High Court
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RSA-1714-2025 2025 (O&M) -1- IN THE HIGH IGH COURT OF PUNJAB AND H ND HARYANA AT CHANDIGAR GARH(cid:1) 118 (cid:1) Dakshin Haryana RSA-171 Date of De 1714-2025 (O&M) e of Decision:18.08.2025 aryana Bijli Vitran Nigam Limited, Fa , Fatehabad and another ... Appellants Versus (cid:1) Shyam Sunder ... Respondent CORAM : HON HON'BLE MR. JUSTICE AMAR MARINDER SINGH GREWAL Ms. Vasundhra Asija Bhandari, Adv Present: Ms. for the appellants. for t Advocate *** *** (cid:1) AMARINDER S RAL) DER SINGH GREWAL, J. (ORAL) 1. The defendants are the appellants The llants before this Court challenging t ging the judgments and d and decrees dated 24.07.2023 passed passed by the learned Additional Ci nal Civil Judge (Senior D ior Division), Fatehabad and dated dated 01.02.2025 passed by the learn learned District Judge, Fa dge, Fatehabad respectively whereby d reby decrees have been passed in favo in favour of the respondent ondent-plaintiff. 2. In brief, the facts are that an ele In b an electric connection bearing accou account No.H55-DLID/04 LID/0430 installed at Village Dhol Dholu, Sub-Tehsil Bhuna, Tehsil ehsil & District Fatehaba tehabad was being used by the respon
Legal Reasoning
respondent-plaintiff and he was maki s making payment of all f all electricity bills regularly and y and nothing was due against hi nst him. However, appe appellants-defendants had issued issued two notices bearing mem memo Nos.H55/2022/56 022/566 and H55/2022/567 dated dated 11.07.2022 to the responde pondent- defendant where whereby they demanded a sum of Rs of Rs.1,26,495/- and Rs. 14,000/- fro from him for causing using loss to the appellants-defendants ndants and for compounding the offen e offence on basis of alle of alleged checking dated 12.06.202 .06.2022 conducted by the appellan pellants- defendants, as he as he was allegedly found to be ind be indulged in theft of energy. It w It was PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -2- further averred t rred that the alleged checking as sho as shown in the impugned notices w ices was never done in th e in the presence of the respondent- -plaintiff. Moreover, there was was no defect found in t nd in the meter, as its seal was found found intact, much less, the responde pondent- plaintiff was con as consuming electricity as per the r the sanctioned load. The impugn mpugned notices were issu re issued behind the back of the resp e respondent-plaintiff without affordi affording any opportunity tunity of hearing. Even notice with with respect to provisional assessme sessment was also not giv ot given. The impugned notices we ces were issued in contravention to t n to the instructions of th s of the appellants-defendants and ther nd therefore, were not tenable in the ey the eyes of law. Hence, t ence, the present suit was filed. 3. Upon notice of the suit, defend Upo efendants appeared and filed writt written statement taking taking preliminary objections regardi egarding locus standi, cause of actio f action, jurisdiction, main , maintainability and not coming to C g to Court with clean hands. On meri n merits, it was stated that ed that checking in respect of the elec e electricity connection bearing accou account No.DL-1D/0430 /0430 installed at village Dholu, Sub , Sub Tehsil Bhuna, Tehsil & Distr District Fatehabad was c was carried out by the duly authoriz thorized and competent officials of t ls of the appellants-defend defendants namely Rampal S.D.O., S .O., Surajmal J.E. and Pawan Kum Kumar, L.M. on 12.06.20 .06.2022 in the presence of responden pondent-plaintiff. During the checking ecking, it was found that t that the meter was installed outside tside the premises and supply of hou of house was running dire g direct from motor starter with outp th output Ram Dev AP Feeder near t near the house of respond espondent-plaintiff with the help of Si of Single Core 25 mm aluminum cab cable black coloured ap ured app. 40 mtrs. and he was not allo ot allowed to remove the cable from from the site. The videogr ideography was done and on being fo eing found a case of theft of electrici ectricity, supply was disco disconnected. As per the record, the he load was MDI 6.300. Copy of t py of the checking report w eport was prepared at the spot but the ut the same was refused to be signed igned by the respondent- -plaintiff. Thereafter, sundry item y item was prepared and the responde pondent- PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -3- plaintiff was issu issued notices bearing memos No. os No.H55/2022/566 and H55/2022/5 022/567 dated 11.07.2022 7.2022 through which he was directed rected to make payment of Rs.1,26,49 ,26,495/- and Rs.14,000/ ,000/- to the appellants-defendants on account of loss caused to t d to the defendant No.1 No.1-Nigam. 4. On the basis of pleadings, seven is On ven issues were framed by the learn learned trial Court includ including the issue of relief. The res he respondent-plaintiff stepped into t into the witness box as x as PW-1 and deposed through a ugh affidavit Ex.PW1/A and tender tendered documents Ex.P Ex.P1 to Ex.P5. On the other hand, d and, defendants examined two witness itnesses namely Rampal mpal Dahiya, SDO as DW-1 and Jag nd Jagdish Chander, LDC as DW-2 a 2 and tendered docume ocuments Ex.D1 to D6. 5. On appreciation of oral as well docu On a ll documentary evidence placed before before it, the learned trial C trial Court partly decreed the suit by by declaring the impugned notices otices of Rs.1,26,495/-, Ex , Ex.P1 and Rs.14,000/- Ex.P2 issu 2 issued by the appellants-defendants ndants as illegal, null and ll and void and further restraining aining the appellants-defendants fro nts from recovering the am the amount in question and disconne sconnecting the electricity connection ection of the respondent- -plaintiff due to above said not id notice. They were also directed rected to restore the electr electricity connection of the plaintiff aintiff, if the same was disconnected ected on account of allege alleged checking. However, the amou e amount of penalty paid in pursuance uance of impugned notices notices and order dated 24.08.2022 wa 22 was not ordered to be refunded to t ed to the respondent-plain plaintiff but subjected to adjustment tment in the amount of final assessme sessment as may be made made by the appellants-defendants dants after following the provisions isions of Section 126 of 6 of the Electricity Act, 2003. Ap Appeal preferred by the appellan pellants- defendants again against the aforesaid judgment an ent and decree before the learned arned 1st Appellate Court Court also stands dismissed. Rathe Rather, the 1st Appellate Court, wh rt, while dismissing the ap the appeal modified the decree of th e of the learned trial Court and direct directed PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -4- the appellants-de defendants to adjust the amount mount, if any, paid by the responde pondent- plaintiff in his fu his future electricity bills. Hence, the the regular second appeal. 6. Learned counsel for the appella Lear ppellants-defendants submits that that the impugned notices notices were issued to the respondent ndent-plaintiff on account of the fact th fact that an inspection wa on was carried out at the premises of ses of the respondent-plaintiff wherein herein it was found that th at theft of electricity was being don ng done by him and, therefore, loss w loss was caused to the app the appellant/defendant No.1-Nigam. gam. The appellants-defendants did n s did not violate the proce procedure prescribed under the sale sale circular, as it was the responde pondent- plaintiff, who him ho himself refused to sign the LL-1 re 1 report. The learned trial Court af ourt after appreciation of o n of oral as well as documentary evi evidence had rendered a finding th ding that the theft of electr f electricity was duly proved but the le t the learned 1st Appellate Court revers reversed the said finding i ding in a mechanical manner, while while completely ignoring the fact tha act that a clear-cut case of ase of theft of electricity was made ou ade out against the respondent-plainti plaintiff. It is also submitt ubmitted that in cases of theft under S nder Section 135 of the Electricity A city Act, 2003, Civil Cour l Court lacks jurisdiction. 7. 8. Heard. Hea The appellants-defendants issued The sued instructions for dealing with t with the cases of theft of heft of electricity under the Electrici ectricity Act, 2003 vide Sales Circu Circular No.D-21/2017 on 017 on 16.06.2017 and as per Instruct nstruction III (6) of the said Circular, ular, the inspection is man is mandated to be photographed/video /videographed to the extent possible a sible and in case, any un ny unanticipated resistance comes a mes at any stage, the AIO shall se all seek assistance from from his senior office(s) and/or the or the vigilance wing and also call f call for additional police police help. In such cases, all event events shall be recorded through vid gh video camera as far a far as possible. Tactical withdraw ithdrawal is always an option in su in such situations. Adm dmittedly, in the case in hand, vide video clipping is of 47 seconds on only; PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -5- whereas the insp e inspection of the premises contin continued for 20-25 minutes. CD CD of videography was y was placed on record as Ex.D2, how 2, however, certificate under Section 6 ction 65- B of the Indian E dian Evidence Act with respect to safe safeguard, ensuring the reliability a ility and accuracy of elec f electronic evidence was not filed filed along with it and in the absen absence thereof, CD Ex.D Ex.D2 cannot be taken into consider nsideration. DW-1 SDO Rampal Dahi l Dahiya during cross-exam examination deposed that seals of th tact. ls of the electricity meter were intact. 9. Further, Instruction III (10) of the af Furt the aforesaid Circular reads as under: under:- 10. The occupant of the place of s “10. of search or any other person on on his behalf shall be allowed to remain p beha in present during the search and co d copy of the seizure memo shall be deliv of th delivered to such occupant or pers person who shall sign the receipt. If he refu who refuses to sign, the authorized offic officer shall record such refusal on the sei shal e seizure memo and paste a copy a py at a conspicuous place outside the pre cons premises and take a photograph, ph, or send it to the consumer by registe send gistered post/ Speed Post within t in two working days.” wor A perusal of the aforesaid instructio A pe truction reveals that a copy of the seizu e seizure memo shall be d ll be delivered to such occupant or p t or person of the place of search, w rch, who shall sign the rec the receipt and if he refuses to sign, the ign, the authorized officer is mandated ndated to record such refu refusal on the seizure memo and p and paste a copy at conspicuous pla us place outside the prem e premises and take a photograph, raph, or send it to the consumer umer by registered post/sp post/speed post within two working da days. There is no evidence availab available on record that su that such procedure, which is mandat andatory in nature, was adopted by t d by the appellants-defend defendants, as neither any photograph graph placed on record showing that t that the seizure memo wa mo was pasted at conspicuous place o place outside the premises or it was se was sent to the consumer sumer by registered post/speed pos d post, when the specific case of t e of the appellants-defend defendants is that the respondent-plain plaintiff refused to sign. 10. Instruction III (13) of the Circular Instr ular ibid, reads as under:- PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -6- “13. The LL-1 report shall be sign “13 signed by the AIO and members of t s of the inspecting team and a copy shall b insp all be handed over to the consumer mer or his representative at the site under his nder proper receipt. In case of refu refusal by the consumer or his authorized by t zed representative to either accept t ept the report or give a receipt, a copy may repo may be pasted at a conspicuous pla place outside the premises and photogra outs ographed, or sent to the consumer mer by registered post/ Speed Post within tw regi in two working days of the checking king.” Even for the sake of arguments, it Ev nts, it is admitted that the responde pondent- plaintiff himself imself refused to sign the LL-1 repor report, then in that eventuality, as p y, as per instruction III (1 III (13), a copy thereof ought to ha t to have been pasted at a conspicuo spicuous place outside the de the premises and photographed, or ed, or sent to the consumer by register egistered post/speed post w post within two working days of che of checking. Despite the stand taken taken by the appellants- -defendants that the inspection ction site was photographed, no su no such photograph is ma is made available on record; neither neither copy of the checking report w port was sent through regi h registered post/speed post within tw hin two working days of the checking. cking. 11. It is also worthwhile to refer to It is er to instruction III (20), according rding to which, where cle clear evidence of theft or tamperin pering of meter or any other act leadi t leading to pilferage of e e of energy is available at site, after fter detection of theft, the Authoriz thorized Inspecting Office Officer (AIO) is required to lodge the the complaint of theft of electricity tricity on the online portal portal of LL-1 Monitoring System (as m (as per the Proforma at Annexure- -III), for registration o ation of FIR, along with uploading th ing the copy of the LL-1 report, to t rt, to the concerned SHO SHO I&P Police Station immediately diately, but not later than 24 hours af urs after detection of theft f theft. However, no such complaint o laint of theft of electricity on the onli e online portal of LL-1 1 Monitoring System (as per th r the Proforma at Annexure-III) for registration of FI FIR was made. PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh RSA-1714-2025 2025 (O&M) -7- 12. Assessment order under Section 13 Asse ion 135 of the Electricity Act, 2003 c 003 can be passed only i only if inspection report records find s finding and evidence of theft. In t t. In the ase, present case, the mandatory procedure pre t e prescribed the appellant-defenda efendant No.1/Nigam itsel self has been flouted, which put th put the inspection report itself under t nder the cloud. Further urthermore, under Section 135 of 35 of the Electricity Act, 2003, t 003, the unauthorized use ed use of electricity is not simplicitor
Legal Reasoning
licitor as enshrined under Section 126 n 126 of the Act (supra) b pra) but mens rea attached to it, and t t, and therefore, the alleged theft is to t is to be proved beyond r yond reasonable doubt. In the prese present case, the appellants-defendan fendants failed to prove b rove beyond reasonable doubt that the at the respondent-plaintiff was indulg indulged in theft of electric electricity. 13. In view of the above, this Court fin urt finds no illegality and irregularity ularity in the judgments a ents and decrees passed by both the th the Courts below and the same a same are upheld, much les uch less, no substantial question of la n of law arises for consideration in t n in the present appeal. C eal. Consequently, the instant regular missed. egular second appeal stands dismissed 14. Misc. application(s) pending, if any, Misc
Decision
if any, shall also stand disposed of. , 2025 August 18, 2025 Pankaj* ned Whether speaking/reasoned Whether reportable : : Yes/No Yes/No AMARINDER SINGH GREWAL (AM JUDGE EWAL) PANKAJ KUMAR 2025.08.21 11:42 I attest to the accuracy and authenticity of this document Punjab and Haryana High Court Chandigarh