Gujarat High Court
Executive Engineer, G.E.B. (Now ... vs Janta Ice Factory,Proprietor ... on 3 December, 2025
NEUTRAL CITATION
C/FA/1672/1996 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1672 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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EXECUTIVE ENGINEER, G.E.B. (NOW PASHCHIM GUJARAT VIJ
COMPANY LTD) & ORS.
Versus
JANTA ICE FACTORY,PROPRIETOR NILESHKUMAR
HARIHARPRASAD
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2,3
DHWANI P LAKHANI(8222) for the Defendant(s) No. 1
MILAN R MARUTI(7338) for the Defendant(s) No. 1
MR PM LAKHANI(1326) for the Defendant(s) No. 1
MRS R P LAKHANI(3811) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/12/2025
ORAL JUDGMENT
1. This appeal is preferred by the appellant - original defendant under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code') challenging the judgment and decree dated 22.1.1996 (for short, `the impugned judgment') passed by the learned Additional Civil Judge (SD), Gondal in Special Civil Suit No.56 of 1995.
2. Heard learned advocate Ms. Lilu Bhaya for the Page 1 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined appellants and learned advocate Mr. P. M. Lakhani for respondent No.1. Perused the record.
3. The facts in brief of the case are as under:
* The plaintiff - respondent herein, filed a suit for cancellation of bill dated 23.3.1995 amounting to Rs.1,82,275.88 Paisa and a subsequent revised bill dated 5.5.1995 for an amount of Rs.9,21,359.55 Paisa coupled with a relief of permanent injunction restraining defendants from disconnecting electric supply. The suit was resisted by the defendant by filing written statement at Exh.30. Following issues were framed at Exh.36.
1 "Whether plaintiff proves that though he did not tamper with electric meter nor committed theft of electrical energy, defendants' checking squad had falsely removed the meter and defendants have falsely issued impugned bill of Rs.1,82,275.33 Paisa and further falsely and arbitrarily revised impugned bill of Rs.9,21,859.55 Paisa? 2 Whether the defendants prove that revised is the actual supplementary bill and that it has been legally issued in place of supplementary bill of RS.1,82,275-33 Paisa dated 23.3.1995 ?
2A Whether revised bill dated 5.5.1995 of RS.9,21,859-55 Page 2 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined Paisa is legal, valid and recoverable ? 2B Whether the defendants prove that Court Fee is insufficient ?
3 Whether the plaintiff is to get declaration and permanent injunction ?
4 Whether defendants prove that tampering with meter and stealing of electric energy on the part of plaintiff ? 5 What order and decree ?"
* Plaintiff examined himself at Exh.42. The defendant examined its witness at Exh.76. After considering the evidence, learned trial Court decreed the suit in favour of the plaintiff and further directed to return amount deposited by plaintiff with interest @ 12% p.a. Being aggrieved and dissatisfied with the impugned judgment, the defendants - appellants have filed the present appeal.
4. Learned advocate for the appellants contended that appellants - defendants have supplied electric connection of 75 HP load and the consumer No.33201/00043/4/Ind.079 was allotted to the Page 3 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined respondents. On 8.2.1995, a checking squad of the defendants had checked electric meter of the plaintiff's premises. On inspection, no defect was found, however, as per Rules, the meter was sent to for laboratory testing. As per testing report of the laboratory, there found space between the meter cover and glass green substance was visible on meter cover. Upon such report, the defendant authority was satisfied that the plaintiff is involved in a theft of energy. It is submitted that it is a clear case of theft of electric power by tampering with the meter and the plaintiff was dishonestly abstructing energy which would amount to a theft being committed by the consumer within the meaning of IPC.
5. Learned advocate for the appellant has relied upon Section 33B of the Indian Electricity Act (for short, hereinafter referred to as `the Act). It is also contended that the plaintiff was found dishonestly using of electric energy and, therefore, the consumer Page 4 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined has committed a theft within the meaning of IPC. The existence of artificial means for this abstruction is prima facie evidence for such dishonest consumption of energy. The laboratory report is a vital peace of evidence against which the plaintiff has never raised any objection and, therefore, the case of theft of energy is proved beyond any doubt. It is further submitted that initially the bill was issued on 23.3.1995 for an amount of Rs.1,82,275.88 Paisa. As the defendants found some mistake in the calculation in connection load, a revised bill dated 5.5.1995 for an amount of Rs.9,21,359.55 Paisa came to be issued pending the suit. The first bill came to be cancelled by the appellants - defendants upon issuance of the revised bill. In the oral deposition of the witness of defendants recorded at Exh.76, who was part of the checking squad has stated the module of finding a case of theft of energy. Said witness has also supported the laboratory report in his deposition. It is submitted that in the laboratory testing report, the Page 5 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined glass placed on meter cover through which details of meter and meter dial can be seen, a green substance was visible on all four sides around the meter cover where glass is placed. On the other hand, between the meter cover and the glass, a space is visible through which a plastic strip can be inserted. No other submissions are made except the above.
6. Per contra, learned advocate for the respondent has supported the impugned judgment and contended that the defendants have not led any evidence to establish that the plaintiff was engaged in wrongful consumption / abstruction electric energy. The first bill dated 23.3.1995 (Exh.56) was issued on the basis of the report which was prepared after checking squad visited the factory premises of the plaintiff on 8.2.1995. Admittedly, in the checking report, the squad did not find any irregularity or tampering with the meter. The laboratory report (Exh.54) is based upon presumptions and assumptions. On the Page 6 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined assumption that a plastic strip can be inserted in gap between the meter cover and the glass, the defendant alleged that the plaintiff is involved in the commission of an offense under Section 33B of the Act. It is further submitted that pending the suit, revised bill dated 5.5.1995 for an amount of Rs.9,21,359.55 Paisa came to be issued by cancelling the first bill of Rs.1,82,275.88 Paisa.
7. It is also contended that in the evidence as well as in the written statement, there is no explanation with regard to issuance of the supplementary bill dated 5.5.1995. It is, therefore, submitted that in absence of any evidence, the learned trial Court has rightly cancelled the supplementary bill and decreed the suit. The witness of the defense whose evidence is recorded at Exh.76 was only a member of a checking squad who happened to be present on the date of checking at the plaintiff's factory. Defendants have not examined any witness to prove the laboratory Page 7 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined testing report and has also not been able to establish that the plaintiff is indulged in abstructing electric energy as contemplated under Section 33B of the Act. No other submissions are made except the above.
8. I have considered the submissions canvassed by the learned advocates for the respective parties and perused the Record and Proceedings.
9. It is an undisputed fact which is culled out from the record that the defendants have supplied electric connection of 75 HP load to plaintiff and checking squad visited plaintiff's factory on 8.2.1995 and on inspection, no illegality or irregularity was found, however, for further checking of the meter, the meter was sent to laboratory. During testing of meter, some green color foreign material was found between the meter gap and the glass and from the other part of the meter, it was found that a plastic strip can be Page 8 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined inserted inside the gap. On such finding, defendants came to a conclusion that it is the case of theft of energy and disconnected the electric connection of plaintiff's factory. A bill for an amount of Rs.1,82,275.88 Paisa came to be issued for the recovery of electric power. Undisputedly, pending the suit, on 5.5.1995, defendants issued a supplementary bill of Rs.9,21,359.55 Paisa by cancelling the first bill. The plaintiff amended the plaint and also inserted the prayer for cancellation of supplementary bill.
10. Learned advocate for the appellant contended that the supplementary bill dated 5.5.1995 was issued on noticing a fact that there was an error in adopting a load factor `C.' Instead of 1 load factor, defendants adopted a 0.1 load factor. However, this explanation is missing in the written statement as well as in the oral deposition of the witness whose evidence is recorded at Exh.76. The defendants have not been able to establish by any evidence; oral or Page 9 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined documentary, so as to explain the mistake which is in the calculation of load factor. The burden is upon the appellants to indicate such mistake in calculation of load factor. Written Statement was not amended and witness of appellants has not even explained such mistake being committed while issuing first bill.
11. Defendant's assertion is that the plaintiff has dishonestly used electric energy. Such positive assertion has to be proved by the defendant and not negatively proved by the plaintiffs. The evidence on record is not sufficient to hold that the plaintiff has been indulged into usage of electric energy dishonestly. The laboratory report (Exh.54), except finding that a plastic strip can be inserted in the gap between meter cover and glass, nothing else could be recorded. The other part of the meter was found okay. No other convincing findings are found in the laboratory testing report. The defendants have also not examined the person who had conducted the Page 10 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined testing of the meter and prepared a report Exh.54. Only on report that a plastic strip can be inserted in the gap between meter cover and glass is not sufficient to establish that consumer was involved in the activity of theft of electric energy. Moreover, the checking squad did not observe any tampering with the meter or meter cover during checking. The first bill was cancelled by appellants pending suit therefore recovery under first bill does not arise at all. Supplementary bill was issued pending suit without any explanation and reason is also not a justifiable action on the part of the appellants.
12. Considering the evidence on record, learned trial Court found that the plaintiff has been able to establish its case and, therefore, decreed the suit. The findings recorded by learned trial Court and the conclusion arrived at are based upon the evidence and as I do not find any reason to interfere in the findings arrived at by learned trial Court, the appeal Page 11 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025 NEUTRAL CITATION C/FA/1672/1996 JUDGMENT DATED: 03/12/2025 undefined stands dismissed. Record & Proceedings be sent back to the concerned Court forthwith. Interim Relief, if any, stands vacated forthwith. No order as to costs.
13. It is made clear that the observations made herein above are in peculiar set of facts and may not be taken as precedent.
(D. M. DESAI,J) VATSAL Page 12 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Dec 06 2025 Downloaded on : Mon Dec 08 20:37:16 IST 2025