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Madhya Pradesh High Court · body

2015 DIGILAW 1158 (MP)

Ashok Kumar Doshi v. State of M. P.

2015-11-06

SUJOY PAUL

body2015
ORDER 1. The petitioner is owner of a cold storage viz., Neelam Cold Storage. An FIR was registered against him on 23.5.2002 under section 379 IPC r/w section 39 of Electricity Act. In addition, a provisional assessment order dated 24.5.2002 was served to him alleging that he has unauthorizedly used the electricity. The petitioner ultimately paid the amount which was assessed by the Electricity Company. After having paid the said amount, the petitioner contended that there is no justification in proceeding against the petitioner in the criminal matter. 2. Shri V.D.Sharma, learned counsel for the petitioner submits that the revisional Court has erred in passing the order dated 10.8.2009 whereby his revision against the order of Magistrate dated 21.8.2006 was rejected. By said order, the Magistrate declined to acquit the petitioner. The FIR and the proceeding based on it are called in question in this petition filed under section 482 CrPC. 3. The bone contention of Shri V.D.Sharma is that there is no justification in permitting the prosecution to proceed against the petitioner when he has satisfied the civil liability and paid the amount in question. In support of his contention, he relied on Ram Narain v. State of Haryana [(1999 Legal Eagle (P and H) 1024)], Hem Raj Anand v. State of Haryana [(1998 Legal Eagle (P and H) 1170], Smt. Sandhya Singh v. State of M.P. (Criminal Petition No.200/2003) and Satish Mehra v. State of N.C.T. of Delhi and another (Criminal Appeal No.1834/2012 (Special Leave Petition (Crl.) No.569/2012). 4. Per contra, Ms. Sudha Shrivastava, learned PL and Shri Rajendra Bhargava, counsel for respondent No.2 supported the action. They contended that the civil liability and criminal prosecution are two different things. The allegations in the FIR shows that there are allegations of electricity theft against the petitioner. The element of theft is different than the civil liability. The Court below by order dated 21.8.2006 has rightly held that mere payment of civil liability will not absolve the accused from criminal liability as per section 39 of the Act of 1910. 5. The parties confined their arguments to the extent indicated above. 6. I have heard the learned counsel for the parties at length and perused the record. 7. Shri Sharma has relied on the judgment of Punjab and Haryana High Court in Hemraj (supra). 5. The parties confined their arguments to the extent indicated above. 6. I have heard the learned counsel for the parties at length and perused the record. 7. Shri Sharma has relied on the judgment of Punjab and Haryana High Court in Hemraj (supra). In the said case, the Court has not dealt with the aspect of distinction between civil liability and criminal offence. It was not held that if civil liability is satisfied, the criminal Court has no jurisdiction to proceed with the matter. Same is the case with the order passed in Smt. Sandhay Singh (supra). In Satish Mehra (supra), the issue was different. It deals with the jurisdiction of this Court to interfere at the threshold or at an intermediate stage of the trial. There is no quarrel about the said proposition. This Court has ample power to interfere with the matter. 8. The core issue in this case is whether the criminal prosecution can be quashed merely because petitioner has satisfied the civil liability. The FIR makes it clear that there are specific allegations of electricity theft against the petitioner. The scope of interference on FIR at this stage is limited. If allegations of FIR are accepted on its face value and even then no offence is made out, interference can be made. (See AIR 1992 SC 604 (State of Haryana and others v. Ch. Bhajan Lal and others) and (2012)9 SCC 460 (Amit Kapoor v. Ramesh Chander). It is noteworthy that as per Electricity Act of 2003, the civil liability and criminal liability are differently valued. Same was the case as per the Act of 1910 also. The aspect of unauthorized use of electricity and electricity theft was considered by Supreme Court in the case of Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill [ (2012)2 SCC 108 )]. In the said case it was held that 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”. 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. 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. 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 by passing the installed meter, the case would fall under section 135 of the Act. 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. 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. 9. In the light of this judgment, it is clear like noon day that merely because civil liability is satisfied, the petitioner has no right to get exonerated at this stage from criminal liability. The aforesaid analysis further shows that “unauthorized use of electricity” and “theft” are two different things. The civil liability arises out of unauthorized use of electricity. In case of theft of electricity, the prosecution has every right to proceed against the accused in accordance with law. I am unable to hold that continuance of criminal proceedings would amount to abuse of process of Court. In absence of satisfying the ingredients on which interference at this stage can be made, interference is declined. 10. Petition is dismissed. No cost.