Gujarat High Court
Geb Through Chairman (Deleted) vs Mahavir Plastic Industries on 27 September, 2022
C/FA/2670/1996 JUDGMENT DATED: 27/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2670 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PASCHIM GUJARAT VIJ COMPANY LIMITED
Versus
M/S. MAHAVIR PLASTIC INDUSTRIES
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Appearance:
MR VIRAL J DAVE, ADVOCATE for the Appellant
None for the Respondent
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/09/2022
ORAL JUDGMENT
1. The present appeal arises from the judgment and decree dated 30.04.1996 passed by the Civil Judge (S.D.), Gondal, District : Rajkot in Special Civil Suit Page 1 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 No.128 of 1993. The present respondent was the original plaintiff before the Trial Court. By the impugned judgment, the trial Court has decreed the suit in favour of the plaintiff.
It is noted that the present appeal was dismissed for want of prosecution vide order dated
17.04.2017, which was thereafter restored to its original file by this Court vide order dated 06.03.2020.
2. The short facts of the case are as under :
2.1 The appellant is the original defendant and respondent is the original plaintiff before the Trial Court.
The plaintiff had filed a suit against the defendant/s for declaration and permanent injunction. 2.2 The plaintiff is a consumer of defendants having consumer No.33201/0033 /7 Ind. No.0088 and his industry is situated at Jetpur.
2.3 On 15.7.1993, an officer of the defendants had come with electric meter at plaintiff's factory and removed electric meter, without prior notice to the Page 2 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 plaintiff, though the plaintiff had neither tempered with the electric meter nor with the seals on it nor abstracted electricity, dishonestly, and thereby tried to lower down the goodwill and prestige of the plaintiff. 2.4 At the time of removing meter, officer of the defendants did not prepare any papers on the spot. 2.5 On the next day i.e. on 16.7.1993, the officer of the defendants had come at plaintiff's factory and gave Special Bill of Rs.2,36,619.12 Ps. dated 16.7.1993 for alleged power theft.
2.6 Therefore, the plaintiff has filed a suit before the trial Court for declaration and permanent injunction and prayed relief to declare that the impugned Special Bill of Rs.236619.12 Ps. dated 16.7.1993 be declared as illegal and not recoverable and further sought permanent injunction restraining the defendants from disconnecting plaintiff's connection. Also, the plaintiff sought relief to further declare that the action of defendants in disconnecting plaintiff's connection was illegal and without authority.
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C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 2.7 The defendants have filed their written statement at Exh.12 before the trial Court and denied the averments made in the plaint by the plaintiff. Further, the defendants had stated that the plaintiff has tempered with the meter and seal, the meter was changed and the signature of the representative of the plaintiff was taken on the Rojkam and other papers. The defendants have submitted that the suit may be dismissed.
2.8 The trial Court, after hearing the submissions of the rival parties, framed the issues at Exh.20, which can be seen from para : 4 of the impugned judgment and answered them in para : 5.
2.9 The parties to the suit have relied on oral as well as documentary evidence.
2.10 Oral evidence relied upon by the plaintiff consists of PW1 - Ajay Navarlal Doshi at Exh.30 and PW2 - Rajendra Natvarlal Doshi at Exh.56. Oral evidence, relied upon by defendant consists of DW1 - Bharatkumar Naranbhai and DW2 - Gohel Girdharial Page 4 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 Mohanlal at Ex.61.
2.11 The trial Court has heard the arguments and allowed the suit. Hence, the present First Appeal is preferred by the original defendant/s - Electricity Company before this Court.
3. Heard Mr. Viral J. Dave, learned advocate for the appellant - original defendant - Electricity Company. The respondent - original plaintiff is not appearing and contesting the appeal, though served. 3.1 Mr.Viral J. Dave, learned advocate for the appellant - original defendant has submitted that the impugned judgment and decree is passed without taking into consideration the evidence led by the appellant - Electricity Company. He has submitted that the trial Court ought to have dismissed the suit as prayed for by the defendants and ought to have held that the defendants - Electricity Company is entitled to recover the amount of supplementary bill from the Plaintiff.
3.2 He has submitted that the trial Court ought to Page 5 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 have accepted the evidence and more particularly the oral evidence led on behalf of the defendant and ought to have dismissed the suit filed by the Plaintiff. He has submitted that the Trial Court ought to have taken into consideration various decisions rendered by this Honourable Court in the cases of theft of electric energy and the formula of the Electricity Company i.e. A, B, C, D formula and in view of the Judgments of this Honourable Court, the trial Court ought to have dismissed the suit filed by the plaintiff. 3.3 He has submitted that the trial Court ought to have held that the supplementary bill issued by the Electricity Company for theft of electric energy was legal and valid and in accordance with the provisions of the act.
3.4 He has submitted that the trial Court ought to have held that the defendants proved that the plaintiff had committed irregularity in respect of consumption of electric power in view of the evidence adduced on behalf of the defendants and therefore, ought to have rejected the suit and the reliefs prayed for by the plaintiff. He Page 6 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 has submitted that the trial Court ought to have held that in view of the evidence produced by the defendants, the plaintiff is liable to pay the amount of supplementary bill.
3.5 He has submitted that this appeal may be allowed.
4. Having heard learned advocate for the appellant and having considered the material on record, this Court finds as under :
4.1 The main issue involved in the present appeal is the theft of energy, whether it is committed by the plaintiff or not.
4.2.1 Before discussing anything further, it is required to be noted here that what is theft of energy.
Reference in this regard is made to Section 33B of the Conditions of Misc. Charges for Supply of Electrical Energy, which reads as under :
"33.B Theft of Energy Any consumer who dishonestly abstract, consumer or uses any energy shall be deemed to have Page 7 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence for such dishonest abstraction."
4.2.2 At this stage, it is profitable to consider the decision of the Hon'ble Apex Court in the case of Ram Chandra Prasad Sharma versus State of Bihar reported in AIR 1967 SC 349, more particularly para 12 thereof. 4.2.3 Thus, on conjoint reading of Section 33B of the Conditions of Misc. Charges for Supply of Electrical Energy vis-a-vis keeping in mind the ratio laid down by the Hon'ble Apex Court in the case of Ram Chandra Prasad Sharma (supra), it is clear that to commit theft of electric energy, existence of artificial means is a must. Mere broken wires are not enough to induct theft of electric energy.
4.3 The burden to prove the theft, as alleged by the defendant/s, was upon the Electricity Company. It is a case of the defendant/s that PW2 - Rajendrabhai N. Doshi was present at the time of checking and made signature in the documents of the defendants, however, the said witness has denied his presence and signature Page 8 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 in his evidence. In such circumstances, the burden to prove the presence and signature of said witness was upon the defendant/s, which the Electricity Company is failed to prove, as observed by the trial Court. 4.4.1 It is an undisputed fact that the appellant - original defendants - Electricity Company has not given any prior notice to the plaintiff before coming for the inspection.
4.4.2 At this stage, Section 34 of the Conditions of Misc. Charges for Supply of Electrical Energy is required to be looked into, which has two ingredients; (i) presumption about theft of electric energy and (ii) direct detection of theft of electric energy. In the instant case, there was no detection of direct theft of electrical energy, as observed by the trial Court. Therefore, second ingredient of Section 34 goes. With regard to first ingredient i.e. presumption about theft of electric energy is concerned, as per Section 34 of the Conditions of Misc. Charges for Supply of Electrical Energy, there must be cogent proof before the officer can arrive subjective satisfaction. The trial Court has rightly observed that, mere Rojkam at Exh.59 and mere Page 9 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 checking report at Exh.60 are not the sufficient evidence to arrive at satisfaction that the plaintiff did commit dishonest abstraction of electrical energy. 4.5.1 It is also an undisputed fact that the meter and/or seal did not send for testing purpose / investigation to the laboratory.
4.5.2 In absence of laboratory report, the trial Court has rightly observed that the materials before the defendants was incomplete and not enough to arrive at satisfaction as stated under Section 34 of the Conditions of Misc. Charges for Supply of Electrical Energy. 4.5.3 Further, the Deputy Engineer himself has not examined / checked the meter. He has only signed the Rojkam prepared by the other staff members as if he himself has checked the meter and by which he exceeded his authority and jurisdiction both, which is observed by the trial Court.
4.6 It is also an undisputed fact that the Electricity Company has prepared and issued supplementary bill on the next day without following due Page 10 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 procedure. On the basis of mere checking report only, there is no provision to prepare supplementary bill. 4.7 It is relevant to consider the the deposition of PW1 - Ajay Doshi, who has deposed at Exh.30 that, on 15.07.1993, while he was at his factory, defendants no.4 and 5 had came in a Jeep and they had broken the seal on metal meter box and removed electric meter and took away the same with him and also disconnected plaintiff's electric connection and issued supplementary bill at Exh.32 on the very next day i.e. on 16.07.1993. He has also produced bills prior to the date of checking and subsequent to the date of checking, which are at Exh.36 to 41 for prior period and Exh.42 to 47 are subsequent period and from which, it is found that, subsequent to the date of checking period i.e. 15.07.1993, the amount of electricity bills were similar and no material difference is found in the bills. This aspect is also relevant while deciding the issue that the plaintiff has tempered with the meter and with the seals and thereby committed the theft of electricity. This tilts the balance in favour of the present respondent - original plaintiff. 4.8 Considering the deposition of DW-2 - Gohel Page 11 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022 C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 Girdharlal Mohanlal at Exh.61, who has prepared the calculation sheet - Exh.62 and special bill - Exh.32, wherein he has admitted that he has not deducted hours of day of staggering in a month in the calculation sheet at Exh.62 and this witness does not know about diversity factor and average factor.
5. Upon re-appreciation of all the documentary as well as oral evidence on record minutely, I do not agree with the submissions made by learned advocate Mr. Viral Dave appearing for the appellant - Paschim Gujarat Vij Company Ltd.. The appeal, therefore, needs to be dismissed. The trial Court has rightly evaluated the entire evidence and has not committed any error and rightly passed the judgment and decree, which need not be interfered with by this Court. The impugned judgment and decree passed by the trial Court therefore need to be confirmed.
6. For the reasons recorded above, the following order is passed.
6.1 The present appeal is dismissed.
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C/FA/2670/1996 JUDGMENT DATED: 27/09/2022 6.2 The impugned judgment and decree dated 30.04.1996 passed by the Civil Judge (S.D.), Gondal, District : Rajkot in Special Civil Suit No.128 of 1993 is hereby confirmed.
6.3 Record and proceedings, if any, be sent back to the concerned trial Court, forthwith.
(SANDEEP N. BHATT,J) M.H. DAVE Page 13 of 13 Downloaded on : Mon Oct 03 20:16:34 IST 2022