1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Cril.Revn.Appl.No.214 of 2008 The Mah.State Electricity DistributionCo.Ltd.Akola through the Dy.Exe.Eng. ..vs.. Ramniwas Madanlal Agrawal and anr. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : C.L.PANGARKAR, J. DATED : 22nd June,, 2010. Heard Mr.A.L.Deshpande, Advocate for the applicant and Mr.J.B.Kasat, learned counsel for the respondents. This criminal revision application is preferred against the order passed by the Special Judge on an application for discharge filed by the accused. It is alleged that the accused/respondent committed a theft of electricity. It was found that electricity worth of Rs.6,06,242/- was consumed by the accused/ respondent. The amount due was assessed. The accused, however, did not deposit the same with the applicant within time. The applicant, therefore, lodged report with the police and an offence was registered and the charge-sheet has been filed against the accused. In 2 the said proceedings, the accused moved an application for discharge and the learned Special Judge relying upon the provisions contained in sub section 4 and 5 of Section 126 of the Indian Electricity Act proceeded to discharge the accused. Hence, this revision. The learned counsel for the respondent mainly urged two grounds before me. One; that since the amount as assessed by the applicant has been deposited with the applicant, no action could lie against the respondent in view of the proviso to Sub section 4 of Section 126 of the Indian Electricity Act, 2003 and the other ground that is urged by the learned counsel is that the assessment that is made by the Assessing Officer itself is not correct and in accordance with the provisions contained in Section 126 of the Indian Electricity Act. On the other hand, learned counsel for the applicant contends before me that Section Section 126(4) of the Act has been already interpreted by this court in a decision reported in 2007 ALL MR (Cri.) 2717 (Mrs.Kiran Dilip Wilfered ..vs.. Police Inspector, Electricity Distributioin Co.Ltd. and anr. He submits that the present case is covered on all fours by the said decision and the order passed by the Special Judge, therefore, ought to be set aside. The learned counsel for the applicant also contends before me that the submission of the learned counsel for the respondent that the assessment made is not correct cannot be raised 3 by the respondent in this petition. He submits that that could have been done by the respondent by filing an appeal against the order of assessment that is passed by the applicant. I now turn to deal with the first leg of argument. Shri Kasat, learned counsel for the respondent, contended that if proviso to Section 126(4) is read, it would be clear that the said proviso speaks of no action and no further liability if amount claimed is deposited. According to him, the proviso says that the applicant is precluded from taking any action and is also precluded from raising any further liability against the respondent. He submits that since the entire amount has been deposited, no further liability could be fastened on the respondent nor any further action can be taken against the respondent which includes the criminal prosecution. The submission cannot be accepted. Section 126(4) of the Act has been interpreted by this court in the above said decision and the court has made the following observations. “It is apparent from Annexure 8 in Criminal Application No.867/2007 that assessment was made and the petitioner was held liable to pay Rs.21,940/-. He submitted that this amount is already paid and therefore by virtue of proviso to Sub-Section 4 of Section 126 no action whatsoever can be taken against his client. I find myself unable to agree to the submission. What the 4 proviso to sub-section 4 contemplates is that assessment is made shall be final and there would be no further liability, than what is determined under the assessment. This assessment therefore only determines the quantity of energy consumed and the liability there for. It does not say that the consumer shall be exonerated of criminal liability after the assessment. Liability as determined shall be final and shall in no case be increased beyond that assessment. Section 126 does not speak of compounding on the basis of assessment. Therefore, in no case it could be said that Section 126 is in respect of compounding once assessment is made. Inspite of assessment therefore the prosecution can be lodged against the persons who commits theft or commits an offence under Section 135 and 138. There is a separate section in the Indian Electricity Act, 2003 which deals with compounding of offence and that is Section 152. Section 152 does permit compounding of offences. Therefore, when the legislature thought it fit that there should be separate section for compounding it means that action under section 126 will not debar the electricity company from prosecuting the persons committing the theft.” What was found by the court was that since Legislature has made a separate provision for compounding offences, it is clear that Section 126 does 5 not speak of compounding of offences. Section 126 speaks of only restriction put on the electricity Board to make any further demand and to take any further action in pursuance to that demand. It does not speak of compounding of any offence nor does it speak of exoneration from criminal liability. In view of this decision of this court, it is clear that even if the amount is deposited by the consumer with the electricity Board that does not exonerate him of criminal liability ipso facto. The discretion is left with the electricity board as to whether it should or should not prosecute the consumer and it has an option of compounding the offence under Section 152 of the Indian Electricity Act, 2003. Shri Deshpande, learned counsel for the applicant, contended before me that the respondent had not deposited the entire amount that was assessed and therefore, there is no question of agitating that before this court by the respondent. According to him, the said dispute should have been raised by filing appeal before the appropriate authority and that having not been done, the respondent is precluded from contesting the assessment made by the applicant. I find force in the argument of the learned counsel for the applicant. The respondent's counsel relied upon the decision of this court reported in 2006(6) 479 (Reliance Energy Ltd. and anr. ..vs.. Chief Engineer (Electrical). The 6 decision referred to above has been rendered by the Division Bench of this court wherein it is held that the power of the Assessing Office is limited to detection of unauthorised use and to pass an order of recovery for the period of three months or six months as the case may be preceding the inspection and detection of unauthorised use. This proposition cannot at all be disputed. The question, however, is whether if wrong assessment is made, the same can be agitated before this court by the respondent. To my mind, that cannot be agitated. That has to be agitated by filing an appropriate proceedings before the appropriate authority under the Act. As said earlier, that having not been done, the same question cannot be raised before this court. In the application filed by the accused/respondent for discharge, it is mentioned by the accused that a sum of Rs.6,06,242/- was assessed by the applicant but the respondent has deposited a sum of Rs. 3,00,000/- only. Thus, the amount as was assessed was not at all deposited. There was no challenge to that assessment. Since that amount is not deposited with the applicant, the respondent has no right to avail benefit of any of the provisions as contained in Section 126 of the Indian Electricity Act. In the circumstances, the order passed by the learned Special Judge needs to be quashed and set aside since it suffers from illegality. The petition is allowed. The order passed by the Special Judge is 7 quashed and set aside. The respondent/accused to appear before the Special Judge. JUDGE. chute