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2012 DIGILAW 992 (PAT)

Amitabh Sinha v. State of Bihar

2012-07-19

ADITYA KUMAR TRIVEDI

body2012
ORDER Petitioner claiming himself to be Managing Director of M/s Harsh Advance Diagnostic & Research Pvt. Ltd. Basement of Kumar Tower, Boring Road, Patna has prayed for quashing of FIR of Budha Colony P.S. Case No.138 of 2010 registered under Sections 135, 138 of the Electricity Act. 2. Ishwar Prasad Singh, Assistant Electrical Engineer filed written report on 11.08.2010 disclosing therein that on the same day at about 02:00 P.M., on a confidential information conducted raid and inspected meter and found that electric energy was stealthily being consumed after tampering the meter. The aforesaid event visualized on test through Tong Tester and by such activity caused loss to Electricity Department to a tune of Rs.8 lacs. Then thereafter they have taken the meter, got it sealed and took it away along with them. Also disclosed that delinquent was given electric connection having Consumer No.203127/5-41803844. 3. Contention on behalf of the petitioner is that the aforesaid FIR has purposely been filed by the informant on account of denial by the petitioner to grease his palm. Also submitted that the story of stealthy consuming of electric energy is nothing but knickery approach of the informant because of the fact that no mode of tampering of meter has been described in the written report. Further submitted that informant should be treated as an expert and so it was expected at his end that he should have narrated, at least should have disclosed the mode of tampering of meter. Hence the story of tampering of meter is nothing but has been used in casual way just to make out a case of electric theft. 4. It has further been submitted that apart from this, the Electricity Department at the behest of informant initiated a proceeding under Section 126 of the Electricity Act wherein petitioner appeared and filed his objection. The informant who objected and contested the proceeding however got his objection rejected by the informant who directed the petitioner to deposit the amount against which appeal was preferred before the competent authority in accordance with Section 127 of the Electricity Act wherfrom vide order dated 20.10.2011 passed in Appeal No.23 of 2010 (Annexure-4), order passed by the informant in accordance with Section 126 of the Electricity Act was set aside. Further submitted that the appellant court had categorically held that it was not a case of theft as well as also negativated the plea of unauthorized consumption of electricity. As such, it has been pleaded that the present FIR is nothing but surfaced on account of malice and grudge and to satisfy the personal vendetta in revengeful manner at the hands of informant. 5. However, learned AC to AG opposed the prayer and submitted that whenever there appears prima facie material coming out on perusal of the written report, neither the FIR nor the investigation is liable to be quashed. 6. At the other hand, the learned counsel for Bihar State Electricity Department fairly submitted that the order passed under Section 126 of the Electricity Act had already been struck down by the appellant court and so the existence of present FIR has to be taken up in the back ground of aforesaid event. 7. Electricity Act, 2003 marks two events which are distinct to each other. The first one happens to be consumption of electric energy in unauthorized manner and the second happens to be stealthily consuming the electric energy. In broad spectrum both two stood projected as consuming the electric energy in illegal manner. The only distinction happens to be with regard to presence of mens rea. So far identification of consumer under 126 of the Electricity Act is concern, though he consumed the electric energy unauthorisedly but without any intention while for theft of electric energy, not only means have been identified rather an obligation has been drafted to the effect that aforesaid consumption must be with dishonest intention. That means to say dishonest intention is the crux which commands the chariot. For better appreciation, Section 126 as well as Section 135 of the Electricity Act is incorporated below:- 126. Assessment.—(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. [(3) The person, on whom an order has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.] (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. [* * *] [(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorised use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.] (6) The assessment under the section shall be made at a rate equal to 4[twice] the traffic applicable for the relevant category of services specified in sub-section (5). Explanation.—For the purposes of this section,— (a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) “unauthorised use of electricity” means the usage of electricity— (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or [(iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorised.] 135. Theft of electricity.—[(1) Whoever, dishonestly,— (a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both: Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use— (i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity; (ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three time the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity: Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station: Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (1-A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity: Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity: Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection: Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.] (2) [Any officer of the licensee or supplier as the case may be, authorised] in this behalf by the State Government may— (a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity 3[has been or is being] used unauthorisedly; (b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which 3[has been or is being] used for unauthorised use of electricity; (c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence. (3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list: Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. (4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act. 8. The Hon’ble Apex Court has occasion to distinguish the ingredients of both two sections as is evident from the decision reported in (2012) 2 SCC page 108. Relevant paras are 24 to 35. 1(b) Distinction between Sections 126 and 135 of the 2003 Act 24. Upon their plain reading, the marked differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in cases which do not fall under Section 135 of the 2003 Act. 25. Section 135 of the 2003 Act falls under Part XIV relating to “offences and penalties” and title of the section is “theft of electricity”. The section opens with the words “whoever, dishonestly” does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. The section opens with the words “whoever, dishonestly” does any or all of the acts specified under clauses (a) to (e) of sub-section (1) of Section 135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, sub-section (1-A) of Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be, through officer of rank authorised in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take other measures enumerated under sub-sections (2) to (4) of the said section. The fine which may be imposed under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted. 26. In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the expression “unauthorised use of electricity”. This assessment/proceedings would commence with the inspection of the premises by an assessing officer and recording of a finding that such consumer is indulging in an “unauthorised use of electricity”. Then the assessing officer shall provisionally assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of Section 126(2) of the 2003 Act. 27. The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. Thereafter, any person served with the order of provisional assessment may accept such assessment and deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the resultant final order under Section 127 of the 2003 Act. The order of assessment under Section 126 and the period for which such order would be passed has to be in terms of sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Part XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment. 28. Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls within the dimensions of criminal jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126 of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have features or elements which are traceable to the criminal concept of mens rea. 29. Thus, it would be clear that the expression “unauthorised use of electricity” under Section 126 of the 2003 Act deals with cases of unauthorised use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load simpliciter and there is violation of the terms and conditions of supply, then, the case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act. 30. On the other hand, where a consumer, by any of the means and methods as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with dishonest intention and without authorisation, like providing for a direct connection bypassing the installed meter, the case would fall under Section 135 of the Act. 30. Therefore, there is a clear distinction between the cases that would fall under Section 126 of the 2003 Act on the one hand and Section 135 of the 2003 Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested with the powers to pass provisional and final order of assessment in cases of unauthorised use of electricity and cases of consumption of electricity beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorised use of electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act. 31. Section 135 of the 2003 Act significantly uses the words “whoever, dishonestly” does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act. “Dishonesty” is a state of mind which has to be shown to exist before a person can be punished under the provisions of that section. 32. The word “dishonest” in normal parlance means “wanting in honesty”. A person can be said to have “dishonest intention” if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. “Dishonestly” is an expression which has been explained by the courts in terms of Section 24 of the Penal Code, 1860 as: “24. “Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.” [The Law Lexicon (2nd Edn., 1997) by P. Ramanatha Aiyar] 33. This Court in S. Dutt v. State of U.P.12 stated that a person who does anything with the intention to cause wrongful gain to one person or wrongful loss to another is said to do that dishonestly. 34. This Court in S. Dutt v. State of U.P.12 stated that a person who does anything with the intention to cause wrongful gain to one person or wrongful loss to another is said to do that dishonestly. 34. Collins English Dictionary explains the word “dishonest” as “not honest or fair; deceiving or fraudulent”. Black’s Law Dictionary (8th Edn.) explains the expression “dishonest act” as a fraudulent act, “fraudulent act” being a conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude. 35. All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under sub-sections (1)(a) to (1)(e) of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for invoking powers of the competent authority and passing of an order of assessment under Section 126 of the 2003 Act. 9. As held and explained the status of Section 126 as well as Section 135 are distinct to each other having no prospect of overlapping at any occasion and further when there is no such provision prescribed under the law for simultaneous proceeding, then in that event, the steps taken by the prosecution has got a bearing. Section 126 of the Electricity Act gives an opportunity to the consumer who has been found consuming the electric energy in an unauthorized manner, the category of which has not been identified, to compensate the Electricity Department for the loss on account of unauthorized use. At the other hand, Section 135 prescribes apart from substantial sentence, the mode of fine identified under different category. That means to say when at one occasion a consumer is shown to be dishonestly using the electricity energy, then in that event he could not be held liable for punishment along with penalty in accordance with Section 135 of the Electricity Act with an allegation of stealthily consuming the electric energy. 10. That means to say when at one occasion a consumer is shown to be dishonestly using the electricity energy, then in that event he could not be held liable for punishment along with penalty in accordance with Section 135 of the Electricity Act with an allegation of stealthily consuming the electric energy. 10. Now coming to the case in hand, it is an admitted fact that when a substantial case has been registered at the behest of informant against the petitioner for dishonestly using the electric energy taking under the definition of theft of electric energy, side by side initiation of a proceeding in accordance with Section 126 of the Electricity Act by the informant himself is a matter of concern. Not only this, this part of informant further smacks some sort of foul play in the background of the fact that when he had mentioned that by means of tampering the meter, theft of electric energy was made by the petitioner then why he adopting alternative option chose to identify the petitioner as an unauthorized user. Once the petitioner has been found to be using the electric energy in unauthorized manner, then certainly his status as an accused in the background of Section 135 of the Electricity Act remains no more. Accordingly, FIR of Budha Colony P.S. Case No.138 of 2010 registered under Sections 135, 138 of the Electricity Act is quashed. Consequent thereupon, petition is allowed.