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2019 DIGILAW 912 (ALL)

Shailendra Kumar v. State of U. P.

2019-04-11

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. 1. Heard Sri Om Prakash Chaube, learned counsel for the applicant, Sri Krishna Agarawal learned counsel for the opposite party no.2 and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties. 2. This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 02.02.2019 passed by the Additional Sessions Judge (IVth)/Special Judge Banda, in Special Case No.329 of 2018 arising out of Case Crime No.97 of 2018 (State Vs. Shailendra Kumar) under Section 138 of the Electricity Act, 2003 P.S. Atarra, District Banda whereby non bailable warrant has been issued against the applicant on account of his non appearance before the trial court, as well as the entire proceedings of above case pending in the court of Additional Sessions Judge (IVth)/Special Judge Banda. 3. Filtering out unnecessary details, the basic facts of the case in brief are as follows:- (i) The applicant is consumer of Electricity Department and was having a valid connection of electricity. On 28.1.2013 an electric bill of Rs.4137/-was issued to the applicant, which was deposited by the applicant on 30.1.2013. Thereafter, on 18.2.2015 another bill was issued to the applicant for a sum of Rs.1,28,015/-which was disputed by the applicant and, as such, a Complaint Case No.83 of 2015 was preferred by the applicant before the District Consumer Forum, Banda on 29.5.2015, which was decided in favour of the applicant vide judgment and order dated 25.8.2017 setting aside the impugned bill dated 18.2.2015 with a direction to the Electricity Department to issue a fresh bill as per the direction given in the order dated 25.8.2017 adjusting the amount of Rs.15000/-paid by the applicant. (ii) Pursuant to the aforesaid order dated 25.8.2017, the Electricity Department on 27.8.2017 issued a fresh bill of Rs.2,07,644/-enhancing the amount which has not been deposited by the applicant because as per case of the applicant, the same was not inconsonance with the direction given by the consumer forum in the judgment and order dated 25.8.2017. (iii) Thereafter on account of non payment of bill dated 27.8.2017, the Electricity Department disconnected the electric supply of the applicant on 13.3.2018. (iii) Thereafter on account of non payment of bill dated 27.8.2017, the Electricity Department disconnected the electric supply of the applicant on 13.3.2018. Later on, the Electricity Department received an information that despite disconnection made on 13.3.2018, the applicant is committing theft of electric by illegal means without adopting due procedure provided for reconnection, therefore, the premises of the applicant was inspected on 30.5.2018 in order to know the truth and on inspection and checking in accordance with law, it was found that despite disconnection made on 13.3.2018, the electric wire was reconnected by the applicant from his own and as such, he was indulged in the theft electricity without depositing the arrears of dues against him. (iv) On account of aforesaid reason, a letter dated 30.5.2018 was issued under the signatories of the authorities concerned to the Electricity Department to in-charge inspector Police Station Kotwali, Atarra to lodge the FIR against the applicant for committing an offence under Section 138 of the Electricity Act 2003. In the said background of the facts, the impugned FIR was lodged on 31.5.2018 as Case Crime No.97 of 2018 under Section 138 of the Electricity Act, 2003 P.S. Atarra, District Banda against the applicant, in which after investigation, the charge sheet was submitted by the Investigating Officer on 07.07.2018, on which the cognizance was taken on 18.9.2018 by the court concerned and the applicant was summoned to face trial under Section 138 of the Electricity Act. On account of non appearance of the applicant, non bailable warrant dated 02.02.2019 has been issued against him, which is under challenge before this Court by means of this application. 4. The main substratum of submission of learned counsel for the applicant is that once the Consumer Forum has set aside the bill dated 18.2.2015 considering the grievance of the applicant by the order dated 25.8.2017 in his favour, then all the criminal proceedings pursuant to the FIR is nothing but the abuse of the process of the law and liable to be quashed. 5. Per contra, learned Additional Government Advocate for the State and the counsel for the opposite party no. 5. Per contra, learned Additional Government Advocate for the State and the counsel for the opposite party no. 2 have submitted that: (i) in compliance of the order dated 25.8.2017 passed by the Consumer Forum, the Electricity Department had issued a revised bill dated 27.8.2017 of sum of Rs.2,07,644/-which has not been paid by the applicant till date and on account of non payment of the said bill, disconnection of electric supply has already been made on 13.2.2018. (ii) Counsel for opposite party no.2 has also submitted that the amount under the revised bill dated 27.8.2017 has neither been paid nor the same has been challenged by the applicant before any competent court. (iii) The FIR against the applicant was lodged for committing offence under Section 138 of the Electricity Act by him, therefore, the impugned criminal proceedings against the applicant cannot be said to the abuse of the process of the court as prima facie case under Section 138 of the Electricity Act is made out against the applicant. 6. After having heard the learned counsel for the parties and perusing the entire record, I find that criminal proceeding under Section 138 of the Electricity Act has not been initiated on account of non payment of revised bill dated 27.8.2017, but on account of re-connecting the electric line/wire by the applicant from his meter unauthorisedly without adopting due procedure of the law provided under the Electricity Act after disconnection made on 13.3.2018. The offence under Section 138 of the Electricity Act is entirely different from the dispute of arrears of dues/bill amount to the Electricity Department. The proceeding regarding billing has been provided under Chapter6 of U.P. Electricity Supply Code 2005. Admittedly, the revised bill dated 27.8.2017 has not been challenged by the applicant before any competent Court, therefore, the argument advanced on behalf of the applicant is not sustainable at this stage. Learned counsel for the applicant could not show any material from the record that the electric connection of the applicant was not reconnected after disconnection dated 13.3.2018. 7. Admittedly, the revised bill dated 27.8.2017 has not been challenged by the applicant before any competent Court, therefore, the argument advanced on behalf of the applicant is not sustainable at this stage. Learned counsel for the applicant could not show any material from the record that the electric connection of the applicant was not reconnected after disconnection dated 13.3.2018. 7. Here, it would be useful to quote Section 138 of Electricity Act 2003, which is reproduced here in below: “(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or (b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or (c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or (d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and , in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and wilfully caused by such consumer.” 8. Considering the facts of this case in the light of Section 138 of the Electricity Act, it cannot be said at this stage that no offence is made out against the applicant under Section 138 of Electricity Act. 9. On the given facts and circumstances, this Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sprangly, only in such a appropriate cases, where uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same do not disclose the commission of any cognizable offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage. 10. It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused. 11. In view of above, this Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, I do not find any good ground to interfere in the non bailable warrant order dated 02.02.2019 issued against the applicant, as the same has been rightly passed by the court concerned on account of non appearance of the applicant before the trial court. 12. Accordingly, the application lacks merit and is dismissed.