IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 RSA.No. 732 of 2006 --------------------------------- AS.2/2003 of SUB COURT, HOSDRUG OS.436/2000 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/APPELLANT/PLAINTIFF: K.V. KRISHNAN, AGED 66 YEARS, S/O.V.V.CHOYI, HINDU, AGRICULTURIST, RESIDING AT KOOTTAPPUNNA, P.O. MAILATTY, PANAYAL VILLAGE, HOSDURG TALUK. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. THE ASST.EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, CHERKALA, CHENGALA VILLAGE, KASARAGOD TALUK. 2. THE ASST.ENGINEER, DO. DO. 3. THE SECRETARY, K.S.E.B., VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.C.K.KARUNAKARAN, SC THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.732 of 2006 -------------------------- JUDGMENT Heard. 2. Plaintiff in O.S.No.436/00 on the file of the Munsiff's Court, Hosdrug is the appellant herein. He assails in this Regular Second Appeal, the concurrent verdicts of the courts below, dismissing his suit. 3. The case of the plaintiff, briefly stated, was that on 30.9.2000, he was provided with electricity connection as per Consumer No.12834 for irrigation purposes to irrigate his coconut garden having an extent of two acres comprised in R.S.No.25/3 of Panayal Village; that he was the President of a Committee under which all the construction works relating to drawing of new electric lines in the area was done; that there developed some misunderstanding between himself and the first defendant Assistant Executive Engineer; RSA 732/06 2 that with a view to take vengeance on him, the defendants implicated him in an offence of theft of electricity by providing power supply unauthorisedly for the construction purpose of his adjacent two storied building using PVC wire and that notice was issued to him to show cause why his power connection for agricultural purposes should not be disconnected and also to pay an amount of Rs.23,625/- for such unauthorised consumption of power for a different purpose. It is the case of the appellant/plaintiff that there was no occasion for him to commit such theft of electricity by unauthorisedly providing connection to the building under construction from the power connection provided for agricultural purposes and that the mahazar prepared by the defendants, who are the officials of the Kerala State Electricity Board, is false. On the above allegations appellant/plaintiff prayed for a decree of permanent prohibitory injunction restraining the respondents/defendants RSA 732/06 3 from disconnecting the electric connection to Consumer No.12834. There is no statement made in the plaint as to whether he has paid the penalty amount of Rs.23,625/- admitting his liability for theft of electricity. However, no injunction is sought against realisation of the amount demanded to be remitted. 4. Defendants resisted the suit contending that the plaintiff has unauthorisedly drawn electric line to his building under construction and has committed theft of electricity, which was intended to be used only for agricultural purposes and that therefore, the plaintiff is not entitled to a decree of permanent prohibitory injunction as prayed for. 5. The trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PW1 and DW1 and documentary evidence Exhibits A1 to A9, B1 to B3 and Exhibit C1, dismissed the suit with RSA 732/06 4 costs. The appeal filed as A.S.No.2/03 before the Sub Court, Hosdrug was also dismissed with costs confirming the verdict of the trial court. Hence this Regular Second Appeal. 6. It is vehemently contended before me by the learned counsel for the appellant that there is no presumption of theft of electricity by a consumer; that when the case of theft of electricity is alleged, it is for the defendants, who are the officials of the Electricity Board, to establish the genuineness thereof and their preparing a mahazar by itself is not sufficient to cast the burden to pay the penalty on the appellant/ plaintiff and to have the power supply disconnected in the event of non payment of the arbitrary penalty imposed. It is his further contention that when animosity is alleged for the officer of the KSEB towards the appellant/plaintiff, the burden is heavy on the respondents/defendants to clear that cloud and establish that there was actual theft of RSA 732/06 5 electricity effected by the plaintiff and that in the instant case, the only evidence that is furnished by the defendants is by examining DW1, an Assistant executive Engineer, who is not a signatory to Exhibit B2 mahazar prepared by the Sub Engineer, Electrical Major Section, Cherkala. 7. When Officers of the KSEB, entitled to take appropriate action in such matters, have prepared a mahazar describing the manner of commission of offence, they are bound to prove the same by examining the author and the witnesses thereto and when the plaintiff seeks remedy against the proposed action based on the detection of the offence, in relation to which mahazar is so prepared, namely Exhibit B2, is not an argument that can be upheld. The mahazar is one prepared in the course of discharge of official duties by the Officers of the KSEB, who are statutorily empowered in that behalf. If at all the plaintiff had a case that the said mahazar was prepared falsely without RSA 732/06 6 detection of any offence having been committed, he could have established that by examining the Sub Engineer, who prepared Exhibit B2 mahazar as also the attestors thereto. Non examination of material witnesses is fatal in such circumstances and it does not lie in the mouth of the plaintiff to contend that the material witnesses are not cited and examined as they are likely to be hostile to him. Even as regards existence of any animosity between the Sub Engineer and the plaintiff as was attempted to be argued, there is absolutely no evidence in the case apart from the interested testimony of the plaintiff as PW1. The plaintiff, who asked for relief on the allegation of existence of a certain set of facts, which paved way for an action against him by the officials maliciously, shall not, naturally, be entitled to any relief unless those are established on evidence. For absolute lack of evidence from the part of the appellant/plaintiff to establish his case alleged, RSA 732/06 7 the courts below could not grant any relief against the respondents/defendants, who were apparently discharging their official duties as part of their statutory obligation. I am unable to find any question of law and much less, any substantial question of law arising for consideration by this Court in this Regular Second Appeal, especially when, prima facie, on facts also, I do not find any reason to interfere with the concurrent verdicts of the courts below. This Regular Second Appeal, in the circumstances, is dismissed. 13th February, 2009 (K.P.Balachandran, Judge) tkv