IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 WP(C).No. 18736 of 2007(E) -------------------------------------- PETITIONER: ------------------- LALU.B, S/O BABY, AGED 42 YEARS, THAMARASSERRY HOUSE, KAVANAD P.O., KOLLAM. BY ADV. SRI.JOSE J.MATHEIKEL. RESPONDENTS: ------------------------ 1. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K S E B, CHAVARA P.O., KOLLAM. 2. THE SUB INSPECTOR OF POLICE, POLICE STATION CHAVARA, KOLLAM. R1 BY ADVS. SRI.P.P.THAJUDEEN, SC, K.S.E.B. R2 BY GOVT. PLEADER SRI. P.R. JAYAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18736/2007-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MAHAZER. EXT.P.2: COPY OF THE COMMUNICATION. EXT.P.3: COPY OF THE RECEIPT SLIP. EXT.P.4: COPY OF THE FIR IN RESPECT OF CRIME NO.320/07. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.S.GOPINATHAN, J. = = = = = = = = = = = = = WP(C).No.18736 of 2007-E. = = = = = = = = = = = = = Dated this 21st December, 2010. J U D G M E N T The writ petitioner is running an ice plant at Chavara. On an inspection conducted on 16.5.2007 it was noticed that there was unauthorised use of electricity. Ext.P1 is the site mahazar. Following Ext.P1, by Ext.P2, the first respondent made provisional assessment whereby the writ petitioner was directed to pay Rs.1,17,806/-. According to the writ petitioner, that amount was readily paid as evidenced by Ext.P3 on 21.5.2007. The writ petitioner would contend that despite the payment evidenced by Ext.P3, the 2nd respondent had been proceeding with further action and a complaint was lodged before the police and that in pursuance to that complaint, a case as Crime No.320/2007 was registered. Ext.P4 was produced as if it is the First Information Report. But it didn't appear to be the First Information Report. It didn't contain all the particulars in a WP(C).No.18736 of 2007-E. 2 First Information Report. Sometimes, it may be a part of the First Information Report, not in full. It cannot be accepted as the First Information Report. However, the writ petitioner would contend that in view of Section 126(4) of the Electricity Act, no further action can be initiated against the writ petitioner after receipt of the amount as per Ext.P2 provisional assessment. It was also submitted that by virtue of Sec.151 of the Electricity Act, the offence alleged is non cognizable and that in the light of Sec.151 of the Electricity Act, the case registered by the 2nd respondent is illegal and liable to be quashed. It is with that pleadings this writ petition was filed with the following main prayers: (i) to call for the records relating to criminal prosecution steps in Crime No.320/2007 of Chavara Police station and to set aside the same as against the petitioner. (ii) to declare that as per the proviso to Section 126(4) of the Electricity Act, 2003 the petitioner cannot be subjected to any further liability or any action by any authority whatsoever on the basis of Ext.P1 WP(C).No.18736 of 2007-E. 3 mahazar in view of the deposit of assessed amount by him. 2. The first respondent filed a statement inter alia contending that the compounding of the offence as per the Electricity Act would no way hinder the criminal prosecution and prayed for dismissal of the writ petition. 3. Having heard the learned counsel for the writ petitioner and the learned Government Pleader, I find that in the event a case is registered by the first respondent as now alleged and it is hit by Section 126(4) and 151 of the Electricity Act, it is for the second respondent to look into the contentions now advanced. In the above circumstance this writ petition is disposed directing the second respondent to consider whether the prosecution would be hit by Sec.126(4) and 151 of the Electricity Act before filing the final report. The second respondent is directed to complete the investigation and file the report within one month. The writ petitioner shall not be arrested without an order of arrest warrant from the WP(C).No.18736 of 2007-E. 4 court concerned in the event a final report is filed against the writ petitioner. The writ petitioner is at liberty to appraise the legal bar, if any, before the 2nd respondent and to assail the final report if filed and in case he has got any ground to challenge the same. P.S.GOPINATHAN, (Judge) Kvs/-