Ashok Kumar Mathur, C.J.@mdashThis is an appeal directed against the order passed by the learned Single Judge whereby the learned Single Judge has disposed of the writ petition by directing the petitioner to pay a sum of Rs.3,00,000/- to the C.E.S.E. Limited without prejudice to its rights and contentions on account of the claim for alleged pilferage of electricity. It is also directed that in accordance to that the petitioner has been directed to deposit a sum of Rs. 10,000/- on account of meter replacement charges and a sum of Rs. 30/- on account of reconnection charges without prejudice to its rights and contentions. On deposit of the aforesaid amounts, the existing meter shall be removed and the same shall be sealed by the Officers of C.E.S.C. Limited and such scaling must be acknowledged in writiing by the petitioner as well as the Officers of C.E.S.C. Limited. It was further directed that upon such replacement the C.E.S.C. Limited shall forthwith energise the replaced meter and continue to supply electricity to the petitioner. It is also directed that the original meter shall be produced by the C.E.S.C. Limited before the adjudicator and the seal of the meter shall be removed in presence of the petitioner by the adjudicator. It is also observed that after the meter is adjudicated, the petitioner shall be given appropriate credit for the amounts deposited in terms of the order. Subsequent thereto it shall be open to the C.E.S.C. Limited or the petitioner to enforce the decision of the adjudicator or challenge the same in accordance with law as they may be advised. Aggrieved against this order passed by the learned Single Judge on 31st January, 2000, the present appeal has been filed by the petitioner. A notice was given to the petitioner by the C.E.S.C. Limited in terms of Clause 29(C) of its Conditions of Supply alleging pilferage of electricity by the petitioner and the supply of electricity was disconnected. Along with this notice, the C.E.S.C. Limited claimed money on account of this pilferage. Therefore, the petitioner filed the writ petition and the learned Single Judge passed aforesaid order.
2. We have heard the learned Counsels for the parties and perused the records. On account of the strong denial of the allegations made by the petitioner that it has not committed any pilferage we, in order to be assured that whether the allegation prima facie made by the C.E.S.C Limited is correct or not, directed the Chief Electrical Inspector of the State of West Bengal to examine the allegation of tampering the meter and report to this court of his finding. This was opposed by the learned Counsel for the C.E.S.C. Limited. The report filed by the Chief Electrical Inspector reads as under:
As per directive of the Hon''ble High Court a site inspection was carried out on 16.3.2001 in presence of the representative of both parties. During inspection it was found that the meter Sl.No. 2120707-[3 x 5 (10) Amps] and meter Sl.No. 23502 - [330 x (60) Amps] were disconnected.
The appearance of the cover and terminal scale of the disputed meters in comparison to those of the other meters in the same Kisok Box did not have general indication resemblance. It is also observed that the position, condition, colour, connection with the scaling wires may not give any probable impression of being disturbed or tampered by any means whatsoever. For the above reasons, it may not conclusively be inferred as to whether seals are spurious or not. Hence, tampering electrical energy may not be concluded on the basis of observations as above.
3. This report was objected to by the C.E.S.C. Limited by filing a supplementary affidavit. We directed the Chief Electrical Inspector as well as the Engineer of C.E.S.C. Limited to be present in Court. Both of the technical persons were present in court and representative of C.E.S.C. Limited tried to demonstrate with reference to the meters that this kind of pilferage is visible from glass window of the meter. We do not want to express any opinion after hearing both the technical experts as the matter is yet to be adjudicated that whether there was a pilferage or not. Therefore, we do not propose to prosecute this line at the present and leave it for the competent adjudicator as per the Conditions of Supply to adjudicate in the matter.
4. However, it may be mentioned that u/s 39 of the Indian Electricity Act, 1910 there should be existence of artificial means for abstraction of such energy. In this connection reference may be made to a decision of the Apex Court in the case of
Before raising a presumption u/s 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that a meter has been tampered with and that it is under the control of the accused person.
5. Secondly, there is no complaint before us that the reader of the C.E.S.C. Limited was at any point of time refused access to the meters. Every month meter reader is supposed to have read the meter to record consumption. If the alleged irregularities are open to the naked eyes, as maintained by the experts of C.E.S.C. Limited, we are unable to follow, why the meter reader did not bring these to the notice of the higher authorities. It was also brought to our notice that three different notices were issued by the C.E.S.C. Limited to three different consumers alleging pilferage on the ground that seal of the meter bodies were found on inspection to be spurious. In case of each of the consumers identical complaints were made and identical modus operandi was adopted by the C.E.S.C. authorities for the purpose of disconnection of electricity.
6. In this background without making any observation, for working out a temporary arrangement we directed the C.E.S.C. Limited to supply the details of the consumption of electrical energy. The C.E.S.C. Limited supplied a detailed chart of three meters; we summarized the said chart as under:
Meter No. March 1998 to March 1999 to March 2000 to
February 1999 February 2000 February 2001
2570012 (M1), 139572 80272 63194200/5
2350602 (M2), 23057 38309 287643 x 30/60A
2120707 (M3), 33437 23004 69393 x 15/10A
There is no, dispute with regard to the first meter. In the last meter there appears to be a fluctuation of consumption of energy. Since in these two meters that is Meter No. 2350602 and Meter No. 2120707 there is a dispute about the pilferage of energy by tampering the seale. Be ''that as it may, since we are not expressing any opinion because of the(sic)r of opinion between the two technical experts, but in Meter No. 2120707 there appears to be a great fluctuation in consumption of electrical energy which shows 23004 units for March 1999 to February 2000 and it fell to 6939 units for the period March 2000 to February 2001. This appears to be a little alarming. Therefore, without making any observation we modify the order passed by the learned Single Judge to the extent that the petitioner shall pay for Meter No. 2120707, the difference of units between the periods March 1999 to February 2000 and March 2000 to February 2001 that is for 16000 units to the C.E.S.C. Limited along with a sum of Rs. 10,000/- for replacement of the meter and Rs. 30/- for reconnection charges within a week from date, then the C.E.S.C. Limited shall replace this meter being Meter No. 2120707 and energise the same within 48 hours from the date of receipt of the above amounts. This temporary arrangement is subject to the decision to be given by the adjudicator. After adjudication if the amount which has been deposited by the petitioner falls short then the petitioner shall make the deficiency good and the C.E.S.C. Limited will give credit for the amounts already deposited by the petitioner. It will be open for the petitioner to challenge the order of the adjudicator in accordance, with law. As far as Meter Mo. 2120707 (M3), 3 x 5/10A and Meter No. 2350602 (M2), 3 x 30/60A are concerned the C.E.S.C may replace it by a new meter and the same may be energized on payment made by the petitioner as directed. However, for Meter No. 2350602, we don''t find any abnormal difference in consumption. The stay petition is, accordingly, disposed of.
Girish Chandra Gupta, J.
I agree.
