IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE DR JUSTICE G.YETHIRAJULU WRIT PETITION NO : 4665 of 2002 Between: P.Laxmi Reddy, S/o. Pulla Reddy, R/o. Annasastrulla Palli Village, Duvvur Mandal, Cuddapah District. ..... PETITIONER AND 1 The A.P. Transco, Rep. by its Managing Director, Vidyut Soudha, Kairtabad, Hyderabad. 2 The Chief Engineer, Southern Power Distribution Company, A.P. Transco, Tirupati. 3 The Superintending Engineer, Assessment Circle, A.P. Transco, Cuddapah. 4 The Assistant Divisional Engineer, D.P.E., A.P. Transco, Cuddapah. 5 The Assistant Divisional Engineer, A.P. Transco, Mydukur, Cuddapah District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus directing the respondents to refund Rs.1,59,655-90 Ps. which was deposited as per the direction of this Hon'ble Court in W.P.No.7019/97 holding that the Order of Assessment made by the 3rd Respondent in Proceedings No. SE/A/GOP/FAO/D.MBK/FDR/F.41/96-87/D/36/2000 dt. 24-4-2000 and as confirmed in Appeal No.A1/2000 by 2nd Respondent dt. 15-5-2000 as arbitrary, illegal, and is in violation of principles of natural justice and pass Counsel for the Petitioner:MR.M.N.NARASIMHA REDDY Counsel for the Respondent No.: MR.V.AJAY KUMAR (SC FOR APTRANSCO) The Court made the following : HON’BLE DR. JUSTICE G. YETHIRAJULU W.P.No. 4665 of 2002 ORDER: This writ petition is filed by the petitioner seeking to declare the assessment order passed by the second respondent, dated 15-05-2000 as illegal and arbitrary and also to direct the refund of Rs.1,59,655-90 ps, being the amount paid by him towards the charges and pilferage. 2. The petitioner is running a rice mill. The fourth respondent inspected the mill on 01-03-1997 and observed pilferage of energy. The supply was disconnected on the same day and a provisional assessment for Rs.6,37,823-50 ps was assessed. On 24-03-1997, the petitioner submitted his explanation to the third respondent denying the allegations of pilferage. The third respondent conducted an enquiry and confirmed that the consumer had committed pilferage in use of energy and held that the consumer is liable to compensate the loss sustained by the A.P. Transco with regard to the quantum of assessment. The third respondent arrived that the pilfered energy would be 6081 plus 12,311 units and determined the cost at Rs.1,50,326/-. Being aggrieved by the same, the petitioner preferred an Appeal to the second respondent in April, 2000 and it was dismissed on 15-05-2000. 3. The petitioner contended that his service was inspected by the fourth respondent on 01-03-1997 and alleged that he had pilfered the energy and committed theft. He further contended that the meter was being inspected and readings were noted by the departmental people and they never reported that there was pilferage of energy, therefore, the period for the purpose of arriving at the amount must be taken from 01-03- 1997, but not from 08-03-1996, the date on which the service was changed and another meter was fixed. 4. The respondents contended that the staff, who visits the meter to note down the reading of the meter, has nothing to do with the inspection of the meter and it is for the vigilance wing to find out whether there is any pilferage of energy or not, therefore, the concerned authority rightly took 08-03-1996 as the date from which the value of the pilfered energy has to be worked out. 5. In pursuance of the calculation made by the concerned authorities, the pilfered energy was worked out and estimated at 6,37,823- 50 ps. The said amount was revised by the Superintending Engineer by taking into consideration the period for which the average supply per day was at 2.75 hours and the calculation was made accordingly and reduced the amount to Rs.1,50,326/-. 6. The learned counsel for the petitioner submitted that the service of the petitioner was inspected in his absence and as there were no mediators at the time of inspection, there is every likelihood of the petitioner being falsely implicated. But, the report of the concerned officer is very clear as to what was found by him and other reports obtained by the authorities indicate that there was pilferage of energy, therefore, I do not find any force in the contention of the learned counsel for the petitioner and the contentions cannot be accepted that there was no pilferage of energy and that the petitioner was falsely implicated in the case. 7. As per Condition No.39.1 of the Revised Terms and Conditions of Supply of Electricity, the malpractice includes any violation of the terms and conditions of the supply framed under Section 49 of the Electricity (Supply) Act, 1948 including pilferage of energy, therefore, the respondents were right in assessing the amount towards pilferage charges. 8. The other contention of the petitioner is that the respondents simultaneously filed a criminal case against him for the theft of energy. Though he was convicted by the trial Court in C.C.No.74 of 1997, he was acquitted by the Appellate Court in Crl.A.No.63 of 1999 and as he was acquitted of the criminal charge, the assessment order passed by the authorities cannot stand, therefore, it is liable to be set aside. 9. The factum of pilferage of energy was established in the criminal case and the petitioner was accordingly convicted. But the Appellate Court observed that the accused cannot be charged for the offence under Section 44 of the Indian Electricity Act and accordingly, acquitted him without interfering with the finding of fact by the trial Court. Since there is a clear finding of fact by the Criminal Court that there was pilferage of energy and as the departmental authorities also held that there was pilferage of energy, I do not find any grounds to set aside the order passed by the second respondent. 10. So far as the cost of the energy is concerned, it is not for the writ Court to adjudicate the same. I do not find any merits in the writ petition. 11. Hence, the Writ Petition is dismissed. No order as to costs. ___________________ Dr. G. YETHIRAJULU, J Date: -03-2008 YCR ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The A.P. Transco, Rep. by its Managing Director, Vidyut Soudha, Kairtabad, Hyderabad. 2 The Chief Engineer, Southern Power Distribution Company, A.P. Transco, Tirupati. 3 The Superintending Engineer, Assessment Circle, A.P. Transco, Cuddapah. 4 The Assistant Divisional Engineer, D.P.E., A.P. Transco, Cuddapah. 5 The Assistant Divisional Engineer, A.P. Transco, Mydukur, Cuddapah District. 6. 2CCs to 7. 2CD copies Form-NIC-OGS/WP{KRD}