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2016 Supreme(Cal) 744
IN THE HIGH COURT OF CALCUTTA
Ishan Chandra Das, J.
West Bengal State Electricity Distribution Company Ltd. – Appellant
Versus
The State of West Bengal & Anr. – Respondents
C.R.A. No. 107 of 2015
Decided On : 02-02-2016
For the Appellant :Sumit Panja and Aniket Mitra, Advocates
For the Respondent:Tapan Dutta Gupta and Kazi Sajjad Alam, Advocates
The Special Court constituted under Section 153 of the Electricity Act, 2003 does not have the jurisdiction to interfere with the assessment and collection of charges for unauthorized use of electricity, which is the domain of the assessing authority under Section 126 and the appellate authority under Section 127 of the Act.
Headnote:
ELECTRICITY ACT, 2003 - SECTION 126, 135, 153 - UNAUTHORIZED USE OF ELECTRICITY - JURISDICTION OF SPECIAL COURT - REFUND OF DEPOSIT - COURT'S DIRECTION TO REFUND DEPOSIT HELD WITHOUT JURISDICTION.
Fact of the Case:
The appellant, W.B.S.E.D.C. Ltd., filed an appeal against the judgment of the Special Court under the Electricity Act, which acquitted the respondent, Adhir Chandra Nandy, from the charge of unauthorized use of electricity under Section 135(1)(e) of the Electricity Act, 2003, and directed the appellant to refund the amount of Rs. 1,50,064/- deposited by the respondent during the pendency of the case.
Finding of the Court:
The court held that the Special Court exceeded its jurisdiction by directing the appellant to refund the amount deposited by the respondent, as the assessing authority under Section 126 of the Act has the power to assess and collect charges for unauthorized use of electricity, and the appellate authority under Section 127 has the jurisdiction to review such assessments.
Issues: 1. Whether the Special Court had the jurisdiction to direct the appellant to refund the amount deposited by the respondent? 2. Whether the acquittal of the respondent from the charge under Section 135(1)(e) of the Act exempted him from paying the assessed amount for unauthorized consumption?
Ratio Decidendi: 1. The court relied on the decision of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) And Anr. v. Sri Seetaram Rice Mill, which held that Sections 126 and 135 of the Electricity Act, 2003 operate in different fields and have no common premise in law. Section 126 deals with unauthorized use of electricity without the intention of theft, while Section 135 deals with theft of electricity with dishonest intention. 2. The court also relied on the decision of the Division Bench of this Court in Basudeb Paine v. W.B.S.E.D.C. Ltd., which held that mere order of acquittal from the charge under Section 135 of the Act shall not exempt the assessee from paying the assessed amount for any consumption, violating the rule of consumption.
Final Decision: The court allowed the appeal in part, setting aside the direction of the Special Court to refund the amount of Rs. 1,50,064/- to the respondent, but upholding the order of acquittal of the respondent from the charge under Section 135(1)(e) of the Act.
Ishan Chandra Das, J.
Heard the learned Counsel for both the parties.
2. The instant criminal appeal has been directed against the judgment and order of acquittal coupled with a direction upon the appellant/complainant to refund the collected money to the tune of Rs.1,50,064/- (paid by the private respondent no. 2 during pendency of the Electricity Case No. 33 of 2011) passed by the learned Judge, Special Court at Arambagh, Hooghly under the Electricity Act, 2003.
3. The backdrop of the case, as it is manifested from the written complaint (Exhibit-2) was that the Station Manager, Gourhati Group Electric Supply, Hooghly, lodged a written complaint before the Inspector-in-Charge of Arambagh Police Station alleging that on 20th November, 2010 at about 1-30 p.m. the defacto-complainant and his companions entered the premises of the respondent on service of entry notice upon him and on inspection it was found that the accused-respondent no. 2 was using electricity from the meter installed by the W.B.S.E.D.C. Ltd. for domestic category connection having Consumer No. A-020401 in the name of Adhir Chandra Nandy (father of the respondent no. 2) for running poultry firm which is for commercial purposes. Accordingly, the defacto-complainant, being an agent of the appellant lodged a written complaint before the Inspector-in-Charge of the concerned Police Station against the present respondent no.2 alleging commission of offence punishable under Section 135(1)(e) of the Act of 2003.
4. The respondent no. 2 being the accused before the learned Judge, Special Court under the Electricity Act was arraigned before him to answer the following charge –
"that you on or about the 20th day of November, 2010 at Baruipara, Gourhati unauthorisedly used electricity from your domestic line to poultry business at your premises and thereby committed an offence punishable under Section 135(1)(e) of the Electricity Act, 2003 and within the cognizance of the court", where learned trial court examined four witnesses for the prosecution and on conclusion of trial found the appellant not guilty of offence punishable under Section 135(1)(e) of the said Act acquitted him and directed the appellant/W.B.S.E.D.C. Ltd. to refund the amount of Rs.1,50,064/- within three months from the date of the order (i.e. 31st January, 2014).
5. Being aggrieved and dissatisfied with such direction of learned court below, the present appeal has been preferred.
6. Now, the point left for decision in this appeal is whether the learned trial court was justified in passing the order of acquittal in favour of the respondent no. 2 and the direction of returning the amount deposited by him as per provisions of Section 126(1) of the Act.
7. Learned Counsel for the appellant, in course of his argument, submitted with reference to the provision of Section 153 of the Electricity Act, 2003 (Act 36 of 2003 hereinafter referred to as 'the Act' for the sake of convenience) that the Special Courts were constituted under this Act for the purposes of providing speedy trial of offences referred to Sections 135 to 140 and Section 150 of the Act and no other purposes.
8. Criticizing the findings and directions given by learned trial court in the impugned judgment, he urged that learned court below exceeded his jurisdiction in directing the authority concerned of the present appellant for refunding the amount deposited by the respondent no. 2 who deposited the same before the W.B.S.E.D.C. Ltd. in terms of direction given by the competent authority as per provision of Section 126 of the Act and the Special Court, formed under the provisions of Section 153 of the Act, does not have any jurisdiction to interfere with.
9. Relying on the decision of the Hon'ble Apex Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) And Anr. v. Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108, he confidently urged that the Hon'ble Apex Court drew a line of demarcation between the
