IMPORTANT POINT
Action under Section 126 of Electricity Act will not debar electricity company from prosecuting the person committing theft of electricity.

JUDGMENT (ORAL)

C.L. Pangarkar, J.—Rule.

2. Returnable forthwith.

3. Heard finally with consent of parties.

4. Both these applications can be decided together since both the applicants seek to quash the same F.I.R. for which Crime No. 3330/07 is registered against them. Application No. 867/07 is filed by Kiran while Application No. 1599/07 is filed by Vimalabai Madura.

5. A few facts may be stated thus:

One Soloman owned a house. Applicant Kiran is the daughter-in-law while applicant Vimala is the married daughter of Soloman. It appears that Soloman before his death had executed gift deeds in favour of grand sons i.e. son of Kiran and also in favour of Vimala. It also appears that he had executed a Will. Both Kiran and Vimala appear to have instituted civil suits against each other and they are pending. There were in all 4 separate electric meters in the said house. It is alleged that all of them were got transferred in the name of petitioner Kiran but it appears that out of those 4 meters only one is in use and supply through other three meters is disconnected.

6. Due to the several complaints made by petitioner Kiran’s husband the meter in question was checked by the staff of the Electricity Distribution Company and it was found that it was tampered with and meter was running slow. Due to this the electric supply company lodged the F.I.R. with the police and offence under Sections 135 and 138 of Electricity Act has been registered against both the applicants. It is this F.I.R. which they seek to quash.

7. I have heard Shri Raghute and Shri Dwivedi learned counsel for the applicants and Shri Deshpande learned counsel for the respondent Electric Supply Company.

8. The main thrust of the argument of both Shri Raghute and Shri Dwivedi is that the F.I.R. could not have been registered against his client. Shri Raghute representing Kiran submits that although the meter stands in the name of his client and she is also taking the supply through it, it is in exclusive custody of Vimala and it is she who has tampered the meter. He submitted that she alone has committed tampering and the theft. Shri Dwivedi on the other hand submitted that Kiran being the owner of the meter she alone can be prosecuted under the Act.

9. Shri Raghute’s main contention was that in view of the provisions contained in Section 126 of the Electricity Act, 2003 (before amendment in 2007) his client cannot be prosecuted. Section 126 of the Act before its amendment reads as follows:

Assessment:

(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom a notice has been served under sub-section (2) shall be entitled to file objections if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him.:

Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.

(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unaut