IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 11810 of 2005(E) -------------------------- PETITIONER(S): ------------------ GEORGE THOMAS, HOTEL NITHYA, MEDICAL COLLEGE JUNCTION, GANDHI NAGAR, KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, GANDHI NAGAR, KOTTAYAM. 3. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, PALLOM, KOTTAYAM. 4. SUB ENGINEER IN CHARGE, ELECTRICAL SECTION, GANDHI NAGAR. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.11810/2005 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE BILL DT 30.8.95. EXT.P2: TRUE COPY OF THE JUDGMENT DT 10.1.2005. EXT.P3: TRUE COPY OF THE JUDGMENT DT 31.1.2005 IN CRL.A.227/2001. EXT.P4: TRUE COPY OF THE NOTICE DT 22.3.2005 ISSUED BY THE 4TH RESPONDENT. EXT.P5: TRUE COPY OF THE LETTER DT 5.4.2005 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE BILL FOR THE MONTH OF JULY. EXT.P6(a): TRUE COPY OF THE BILL FOR THE MONTH OF JUNE. EXT.P6(b): TRUE COPY OF THE BILL FOR THE MONTH OF FEBRUARY. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 11810 OF 2005 (E) ===================== Dated this the 7th day of July, 2009 J U D G M E N T Petitioner is the owner of a hotel availing of supply of electrical energy with Consumer No.4373. On 30/8/95, an inspection was conducted by the Anti Power Theft Squad in their premises. On the same day, Ext.P1 bill was issued demanding an amount of Rs.1,34,189/- and it is stated that the supply was also disconnected. A criminal case was also registered against the petitioner for violation of Section 39 of the Indian Electricity Act, 1910. On being served of Ext.P1, petitioner approached this court and filed OP No.14508/95. In that original petition, an interim order was passed by this Court directing restoration of supply, on the petitioner remitting an amount of Rs.30,000/-. The amount was remitted and supply was also restored. 2. Meantime, criminal case registered as C.C 269/95 on the file of the Judicial First Class Magistrate Court, Ettumanoor ended up in the conviction of the petitioner. Against his conviction and sentence, petitioner filed Crl. Appeal No.227/01. During the pendency of the criminal appeal, OP 14508/95 filed by WPC 11810/05 :2 : the petitioner was heard by this Court on 10th of January, 2005 and in view of the interim order passed and the restoration of power supply effected, by Ext.P2 judgment, the original petition was closed as infructuous. 3. Subsequently, by Ext.P3 judgment rendered on 31/1/2005, the Sessions Court acquitted the petitioner giving him the benefit of doubt. Still later, on 22/3/2005, the respondents issued Ext.P4 notice calling upon the petitioner to remit the balance of the amount demanded in Ext.P1. Thereupon, the petitioner replied by Ext.P5 contending that since he has been acquitted in the criminal case, he is not liable to pay the amount demanded. When the respondents insisted on payment of the amount due, this writ petition is filed. 4. The contention raised by the petitioner is that in view of his acquittal by the criminal court, he cannot be made liable for the penal bill issued under Clause 42(d) of the Conditions of Supply of Electrical Energy. 5. Counsel for the Board points out that the acquittal of the petitioner was not on merits, but was one giving him benefit of doubt. It is stated that since the acquittal was as above, they WPC 11810/05 :3 : are entitled to realise the penalty amount from the petitioner in terms of Clause 42(d) of the Conditions of Supply of Electrical Energy. Counsel also placed reliance on the Apex Court judgment in J.M.D.Alloys Ltd. v. Bihar State Electricity Board and others {(2003) 5 SCC 226}. 6. The only question to be decided is whether in the light of his acquittal by Ext.P3 judgment, the Board was justified in demanding payment of the penal bill issued by them. As is seen from Ext.P3 judgment rendered by the Sessions Court, the acquittal was extending the petitioner benefit of doubt and was not an honorable acquittal free from all blames. If that be so, there has not been any finding that the petitioner is innocent of allegation of the theft of energy, and in my view, the Board is entitled to demand the amount due from the petitioner in terms of Clause 42(d) of the Conditions of Supply of Electrical Energy. True, in the case relied on by the counsel for the Board, the Apex Court held that even if a person is exonerated by a criminal court following a refer report submitted by the police on completion of the investigation of the crime, that will not exonerate the consumer from the liability to pay the amount due under the WPC 11810/05 :4 : Regulations. In this case, even though the petitioner has been acquitted, having regard to the fact that the acquittal of the petitioner was giving him the benefit of doubt, I do not find any illegality in Exts.P1 or P4. Though the Board is entitled to demand its dues, before final order is passed, petitioner is entitled to be put on notice and heard. Therefore, the respondents are directed to issue notice to the petitioner giving him an opportunity to file his objections to Exts.P1 and P4. Once objections are filed, after affording him an opportunity to be heard, the 2nd respondent shall take a final decision in the matter. Once a decision is taken and communicated, dues shall be paid, and if payment is not made, recovery can be effected. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp