Dakshin Haryana Bijli Vitran Nigam , Fatehabad and Another Vs Shyam Sunder

T h e defendants are the appellant s before this Court challengin g the judgments and decrees dated 24.07.2023 pas s ed by the learned Additional C ivil Judge (Senior D ivision), Fatehabad and date d 01.02.2025 passed by the lea r ned District Judge, F atehabad respectively whereb y decrees have been passed in fa v our of the respondent-plaintiff.

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In brief, the facts are that an electric connection bearing acc o unt No.H55-DLID / 0430 installed at Village Dholu, Sub-Tehsil Bhuna, Tehsil & District Fateha b ad was being used by the respondent-plaintiff and he was ma k ing payment of a l l electricity bills regularly a n d nothing was due against h im. However, ap p ellants-defendants had issu e d two notices bearing m e mo Nos.H55/2022/566 and H55/2022/567 date d 11.07.2022 to the respon d entdefendant whe r eby they demanded a sum of R s.1,26,495/- and Rs. 14,000/- f rom him for causin g loss to the appellants-defenda n ts and for compounding the off e nce on basis of a l leged checking dated 12.06.2022 conducted by the appell a ntsdefendants, as he was allegedly found to be i ndulged in theft of energy. It was

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further averred that the alleged checking as s h own in the impugned notices was never done in the presence of the respondent-plaintiff. Moreover, there wa s no defect found i n the meter, as its seal was fou n d intact, much less, the respon d entplaintiff was consuming electricity as per th e sanctioned load. The impu g ned notices were issued behind the back of the re s pondent-plaintiff without affor d ing any opportunit y of hearing. Even notice wit h respect to provisional assess m ent was also not g iven. The impugned notices w ere issued in contravention t o the instructions of t he appellants-defendants and therefore, were not tenable in the e yes of law. Hence , the present suit was filed.

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U p on notice of the suit, defe n dants appeared and filed wr i tten statement taki n g preliminary objections regarding locus standi , cause of ac t ion, jurisdiction, m a intainability and not coming to Court with clean hands. On m e rits, it was stated t h at checking in respect of the el e ctricity connection bearing acc o unt No.DL-1D/0430 installed at village Dholu, S u b Tehsil Bhuna, Tehsil & Di s trict Fatehabad was carried out by the duly autho r ized and competent officials o f the appellants-defe n dants namely Rampal S.D.O. , Surajmal J.E. and Pawan Ku m ar, L.M. on 12.06. 2 022 in the presence of respond e nt-plaintiff. During the checki n g, it was found that the meter was installed outsid e the premises and supply of h o use was running d i rect from motor starter with o u tput Ram Dev AP Feeder nea r the house of respo n dent-plaintiff with the help of S ingle Core 25 mm aluminum cable black coloured app. 40 mtrs. and he was not a l lowed to remove the cable fro m the site. The videography was done and on being found a case of theft of electri c ity, supply was dis c onnected. As per the record, t h e load was MDI 6.300. Copy o f the checking repor t was prepared at the spot but t h e same was refused to be signe d by the respondent - plaintiff. Thereafter, sundry ite m was prepared and the respon d ent-

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plaintiff was i s sued notices bearing memos N o.H55/2022/566 and H55/2022 / 567 dated 11.07.20 2 2 through which he was direct e d to make payment of Rs.1,26, 4 95/and Rs.14,000 / - to the appellants-defendants on account of loss caused to the defendant No.1-Nigam.

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O n the basis of pleadings, seven issues were framed by the lea r ned trial Court incl u ding the issue of relief. The r espondent-plaintiff stepped int o the witness box a s PW-1 and deposed through affidavit Ex.PW1/A and tendered documents Ex. P 1 to Ex.P5. On the other hand, defendants examined two witn e sses namely Rampa l Dahiya, SDO as DW-1 and J a gdish Chander, LDC as DW-2 and tendered docu m ents Ex.D1 to D6. 5. O n appreciation of oral as well do c umentary evidence placed befo r e it, the learned tria l Court partly decreed the suit b y declaring the impugned notic e s of Rs.1,26,495/-, E x.P1 and Rs.14,000/- Ex.P2 is s ued by the appellants-defendan t s as illegal, null a n d void and further restraini n g the appellants-defendants f rom recovering the amount in question and discon n ecting the electricity connection of the respondent - plaintiff due to above said n o tice. They were also directe d to restore the ele c tricity connection of the plainti f f, if the same was disconnecte d on account of alle g ed checking. However, the am o unt of penalty paid in pursuan c e of impugned noti c es and order dated 24.08.2022 w as not ordered to be refunded t o the respondent-pla i ntiff but subjected to adjustme n t in the amount of final assess m ent as may be ma d e by the appellants-defendant s after following the provisio n s of Section 126 o f the Electricity Act, 2003. A ppeal preferred by the appell a ntsdefendants ag a inst the aforesaid judgment a nd decree before the learne d 1^st Appellate Cou r t also stands dismissed. Rat h er, the 1^st Appellate Court, w hile dismissing the appeal modified the decree of t he learned trial Court and dir e cted

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the appellants- d efendants to adjust the amou n t, if any, paid by the respon d entplaintiff in his f uture electricity bills. Hence, t h e regular second appeal. 6. L e arned counsel for the appel l ants-defendants submits that the impugned noti c es were issued to the responden t -plaintiff on account of the fact that an inspection w as carried out at the premises o f the respondent-plaintiff wher e in it was found that theft of electricity was being d o ne by him and, therefore, loss was caused to the a p pellant/defendant No.1-Nigam . The appellants-defendants di d not violate the pro c edure prescribed under the sal e circular, as it was the respon d entplaintiff, who h imself refused to sign the LL-1 report. The learned trial Court a fter appreciation o f oral as well as documentary e v idence had rendered a finding that the theft of ele c tricity was duly proved but the learned 1^st Appellate Court reversed the said findin g in a mechanical manner, whil e completely ignoring the fact t h at a clear-cut case o f theft of electricity was made out against the respondent-plai n tiff. It is also subm i tted that in cases of theft unde r Section 135 of the Electricity Act, 2003, Civil Co u rt lacks jurisdiction.

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H e ard.

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T h e appellants-defendants issue d instructions for dealing with the cases of theft of electricity under the Electri c ity Act, 2003 vide Sales Cir c ular No.D-21/2017 o n 16.06.2017 and as per Instru c tion III (6) of the said Circular, the inspection is m a ndated to be photographed/vid e ographed to the extent possible and in case, any u nanticipated resistance comes at any stage, the AIO shall s eek assistance fro m his senior office(s) and/or t h e vigilance wing and also cal l for additional poli c e help. In such cases, all eve n ts shall be recorded through video camera as far as possible. Tactical withdr a wal is always an option in s uch situations. Ad m ittedly, in the case in hand, v i deo clipping is of 47 seconds o nly;

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whereas the i n spection of the premises con t inued for 20-25 minutes. C D of videography w a s placed on record as Ex.D2, h o wever, certificate under Sectio n 65B of the Indian Evidence Act with respect to s a feguard, ensuring the reliability and accuracy of el e ctronic evidence was not file d along with it and in the abs e nce thereof, CD Ex.D2 cannot be taken into consid e ration. DW-1 SDO Rampal Da h iya during cross-e x amination deposed that seals of the electricity meter were intact .

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F u rther, Instruction III (10) of the a foresaid Circular reads as unde r :- “ 1 0 . The occupant of the place o f search or any other person o n his be h alf shall be allowed to remain present during the search and c opy of the seizure memo shall be de l ivered to such occupant or pe r son w h o shall sign the receipt. If he r e fuses to sign, the authorized o ff icer sh a ll record such refusal on the s eizure memo and paste a copy at a co n spicuous place outside the p r emises and take a photograp h , or se n d it to the consumer by regi s tered post/ Speed Post within two w o rking days.”

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A p erusal of the aforesaid instruct i on reveals that a copy of the seizure memo shall be delivered to such occupant or person of the place of search, w ho shall sign the r e ceipt and if he refuses to sign, t he authorized officer is mandat e d to record such re f usal on the seizure memo and paste a copy at conspicuous p lace outside the pr e mises and take a photograp h , or send it to the consume r by registered post/speed post within two working d ays. There is no evidence avai l able on record that s uch procedure, which is mand a tory in nature, was adopted b y the appellants-defe n dants, as neither any photogra p h placed on record showing tha t the seizure memo w as pasted at conspicuous plac e outside the premises or it was sent to the consu m er by registered post/speed p o st, when the specific case o f the appellants-defe n dants is that the respondent-pl a intiff refused to sign. 10. In s truction III (13) of the Circular ibid, reads as under:-

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“13. The LL-1 report shall be si g ned by the AIO and members o f the in s pecting team and a copy shall be handed over to the consum e r or hi s representative at the site und e r proper receipt. In case of re f usal by the consumer or his authorize d representative to either accep t the re p ort or give a receipt, a copy m a y be pasted at a conspicuous place outside the premises and photog r aphed, or sent to the consume r by re g istered post/ Speed Post within two working days of the checki n g.”

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E v en for the sake of arguments, it is admitted that the respon d entplaintiff himse l f refused to sign the LL-1 report, then in that eventuality, as per instruction III (13), a copy thereof ought to h ave been pasted at a conspic u ous place outside t h e premises and photographed, o r sent to the consumer by registered post/speed pos t within two working days of c h ecking. Despite the stand take n by the appellants - defendants that the inspectio n site was photographed, no s uch photograph is m ade available on record; neit h er copy of the checking report was sent through re g istered post/speed post within t w o working days of the checkin g . 11. It is also worthwhile to refer t o instruction III (20), accordin g to which, where clear evidence of theft or tamper i ng of meter or any other act lea d ing to pilferage of energy is available at site, aft e r detection of theft, the Autho r ized Inspecting Offi c er (AIO) is required to lodge t h e complaint of theft of electricit y on the online port a l of LL-1 Monitoring System ( a s per the Proforma at Annexure - III), for registration of FIR, along with uploading the copy of the LL-1 report, t o the concerned SH O I&P Police Station immediat e ly, but not later than 24 hours a fter detection of th e ft. However, no such complain t of theft of electricity on the o n line portal of LL- 1 Monitoring System (as per t he Proforma at Annexure-III) for registration of F IR was made.

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A s sessment order under Section 1 35 of the Electricity Act, 2003 can be passed only if inspection report records fi n ding and evidence of theft. I n the present case, the mandatory procedure p rescribed the appellant-defendant No.1/Nigam it s elf has been flouted, which put t he inspection report itself unde r the cloud. Furth e rmore, under Section 135 o f the Electricity Act, 2003, the unauthorized u s e of electricity is not simplicit o r as enshrined under Section 1 2 6 of the Act (supra) but mens rea attached to it, an d therefore, the alleged theft is t o be proved beyond reasonable doubt. In the pre s ent case, the appellants-defen d ants failed to prove beyond reasonable doubt that t h e respondent-plaintiff was indulged in theft of elect r icity.

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In view of the above, this Court fi nds no illegality and irregulari t y in the judgments and decrees passed by both t h e Courts below and the same are upheld, much l ess, no substantial question of law arises for consideration i n the present appeal. Consequently, the instant regular second appeal stands dismiss e d. 14. M i sc. application(s) pending, if an y , shall also stand disposed of.

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August 18, 202 5	(A M	ARINDER SINGH GREWA JUDGE L)
Pankaj*	Whether speaking/reasoned	: Yes/No
	Whether reportable	: Yes/No

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Dakshin Haryana Bijli Vitran Nigam , Fatehabad and Another v. Shyam Sunder

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Dakshin Haryana Bijli Vitran Nigam , Fatehabad and Another v. Shyam Sunder

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