JUDGMENT D. K. Seth, J.
1. In this case the order dated 22.8.1997 passed by the appellate authority being Appeal No. I-D-II of 1997 has since been challenged.
2. It is alleged that a new meter was Installed in respect of the petitioner's service connection No. 65/3807 by the Kanpur Electric Supply Authority, hereinafter called as the 'KESA'. U. P. State Electricity Board, Kanpur, on 24.10.1996. A reading of the meter for determination of the consumption of electric energy was taken on 28.1.1997 after verification of the seal of the meter by an officer of the KESA. According to the petitioner normally when meter reading was taken, the seal number and the ampere number whereof were not noted. Subsequently thereafter another meter reading was noted by meter reader of KESA on 3.2.1997, which reveals that in case of bulk meter reading a different form is used and that it did not note the seal number or the ampere load etc. A checking was made by the respondents on 4.2.1997 and thereafter a notice was served on the petitioner on 8.2.1997. Pursuant to the said notice the petitioner has submitted his explanation on 13.2.1997. The Executive Engineer KESA, Kanpur by his order dated 26/27.2.1999 disposed of the petitioner's representation through which he had rectified the assessment to an amount of Rs. 57,42,191.81. An appeal was preferred against the said order under Regulation 23 of the Electricity Supply (Consumers) Regulation, 1984, which was registered as Assessment Appeal No. 1-D-1I of 1997. By an order dated 22.8.1997 the said appeal was dismissed affirming the assessment made by the Executive, Engineer. These two orders have Since been challenged by the petitioner.
3. Mr, H. N. Singh learned counsel for the petitioner assailed the said orders on the ground that there was nothing to show that there was any theft of electricity. It may be a defect in the meter. Then again the meter was checked on 28.1.1997 by an officer of the KESA and not by a meter reader. It was not mere meter reading but also checking. Therefore, according to him even if assuming but not admitting that there was any theft, in that event, the same can be stretched upto 28.1.1997 and not beyond. Therefore, the period is to be counted from 29.1.1997 till the date of checking or otherwise. Whereas while calculating the same, the respondents have assessed the same from 24.10.1996 viz., the date when the new meter was installed. None of the authorities concerned had considered this aspect and had acted illegally and arbitrarily. The order impugned, therefore, suffers from ex facie perversity. He also contends that there being no proof of theft, only on the basis of the allegation made by the respondents the calculation could not be made at three times of the amount, which would have been alleged to be consumed. He further. contends that the Regulation 22, provides for mode of assessment as indicated in the schedule through Regulation 1984. The said schedule or Annexure-1 provides for a formula viz., L x F x H x D. According to him 'L' was 211 KV and 'F' was 0.75 and the number of days would only be 7 days being the difference of period from 28.1.1997 till 4.2.1997. However, Mr. Singh submits that the number of days at best be 8 days including 28.1.1997. This amount would be around Rs. 1,38.938.98. He further contends, even if the total period fs calculated at 104 days, still then amount would come to Rs. 14,45,098.20 and by no stretch of Imagination it would be Rs. 57 lakhs and odd as calculated. So far as the hours is concerned it is not disputed. Inasmuch as originally, Mr. Agarwal contended that the hours was calculated at 23.2598 whereas Mr. Singh had contended that it would be 21.05769 hours. But ultimately Mr. Agarwal had agreed to 21.06769 hours, as contended by Mr. Singh. Mr. Singh also contends that the assessment is mala fide and arbitrary and no reasonable person could have arrived at such a calculation on the basis of the formula. The calculation made by the respondent is excessive and based on no material. On these grounds he prays that the orders of assessment be quashed.
4. Mr. Sudhir Agarwal, learned counsel for the respondents, on the other hand, contends that Regulation 22 (B) defined theft of energy. Since there was an allegation of theft by the licensee, it is no more open to dispute the same particularly when Section 39(2) of Indian Electricity Act as amended in U. P., which presupposes prima facie evidence against theft on certain ground. He also contends that the petitioner was given sufficient opportunity by the Executive Engineer, while assessing the amount, as well as by the appellate authority and that the assessment was correctly made following the formula. The assessment is to be made on the basis of the load that is found on checking and from the date when the meter was installed since the alleged document dated 28.1.1997 is not a checking report it was only a meter reading. So far as high velocity supply of electricity is concerned the meter reading is taken by the officers not by ordinary meter readers. Even if subsequent meter reading may be done but still then the document dated 28.1.1997 is not a checking report. Therefore, the period of theft cannot be confined to only 7 or 8 days as contended by Mr. Singh. According to him it may be from the date when the new meter was installed viz., 24.10.1996.
5. So far as the formula is concerned he contends that the load was 454.4 KW and the number of days were 104 and the fixed factor was 0.75. Now if there were theft the said amount would be multiplied by 3 as penalty. Thus, there was no miscalculation in the amount calculated by the Executive Engineer or by the appellate authority. He further contended that there were sufficient material in existence to bring the case within the scope and ambit of Section 39(2) of the Act. He pointed out from the checking report that paper seal pasted at top and bottom of the CT chamber door in duplicate on 24.10.1996 being No. 1950 were torn at both the places. Plastic seal No. B-15568, provided on CT Chamber door on 24.10.1996, was found fake in the said report it was mentioned that the consumer is making theft of the electricity load through CT Chamber. According to him this is sufficient to presume that there was theft within the scope and ambit of Section 39(2). Therefore, the writ petition should be dismissed.
6. Mr. H. N. Singh, on the other hand, contended that Section 39(2) of the Act is not attracted in the allegation of theft. Inasmuch said sub-section (2) of Section 39 relates to the means or medium through which electricity is stolen. It does not imply a decision that there was a theft in the absence of any of the means or mediums.
7. I have heard learned counsel for the petitioner Shri H. N. Singh and Shri Sudhir Agarwal, learned counsel for the respondents at length.
8. The assessment was made under Regulation 23 of the 1984 Regulation, If there was malpractice and pilferage of the electricity within the meaning of Section 22. after giving notice to the consumer and an opportunity to state his point of view, the Executive Engineer, shall finalise the assessment by observing the above formalities. Section 22 prescribes discontinuance of supply in case of malpractice and pilferage of electricity. While Section 22(B) prescribes as follows :
"(B) Theft of Energy. --Where a fake or tampered meter body seal is detected or where there is evidence that consumer had dishonestly abstracted, consumed, used or wasted energy or otherwise established to the satisfaction of the supplier, that a consumer has in any manner abstracted, consumed or used electrical energy dishonestly, the supplier may estimate the value of the electrical energy so abstracted, consumed or used as per guidelines given in Annexure-I and may also disconnect the supply without notice. The imposition of this liability will not relieve the consumer from any penalty Imposed by law for such misuse of energy besides the disconnection of supply."
9. The above provision shows that if there is a fake or tampered meter body seal is detected or where there is evidence that consumer had dishonestly abstracted, used or wasted energy or otherwise established to the satisfaction of the supplier that consumer has in any manner abstracted, consumed or used electrical energy dishonestly, then the supplier may estimate the value of the electrical energy so abstracted, consumed or used as per guidelines provided in Annexure-I. Annexure-I while prescribing guideline provides as follows :
ANNEXURE-I Guidelines for assessment.
D = is the number of days for which the pilferage took place which can be established from production of satisfactory evidence by the consumer in case there is no possible evidence to establish the period thus, factor is taken equivalent to 180 or the number of days elapsed from the date of connection/ installation of meter till the date of detection of pilferage whichever is less.
F = denotes the type of supply as below :
(i) For L & F and domestic power consumers F = 0.20
(ii) For commercial L & F and power consumers F = 0.40
(iii) For small and medium power consumers (upto 75 MW) F = 0.50
(iv) For large and heavy power consumers (with load above 75 KW) F = 0.75
(v) in case of large and heavy power consumers for the purpose of assessment, the demand for the month shall be taken as contracted demand of the consumer of 75 per cent of the connected load, at the time of inspection whichever is less.
The assessed unit shall be charged at the rates as mentioned under Para IV hereunder.
The difference of the amount billed under triple the rate and the tariff rate under the appropriate rate schedule shall not be taken into consideration for the purposes of computing consumers liability to pay monthly /annual minimum guarantee.
III. Pilferage of energy detected during marriages and other occasions for temporary connections- Unit assessed = L x D x H L = is the connected load in KW. H = is the average No. of hours/day the supply is made available in Distribution mains feeding the consumer. D = No. of days from which supply given. Bill for the units assessed above shall be made at the rates as mentioned under para IV hereunder. IV. (a) The consumption so assessed shall be charged at thrice the rate per unit of the tariff applicable to the consumer excluding the consumption recorded by the meter and the later shall be charged at the appropriate tariff rates. The amount billed at this rate (thrice the tariff rate) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annual minimum guarantee.
(b) in case of consumer covered under categories of small power for PTW/pumping sets for irrigation purposes, small and medium power for Industries and Cinema, Theatres, mixed load and temporary supply, the excess load over and above the contracted load shall be chargeable at triple the rate of flat/rare/M.C.G. of the appropriate tariff."
10. According to Mr. Singh the load is the connected load in KW which is 211 KV. Whereas Mr. Agarwal contends that load would be 454.45 KW. According to him there is a ratio for conversion of 1 KV = .85 KW. Therefore, the calculation has been assessed as KW as is connected. According to him the connected load means the load that was found on checking and not the contracted load. Mr. Singh disputes the same. According to him, it is 211 KW, which is the contracted demand. Mr. Agarwal however contends that the demand is the load. The demand is with regard to the load that is contracted.
11. Be that as it may, in Annexure-I 'L' signify connected load in KW. 'L' does not signify contracted demand/contracted load in whatever name, it can be called. If it could be contracted load then also it cannot be brought within the meaning of 'L'. On checking the load was found to be 455.4 KW and therefore, 'L' should represent connected load in KW as 455.4 as was found on checking. So far as the 'F' factor is concerned Mr. Singh contended that in view of sub-clause (v) of F, the demand for the month shall be taken as contracted demand of the consumer or 75 per cent of the connected load, at the time of inspection whichever is less. Whereas Mr. Sudhir Agarwal contends that this case will come under clause (iv). The formula for which is F = 0.75, in case the argument of Mr. Singh is accepted, in that event, under clause (v) the assessment is to be made on the basis of the demand for the month, taken as a contracted demand of the consumer, which would be 211 KV or 75% of the connected load at the time of inspection whichever is less. According Mr. Agarwal, in that event. Factor 'F' would be far higher than 0.75, since 75% of 454.4 KW would be much higher than Factor F = 0.75, and if the contracted demand is taken then also the factor 'F' would be 75% of 211 KV, which is also far excess of factor 0.75. Therefore, that will not help the petitioner.
12. Whereas Mr. Singh relies on U. P. State Electricity Rate Schedule, particularly upon Rate Schedule HV-2, and points out from clause 4 thereof that the rate of charge would be as provided in rate of charge and the bill is to be prepared on the basis of the billable demand as provided in paragraph 6. The present assessment is being under Section 22(B) of the Regulation according to Annexure-1, which prescribes a specific procedure under Regulation 1984. The Rate Schedule HB 2 relates to the manner of raising bills on the basis of the rates prescribed therein that is one rate for demand and the other is with regard to the energy charge. There is a distinction between the demand and the energy charges and the said rate of charge prescribes rate as demand charge plus energy charge. According to Mr. Singh under para 5 if there is a less consumption than contracted demand, in that event, the minimum is to be paid. But this question does not arise in the present case since it is not a case of such consumption. On the other hand, it appears that the consumption was of the connected load as was found on checking, therefore a paragraph 5 of the Rate Schedule HB-2 cannot be resorted to. Billable demand relates to the demand, which can also not help Mr. Singh since charges are to be made not only on the basis of demand alone but also on the basis of energy charge.
13. Since Regulation 22 (B) provides for a particular manner of assessment the same has to be followed and would prevail upon other mode of assessment unless there has been change or amendment in the guidelines provided in Annexure-I.
14. Then again it is Factor 'F' with which we are concerned. Factor F denotes the type of supply representing the relevant factor, which are fixed for a particular supply. Four kinds of supply having provided in Factor 'F' and in sub-clause (iv) fixed factor having provided as F = 0.75, clause (v) cannot override clause (iv).
15. So far as F = 0.75 is concerned cannot be therefore disputed. The question provided in clause (v) may be related to the demand or connected load at the time of inspection, which may represent the Factor 'L'. It necessarily means that F 75% is to be calculated on the basis of clause (v) which may be applied while representing 'L' at the most. But there is an apparent contradiction in clause (v) of Factor F and Factor L. Factor L denotes connected load in KW. It does not qualify the same in any manner. It is difficult to accept that Factor 'L' is nullified by incorporation of clause (v). In fact Factor L has not been made subject to Factor F. But then it is not understood as to what was the purpose of incorporation of clause (v) in Factor F, it cannot be imported or applied to Factor 'L'. As observed earlier if the Factor F is to be determined on the basis of clause (v) in that event, it would be far higher than 0.75 as provided in clause (iv) which will not enure to the benefit of the consumer. Therefore, the fixed factor as calculated as 0.75 cannot be disputed.
16. So far as the hours is concerned, the same having been agreed between the parties at 21.0579 hours, it is not necessary to go into that question.
17. So far as the Factor 'D' is concerned, which denotes number of days for which the pilferage took place, which can be established from production of satisfactory evidence by the consumer. In case there is no possible evidence to establish the period, this factor is to be taken as equivalent to 180 days or the number of days elapsed from the date of connection/installation of meter till the date of detection of the pilferage whichever is less. In the present case the number of days has been determined as 104 days, which is less than 180 days. This can be done, provided the consumer has not been able to establish by satisfactory evidence the number of days. In case the consumer is able to establish by production of satisfactory evidence, in that event, such number of days should represent Factor 'D'.
18. In the present case it is alleged by the respondents that consumer has not been able to establish by producing satisfactory evidence about the number of days, and therefore the period has been calculated from the date when the new meter was installed i.e., 24.10.1996, Mr. Singh had relied on Annexures-1 and 2 respectively to establish the number of days. According to Mr. Singh, the said two documents are the satisfactory evidence which were produced before the assessing authority and the appellate authority since been overlooked by them. According to him the said document is signed by Executive Engineer and the Junior Engineer of KESA and countersigned by the consumer's representative.
19. It is contended by Mr. Agarwal that the meter reading is taken by the Executive Engineer in respect of consumer of heavy electricity.
20. A plain reading of the said Annexure-1 to the writ petition shows that it has referred to seal No. and the multiplying factor. At the same time It has recorded the reading. Annexure-2 appears to be bulk supply meter reading card. Therefore, it is a record of the meter reading of bulk supply maintained by a card, whereas Annexure-1 is the meter reading that was taken in the presence of the consumer. Admittedly it appears lhat there is a distinction between the bulk meter reading card (Annexure-2, to the writ petition) and the meter reading slip (Annexure-1 to the writ petition). The Annexure-1 appears to be a meter reading slip No. 5 from book No. 177 of KESA, which mentions the date as of 28.1.1997 referring to the consumer No. 65/3807 and seal No. B. 15568 and records the present reading as well as previous reading and the difference together with multiplying factor. Nothing is noted therein to give the same the character of checking report. Neither this document, in fact, supports the claim laid by the petitioner. Factor 'D' makes it clear that this should satisfy the assessing authority to be evidence, establishing the number of days. Though multiplying factor has been mentioned and in the column of difference, current in three phases have been written yet It appears that the same is not difference in current. On the other hand it appears to be the difference of the present reading and the previous reading of the meter. Whereas Mr. Agarwal points out from Annexure-CA1 to the counter-affidavit and contends that checking done by a particular team consisted of Superintending Engineer (D-II), Executive Engineer (Testing), Executive Engineer (Distribution), Executive Engineer (Raid), and some Junior Engineers and supporting staff. According to him the checking is done in coordination with different departments viz.. Testing, Distribution and Raid etc. The said Annexure-CA-1 to the counter-affidavit, original whereof has been produced, shows that it is an endorsement on a form known as High Voltage Consumer Ceiling Certificate. U. P. State Electricity Board. KESA. Kanpur which is a form different from Annexure-1 to the writ petition. This checking report is altogether different from the alleged report contained in Annexure-1 to the writ petition. Similarly the original Ceiling Certificate dated 24.10.1996 is also produced which is also in the same form as that of Annexure-CA1. Annexure-CA1 mentions against column CT details in Sl. No. 1 that checking was done in presence of SE/I-II EE (D) and Raid Party. Whereas the ceiling report dated 24.10.1996 also mentions checking of site by SED 2 along with EE (T), EE (D) and replacement of Metering Cubical etc. Thus, it appears that both these reports mention checking and had contained details of the report with regard to the meter and its seal and its status and various other factors and also a note is given therein. Whereas Annexure-1 to the writ petition appears to be a slip relating to KWH and KVAH readings noting certain particulars with regard to consumer number, seal number and current and previous reading and its phases and multiplying factor comparing with ceiling report which is Annexure-CA1 to the counter-affidavit it does not appear to be a checking report.
21. In the case of Aditya Rotor Spin (P) Ltd., Kanpur and another v. U. P. State Electricity Board, Lucknow and another. AJR 1991 All 196, this question was gone into as to whether a meter reading slip can be construed to mean a checking or inspection of testing of Installation by the supplier. This Court in paragraph 17 had answered the question in the negative. From the said decision it is apparent there is wide difference between the meter reading slip and the checking report, as is apparent from para 17 of the said judgment which is quoted below :
"17. On the basis of the meter reading slip dated 1.12.1990 (Annexure-4 to the writ petition) it was contended that at the time when the meter reading was taken by the meter reader on 1.12.1990 the meter reader had not found that any tampering had been done. Emphasis was laid on the endorsement on the document to the effect "all seals untouched as demand in less than 75% of the billable demand". The respondent's counsel has contended that a meter reader is not required to check the meter while taking the reading not he is authorised to open the cubical box in our opinion this endorsement does not at all show that the meter reader had done any testing or that he had verified as to whether any tampering had been done or not. That apart, Regulation 21 (iv) (c) and proviso to Regulation 23 (vi) clearly lay down that the visit of the meter reader for the purpose of meter reading was not in anyway, to be construed to mean checking or inspection of testing of installation by the supplier. It was also contended that the petitioners had sent several applications to respondent No. 2 for checking of the meter and in case any tampering had been done such a course would not have been adopted. It is argued on behalf of the respondents that this was done by way of peshbandi in order to create evidence in favour of the petitioners. However, these are all questions of fact which the authorities will decide after examining the rival contentions and the evidence adduced by the parties. In our opinion, this circumstances by itself cannot lead to any inference that the petitioner was not committing theft of electrical energy."
22. Then again this evidence is admissible on the satisfaction of the assessing authority establishing the number of days. The officers who had taken the meter reading being Executive Engineer and the Junior Engineer, as alleged by Mr. Singh, does not appear to have written or noted that it was a checking report and not the meter reading slip. Then again it does not show that these officers were authorised to take or prepare a checking report. The question as to whether this document, contained in Annexure-1 to the writ petition, is sufficient to establish the number of days as evidence to establish, is dependent on the satisfaction of the assessing authority and the appellate authority. Both these authorities have arrived at a concurrent finding. In view of the discussion made above, I do not find that the order of the assessing authority and the appellate authority can be called perverse. If it is so, in that event, in the absence of evidence establishing number of days by the consumer, the Factor 'D' = 180 days or the number of days reduced between the date of installation of the meter till the date of detection of pilferage would be the factor 'D' for the purpose of calculation or assessment. In such circumstances after having heard learned counsel for the petitioner and learned counsel for the respondents and perusing the materials, and the reasons given above, I do not find any merit in the submission of Mr. Singh in regard to factor 'D'.
23. With regard to Section 39(2) of the said Act as contended by Mr. Singh it appears that in Uttar Pradesh. Section 39 has been amended to the following extent :
"39. Penalty for theft of energy.--(1) Whoever dishonestly abstracts, consumers, uses or draw.
or abets or attempts such dishonest abstraction, consumption, use or drawal of and any energy :
(a) otherwise than through a meter referred to in Section 26 ; or
(b) by tampering with such meter or its seals, or apparatus, or circuits ; or
(c) by obstructing or interfering in the functioning of such meter ; or
(d) by manipulating change of phase of the electric supply lines ; or
(e) by manipulating any meter, indicator or apparatus referred to in sub-section (7) of Section 26 : or
(f) from a disconnected connection ; or
(g) by any other means whatsoever shall be punished with fine and shall also be liable to Imprisonment for a term which may extend to three years :
Provided that in a case where the load abstracted, consumed, used or drawn or abetted or attempted to be abstracted, consumer, used or drawn :
(a) does not exceed 7.46 kilowatt, the fine imposed on first conviction shall not be less than Rs. 500 and in the event of second or subsequent conviction the fine imposed shall not be less than Rs. 2,000 ;
(b) exceeds 7.46 kilowatt, the fine imposed on first conviction shall not be less than Rs. 2,000 and the event of second or subsequent conviction the sentence shall be imprisonment for a term not less than 6 months with fine not less than Rs. 10,000.
(2) The existence of any means for such abstraction, consumption, use or drawal shall be prima facie evidence of such dishonest abstraction, consumption, use or drawal of energy or, as the case may be, an attempt therefor.
(3) Without prejudice to the provisions of the Code of Criminal Procedure, 1973, relating to search and seizure where a licensee or any person authorised by it has reason to believe that any offence under sub-section (1) has been, or is being or is about to be committed in any premises, vehicles, vessel or other place, he may with such assistance, if any, as he thinks fit, at any time :
(a) enter, inspect and search such premises, vehicle, vessel or other place and may use such minimum force as may be necessary for the purpose ;
(b) seize any means referred to in sub-section (2), which may be found in such premises, vehicle, vessel or other place.
(c) require the owner, occupier or any other person incharge of such premises, vehicle, vessel or other place to produce any books of accounts or other documents or furnish such information as may, in his opinion, be useful for or relevant to any proceedings in respect of the offence under sub-section (1) ;
(d) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of accounts, or documents are seized to make copies thereof or take extracts therefrom in his presence."
24. Sub-section (2) of Section 39 of amended Act provides that existence of any means for such abstraction, consumption, use or drawal shall be prima facie evidence of such dishonest abstraction, consumption, use or drawal of energy or as the case may be, an attempt therefor. In the present case, seal was found to be fake and that the paper seal pasted in two places were torn. Mr. Singh contends that there was no existence of any means for the alleged abstraction, consumption, use or drawal which could be prima facie evidence against an attempt for dishonest abstraction, use or drawal of energy. Whereas Mr. Agarwal points out from the two checking report particularly item Nos. 4, 5 and 7, wherein it is mentioned that a test was carried on through long tester and found 0.4A, 0.4A and 0.1A on RYB phases on secondary side against 140A. 140A and 140A on primary side, which according to Mr. Agarwal is a prima facie evidence. This proposition has been disputed by Mr. Singh. These are pure technical matter with which the Court is not accustomed and then in Sl. No. 7, a finding has been recorded that as line CT ratio is 500/5A, therefore, secondary side current on R, Y and B phases must be 1.4A whereas it was found to be 0.4A, 0.4A and 0.1 A. Thus, it was concluded theft of electrical energy. These are finding of fact since been arrived at by assessing authority and the appellate authority. Nothing has been shown as to how this Court can differ with such concurrent finding arrived at by the authorities. It is very difficult to rely upon the submission of Mr. Singh in the absence of any prima facie evidence produced by the petitioner. This being finding of fact this Court sitting in writ jurisdiction cannot come to a different opinion unless it is clearly established that there was no theft. On the basis of the checking report prima facie it appears that there was theft with which I do not find any reason to differ in view of en try/incorporation of Section 39(2) as amended in U. P.
25. Section 39 of the Indian Electricity Act, 1903, provided as follows :
"Whoever dishonestly abstracts, or uses any energy, shall be deemed to have committed theft within the meaning of the Indian Penal Code."
26. The select committee introducing the bill for the Indian Electricity Act being Act No. 9 of 1910 in their report had stated that "licensees having been unable to obtain conviction under Section 39 (1) of the Indian Electricity Act, 1903, even where the circumstantial evidence has been strong, we have added words to this clause to make the existence of artificial means for the abstraction of energy prima facie evidence of such dishonest abstraction". Thus, it appears that the new Act has brought about a change in the matter of providing theft of electrical energy different from those required under Section 378 of the Indian Penal Code. A plain reading of Section 378 of the Indian Penal Code shows that there are five essential ingredients of the offence of theft viz.. (a) an Intention to take some movable property ; (b) the taking must be dishonest ; (c) it must be in possession of another ; (d) the taking must be without consent ; and (e) in pursuance thereof the movable property has been removed. This proposition appears to have been propounded by the Allahabad High Court in the case of Commandant 508. Army Base, Workshop v. R. B. Reddy, 1977 All Cr R 169. Electrical energy does not seem to come within the ambit of movable property nor does abstraction of electricity constitute taking away movable property from the possession of the Board or of the licensee. Thus, dishonest abstraction of electricity may not answer Section 378, I.P.C. In fact It is made an offence by Section 39 of 1910 Act. as theft within the meaning of I.P.C. by fiction which should be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence,
27. In the case of Avtar Singh v. State of Punjab. AIR 1965 SC 666. It was held that the punishment is not under the Code itself for under It abstraction of energy is not an offence at all but for Section 39 of the 1910 Act. The said decision was followed by this Court in the case of Ram Subhawan v. State of U. P., 1984 121) All Cr. C 334.
28. The burden of proving a theft, whether of electrical energy of any other movable properly must He on the prosecution. Since the theft is of energy and not any material object, the proof has to be in nearly all cases circumstantial in character. That was the reason the selection committee has suggested addition of certain phrases in order to remove the difficulties. Here the burden of proof has been circumstantial to the extent of proving existence of artificial means for dishonest abstraction. Therefore, in the 1910 Act Section 39 has been amended to the extent of incorporating that existence of artificial means for abstraction shall be prima facie evidence of such dishonest abstraction. As soon this is proved, the burden then shifts on the consumer to show that the artificial means in his premises was not for the purposes of dishonest abstraction in order to avoid a conviction. This view finds support in the case of Jagannath Singh v. Ramaswamy, AIR 1966 SC 849 ; Ram Chandra v. State of Bihar. AIR 1967 SC 849. The amendment in U. P. of Section 39 incorporates the Identical provision of the later part of Section 39 of 1910 Act in sub-section (2) separately.
29. In the case of State of Bihar v. R. C. Sharma. (1963) 2 Cri LJ 579 (Pat), It was held that where the meter which has been tampered with is in the control on custody of the consumer, It is legitimate to Infer that it is the consumer who is responsible for bringing into existence such an artificial means or device for abstraction of electrical energy because he is the person who really stands to profit by such dishonest abstraction. In the case of H. Krishnamurthy v. Sohnilal, 1964 (1) Cri LJ (Pat), it was held that the onus which lies upon the prosecution for proving an offence is discharged merely by proving the existence of an artificial means for dishonest abstraction or user of electrical energy, and an inference of guilt must be drawn from the circumstances alone, unless the accused is able to bring some material on the record to show that despite the existence of such artificial means, there was in fact no theft or dishonest user of electrical energy.
30. In the case of Ramchandra, (supra) it was held that where the seal on the meter cover was found tampered with, such an abstraction would amount to theft within the meaning of Section 39. Before raising a presumption under this section 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 and the prosecution has to further show, that there was dishonest abstraction, consumption or use of electrical energy by the consumer. It is not sufficient to say that a meter has been tampered with and that it is under the control of the consumer. In the case of Jagannath Singh, (supra) it was held that to bring home the charge the prosecution must also prove that the consumer is responsible for the tampering.
31. As observed earlier in the present case the paper seal was found to be torn whereas the plastic seal was found to be fake and then on testing there was a difference as mentioned above with regard to R. Y and B phases of secondary side to the extent of 0.4A. 0.4A and 0.1 A as against 140A, 140A and 140A on primary side and a finding has been recorded that the CT ratio was 500/5A, therefore, secondary side current on R. Y and B phases must be 1.4A whereas in each phases it had tested for less. Thus, coupled with tampering of the meter, there was something more which shows that electrical energy was abstracted. In Jagannath Singh, (supra) the Apex Court had laid down that Rule 56 (2) of the Indian Electricity Rules. 1956, requires that the consumer shall use all reasonable means in his power to ensure that no seal affixed to his meter is broken otherwise than by the supplier. If the seal is broken in contravention of Rule 56, even the consumer who has not himself broken the seal is punishable under Rule 138 with fine, unless he proves that he used all reasonable means in his power to ensure that the seal should not be broken. In the absence of such proof, the liability of the consumer in respect of the breakage of the seal is absolute under Rule 138 (b).
32. Mr. Agarwal in support of his contention had relied upon the decision in the case of Aditya Rotor Spin (P) Ltd., Kanpur and another, (supra). In the said case it was held that Section 26(6) of the J910 Act contemplates a situation where meter has developed some defect of its own and not where a deliberate tampering has been done by a human agency by changing the mechanism or using a device by which the meter records less than actual consumption. Thus. relying on the decision it may be contended that even if there is no device or material in existence the tampering of the meter, coupled with the position that the meter was registering or recording less than actual consumption, would bring the situation within the scope and ambit of Rule 39 (2) of the U. P. Amendment in 1910 Act.
33. He has also relied on the decision in the case of M/s. Sarvodaya Ispat Pvt. Ltd., Ghaziabad v. U. P, State Electricity Board, Lucknow and others. 1993 (1) CRC 658. Therein It was held in paragraph No. 25 that :
"25. Pilferage of electrical energy by various methods is the root cause of low electric consumption even by consumers having heavy loads of electrical energy. It is for obviating this means that the board had to device the provisions of the M.C.O.C. in its tariffs. In the case of M/s. Ashok Soap Factory, JT (1993) 1 SC 128 : (1993) 1 CRC 258 (SC), the Supreme Court was faced with challenge against the hike of M.C.G.C, from Rs. 40 per K.V.A. per month to Rs. 340 per KVA per month and while rejecting the arguments of violation of Article 14 of the Constitution against the said hike in the M.C.G.C. the Supreme Court in the following words has noticed the menace of theft of electricity as the main cause for the imposition of the M.C.G.C. and also the reason for its enhancement.
"We had already noticed the reason which persuaded the D.E.C.S.C. to Justify and recommended the increase in M.C.G.C. to the D.M.C. The M.C.G.C. being quite low is also attributed to the tendency of fraudulent abstraction of energy and it was after giving a serious thought to reduce the pilferage/fraudulent abstraction of energy, the D.M.C. felt desirable to revise the rate of M.C.G.C. to a reasonable level so the consumers are not tempted to adopt such unfair means and the rates are commensurate with the fixed expenditure being measured by the undertaking. The reason for the revision of M.C.G.C. for Arc/Induction furnace were that in many instances that meters where bulk supply were made were found to be defective and the consumption recorded was found to be extremely low causing loss of huge revenue. The Arc/Induction furnaces normally run continuously and. therefore, it was justified to Increase the rate of M.C.G.C. the variation of electricity consumed by different consumers indicated that the charge of pilferage of electricity and gross under-utilisation or consumption of electricity compared to the sanctioned load was not without foundation."
A plain reading of the above decision also lends support to the contention of Mr. Agarwal.
34. Mr. Agarwal also relied upon a decision in the case of M/s. Ashok Soap Factory and another v. Municipal Corporation of Delhi and others, JT 1903 (1) SC 128, wherein it was held in paragraph 27 that:
".......the variation in the electricity consumed by different consumers indicated that the charge of pilferage of electricity and gross under-utilisation or consumption of electricity compared to the sanctioned load was not without foundation. The respondents had placed on record a tabulated statement of the consumers using induction furnaces before the High Court. If we look at the said chart reproduced in the judgment of the High Court under appeal it deals with 52 consumers including most of the appellants. This statement shows large variation of the electricity consumed, particularly at serial Nos. 2. 13, 15. 26 and
44. If we look at consumer at serial No. 44. It shows that the unit worked only for 29 hours in the whole month as per the consumption per unit per month.
had a sanctioned load of 1573.11 KWS. the approximate number of hours worked by it in a month were 106. i.e., little more than 4 days in month. It is surprising that the units are still surviving by working for short period. On the assumption that the electricity consumed is as per the sanctioned load the approximate number of hours for which the induction furnaces have been worked in a month has been stated in the said statement.
There was thus a reasonable basis to assumed theft by substantial number of arc/induction furnaces consumers. It will be noticed that consumer contracts for a minimum supply of electricity of certain dimensions and the D.M.C. which is licensee in the present case, has to buy energy by way of bulk supply from outside sources and has to keep it readily available for the consumer for the whole year round. Surely the consumer, who contracts for such high quantity of energy, does so because of its need and not for keeping it as stand by without paying for it. No licensee can possibly keep such enormous quantity of electricity in reserve for a consumer, month after month, without its consumption. That is why tn the tariff, which was part of the agreement for LIP consumers there was two part tariff system--partly minimum consumption guarantee charges and partly for actual energy consumed."
The above decision also supports the contention of Mr. Agarwal.
35. Similar question was raised in the case of M/s. Sharda Oil Industries Pvt. Ltd., Nunaihi v. Appellate Authority/Superintending Engineer U. P. State Electricity Board and another, AIR 1994 All 386, wherein this Court had held as follows :
"9. Guidelines for assessment in case of malpractice and theft of energy as contained in Annexure-1 to the Regulations, inter alia, provide that in case of using energy by creating obstruction in running of meter or interfering with the system of supply or wires etc., energy consumed in terms of unit would be determined by applying the formula, i.e., unit assessed =LxFxHxD where--
L is the connected loan in KW;
F denotes the type of supply ;
H is the average No. of hours/days the supply is made available in the distribution mains feeding the consumer ; and D is No. of days for which supply is given.
10. I find substance in the submission made by the learned counsel for the petitioner that the assessment order, for its sustenance, must be based on correct application of statutory formula i.e., L x H x F x D. I am of the view that an assessment order must for its substance, be passed after affording the consumer an opportunity to state his point of view and must also contain reasons rejecting the stand taken by the consumer and further that it must be based on correct application of the formula.
Opportunity, in my opinion would be illusory if the consumer is not informed of the basis on which the assessment is proposed to be made. He must be given an effective opportunity to contest the correctness of each of the various factors used in the statutory formula on which the assessment is proposed to be made. But since an order of assessment is appealable its correctness, if challenged, can be examined by the appellate authority Inasmuch as the power of the appellate authority in this regard is co-extensive with that of the assessing authority. It can also be examined the extent of prejudice, if any, caused to a consumer due in non-observance of the rules of natural justice embodied in Regulation 23 (I) of the regulations. Question which is, therefore, required to be considered is whether the appellate order is in accordance with law?"
36. Having regard to the said observation in the present case it appears that so far as the factor L, F and D as discussed above, there cannot be any doubt or dispute whereas with regard to Factor 'H', there may be some ground in favour of the petitioner which requires redetermination as observed hereinafter.
37. Mr. Singh contends that the calculation has been done on the basis of 23.2598 hours whereas now it is admitted that the hours are 21.075769, therefore, the matter is to be remanded for fresh calculation. If it is so, the respondents shall recalculate the same once again and submit a revised assessment.
38. The bill will be revised only with regard to the Factor H as observed in this judgment and a revised bill may be raised accordingly. Since the bill is now being revised, therefore, payment of surcharge may not be levied as held in the decision in the case of Avinash Hajela v. U. P. State Electricity Board, Lucknow and others. 1996 ACJ 104.
39. Mr. Agarwal points out that the petitioner had given an undertaking that the bill will be paid as soon the matter is decided.
40. In such circumstances, the petitioner shall pay the revised bill within a period of one month from the date of its presentation or within such period as may be allowed by the authority concerned.
41. With this observation, the writ petition is disposed of and allowed to the extent as Indicated above.
42. However, there will be no order as to cost.
43. Let it be noted that the observation made in this order are confined to question with regard to the order impugned. This observation shall neither be noted nor be relied upon by any Court or authority for the purpose of determining any other question involved in any other matter even if the same is related to the self same or any other transaction between the parties. In such case the Court or authority concerned shall decide such question according to their own wisdom and discretion without being influenced by any observation made herein.