IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7700 of 2010 M/S Salson Liquors Private Ltd, having its registered office at Binosiva House, near Chandani Market, Fraser Road, P.S. Kotwali, Patna and its Industrial Unit at Khagaul Road, Danapur, P.S. Danapur, District Patna, through its Managing Director Sanjay Kumar, son of Shaligram Prasad, resident of Salempur Ahra, Lane No. 1, kadamkuan, P.S. Kadamkuan, town & Distirct Patna. Versus 1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna, through its Chairman, 2. The General Manager- cum-Chief Engineer, Patna Electric Supply Undertaking(West), Mangles Road, Patna. 3. The Electrical superintending Engineer, Patna Electric Supply Undertaking (West), Mangles Road, Patna. 4. The Electrical Executive Engineer, Danapur Electric Supply Division, PESU(West), Patna. 5. The Electrical Executive Engineer, MRT, Patna Electric Supply Undertaking (West), Patna. 6. The Electrical Executive Engineer, MRT-III Patna Electric Supply Undertaking (West), Patna. 7. The Assistant Electrical Engineer,Supply, Danapur, Patna. ----------- 6 07.07.2011 Heard Mr. Suraj Samdarshi , learned counsel for the petitioner and Mr. Prakash Kumar, learned counsel appearing for the respondent Bihar State Electricity Board and its authorities. The petitioner is an existing company within the meaning of the Companies Act, 2 engaged in the business of bottling of India made foreign liquor and having its industrial Unit at Khagaul at Danapur. On request made by the petitioner, the load was enhanced from 66 HP to 134 K.V.A. It is contended that on 15.04.2010 as the service cable of the petitioner got damaged due to excessive heating a complaint was made to the authorities. On 17.04.2010 a team of officers visited the Unit of the petitioner, downloaded the data from the Meter Reading Instrument (MRI) and found no discrepancy. The cable which was damaged by excessive heating was replaced on 19.04.2010 and a report was prepared. No infirmity was found in the meter or the seals. Surprisingly, on the following day i.e 20.4.2010 a second visit was made by the Assistant Electrical Engineer and when an inspection report was prepared, alleging certain irregularities in the meter. Even while no adversities was found with physical condition of the meter on the preceding day, yet a report of irregular power supply was recorded resulting in institution of an F.I.R under the provisions of Section 135 of the 3 Electricity Act, 2003(hereinafter referred to as the ‘Act’) giving rise to Danapur P.S. Case No. 112 of 2010 and which is subject matter of consideration by the Special Court constituted under Section 153 of the Act. In continuation of the chain of events, the petitioner was served with a Punitive Bill on 22.04.2010 as contained in Annexure-8 and by reason of non-payment of the said bill the electric connection of the petitioner was disconnected. The petitioner having no option was forced to make deposit against the Punitive Bill under protest and evidence whereof can be found at Annexure-9. The deposit of the Punitive Bill was followed by issuance of a provisional assessment order on 30.04.2010 as contained in Annexure C/2 to the counter affidavit of the respondent Board and against which the petitioner filed his objection. The objection filed by the petitioner has since been disposed of vide order passed on 18.05.2010 and which has been brought on record by way of supplementary affidavit to the writ petition filed on 24.06.2011 and marked as Annexure 1 to the supplementary affidavit. 4 Although a number of reliefs were prayed in the writ petition but in view of the march of events, learned counsel for the petitioner submits that as the final assessment order has since been passed by the respondents, he may be permitted to take recourse to the remedy of appeal as provided under Section 127 of the Act. He submits that as Sub-Section 2 of Section 127 requires deposit of only 50% of the assessed amount and admittedly, the petitioner has deposited the entire amount of Punitive Bill hence the respondents may be directed to refund the balance 50 % to the petitioner. It is further submitted that since the statutory period for filing the appeal expired during the pendency of the present proceedings, hence the delay in filing the appeal may be condoned. Mr. Prakash Kumar, learned counsel appearing for the Board on principle has no objection save and except the prayer for refund of 50% of the deposit as advanced on behalf of the petitioner. He submits that any refund of the deposit made by the petitioner in response to the Punitive Bill may be subject to the final outcome of the appellate 5 proceedings as well as Cr. Proceedings which are pending before the Special Court. I have heard learned counsel appearing on behalf of the parties and perused the material on record. Sub-Section (2) of Section 127 of the Act requires the assessee to deposit 50% of the assessed amount. As the petitioner has already deposited the entire amount of Punitive Bill no further amount by way of appeal fee needs to be deposited. The question is whether or not the petitioner would be entitled to any refund at this stage and/or during the pendency of Section 154 proceedings pending before the Special Court as a consequence of the institution of the FIR under Section 135 of the Act. Sub-Section 5 & 6 of Section 154 of the Act provides for determination of civil liability after conclusion of the trial. It does not conceive of any predeposit to a trial and thus there is no reason to delay the refund, if any, to which the petitioner is found entitled in the appellate proceeding, inter alia on grounds of pendency of the criminal proceedings before the Special Court. 6 That being the position this writ petition is disposed of with a liberty to the petitioner to file appeal in terms of Section 127 of the Act. As the final order of assessment under Section 126 (3) has been passed during the pendency of the writ petition, any appeal if filed within 30 days from the date of receipt of the certified copy of this order, shall be construed to be an appeal filed within the prescribed period as envisaged under Section 127 of the Act, and shall be entertained and disposed of in accordance with law after giving due opportunity of hearing to the petitioner. The deposit made by the petitioner in response to the Punitive Bill as contained in Annexure-8 and any refund thereof would be subject to the final outcome of the appellate proceedings which may be concluded expeditiously and preferably within a period of three months from the date of receipt/production of a copy of this order. Prakash ( Jyoti Saran, J.)