IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2017 BEFORE THE HON’BLE Dr. JUSTICE VINEET KOTHARI WRIT PETITION NOs. 713-714/2015 (GM-KEB) BETWEEN M/S BTS ROLLER FLOUR MILLS (P) LTD., NO.F-5, 2ND FLOOR, SHALIMAR GALAXY, 139, SHESHADRIPURAM 1ST MAIN ROAD, BANGALORE – 560 020.
REP. BY ITS EXECUTIVE DIRECTOR, MR.SANJEEV GUPTA. … PETITIONER (BY SRI. A. S. GUPTA, ADV.) AND 1. THE BANGALORE ELECTRICITY SUPPLY COMPANY LTD., CORPORATE OFFICE, K.R.CIRCLE, CUBBON PARK, BANGALORE – 560 001. REP. BY ITS CHAIRMAN & MANAGING DIRECTOR.
2. BESCOM/B23/APPELES (11)/2004-05 CORPORATE OFFICE, ENCL:
K. R. CIRCLE, BANGALORE – 560 001. DATE 28 JAN 2005, THE CHAIRMAN AND MANAGING DIRECTOR, REP. BY BESCOM PROCEEDINGS OF THE APPELLATE AUTHORITY CORPORATE OFFICE, K R CIRCLE, BANGALORE.
3. THE DIRECTOR TECHNICAL AND FINANCIAL ADVISOR, MESCOM, RR.NO.DBHT-2 CASE NO:BC25/APPEALS(11)/2004-05 … RESPONDENTS (BY SRI. H. V. DEVARAJA, ADV. FOR R-1 TO R-3.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS OF THE REVENUE APPEAL NO. 37/2013 ORDER DATED 21.6.2014 BY THE DIRECTOR [TECHNICAL] AND FINANCIAL ADVISOR, MESCOM.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Mr. A. S. Gupta, Adv. For petitioner Mr. H. V. Devaraja, Adv. For Respondents The petitioner – M/s.BTS Roller Flour Mills (P) Ltd., is fighting this battle for last 30 years against the respondent – BESCOM. In the two rounds of litigation fought by it against the revised back billing to the tune of Rs.5,41,860/-, which was due to be paid by it on account of, alleged theft of electricity.
2. The learned counsel for the petitioner Mr. A.S. Gupta has submitted before the court that even during the first adjudication order, which was passed exparte against the present petitioner vide Annexure-B on 27.4.1984 Mr. K. Sridhar PW-5 appearing on behalf of the respondent – BESCOM department, himself had clearly admitted during his cross examination that the seals provided to the Instrument Transformer Chambers of the Installation were verified and found to be genuine seals. However, on the basis of the statement of PW-1 Mr. Ramanna, AEE (Electrical) who expressed an apprehension that since a police case was registered against one Mr. Srinivas Rao on 22.4.1988 found to be manufacturing duplicate plastic and lead seals by installing moulding machines at his own premises and the seals found bearing No.039294, 039276 (Pink colour) and also lead seals bearing No.MTD 10/KEB were purportedly manufacturing by that Mr.Srinivas Rao were provided to the KWh and KVAH meters of the installation No.DBHT-2 of the petitioner – M/s.BTS Roller Flour Mills Ltd.,. Therefore, on the basis of such, alleged fake seals, the petitioner might have committed a theft of electricity during this period and accordingly, as per the provisions of the relevant regulations; the back billing demand was raised against the petitioner. In the first round, back billing charges were raised to an extent of Rs.8,47,860/- vide Annexure-B dated 27.4.1994 and later, on a remand by the first appellate authority vide Annexure-F dated 21.6.2014 order to pay the revised back billing charges of Rs.5,41,860/-.
3. The learned counsel for the petitioner Mr. A.S. Gupta has urged before this court that the said illegal demand of Rs.5,41,860/- stood paid by the petitioner long back during the pendency of the said proceedings before the respondents. He further submitted that the petitioner has been exonerated by the competent criminal court also and their acquittal order is placed on record as Annexure-D dated 27.11.2009 in SPL.CASE No.139/2002 between The State by Doddabelavangala Police Vs. M/s.BTS Flour Mills Pvt. Company Ltd., 4. This court has also noticed that the present Advocate appearing for the petitioner – Company, Mr.
A.S. Gupta was also arrayed as Accused No.2 in the said Criminal Case also but he was discharged by the order of the said court on 6.9.2006 before the final acquittal order, was passed later on, on 29.11.2009 against the respondent – Company and the Supervisor of that company, but none of the Directors or promoters or Manager of the company were even arrayed as accused persons but the Advocate who pleaded for the company was arrayed as an accused. This surprises this court quite a bit.
5. Be that as it may, the whole case made out by respondent – BESCOM against the present petitioner – Company seems to be, foundationless. On the assumption that the seals found at the time of inspection was manufactured by a person, Mr. Srinivas Rao, against whom a Criminal Case was filed on 22.4.1988, as he was found to be manufacturing fake seals and, incidentally, similar seals were found at the installation of the metering equipment of the petitioner Flour Mill also, the wrong assumption was drawn and that nobody cared to prove such assumption as a fact, but the petitioner held guilty of committing theft of electricity at its business place.
6. There is no evidence on record whereby the statement of Mr. K. Sridhar, PW-5, the concerned Engineer of BESCOM during his cross examination, even in the first round of exparte proceedings was shown to be wrong, that the present business place of the petitioner was inspected and the seals were found to be genuine seals, upon verification.
7. Despite a long trail of litigation and second round, & after the matter reaching the Division Bench of this Court, the appellate authorities comprising of two officers of respondent – BESCOM and MESCOM, the Financial Advisor and the Director (Technical), they have again drawn the same adverse inference against the petitioner and reduced the demand of back billing from Rs.8,47,860/- to Rs.5,41,860/-.
8. Having heard the learned counsels, this court is satisfied that the present Writ Petitions deserves to be allowed with costs and interest on the amount to be refunded to the petitioner – Company, also deserves to be awarded.
9. It is true that the parameters of holding somebody guilty in Criminal trial of Electricity theft cases are different than the Civil adjudication of the liability of the charges to be paid on account of back billing under the provisions of the Electricity Act and Rules, but even such adjudications cannot be allowed to withstand without firm foundation and clear finding of facts against the consumer. The only case on the basis of which, such back billing was done in the present case against the present consumer was the alleged fake seals, purportedly manufactured by a person agreed when a criminal case was registered. While the officer of the respondent MESCOM himself admitted before the competent court that the seals were verified and found to be genuine, without any controverting materials being brought on record, during such adjudication process, one fails to understand on what basis, the authorities under the Act assumed that fake seals were used by the petitioner and adjudicated the amount in question against the present petitioner. The entire order, even in the second round of appeal, therefore falls to the aforesaid ground on one single lacunae in the case of the respondent – authorities.
10. The present petitions are therefore allowed with costs of Rs.20,000/- to be paid by the respondent BESCOM/MESCOM authorities to the petitioner. The respondents are further directed to refund the entire amount of Rs.5,41,860/- to the petitioner Company with simple interest at the rate of 12% p.a., from the date of petition till the date of refund, and the said refund with interest shall be made within a period of three months from today.
The petitions are allowed. Additionally, special Costs of Rs.10,000/- are ordered against the respondent which has to be paid to the Advocate, Sri A.S. Gupta by the respondent – BESCOM, within 3 months as aforesaid.
Sd/- JUDGE PL