Karnataka High Court
Sri Sidharth Bhandari vs State Of Karnataka on 19 November, 2013
Author: H.S.Kempanna
Bench: H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 19th DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRL.RP.NO.757/2013
BETWEEN
SRI SIDHARTH BHANDARI
S/O SRI S BHANDARI
AGED ABOUT 42 YEARS
MANAGING DIRECTOR
HITTCO TOOLS LIMITED
NO.19, HTC ASPIRE BUILDING
2ND FLOOR, ALI ASKER ROAD
BANGALORE-560052 ... PETITIONER
(BY SRI L GOVINDARAJ, ADV.,)
AND
STATE OF KARNATAKA
REPRESENTED BY BESCOM
INTELLIGENCE WING
32/1 AND 32/2, IST FLOOR
MALLESWARAM
CRESENT ROAD
MAHADEVANAGAR
BANGALORE-560004 ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS CRL.RP FILED U/S.397(1) R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER DATED 06.08.2013 PASSED BY THE X ADDL.
CITY CIVIL AND S.J., BANGALORE IN
SPL.C.C.NO.223/2012 PRODUCED HERETO AS
2
ANNEXURE-A AND CONSEQUENTLY ALLOW THE
APPLICATION FILED BY THE PETR. U/S 227 OF CR.P.C. BY
DISCHARGING HIM FOR THE OFFENCES P/U/S 138(1)(d)
OF THE ELECTRICITY ACT.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
Heard.
Criminal Revision petition is Admitted. With Consent it is taken-up for final disposal.
2. The present petition is directed against the order dated 06.08.2013 passed in Spl. C.C. No.223/2012 by the X Additional City Civil and Sessions Judge and Special Judge, Bangalore City, dismissing the application filed under Section 227 of Cr.PC, by the petitioner.
3. Brief facts of the Case are:-
The respondent-BESCOM filed charge-sheet against the petitioner before the learned Special Judge alleging that he has committed offence under Section 3 138(1)(d) of the Indian Electricity Act, 2003 (for short 'the Act').
4. It is case of the respondent, the petitioner prior to 06.08.2012 had tampered the meter bearing RR No.N5HT493 installed in their company by name Hiltco Tools Ltd., situated in Peenya Industrial Layout, by cutting the terminal steel wire and has interchanged the connection thereby has caused loss to the revenue of BESCOM.
5. After the final report came to be filed, on appearance of the petitioner, he filed an application under Section 227 of Cr.P.C. praying to discharge him in the case. In the application inter alia among other things it was contended the petitioner's company is engaged in manufacturing of HSS and Carbide Drills and has many high esteem customers in India and abroad. Apart from the Unit at Bangalore they have several manufacturing units located at Delhi, Calcutta, Chennai, Thailand and other foreign countries. Their 4 company was connected with electricity supplied by BESCOM and electric meter bearing No.RRN5HT-493 is installed in their premises. Electrical connection was taken in the year 2011. The average consumption for the last one year or more was around 22,000 units. However, during March 2012 to their surprise they received an electricity consumption bill showing 32866 units having been consumed for that particular month in spite of no extra productivity or overtime work during the month i.e. March 2012. Immediately they addressed a letter to the Asst. Executive Engineer of BESCOM to arrange for meter testing as the same was recording escalated reading and the same was acknowledged by them. Despite having received the said letter nobody bothered to set right the subject matter in order to look into its material functioning. Thereafter for subsequent months also the meter recorded escalated reading and they received excessive bill. Suddenly BESCOM officials visited the factory premises on 6.8.2012 and drew up mahazar in 5 connection with the meter installed, they also removed the same and disconnected the power supply. Thereafter one Sri.Raghavendra Rao who is in charge of day-to-day affairs of the company contacted the Asst. Executive Engineer and brought to his notice all the sequence of events. Immediately AEE after verifying the records, analyzing the meter which was the subject matter, after due diligence subjected the meter for testing for any tampering/theft of meter. Thereafter the Executive Engineer wrote a letter dated 14.8.2012 bearing No.EE/MRT/AEE/AET/839 to the Complainant/police stating that after testing the meter by the reputed M/s. L& T Manufacturers the accuracy of the meter could not be established due to non-phase association. Hence, the meter was referred to the manufacturer (L&T) for information with regard to the meter behaviour and material functioning. Further, the Executive Engineer also directed the complainant viz. AEE to issue a compounding charge and further energy charges would be billed based on the outcome 6 information of M/s.L & T. He also directed for reconnection immediately after compounding charges are paid vide his letter dated 14.8.2012. Based on the said letter of the Executive Engineer the complainant raised a bill for `10,000/- towards compounding fee on 16.8.2012. The accused paid the said amount of `10,000/- towards the compounding charges on the same day and requested for reconnection of the electricity as the production had come to a stand still. Accordingly, the offence committed by the Company was compounded as per S.152 of the Electricity Act, 2003. In turn the alleged offences u/ss.135 and 138 of the Act have been compounded in the eye of law. This compounding having relation to Section 320 of Cr.P.C. amounts to acquittal in the eye of law. Despite the offences having been compounded AEE Peenya filed a complaint against the Company. Immediately thereafter the Company filed Crl.P.No.5250/2012 before this Court and sought for quashing the entire proceedings. This court in the said petition observed as follows :- 7
"In any event, in the facts and circumstances of the case, since the alleged offence has been compounded and the electricity supply has been restored to the petitioner-unit, it is apparent that no criminal case would be tenable in the present circumstances. Therefore, even if there is any proceeding pending before the court below, in which the petitioner may have been issued summons, which the petitioner claims has not been served, it is open for the petitioner to approach the court below seeking discharge in the above circumstances."
6. The petitioner, therefore, having regard to the stand taken in his application coupled with the observation made by this Court in the aforementioned Criminal Petition sought for an order of discharge.
7. The respondent-BESCOM did not seriously oppose the application filed by the petitioner. The learned Special Judge thereafter on hearing the learned counsel for the petitioner came to the conclusion, what is compoundable under the Electricity Act is the one, 8 which comes within the purview of Section 135 and not under Section 138(1)(d) and since the offence alleged is under Section 138 (1)(d) of the Act the petitioner is not entitled to an order of discharge and accordingly dismissed the application filed by the petitioner by his order dated 06.08.2013.
8. The petitioner being aggrieved by the said order is in revision before this Court.
9. Learned counsel for the petitioner assailing the impugned order contended the material placed on record do not indicate that the petitioner-Company had tampered with the meter installed in its premises. In fact, on observing the meter recording abnormal reading, the petitioner-Company wrote a letter to the respondent-BESCOM on 09.04.2012 indicating that the meter is recording abnormal reading there is no extra productivity during the month of March 2012 and requested to arrange for meter testing at the respondent's end. Thereafter, on the basis of the said 9 letter, the Executive Engineer of the respondent- BESCOM wrote a letter dated 14.08.2012 (Annexure-D) to the Assistant Executive Engineer No.5 Sub-Division within whose jurisdiction the Company of the petitioner is located stating that they are requested to issue bill to consumer for compounding charges as per Rule 138 of KERC and billing of energy charges will be decided based on the opinion of M/s. L & T. He further directed if the consumer makes payment of compounding charges action may be taken for reconnection of installation at your end i.e., Assistant Executive Engineer No.5 Sub-Division. Thereafter, the petitioner paid the compounding fee and the meter was changed. In the meantime, the respondent-BESCOM filed a complaint on 09.08.2012 alleging that they have not only committed theft of power but also have tampered with the meter. He further submits after FIR was filed, the petitioner filed Crl.P.No.5250/2012 before this Court and sought for quashing of the proceedings. This Court while disposing of the said petition on 10 03.05.2013 observed, "in the facts and circumstances of the case, as the alleged offence has been compounded and the electricity supply has been restored to the petitioner's unit, it is apparent that no criminal case would be tenable in the present circumstances. Even if there is any proceeding pending before the Court below, in which summons is issued to the petitioner, which the petitioner claims has not been served, it is open for the petitioner to approach the Court below seeking discharge in the above circumstances." In view of the observation made by this Court since the petitioner has already paid the compoundable charges, electricity has been restored by fixing a fresh meter, the learned trial Judge could not have rejected the application filed by him. He, further submits placing before me a statement of the readings recorded in the meter for the months of March 2012 to July 2012 the number of units consumed for the said months and the out put produced by the petitioner company would indicate that does not commensurate with the number of units 11 consumed. Drawing my attention to the further months namely August 2012 to September 2013, he submits, the number of units consumed is lessor when compared to number of units consumed in the earlier months and the production from the petitioner-Company is also more when compared to the earlier months and that is because the meter was changed after he paid the compounded fee in pursuance of the letter Annexure-D dated 14.08.2012. He further contended though at Annexure-D billing of energy charges would be decided based on the opinion of M/s. L and T, to whom their meter which recorded abnormal reading has been sent for testing has not been tested and placed to show that it has been tampered. Therefore, he contends in view of the observation made by this Court at paragraph-5 in Crl.P.No.5250/2012 and in view of the fact that it is the petitioner who had addressed letter to the respondent- BESCOM much prior to filing of the FIR on 09.08.2012 and as the Executive Engineer, by his letter at Annexure-D has directed the Assistant Executive 12 Engineer, No.5 Sub-Division, to issue bill to consumer for compounding charges under Rule 138 of KERC, there is no material indicating that there are sufficient grounds to proceed against the petitioner in the trial. Therefore, the learned Special Judge has committed an error in dismissing the application and hence the impugned order cannot be sustained, it be set-aside and the petitioner be discharged by allowing the application.
10. Per contra, learned HCGP supported the impugned order passed by learned Special Judge.
11. The material, now on record reveals the meter bearing R.R.No.N5 HT 493 had been installed in the premises of the petitioner-Company. Since that meter was recording abnormal reading, the petitioner- Company by its letter dated 09.04.2012, which is at Anneuxre-B, wrote to the respondent-BESCOM requesting to arrange for meter testing at their end. It was specifically indicated in the said letter that the average consumption of monthly electricity unit of their 13 Firm was 22,000 units per month but for the month of March-2012 they got the bill indicating that they have consumed 32,866 units. Since they had not consumed that much of units, they requested the respondent- BESCOM to arrange for meter testing at their end. The respondent-BESCOM did not take steps either to get the meter tested or to find out whether the meter has been tampered by the petitioner-Company. But, on 09.08.2012 nearly about four months after the petitioner wrote their letter as per Annexure-B, the respondent-BESCOM filed complaint alleging that the petitioner-Company have committed theft of energy and also tampered the meter and thereby committed offence under Section 135 and 138 of the Act. Thereafter, on 14.08.2012, the Executive Engineer of respondent- BESCOM, with reference to the letter of the petitioner dated 09.04.2012 directed the Assistant Executive Engineer, No.5 Sub-Division to issue the bill to the petitioner for compounding charges as per the Rule 138 of KERC and indicated billing energy charges will be 14 decided based on the opinion of M/s. L & T. It was further indicated that if the consumer makes payment of compounding charges, action may be taken for reconnection of the power which has been disconnected. In pursuance of the said letter a bill of `10,000/- was raised on 16.8.2012 and the petitioner Company paid the compounding fee of `10,000/- to the respondent- BESCOM on the same day i.e., 16.08.2012. The same is also spelled out in the application filed by the petitioner seeking for discharge before the trial Court, which is supported by the receipt bearing No.90076, which is not disputed to in the case. After the compounded fee was paid, fresh meter was installed on 16.08.2012 in the premises of the petitioner-Company.
12. A perusal of chart produced by the learned Counsel reveals the number of units consumed and the out put produced by the Company would indicate that there is less consumption of power but more production compared to the consumption of power and production for the months from March-2012 to July-2012. As 15 submitted by learned counsel for the petitioner, the meter which has been sent for testing to M/s. L & T has not been received and no report has been received from it to show that the meter has been tampered. This Court, in Crl.P.No.5250/2012 preferred by this petitioner, has clearly observed in view of the petitioner having paid the compounding fee, there is nothing to indicate to show that any action could be initiated against him either under Section 135 or under Section 138 of the Act. The learned trial Judge has grossly erred in not noticing the observations made by this Court in Crl.P.5250/2012 and also the material that had been placed before him, which clearly indicate that there is no theft of power or tampering of the meter. In that view of the matter, no purpose would be served by putting the petitioner on trial. Since the material on record would indicate that there are no sufficient grounds to proceed against him, the application filed by the petitioner before the trial Court seeking for discharge deserves to be allowed by setting aside the 16 impugned order. Accordingly, I proceed to pass the following order:
i) The criminal revision petition is allowed.
ii) The impugned order dated 06.08.2013 passed in Spl.C.C.No.223/2012 dismissing the application filed by the petitioner under Section 227 of the Cr.P.C. is set aside.
iii) The application filed by the petitioner is allowed and he is discharged.
Sd/-
JUDGE SBS/TL/rs