Hon'ble Kashi Nath Pandey,J.
1. We have heard Sri Ranjit Saxena for the petitioner. Smt. Mridul Tripathi, appears for Kanpur Electricity Supply Company Ltd - respondent Nos. 1, 2 & 4. Learned standing counsel appears for respondent No.3.
2. On a checking made on 2.2.2010 by a inspecting team of Officers of the Power Corporation, it was found that as against the contracted load in the commercial supply of electricity to Abhinav Seva Sansthan Mahavidyalaya, Kanpur - the petitioner, running the educational institution with the sanctioned contracted load of 7.5 KW, the electrical equipments for the demand of 31.83 KW, were connected. The equipments included 64 fans of 60 W each, 62 CFL of 12 W each, 6 AC of 2000 W each, 55 Table Lamps of 40 W each, 32 Computers of 250 W each, five bulbs of 100 W each, one Water Cooler and two Air Cooler of 225 W each, one submersible pump of 746 W, inverter of 1000 W, Two Halogen Bulbs of 500 W each, and one exhaust and 31 wall point of 100 W each.
3. It was found by the officers in the inspecting team that the seal on the meter box was tampered; self-lock of the meter box was opened; seal on the meter terminal was tampered; manufacturer's ultrasonic welding was got opened and closed with adhesive, a groove was made to open the puni directional screw fitted on the meter board. The inspecting party also noticed a resistance fixed on the secondary side, to interfere in the meter recording, by which the meter reading was brought down to 50 %. The assessing authority, prepared a diagram of the connection of the meter and the tampering, and videographed, the entire proceedings of inspection.
4. The respondent authority assessed the compounding charges at Rs.3,20,000/-, at the rate of Rs.10,000/- per KW for the 32 KW load as provided under Section 152 (2) of the Electricity Supply Code 2005, and further made a provisional assessment of electrical charges at Rs.4,29,359.56.
5. The petitioner paid Rs.3,20,000/- towards the compounding charges, and Rs.4,00,000/- towards provisional assessment by cheque on the same day, leaving a balance of Rs.29,360/-.
6. The petitioner thereafter filed objections to the show cause notice dated 4.2.2010. In the objections dated 22.3.2010, the petitioner did not deny that the excess load was connected with the meter. The allegations of tempering in the meter were denied. The petitioner alleged that the meter was not sealed, and was not tested under para 5.6. (d) of the U.P. Electricity Supply Code 2005, to record an opinion that the meter was slowed down by 50 %.
7. The objections were decided by the Executive Engineer, KESCO, Sarvodaya Nagar, Kanpur on 28.4.2010, with the findings that the meter was tempered with, by using a shunt resistance in affecting the meter reading, by 50 %. The meter was in the custody of the petitioner, and it was his responsibility to keep the meter clear from any tampering. The videography of the inspection was made, to avoid any dispute. As against the 7.5 KW of the contracted load, electrical equipments with the load of 32 KW were connected through the meter on 22.1.2010. The complainant was satisfied and had voluntarily deposited Rs.4,00,000/- against the provisional assessment. According to the Executive Engineer, the formula provided in Annexure 6.3 of the U.P. Electricity Supply Code 2005, was adopted, for making assessment on the theft of the energy used by the petitioner.
8. Sri Ranjit Saxena, learned counsel for the petitioner submits that the inspecting party threatened and realised the compounding charges under coercion. In case of tampering with the meter, or its slow moving, the meter should have been sealed, and testing should have been made as per para 5.6 (d) Electricity Supply Code. He submits that section 152 of The Indian Electricity Act 2003, provides for compounding only when a complaint of theft is made and a criminal case is pending in court (hereinafter referred to as the Act). He relies upon Section 152, which reads as follows:-
"152. Compounding of offences. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Appropriate Government or any other officers authorised by it in this behalf may accept from any any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the table below:-
Table Name of Service Rate at which the sum of money for compounding to be collected per kilowatt (KW)/Horse power (HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere (KVA) of contracted demand for High Tension (1) (2) Industrial Service Twenty thousand rupees Commercial Service Ten thousand rupees Agricultural Service two thousand rupees Other Services four thousand rupees Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the table above.
(2) On payment of the sum of money in accordance with sub-section(1) any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against consumer or person in any Criminal Court.
(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer empowered in this behalf shall be deemed to amount to an acquittal within the meaning of Section 300 of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) The compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer".
9. Sri Ranjit Saxena, submits that for compounding an offence of theft of electricity punishable under the Act, it is necessary that the ingredients of Section 135 (1) (a) to (e) are to be prima facie satisfied. He submits that the third proviso to Section 135 (1-A) contemplates, deposit or payment of the assessed amount or electricity charges in accordance with the provisions of the Act would mean that the procedure of assessment under Section 126 of the Act is followed, and that for compounding of any offence, there must be some prosecution pending before the Court.
10.He further submits that in the present case, connection of the excess load by itself is not theft of electricity, and that until prosecution was launched, by filing a complaint against the petitioner for theft of electricity, the question of compounding of offence does not arise. He has relied upon a judgment of National Consumer Disputes Redressal Commission, New Delhi dated 11.9.2008 disposing of several revision petitions with the leading case in Revision Petition no. 3144 of 2007 (Dakshin Haryana Bijli Vitran Nigam Ltd & Others Vs. Megh Raj), arising out of order dated 1.6,.007 in Appeal No. 317 of 07 of the State Commission, Haryana.
11.We do not find that the petitioner made any protest on the date when the inspection was made, and the compounding amount was assessed. He paid the amount to the checking party without raising any objections. The submission that the petitioner had tried to meet the Managing Director of KESCO on the same day is not supported by the objection filed him on 22.3.2010. There is no reference to any coercion or protest or an attempt to meet the Managing Director of KESCO in the objections.
12.There is no material or evidence to support the plea that the compounding amount was deposited under protest or that any threat was extended by the officers of the checking party to compel the petitioner to pay the compounded amount. The amount of Rs.3,20,000/- was paid by the petitioner for compounding of the offences committed by him, for the excess load, and for tempering with the meter, voluntarily by cheque, of which payment was not stopped by him.
13.So far as the provisional assessment is concerned, the petitioner had filed objections. The order of the Executive Engineer deciding the objection on 28.4.2010, is appealable under Section 127 of the Electricity Act 2003.
14.So far as the procedure for checking of the meter, we find that after the payments of amount in accordance with Sub Section (1) of Section 152, the tempering as an offence will be deemed to have been compounded. In such cases the question of following the procedure of testing of the meter does not arise.
15. The judgment of National Consumer Disputes Redressal Commission, New Delhi dated 11.9.2008, is in reference to the facts where raids was carried out on various business establishments by the officers of Uttari Haryana Bijli Vitran Nigam Ltd in the year 2005-06. The National Consumer Disputes Redressal Commission observed that Section 135 (1-A) was not applicable when raids were carried out by the officers. The Commission observed as follows:-
"In our view, the aforesaid submission cannot be accepted. Bare reading of Section 152 indicates that power under Section 152 is to be exercised if any consumer or person has committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, applies for compounding of the offence, the officer is empowered to compound the offence by charging the amount as provided in the table stated under section 152. Further, sub-section (2) also indicates that on payment of money in accordance with sub section (1) any person in custody in connection with the offence shall be set at liberty and no proceeding shall be instituted or continued against such consumer or person in any criminal court. This would also establish that such power may be exercised when complaint as provided under Section 151 is pending. Further, sub-section (3) of Section 152 declares that acceptance of the sum of money for compounding an offence would amount to acquittal within the meaning of Section 100 of the Cr.P.C., meaning thereby that there must be some prosecution pending before the court."
16.A careful reading of the observations of the Commission would show that there is a difference between compounding under sub section (2) and sub section (3) of Section 152 of the Act, and where a compounding charges are assessed in accordance with table provided under Section 152 of the Act.
17.Sub Section (2) indicates that on payment of money in accordance with sub section (1), any person in custody, in connection with the offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court. In sub section (3), acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the appropriate Government or an officer empowered in this behalf shall be deemed to amount to an acquittal within the meaning of Section 300 of Code of Criminal Procedure.
18.Sub section (2) and sub section (3) of Section Section 152 of the Act are applicable in different stages of proceedings for compounding of offences. Whereas under sub section (2) , the payment of money in accordance with sub section (1), namely, the payment to any authorised officer of the compounding at the rate prescribed in the schedule, will entitle him to be set at liberty and no proceedings shall be initiated against him in Cr.P.C. Sub section (2) operates at a stage when the criminal proceedings are not being instituted or if instituted, they shall not be continued. Sub Section (3) of Section 152 of the Act is applicable where criminal proceedings are pending In such case acceptance of the sum of money for compounding an offence by the appropriate Government or an officer empowered shall be deemed to amount to an acquittal. In such cases, criminal proceedings have to be dropped.
19.In the present case, criminal case was not instituted against the petitioner on the day when he was found to have committing theft of electricity - both by connecting excess load to the sanctioned load, and tempering of the meter. The compounding charges were assessed, and paid by the petitioner without making any protest. In this case sub section (2) of Section 152 is applicable, and that having paid the amount voluntarily, no proceedings will be instituted against him in any criminal court.
20. The writ petition is accordingly dismissed with liberty to the petitioner, to file an appeal against the final assessment order.
Order Date :- 24.3.2011 nethra