2014(7) ALL MR 92
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S.V. GANGAPURWALA AND N.W. SAMBRE, JJ.
M/s. K. M. Re Rolls Pvt. Ltd. Vs. The Chief Engineer, Maharashtra State Electricity Board & Ors
Writ Petition No.08 of 2003
26th March, 2014
Petitioner Counsel: Shri R.R. MANTRI
Respondent Counsel: Shri A.S. BAJAJ, Shri S.B. PULKUNDWAR
(A) Conditions and Miscellaneous Charges for Supply of Electrical Energy, Cl.31 - Electricity Act (1910), Ss.39, 44 - Pilferage of electrical energy - Assessment of charges - Acquittal of petitioner in criminal case due to non-production of cogent evidence by respondent Board - Held, despite such acquittal, respondent Board can assess and levy the charges of actual electrical energy consumed through pilferage. 2003(3) ALL MR 726 (S.C.) Ref. to. (Para 15)
(B) Conditions and Miscellaneous Charges for Supply of Electrical Energy, Cl.31(e) - Tempering of meter - Points towards conduct of consumer who is custodian of such meter - Burden lies on such consumer to prove his innocence by giving plausible explanation in respect of damage to the meter. (Para 16)
(C) Conditions and Miscellaneous Charges for Supply of Electrical Energy, Cl.31(e) - Pilferage of electrical energy - Assessment of charges - Increase in contract demand from 400 KAV to 600 KAV - As per Cl.31 (e) of the conditions of supply either the connected load or contract demand, whichever is more, is to be taken into account for assessment - Therefore, taking into account 600 KAV contract demand for purpose of assessment, held, proper. (Para 18)
2. The present petitioner who is HT consumer since July, 1996 of respondents has questioned the order dated 11.01.2002 passed by the Appellate Authority in an appeal preferred by the present petitioner, against the order of final assessment done by Chief Engineer to the tune of Rs. 13,83,058/- including 25% surcharge and other charges. The Appellate Authority while dealing with the appeal claim has issued direction to pay energy bill as per the Conditions and Miscellaneous Charges for Supply of Electrical Energy as assessed by the Appellate Authority in the order impugned and in tune with the order of Chief Engineer, Aurangabad.
3. From the record it appears that, the petitioner was granted HT connection on July 01st, 1996 for the purpose of rerolling mill. With the said connection the connected load of 445 KW was sanctioned and contract demand of 600 KVA was given.
4. Some time on January 11, 2001, the Deputy Executive Engineer, Flying Squad, Pune visited installation of the petitoner and during the said surprise visit has noticed that, there was oil leakage through CTS, paper seal of TTB found open from right hand side, one copper red wire found inside meter box one end of which was connected to the earth and other end hanging near TTB. The acrylic sheet provided to the metter box for meter reading was found open resulting into providing access inside the meter box, which gap was enough for insertion of wire and also enough for tampering meter reading, the existence of a copper wire prima face demonstrate illegal drawing of energy.
5. The Flying Squad having noted above illegalities, a First Information Report came to be lodged on January 13th, 2001 at Kadim, Jalna Police Station. An offence punishable U/Sec. 39 read with Sec. 44 of the Indian Electricity Act 1910 came to be registered against the concerned accused persons for pilferage of electrical energy.
6. In addition to the registration of an offence against the director of the petitioner company, a parallel proceedings for assessment of electricity charges towards the pilferage carried out by the petitioner was initiated. The Superintending Engineer after assessing the consumption of the petitioner vide office note dated June 15, 2001 submitted a report of unit of energy pilferage and opined that the petitioner be billed for 58021 units which includes 25% surcharge. While submitting the said report, the Superintending Engineer has taken into account the working hours of the petitioner unit, working days based upon the record produced by the petitioner, the period of interruption and breakdown during working days and calculated the total units based upon the load in KW, number of hours and number of days.
7. The Chief Engineer in turn having regard to the above referred background has noted that the Superintending Engineer has issued a provisional bill of Rs. 12,62,485/- against the petitioner for a period from April 12th, 2000 onwards in view of the installation of static TOD meter and granted hearing to the petitioner on March 02, 2001. A final assessment/bill was raised against the petitioner for an amount of Rs. 13,83,058/- which was based on the connected load of 1017 HP as was suggested by the petitioner itself during hearing. The Chief Engineer also considered the contract demand of 600 KVA with effect from April 2000 which was 60% more than that of the connected loan. The Chief Engineer also considered the load survey report which was retrieved from the static TOD meter, the working days in a month after adjusting the holidays, working hours and other ancillary factors.
9. The Appellate Authority while dealing with the claim of the petitioner, wherein the petitioner has questioned the finding of the final assessment ordered by the Chief Engineer vide its order dated February 11, 2002 which is impugned in the present petition has directed the petitioner to pay the bill as per the order impugned i. e. February 11,2002 including that of miscellaneous charges for supply of electric energy.
10. While questioning the order passed by the Appellate Authority, the petitioner has submitted that the criminal prosecution initiated against it has resulted into acquittal. According to the petitioner the said acquittal is based upon the failure on the part of the respondent in adducing/producing cogent evidence against him for bringing him to guilt. It is further contended by the petitioner that, the tampering of the seal as is alleged against it cannot be attributed to it in view of the fact that, seal in question was a paper seal and said paper seal is capable of destruction in natural course having regard to the character it has. It is further claimed by the petitioner that, red wire one end of which was connected to the earth and other end was kept open near the meter cannot be termed as conclusive evidence against it so as to attribute illegal drawing of electrical energy or the tampering of meter. It is further claimed by the petitioner that, the connected load though was of 445 KV and contract demand of 600 KVA, the finding of the Appellate Authority that 600 KVA demand taken into account by the Chief Engineer and Appellate Authority is arbitrary as board permits 60% of connected load to be considered for assessment.
11. It is the contention of the petitioner that, a check meter was installed by the respondent authorities. The reading of the check meter ought to have been taken into account by the respondent authorities while assessing the pilferage of energy by the petitioner. The petitioner further submits that, the above referred aspect is not considered by the respondent and as such, the order passed by the Chief Engineer and that of Appellate Authority assessing the payment of energy bill against the petitioner is liable to be quashed and set aside. The petitioner further submits that, the Appellate Authority has recorded in the appeal preferred by the petitioner that, the petitioner has increased his contract demand from 400 KVA to 600 KVA, but has not increased the connected load of 445 KW. While dealing with the above said issue, the Appellate Authority has disbelieved the above said fact, as not possible in view of the fact that, the average power factor of 0.9 if taken into account, the present petitioner could not have reached the M. D. of 600 KVA. The Appellate Authority has observed that, the present petitioner might have increased his connected demand at the time of contract demand from 400 KVA to 600 KVA in April 2000. While dealing with the above referred aspect the Appellate Authority though observed that the Superintending Engineer, Jalna should immediately check up the issue and report to the Appellate Authority about the same. However, the report of Superintending Engineer was neither placed, nor the Appellate Authority has independently considered the said issue. As such, the order of the Appellate Authority suffers from non application of mind.
12. While countering above referred submissions the counsel of the Board has invited attention of this Court to the inspection report at page 72 of the paper book. Said report is counter signed by Managing Director of the petitioner, confirms the irregularities as are noticed and reflected in the item 16 which records the irregularities which were observed by the Flying Squad. The petitioner as such was well aware of the irregularities which were notices by the Flying Squad and was required to provide appropriate explanation for the same. The respondents have further invited attention of this Court to the provisions of the Conditions and Miscellaneous Charges For Supply of Electrical Energy. The Clause 31 of the said Conditions and more particularly item (e) reads thus :
CONDITIONS AND MISCELLANEOUS CHARGES FOR SUPPLY OF ELECTRICAL ENERGY
31. PREJUDICIAL USE OF SUPPLY :
"(e) Where any consumer is detected in pilferage or dishonest abstraction of energy with reference to his use of electrical energy he shall be deemed to have committed theft within the meaning of Indian Electricity Act 1910. The existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction. Where any of the above offences is detected, the Board may, without prejudice to its other rights, cause the supply to be discontinued forthwith. The Board would charge the consumer for the electricity so abstracted and the assessment shall be made for the entire period during which pilferage is taking place and can be clearly established, (subject to a maximum of 3 years). If there is any ambiguity, the period shall be limited to a maximum of three years prior to the date of detection. The consumption so assessed shall be charged at the appropriate tariff applicable for such consumption plus surcharge of 25% on the amount so arrived at. The supply will be restored only after the consumer suitably compensates the Board as laid down above and takes such other action as may be directed by the Board to take in this context.
Levy of charges so assessed together with surcharge as above under this condition shall be without prejudice to the Board's right to take any other action provided in Board's terms and conditions of supply or any other law governing the supply of electricity of the consumers.
Further where any consumer is detected in the commission of any other malpractice with reference to his use of electrical energy which includes any violation of law and/or the provisions of the Conditions & Miscellaneous Charges for supply of energy framed under the Electricity (Supply) Act 1948, including unauthorized extensions, unauthorised alterations to his installation or maliciously causes the energy to be wasted or diverted, the Board may, without prejudice to its other rights, cause the consumer's supply to be forthwith disconnected. The supply may be restored at the discretion of the Board subject to the consumer depositing to the Board an amount which may not be less than 20% of the amount billed and taking such other actions as may be directed by the Board to take in his context."
13. In addition to above submissions, the learned Counsel for the respondent - Board has placed reliance upon the Conditions of Supply of Electrical Energy so as to substantiate the order passed by the Appellate Authority, which is impugned in the present petition.
14. The respondent while responding to the contentions of the petitioner in respect of order passed by the Appellate Authority and that of Chief Engineer not taking into account reading of check meter has submitted that, the energy meters are installed in sub station on a particular line and is not for any particular consumer. The respondent submits that the said energy meter is for the convenience of the M. S. E. B. and not in aid of the consumers like the present petitioner. The respondent further submits that, there are many consumers connected to the same line on which the meter is installed and as such it is really difficult to assess the consumption of other consumers based upon the said energy meter/test meter.
The respondent further submits that, the alleged report of Superintending Engineer as is referred by the Appellate Authority qua the contract demand and the connected load to be placed before the Appellate Authority is concerned, the same will have hardly any adverse impact on the assessment to be carried out against the petitioner. Thus, said issue deals with only about the connected load and in view of the fact that, the connected load of the petitioner as admitted by the petitioner was 1017 HP, the report of Superintending Engineer, Jalna as called by the Appellate Authority was of no assistance.
15. The submission of the petitioner that, though the FIR was lodged against him resulting into filing of report in the criminal Court against him for alleged act of pilferage, the said criminal prosecution initiated against him has resulted into a acquittal, as the respondents to the present petition have failed to produce/adduce any evidence against him. It is the contention of the petitioner that, having regard to the fact that, he has already been acquitted by the Court and the fact that, said acquittal is based upon the failure on the part of respondents in producing independent evidence against him needs to be read to the benefit of the petitioner in the matter of assessment of pilferage. The petitioner contends that, in view of the fact that, there was no evidence available against him in the criminal matter, said fact needs to be read in the present proceeding and says to be interfered with. The petitioner has not involved in any energy theft and pilferage of energy and as such, there is no question of assessment for the pilferage of energy against him. The said contention of the petitioner is liable to be rejected as the acquittal of the petitioner in the criminal case is not based upon merit but the fact that respondent has not adduced any evidence. Furthermore, the provisions of the Conditions of Supply of Electrical Energy, more particularly part of the condition mentioned in clause 31 in relation to the consideration of prosecution/acquittal, reads thus :-
" Neither failure to launch criminal proceedings nor the acquittal of the consumer in any such proceedings shall be the proceedings under the provisions stipulated here in above. Also the levy of charges under the provisions as above shall be without prejudice to the Board's right to take any other action provided in terms and conditions of supply or any other law governing the supply of electricity to the consumers."
Mere acquittal of the petitioner on the ground of non-production of cogent evidence does not confer any right in the petitioner to claim innocence in the matter of illegal drawing of energy. While considering the nature of criminal prosecution, what is taken into account is mens rea, whereas the order impugned is based upon the actual electrical energy consumed by the petitioner after indulging into pilferage of the same. As such, the said contentions of the petitioner are liable to be rejected.
We are supported in our view, in view of the law laid down by the Hon'ble Apex Court in a case of J. M. D. Alloys Ltd., Vs. Bihar State Electricity Board and others reported in AIR 2003 SC 1354 : [2003(3) ALL MR 726 (S.C.)]. In the said case though the authorities detected the case of theft of electrical energy, which has further resulted into taking out two proceedings one for criminal prosecution and another for assessing the monetary loss caused to the board because of theft of electrical energy. The petitioner in the said case was absolved of criminal charges in view of report of investigating agency and in furtherance of non appearance of concern official. The Hon'ble Apex Court while dealing with the similar contention as raised by the petitioner in the present petition has observed thus :
"13. Shri Gopal Subramanium has also submitted that after the inspection had been done on 27.8.1999, an FIR had been lodged against the petitioner on the same day by Shri Om Prakash, Assistant Executive Engineer at the Police Station and a criminal case was registered under Section 39/44 of Indian Electricity Act. This case was investigated and thereafter a final report was submitted, which was accepted by the concerned Magistrate and as a result of this order, the petitioner stands exonerated from the charge of theft of electricity and no compensatory bill could be issued by taking recourse to Clause 16.9 of the Tariff. Shri V.R. Reddy, learned senior counsel for the Electricity Board has submitted that before accepting the final report, the learned Magistrate had issued notice to Shri Om Prakash, Assistant Executive Engineer, but the said notice was not served upon him as he was transferred from Patna on account of his allocation to Jharkhand State and as such no representation could be made on behalf of the Electricity Board against the final report. Subsequently, an application has been moved on behalf of the Electricity Board before the concerned Magistrate for recall of the order by which final report was accepted. 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 39/44 of 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.
16. The next contention of the petitioner is that the tampering of the paper seal of the meter, the damage to the acrylic sheet which provides cover to the meter box reading, which has resulted into creation of gap giving access to the meter reading, it has used a wire, red in colour, one end of which was connected to the earthing and another was left open near the meter box cannot be termed as evidence adverse to the interest of the petitioner, as there is no cogent evidence available against him so as to infer that the petitioner is not responsible for such act of damaging meter or the paper seal. The Conditions of Supply, more particularly clause 31 (e) as is reproduced herein above casts a burden on the petitioner to prove its innocence. As stated herein above, the plain reading of clause 31 (e) contemplates and casts a burden on the petitioner to show its innocence. There is no plausible explanation coming out from the petitioner as to the cause for damage to the acrylic sheet fitted to the meter, the tampering of the paper seal, the fitting of red wire; one end of which was attached to earthing and another left open near the meter box. The fact that has been taken into account by the Appellate Authority, that tampering of acrylic sheet which gives cover to the mater, gives easy access to the consumer for tampering of reading of the meter, and tampering of paper seal of the meter points a finger towards the conduct of the petitioner, who was at the relevant time custodian of the same. Furthermore, the connection of the red wire to the earthing which is flowing through the meter box, petitioner also ows an explanation and the petitioner has failed to give proper explanation for the same. All the above referred technical acts about connecting of earthing to the meter, tampering of paper seal and that of acrylic sheet, need to be construed in the light of provisions of clause 31 (e) of the Supply Conditions against the petitioner and as such the order passed by the Appellate Authority on the above referred issues does not call for any interference. One more aspect of which note was taken by the Flying Squad at the time of inspection was that there was oil leakage through the CTS. The petitioner itself has made a submission to the Appellate Authority that the connected load that was observed at the time of detection was of 1017 HP, which was taken into account by the Appellate Authority for the purpose of carrying out assessment of consumption of energy by the petitioner.
17. The respondent - Board has taken recourse to use of MRI, i.e. meter recording instrument, so as to retrieve the data from TDO meter, which was fixed by the respondent Board. The chip fitted inside the meter could be read through meter recording instrument so as to draw data about the actual consumption of energy recorded in the meter, the hours for which the meter was running, the days for which the energy was drawn, etc. Based upon the said data, which was retrieved from the meter through the MRI, the Authority has reached to a conclusion that the petitioner was running its establishment in two shifts. The same was also inferred from the RGI register, i.e. central excise record abstract submitted by the petitioner. In the light of above, the contention of the petitioner that it cannot be blamed for tampering of acrylic sheet, the leakage of oil from the CTS, the attachment of red copper wire inside the meter box, is liable to be rejected.
18. The last contention of the petitioner that the connected load and the contract load that was taken into account for the purpose of assessment of energy consumed by the petitioner is also liable to be rejected in view of the fact that the Conditions of Supply of Electrical Energy contemplate that while carrying out assessment in the case like present one, 60% of the connected load is required to be taken into account. It appears from clause 31 (e) of the Conditions of Supply that either the connected load or contract demand, whichever is more, is to be taken into account for assessment. In that view of the matter, the Chief Engineer has rightly taken into account 600 KVA contract demand for the purpose of assessment. The Appellate Authority, which consists of Technical Experts, while evaluating the said issue has taken into account the contention of the petitioner qua increase in its contract demand from 400 to 600 KVA in April, 2000. The petitioner's contention that it has not increased its connected load of 445 KW is also liable to be rejected in view of the fact that the assessment made by the Authority is based upon the data submitted by the petitioner and the data retrieved from the meter chip by using the meter reading instrument.
19. Clause 31 of the Conditions of Supply appears to be a code in itself, which provides for a complete mechanism for the purpose of calculations/levy in the matter of pilferage by a consumer. The same also provides for the transparent machinery, which after perusal of the impugned order, appears to have been scrupulously followed by the respondent Board.
20. The issue as regards the installation of check meter/energy meter by the respondent authorities is concerned, it appears from the record that, the energy meter/check meter is installed by the M.S.E.B. not for the HT consumer connection granted to the petitioner, but the said check meter is installed on a line from which various consumers are provided with supply. It further appears that, said check meter is installed by the respondent authorities for their own convenience and not to the benefit of the consumers like the present petitioner. The contention of the petitioner that the reading in the check meter ought to have been taken into account, qua the assessment of pilferage against the petitioner is liable to be rejected in view of the fact that from the line on which check meter is installed various consumers are provided with the electricity connection, who are drawing electricity from the same. There are also transmission and distribution losses. In that view of the matter, the entries/reading into the check meter of a line cannot be taken into consideration for assessing pilferage of energy by the petitioner. As such, the said contention of the petitioner is liable to be rejected.
So far as the contention about the report, which was called by the Appellate Authority from the Superintending Engineer, Jalna in the matter of contract demand and connected load is concerned, it appears that, those observations were made in view of the fact that, there was increase in the contract demand by the present petitioner from 400 KVA to 600 KVA in April 2000. It is claimed by the petitioner that, he has not increased the connected load which was of 440 KVA. However, it appears that, the petitioner himself has given a admission in earlier paragraph that the connected load was found to be of 1017 HP and the record shows maximum connected load of 522 KVA in August 2000. The above referred reading of the instrument of the respondents are required to be taken into account as same has presumptive value in view of the condition of supply. Further more the said report of Superintending Engineer, Jalna would have been of hardly any significance in view of admission of petitioner about consumption of energy and data considered by the Authority from the record produced by the petitioner. As such, the contention of the petitioner that the report of the Superintending Engineer though was called for, was not taken into account and as such the order suffers from violation of principles of natural justice is liable to be rejected.