IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 17414 of 2009(V) -------------------------- PETITIONER(S): ------------------ 1. M/S.P.F.ICE & COLD STORAGE,PLOT NO.23, COCHIN FISHERIES HARBOUR,THOPPUMPADY, KOCHI-5,REP.BY PARTNER JACOB FRANCIS. 2. M/S.FREDDY ICE INDUSTRIES,PLOT NO.20, COCHIN FISHERIES HARBOUR,THOPPUMPADY, KOCHI-5,REP.BY PARTNER JACOB FRANCIS. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.K.NIJOY RESPONDENT(S): ------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN,PATTOM,THIRUVANANTHAPURAM, REP.BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION,MATTANCHERRY. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION,KSEB, THOPPUMPADY,ERNAKULAM. 4. THE ASSISTANT ENGINEER-INCHARGE, ELECTRICAL MAJOR SECTION,KSEB, THOPPUMPADY,ERNAKULAM. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 17414 OF 2009 (V) ===================== Dated this the 6th day of July, 2009 J U D G M E N T Petitioners are partnership firms, which have established two ice plants in the small scale sector and were availing of power supply with consumer Nos.13952 and 9956 respectively. 2. The 4th respondent inspected the premises of the petitioners on 4/4/2000 and Exts.P1 and P2 are the mahazars prepared. A reading of these mahazars show that in so far as the first petitioner is concerned, the lead wire was found disconnected. In so far as the second petitioner is concerned, the 4th respondent found a gap in the corner glass of the energy metre. On this basis, theft of energy was alleged and supply to their premises was disconnected. 3. By Exts.P3 and P4, petitioners filed appeals before the 3rd respondent and meanwhile, they also filed OP 11597/2000 for restoration of power supply. Accordingly, orders were passed directed restoration of supply on payment of Rs.50,000/- each. Subsequently, they were issued Exts.P5 and P6 demand notices demanding Rs.5,90,412/- and Rs.4,74,731/- respectively. They WPC 17414/09 :2 : say that again appeals were filed to the 3rd respondent, copies of which are Exts.P7 and P8. While so, against both the petitioners, criminal cases were lodged and Exts.P9 and P10 are the FIRs lodged against both of them. It would appear that on investigation, police filed refer reports, copies of which are Exts.P11 and P12. 4. At that stage, by Ext.P17, OP No.11597/2000, which was earlier filed by the petitioners, was disposed of directing disposal of Exts.P3 and P4 appeals taking into account the refer reports referred to above also. It is stated that at about that stage, protest complaints were filed by the 4th respondent, copies of which are Exts.P18 and P19 and cognizance was taken and were numbered by the Criminal Court as CC 513/03 and 514/03. Trial was held and by Ext.P20, the first petitioner was acquitted in CC 513/03 and by Ext.P21, the second petitioner was convicted in CC 514/03. It is stated that the second petitioner has filed an appeal as Criminal Appeal No.909/08, which is pending consideration of the District Court, Ernakulam. 5. Meanwhile, the 3rd respondent issued Exts.P22 and P23 invoices, scheduling hearing of Exts.P3 and P4 appeals, and on its WPC 17414/09 :3 : receipt, petitioners have filed Exts.P24 and P25 written statements as well. They were accordingly heard and finally the appeals were rejected by Exts.P30 and P31. Following the above orders, revised bills were also issued as per Exts.P32 and P33. It is in these circumstances, the writ petition is filed. 6. The main contention raised by the counsel for the petitioners is that the first petitioner was acquitted by Ext.P20 judgment of the criminal court in CC 513/03. A reading of Ext.P20 judgment rendered by the Criminal Court show that it has been held that on going through the evidence, two probabilities are possible as regards the manipulation in Y and B phases of the metre. The Magistrate Court accordingly held that it could either be caused due to the omission of the Board officials at the time of electric connection or it was caused by the accused in connivance and consent with the officials of the Board. Proceeding further, it was held that when two probabilities are possible, then the probability in favour of the accused should be appreciated. It is on that basis, the first petitioner was acquitted. 7. Having considered the submissions made, in my view, even if the petitioners are taken to have been acquitted as WPC 17414/09 :4 : contended in this writ petition, that by itself will not exonerate the petitioners from the liability to pay the dues, which are found to be payable by the Board as per Exts.P32 and P33. Even otherwise, the judgment shows that the court was extending benefit of doubt and the acquittal cannot be said to be on merits and free from all blames. If that be so, the judgment of the court by itself will not come to the rescue of the petitioners to avoid the liability. 8. Be that as it may, it is seen that Exts.P3 and P4 appeals were filed by the petitioners as early as on 5/4/2000. There was no order passed by any court or other superior authority restraining the respondents from passing orders on the appeals. Therefore, the delay in the disposal of the appeals is attributable only to the respondents and the petitioners cannot be penalised for that delay in as much as Exts.P30 and P31 orders rejecting the appeals were rendered only on 6/6/2009. 9. A reading of Exts.P32 and P33, the revised invoices and the calculation statements attached to the said invoices show that surcharge has been levied on the petitioners for the period from April 2000 to June, 2009. This in my view, is totally WPC 17414/09 :5 : unjustified and that the petitioners could not have been penalised for the delay which was caused only for reasons attributable to the officers of the Board. To the extent surcharge which has been levied for the period when the appeal was kept pending by the officers of the Board, Exts.P32 and P33 needs to be revised. Accordingly, the writ petition will stand disposed of quashing the surcharge levied on the petitioners for the period April 2000 to June 2009 and directing that it will be open to the respondents to issue revised invoices to the petitioners demanding payment. ANTONY DOMINIC, JUDGE Rp