IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 NO. 900 OF 2006 Dingar Singh Bisht. ……….Petitioner. Versus State of Uttaranchal and others. …….Respondents. Present : Mr. A.K. Joshi, Advocate for the petitioner. M. Nandan Arya, AGA for the State of Uttarakhand. Date of Decision: 13.9.2010 Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. A.K. Joshi, Advocate for the petitioner and Mr. Nandan Arya, AGa for the State of Uttarakhand. 2. This petition under Section 482 of Cr.P.C. was dismissed in default on 12.8.2010 and the interim order dated 4.12.2006 was also vacated. Now a restoration application (MCRC No. 773 of 2010) has been filed by the petitioner. The reasons assigned for recalling the order dated 12.8.2010 appear to be just and bonafide. In view of the judgment of the Apex Court in Madhumilan Syntex Ltd. & Ors. Vs. Union of India and another reported in 2007 AIR SCW 1971 and in order to secure the ends of justice, present restoration application is allowed. The order dated 12.8.2010 is recalled and the case is restored to its original number. 3. An FIR was filed against the petitioner under the Electricity Act, 2003 with allegations of pilferage and subsequently a charge sheet was also submitted by the Police before the concerned Court under Section 173 of Cr.P.C., on which notices were issued on 27.6.2006. Vide an interim order dated 4.12.2006 passed by this Court further proceedings in Criminal Case No. 904 of 2006 were stayed. 4. According to the petitioner, the provision for assessment is given in Section 126 of the Electricity Act, 2003. Section 126 of the Electricity Act, as it stood on 1.5.2006 i.e. the date when the alleged raid was conducted on the premises of the petitioner and an offence was located. The provision of law i.e. Section 126 of the Electricity Act, 2003 stood as follows: 2 “126. Assessment.—(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained in any person, the assessing officers comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever. (5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place. (6) The assessment under this section shall be made at a rate equal to one-and-half times the tariff applicable for the relevant category of services specified in sub-section (5). Explanation.—For the purposes of this section,-- (a) “assessing officer” means an officer of a State Government or Board of licensee, as the case may be, designated as such by the State Government; (b) “unauthorised use of electricity” means the usage of electricity— (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised.” 3 5. It may be necessary to state that vide an amendment in the Electricity Act, the proviso to Sub-section (4) of the Electricity Act, which reads as under, has been deleted with effect from 15.6.2007: “Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.” 6. It is an admitted fact that on 1.5.2006, said proviso stood in the statute Book and therefore, the counsel for the petitioner pleads that since the petitioner had already deposited the assessed amount i.e. Rs. 2,468/-, it was not open to the Authorities to subject the petitioner any further liability or any action by any. 7. Since the petitioner had already deposited the assessed amount of Rs. 2,468/-, therefore, this Court is in agreement with the submission of the present petitioner that the criminal proceedings initiated against the petitioner pertaining to the electricity pilferage is nothing but an abuse of the process of the Court. Therefore, the summoning order dated 27.6.2006 and the proceedings in Criminal Case No. 904 of 2006 State Vs. Dunger Singh Bisht pending in the Court of Judicial Magistrate, Hadlwani, Nainital are liable to be set aside and are hereby set aside. It is, however, clarified that the Electricity Department is free to take from the petitioner any of its dues, which the petitioner is liable to give under the Electricity Act. 8. The instant C-482 petition is disposed of accordingly. No order as to costs. (Sudhanshu Dhulia, J.) 13.9.2010 Rathour