S. Chandrashekhar, J. - (1.) SEEKING quashing of order dated 19.02.2008 of the Electrical Superintending Engineer, Electric Supply Circle, Hazaribagh, whereby the provisional bill of Rs. 58,63,392/ - has been reduced to Rs. 7,14,720/ - and also seeking quashing of order dated 17.12.2013 in Appeal No. 47 of 2012 -13 whereunder, the Senior Electrical Inspector -Appellate Authority has held that the allegation of theft of electricity is not proved and directed refund of the excess amount paid by respondent No. 1 - M/s Sheo Shakti Cement Industries, the present writ petition has been filed.
(2.) THE petitioner is a deemed licensee -cum -transmission utility company. The premises of M/s Sheo Shakti Cement Industries was inspected by the officers of the petitioner -Jharkhand Urja Vikas Nigam Limited on 15.02.2008 when the meter and seal of the electric meter installed in the premises of respondent No. 1 were found broken. An inspection report was prepared in presence of the representative of the respondent No. 1 and a copy of the same was handed over to him. A First Information Report being Hazaribagh (Sadar) Muffasil P.S. Case No. 155 of 2008 for offences under Section 379 IPC and under Sections 126/135/138 of the Electricity Act was registered on 15.02.2008. The Assessing Authority served a provisional bill of Rs. 58,63,392/ - to the respondent No. 1, to which the respondent No. 1 submitted a representation dated 18.02.2008 before the Electrical Superintending Engineer, Electric Supply Circle, Hazaribagh. Vide order dated 19.02.2008, the Electrical Superintending Engineer calculated the punitive amount as per sub -section (2) of Section 126 of the Electricity Act, 2003 and reduced the amount of provisional bill from Rs. 58,63,392/ - to Rs. 7,14,720/ -. Still aggrieved, respondent No. 1 preferred Appeal No. 47 of 2012 -13 which has been allowed on 17.12.2013. Relying on decision in "M/s Shyam Lal Iron & Steel Co. Vs. Jharkhand State Electricity Board", reported in : 2013 (3) JBCJ 356, and challenging the authority of the Electrical Superintending Engineer to pass final assessment bill and also the jurisdiction of the Appellate Authority to entertain the appeal preferred by respondent No. 1, the present writ petition has been filed. Mr. Ajit Kumar, the learned counsel for the petitioner submits that registration of a criminal case against the Director of the respondent -Company for theft of energy at the respondent's unit was in knowledge of the Assessing Authority and therefore, in purported exercise of power under Section 126 of the Electricity Act, 2003, the Electrical Superintending Engineer could not have revised the provisional bill issued to the respondent No. 1. It is further submitted that without adverting to the facts of the case the Appellate Authority has recorded a finding that the allegation of theft of electricity levelled against the consumer is not proved. During the pendency of the criminal case, it is thus submitted that, the Appellate Authority had no jurisdiction to record such a finding. It is further submitted that in terms of Section 154(5) of the Electricity Act, 2003, the criminal court has jurisdiction to determine civil liability against the respondent -Company and its Directors/partners and the petitioner -Jharkhand Urja Vikas Nigam Limited is entitled to provisionally recover the loss sustained by it in terms of third proviso to Section 135(1A) of the Electricity Act, 2003 and thus, the provisional bill dated 15.02.2008 would be the assessed amount in terms of third proviso to Section 135(1A) of the Act.
(3.) AS against the above, Mrs. A.R. Choudhary, the learned counsel for the respondent No. 1 relies on decision in "Aneeta Hada Vs. Godfather Travels and Tours Private Limited", : (2012) 5 SCC 661 and submits that the Company is not made an accused and the criminal case was lodged only against the Director of the respondent No. 1 -Company and therefore, the entire criminal proceeding would fail. It is submitted that if the contention of the petitioner -Jharkhand Urja Vikas Nigam Limited is accepted in so far as, the jurisdiction of the Electrical Superintending Engineer and the Appellate Authority is concerned, the provisional bill as well as the final bill assessed under Section 126 of the Act would be wiped out and in consequence thereof, the respondent No. 1 is entitled for refund of the amount paid by it to the petitioner -Jharkhand Urja Vikas Nigam Limited. It is further submitted that when the Appellate Authority passed final order, no criminal case was pending against the Company or its Director in as much as, the police had already submitted final form which was accepted by the court on 02.05.2009. It is thus submitted that even though no detailed discussion appears in the appellate order, the same does not require interference by this Court.;