) is distinguishable on facts of the present case.
13. Learned counsel for the petitioner relied on a decision of this Court reported in CDJ 2006 MHC 653 = 2006 (1) MLJ (Crl) 424 (State rep. by the Sub-Inspector of Police and another Vs. Kali and another), wherein, this Court, after placing reliance on various decisions of the Supreme Court and this Court, held that the prosecution has miserably failed to discharge its burden of establishing the dishonest abstraction of energy on the part of the accused and the prosecution has not produced any materials to show that perfect artificial means which would render abstraction of energy possible, were found at the time of inspection.
14. Moreover, the theory of benefit of doubt given to the accused in the case on hand, is not acceptable and the same is rejected. Further, in the present case on hand, the evidence of the prosecution is that there is no tampering of the meter, and there cannot be any other version in the assessment proceedings.
15. Further, in this case, as against the order of acquittal rendered by the Criminal Court, no appeal has been filed by the respondents as on date, and there is communication dated 24.10.2017 addressed by the Assistant Executive Engineer, O & M/Guindy/TANGEDCO, Chennai-32 to the Standing Counsel of the TANGEDCO, High Court, Chennai, stating that as against the order passed in C.C.No.11 of 2007, acquitting the accused M.I.Mohammed Hasan Thowfiq, in respect of the theft of energy relating to Service Connection No.211-002-34 being detected on 28.06.2003, the TNEB Legal Cell has advised for filing an appeal against the said order of acquittal, and hence, the appeal will be filed against the said order of acquittal and the respondents are in the process of filing appeal, but till date, appeal has not been filed against the order of acquittal.
16. For all the reasons stated supra, I find much force in the contentions of the petitioner and the Writ Petition has to be allowed. Accordingly, the Writ Petition is allowed. If the petitioner-Company is closed, the amount, if any, already in deposit, shall be refunded by the respondents to the petitioner, within a period of 30 days from the date of receipt of a copy of this order. If the petitioner-Company is being run, it is open for the TNEB (respondents) to adjust the amount lying in deposit, towards the future electricity consumption bills of the petitioner-Company. No costs.
27.10.2017 Index: Yes Internet: Yes Speaking Order cs To
1. The Tamil Nadu Electricity Board, No.850, Anna Salai, Chennai rep. herein by its Chairman.
2. The Executive Engineer, O & M/Guindy, CEDC/South, K.K.Nagar, Chennai-78.
3. The Superintending Engineer, CEDC/South, 110 KV K.K.Nagar, SS Complex, K.K.Nagar, Chennai-78.
S.VAIDYANATHAN, J cs W.P.No.18856 of 2004 27.10.2017