THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.No.1486 of 2001 Dated: 28-04-2011 Between: M/s. Sunder Steels Limited, rep., by Sri Amruthlal, S.C. 230, Bangalore Highway, Gaganpahad, Ranga Reddy District. ….Appellant And A.P. State Electricity Board rep., by its Secretary, Vidyuth Soudha, Somajiguda, Hyderabad and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.No. 1486 of 2001 Dated: 28-04-2011 JUDGMENT: (per the Hon’ble Sri Justice Goda Raghuram) This appeal is directed by unsuccessful writ petitioner against the order dated 19-07-2001 in W.P.No. 27645 of 1996. The petitioner is a company registered under the Companies Act, engaged in the business of Steel re-rolling. The brief facts leading to the filing of the writ petition may be noticed: Initially the writ petitioner entered into an agreement with the 1st respondent-Board for supply of 1750 KVA of electrical energy with a connected load of 2000 HP under H.T. Category-I. The power supply under this agreement was released on 18.03.1987. On 18.08.1990 the petitioner entered into another agreement with the Board for release of additional load of 2000 KVA with a connected load of 2400 HP. The additional load was released in favour of the petitioner on 10.11.1990. The total contracted demand is thus 3750 KVA and the connected load is 4400 HP. After release of the additional load on 10.11.1990, the petitioner’s premises was inspected on 08.01.1991 and 09.01.1991 by the Assistant Divisional Engineer (Operations). Thereafter on 04.02.1991 the premises was inspected by the Divisional Engineer (Operations) and on 22.02.1991 by the DE/DPE. Eventually in the detailed inspection of the petitioner’s premises on 19.03.1991 by the Superintending Engineer (DPE) on the opening of the meter box it was seen that two meter board seals provided diagonally were in tampered condition; when the meter board along with meter is taken out there was a set of electronic gadgets comprising two transformer coils of 12V D.C. rating and an electronic device connected to ‘R’ and ‘Y’ potential wires between test block and meter terminal block duly cutting ‘R’ and ‘Y’ potential wires. The petitioner’s representative Sri M.L. Daga, the Manager of the factory certified the existence of these gadgets behind the meter board and signed a statement in English in the spot inspection notes dated 19.03.1991. The supply to the petitioner unit was disconnected and on 23.03.1991 a provisional assessment notice issued estimating the value of the alleged energy pilfered at Rs.3,11,00,392-80 ps. and the petitioner was called upon to pay half the amount pending final assessment. Assailing the provisional assessment, the petitioner filed W.P.No. 4191 of 1991 wherein this Court directed restoration of power supply on condition of depositing Rs.14,00,000-00 and a further sum of Rs.26,00,000-00 in two monthly installments, from the date of restoration of the power supply. In an intra Court appeal by the petitioner, the petitioner was directed to pay in all Rs.35,00,000-00/-. This the petitioner did. Eventually, the 3rd respondent issued a show cause notice dated 16-04-1991 demanding Rs.2,77,90,336-67 towards the value of the energy pilfered, assessing the period of pilferage from 11.11.1990 to 19.03.1991. The petitioner submitted its explanation and after the due process, final assessment order dated 16.12.1994 was passed determining the amount payable (on account of the pilferage) as Rs.1,55,80,384-00. The petitioner preferred an appeal. The 2nd respondent appellate authority by the order dated 31.10.1996 reduced the amount to Rs.1,23,34,855-00. Aggrieved thereby, the petitioner filed the writ petition, which was dismissed and hence the appeal. Sri Sita Ram Chaparla, the learned counsel for the petitioner seeks interference on two grounds viz., (a) that there was no pilferage validly ascertained and arrived at, particularly in view of the fact that the prosecution of the petitioner for the same offence in the same transaction in C.C.No. 777 of 2006 was negatived by the learned VIII-Metropolitan Magistrate at Rajendranagar, Ranga Reddy District vide the judgment dated 21.01.2008. In this judgment an analysis of the evidence including evidence relating to the earlier inspections of the petitioner’s premises, the Criminal Court found and held that the prosecution failed to establish the guilt of the petitioner beyond reasonable doubt; (b) that even if the finding of pilferage by the inspecting officials of the Board were to be upheld de hors the judgment in C.C.No. 777 of 2006, the period for which the pilferage is alleged and found by the primary and appellate authority should be confined to the period subsequent to the previous inspection viz., 22-02-1991. Learned counsel for the petitioner contends that the second aspect viz., that the authority should have rationally confined the period of assessment of pilferage to a date subsequent to the previous inspection viz., 22-02-1991 has not been considered by the learned single Judge and therefore interference in this appeal is warranted. Sri N.V. Subba Reddy, the learned counsel representing the respondents has contended that among the several pilferages are detected in industrial and business premises of the several consumers, the petitioner’s transaction of pilferage is unique in character. It is contended that the petitioner employed an technologically savvy method of inserting an electronic device in the meter terminals to impede the recording of energy consumed and since the electronic device and interference with the monitoring of energy consumed was clearly detected and established including by a verification of the spot inspection by the petitioner’s Manager Sri M.L. Daga, the factum of the petitioner having indulged or acquiesced in the indulgence of pilferage cannot be contested on the jejune ground that the petitioner was acquitted of the offence of pilferage charged with in C.C.No. 777 of 2006 on the higher criminal standard of proof “beyond reasonable doubt”. With regard to the second contention as to the period of pilferage that ought to be reckoned, the learned counsel for the respondents would contend that since the earlier inspections on 08-01-1991; 09-01-1991; 04-02-1991 and 22-02-1991 were general and cursory inspections of a large number of consumers and did not involve removal of the meter board to inspect the condition behind the meter board where the electronic gadget was introduced to impede monitoring of the energy consumed those earlier inspections ought not to be considered as indicative of non-pilferage of energy by the petitioner unit, prior to those inspections. It is further contended on behalf of the respondents by Sri N.V. Subba Reddy that the primary and appellate authorities have recorded clear and detailed reasons why the earlier inspections were not countenanced as indicative of absence of pilferage during the periods of those inspections. In summation Sri N.V. Subba Reddy would contend that no interference is called for with the judgment under appeal. Sri Sita Ram Chaparla, learned counsel for petitioner, has invited our attention to contention No.9 urged before the appellate Court, wherein it was elaborately contended that having regard to the earlier inspections, which found no tampering of the meter box seals and insertion of the electronic gadget having been discovered only in the inspection by the S.E. (DPE) on 19.03.1991, inference as to pilferage could be drawn legitimately only for the period subsequent to the previous inspection namely 22.02.1991 by the DE/DPE and up to 19.03.1991 the date of the latest inspection, in which tampering and insertion of electronic gadget was discovered. It is axiomatic that scrutiny of this Court under Article 226 of the Constitution is normatively not an appellate scrutiny, to sit in judgment on the decision of the primary and appellate authorities, who are consecrated the power of determination of facts subject to judicial review on the ground of perversity in the assessment of the evidence or other well established grounds for judicial review. In this intra Court appeal the jurisdiction we exercise is no different. The 2nd respondent appellate authority dealing with the contentions of the petitioner (that in view of the earlier inspections, the last one being on 22.02.1991, the fixing of the liability by the primary authority of pilferage from 11.11.1990 is invalid) observed and recorded the following reasons. (a) that earlier inspections were routine inspections involving the generality of consumers and such inspections do not involve detailed and minute examination either of the seals nor do they involve removal of the meter board to inspect the condition behind it. (b) as regards the certificate of seals (which the petitioner contends was given after earlier inspection) the appellate authority observed that the certificate is only a general certificate covering all the services for which meter readings were taken and not a specific certificate in respect of any individual particular service; since the incriminating evidence of insertion of the electronic gadget and the transformer coils were found behind the meter board and not facially visible to the DEE or any other officer while taking meter reading, unless the meter board seals are cut and the meter board removed and wiring is examined, the earlier inspections would not have revealed the tampering that occurred behind the meter board. Sri Sita Ram Chaparla, learned counsel for the petitioner with all the vehemence at his commend, for which he is renowned, has urged that the reasons recorded by the appellate authority for rejecting the petitioner’s contention that the earlier inspections must be taken as indicative of non-interference with the meter or no introduction of the electronic gadget, qua which the tampering is assumed to have occurred, has not been rationally considered either by the primary or appellate authority. He would contend that if the earlier inspections are held to be casual and perfunctory inspections, the very purpose of inspections involving the examination of the seals including cutting of the seals of the MD indicator for MD reading would be empty rituals devoid of substance. He would further contend that the concern shown by the primary and appellate authorities to the departmental officers is unevenly distributed and similar benefit is not accorded to the consumer/petitioner. In summation Sri Sita Ram Chaparla would contend that since all official acts must be considered as have not been performed with due fidelity to the functional responsibility of public officials, the earlier inspections must be legitimately considered as conclusive proof of there being no pilferage or insertion of a foreign element in the meter until those inspections, contra indicating any pilferage up to the previous inspection namely 22.02.1991. Having carefully considered the rival contentions, we are unable to accept to the contentions of Sri Sita Ram Chaparla. As is apparent from the evidence on record, recorded in the spot inspection dated 19.03.1991, the facts of which are verified by the petitioner’s representative M.S. Daga, the manager of the factory, on 19.03.1991 when the petitioner’s premises was inspected, the meter board seals provided diagonally were in tampered condition. When the meter board along with meter was taken out, it was found that there was a set of electronic gadgets comprising two transformer coils of 12V D.C. rating and an electronic device connected to ‘R’ and ‘Y’ potential wires between the test block and meter terminal block by cutting ‘R’ and ‘Y’ potential wires and the foreign gadget was interposed. There is no material to conclude that a similar extensive inspection, of not merely the cutting of meter box seals and inspection of the meter but also removal of the meter board to verify whether there was insertion of any foreign material or gadget behind the meter board was conducted in the earlier inspections on 08.01.1991, 09.01.1991, 04.02.1991 or even on 22.02.1991. The primary and appellate authorities who are not only quasi judicial authorities but officers conversant with the administrative practices of inspection, have concluded on the basis of material available that the earlier inspections were generic inspections of the consumers in general and that only the inspection on 19.03.1991 by the Superintending Engineer (Operations) in charge of the department of pilferage of energy, was a detailed and specific examination of the petitioner’s unit including by removal of the meter board and inspection of the condition behind it which revealed the electronic gadget introduced for enabling the pilferage of energy. On the basis of this material and the generality of the material and the assumptions legitimately drawn from the cursory nature of the earlier inspections, the primary and appellate authorities came to the conclusions within the plenitude of their fact determination jurisdiction and the discretion conferred on them that pilferage could be inferred to have occurred from 11.11.1990, the date subsequent to the date on which additional load was released to the petitioner, up to the date of inspection i.e. 19.03.1991. As the principle is well established, judicial review is normatively concerned with the decision making process rather than the decision itself. The primary and appellate authorities have recorded clear and cogent reasons for inferring pilferage of energy for a period even anterior to the previous inspection dated 22.02.1991. We discern no perversity in the conclusions arrived at by the primary and appellate authorities or in the appreciation of evidence, warranting interference in judicial review. Regarding the contention of the petitioner that in view of its acquittal in C.C.No.777 of 2006, the enquiry into and finding of pilferage is unsustainable, we hold that this contention does not commend acceptance by this Court. The petitioner in the above C.C. was arraigned for offences under Sections 39 and 44 of Indian Electricity Act, 1910 and Sections 120-B, 379 IPC along with the directors of the appellant company and the manager and the electrician of the company were arraigned as accused Nos.2 to 5 therein. The case against A.4 and A.5 was split up and numbered separately as C.C.No.952 of 2007. A.1 to A.3 were alone proceeded against in C.C.No.777 of 2006. Applying the standards relevant to recording a finding of guilt in criminal law, namely the standard of proof beyond reasonable doubt and in the absence of any evidence bringing home the charge of pilferage of energy by the petitioner or A.2 and A.3 directly, the criminal Court recorded acquittal. It is axiomatic that an acquittal on a criminal charge does not automatically invite immunity from proceeding departmental particularly since the trajectory of sanctions is distinct. While in the former deprivation of liberty is the sanction of Law, the sanction in the present case is fastening of pecuniary liability, for which the civil standard of preponderance of probability is appropriate. Since the proceeding against the petitioner for pilferage of energy for the purpose of imposing the civil liability of extracting penalties and charges for the energy pilfered is legitimate notwithstanding the petitioner’s acquittal in C.C.No.777 of 2006 and since the pilferage of energy is established in the final assessment proceedings on the basis of reliable and credible evidence, we find no reason to interfere with the finding of the primary authority as affirmed by the appellate authority and reaffirmed by the learned Single Judge; that the petitioner has indeed indulged in pilferage of energy. On the aforesaid analysis, no case is made out for interference. There are no merits and the appeal is accordingly dismissed. No costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD Dated: 28-04-2011 Ksp/Pvks*