Gujarat High Court

Pashchim Gujarat Vij Co. Ltd Through ... vs Girnar Cement Pvt Ltd Through Manager ... on 18 December, 2023

Author: Biren Vaishnav

Bench: Biren Vaishnav

                                                                                    NEUTRAL CITATION




    C/FA/2936/2009                               CAV JUDGMENT DATED: 18/12/2023

                                                                                     undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 2936 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

and
HONOURABLE MS. JUSTICE NISHA M. THAKORE

==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
    PASHCHIM GUJARAT VIJ CO. LTD THROUGH EXECUTIVE ENGINEER
                              Versus
        GIRNAR CEMENT PVT LTD THROUGH MANAGER SHREE
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR ASHISH M DAGLI(2203) for the Defendant(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                             Date : 18/12/2023

                       CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

1 This appeal under Section 96 of the Code of Civil

Procedure has been filed by the Paschim Gujarat Vij

Company Limited on being aggrieved by the judgement

and decree dated 30.07.2007, passed by the learned 11th

Additional Senior Civil Judge, Junagadh, dismissing the

Special Civil Suit No. 93 of 1994 filed by the appellant

(original plaintiff).

2 Facts in brief are as under:

2.1 The plaintiff filed the suit against the respondent -

original defendant, M/s. Girnar Cement Private Limited

for recovery of an amount of Rs.24,09,963.55 paisa,

towards the consumption charges for consumption of

electricity.

2.2 It was the case of the appellant - original plaintiff

that the respondent was a consumer of High Tension

Power and was being issued bills for consumption of

power based on meter readings.

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

2.3 On 11.03.1992, a raid was carried out by the

checking party and it was found that the meter boxes

which had a plastic seal, were duplicate. It was further

the case of the appellant - plaintiff that the dycode

number on the plastic seal were different from the

originals that were affixed at the time of installation and

that there were signs of tampering with the meter body,

inasmuch as, the screws found on the lead seal of the

dycode had evidence of it being opened and tampered.

2.4 It was, therefore, the case of the Electricity

Company that the respondent - original defendant was

indulging in theft of power by tampering with meter, and

therefore, on 15.03.2022, based on ABCD Formula, a bill

was issued of Rs.15,54,141.60 paisa/- for the period from

1992 to 1994, and thereafter, an additional bill of

Rs.8,55,821.95 paisa. In all, the bill was of

Rs.24,09,963.55/-. The suit was filed for recovery of the

said amount.

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

2.5 The defendant - respondent herein, filed a written

statement denying the contentions raised by the original

plaintiff. It was the case of the defendant that when the

raid was carried out, one Shri Pandya, Manager, was

summoned and it was found that there was no tampering

of the meter or replacement of dycode as alleged by the

plaintiff. It is the case of the appellant - Company that the

Manager was threatened, and compelled to give a

statement. A panchnama was made based on a statement

recorded and a statement also of the factory clerk Shri

Lakhani was recorded under threat.

2.6 It was the case of the defendant that there was no

tampering of the meter or removal of plastic seals or

replacement of dycode numbers. Further, it was the case

of the defendant that the electric meters were under lock

and seal. An officer of the rank of Dy. Engineer would

come every month for meter reading, would open the seal

of the box, complete the reading and then readjust the

meter at zero. The box of the meter was opened with the

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

keys of which the officer was in exclusive possession, and

therefore, the contention that the seal of the meter was

tampered was misconceived. The defendant further

submitted that they were regularly paying the bills . That

a G7 Card was issued by the officers of the Electricity

Board. That the defendant would record the consumption

of electricity every day and the card was collected by the

officers of the Electricity Company on the last date of

every month. The card was regularly maintained by the

defendant and no objection was recorded by the plaintiff

or its officers nor the G7 Card was found to be

manipulated.

2.7 Based on these rival contentions, the Trial Court,

framed the following issues:

(i) Whether the plaintiff proves that it was entitled to

recover the sum of Rs.24,09,963/-? The issue was

answered in the negative.

(ii) Whether the plaintiff proves that on the date of the

suit it was entitled to recovery of Rs.15,54,141/- with

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

delayed payment charges @ 2.5%? The issue was

answered in the negative.

(iii) Does the plaintiff prove that in light of a Regular

Civil Suit No. 945 of 1993 and due to the pendency of the

appeal before the Appellate Court, the suit had to be

dismissed? The issue was answered in the negative.

(iv) Whether the plaintiff proves that there was theft of

electricity? The issue was answered in the negative.

(v) Is the plaintiff entitled to the relief as prayed for?

The issue was answered in the negative.

2.8 By Exh.167, on the basis of an application made by

the defendant, additional issues were framed which were

issues 4A to 4J. The issues were as under:

(1) 4A: Does the plaintiff prove that the Executive

Engineer, Junagadh, is entitled to file the suit? The issue

was answered in positive.

(2) 4B: Does the plaintiff prove that the plastic seals on

the meter boxes and the notice of the numbers on the

dycode seals remained with the plaintiff and that the seal

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

on the meter boxes were original? The issue was

answered in positive.

(3) 4C: Does the defendant prove that the suit of the

plaintiff is based on surmises and conjectures? The issue

was answered in positive.

(4) 4D: Does the defendant prove that the raiding party

had recorded the statement of Shri Lakhani of the

defendant through coercion and so also the statement of

Shri Pandya? The issue was answered in affirmative.

(5) 4E: Does the defendant prove the meter is kept in a

metal box between two poles and is locked and that the

keys are in possession of Deputy Engineer who opens the

box when he comes for reading of the meter every

month? The issue was answered in positive.

(6) 4F: Does the defendant prove that every month the

meter is put back at zero? The issue was answered in

positive.

(7) 4G: Does the defendant prove that the issue that

the plaintiff officers issued G7 Card every month and that

whether the defendant records electricity consumption

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

every month? The issue was answered in the affirmative.

(8) Issues 4H to 4I which concern the plaintiff that as to

whether plaintiff proves that the seals in the meter were

duplicate and that the meter was tampered with, were

answered in the negative.

3 Ms.Lilu Bhaya, learned counsel appearing for the

Electricity Company, would submit as under:

3.1 That based on the evidence of the Officers of the

Board, it was undisputedly proved that there was

tampering of the meter, inasmuch as, the seals of the

dycode numbers were tampered with and that there were

scratches so as to prove manipulation which gave rise for

the electricity company to issue a supplementary bill and

there was therefore no reason why the suit of the plaintiff

- appellant herein had to be dismissed.

3.2 Ms. Bhaya, learned counsel for the appellant would

submit that evidence was recorded of the Officers of the

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

Company which indicated that the bill was issued on the

basis of a panchnama carried out which clearly indicated

tampering of the meter. She would submit that the

meters had a plastic sheet on which dycode was written

and based on the evidence of the witness one Shri Bharat

Gautamrai Majmudar at Exh. 114, it was clearly a matter

of evidence which proved that as the raiding party carried

out the raid, tampering was found in the dycode numbers

originally installed and also the plastic seals so installed

were not the same.

3.3 Ms.Bhaya, learned counsel, would further submit

that the checking sheets which were produced as

documentary evidence on record, clearly suggested that

there was tampering of the meter and once a checking

sheet had been produced indicating that there was theft

of electricity, the Civil Court has no other further

business to re-appreciate the evidence to the contrary.

Ms.Bhaya, learned counsel, would read out the contents

of the checking sheet produced before the Trial Court at

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

Exh.142 which indicated that the plastic seal on the

meter boxes were fould to be duplicate and the plastic of

the body and lead seals were found duplicate. This in her

submission was more than enough evidence to suggest

tampering of the meter and electricity theft so as to

warrant a decree in accordance with the prayers made in

the suit.

3.4 Ms.Bhaya, learned counsel, would submit that the

modus operandi of removing the seals and the fact that

the seals were discoloured would suggest tampering of

the meter. Once the checking sheet was to be believed,

as the onus was shifted to prove otherwise on the

defendant, the defendant had failed to do so.

3.5 Ms.Bhaya, learned Counsel, would submit that the

suit was filed with the prayers based on a civil liability

that had arisen. The Trial Court, while appreciating the

evidence, had assessed it on the basis as if it was a

criminal liability. Ms.Bhaya, learned Counsel, would

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

submit that it is well settled by several decisions of this

Court as well as the Hon'ble Supreme Court that once the

consumer has been found to have tampered with the

meter and committed theft, the electricity company is

entitled to disconnect the electricity. In support of her

submissions, she would rely on the following decisions:

(I) M.P.Electricity Board, Jabalpur vs. Harsh Wood

Products., reported in 1996 (0) AIJEL-SC 16104.

(ii) M/s. Hyderabad Vanaspathi Ltd vs. A.P.State

Electricity Board & Ors., reported in AIR 1998

Supreme Court 1715.

3.6 Ms.Bhaya, learned Counsel, would submit that mal

practices have been defined and an adjucatory machinery

for assessing and levying damages has been provided in

the mechanism of the Electricity Act and even on

suspicion of mal practice, it is open for the electricity

company to disconnect the electricity.

3.7 Ms.Bhaya, learned counsel, would also rely on a

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

decision of this Court in the case of Vrajlal Devjibhai

Vs. GEB., rendered in First Appeal No. 2506 of 2003,

in support of her submission that when a satisfaction has

been arrived at that a consumer had dishonestly

abstracted energy by artificial means, ascertaining loss

and fixing of compensation was a procedure prescribed

and an appropriate remedy was to prefer an appeal

before the Appellate Committee. In absence of any such

challenge, the suit of the plaintiff ought to be decreed.

Ms.Bhaya, learned Counsel, also relied on a decision in

the case of Pro. Bhimji Dhanji Motivaras of M/s.

Sagar Ice Factory vs. Paschim Gujarat Vij Company

Ltd - PGVCL., rendered in First Appeal No. 3278 of

2013, dated 28.03.2014. She would submit that the

Division Bench of this Court had dismissed the appeal of

the appellant-consumer. The Division Bench, interpreting

the provisions of the Electricity Act and the decision of

the Appellate Committee which had confirmed the

findings thereof, opined that the proper remedy was by

way of an appeal and once the order of theft of the

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

Appellate Authority had attained finality, the Civil Court

has jurisdiction to consider the suit with respect to the

supplementary bill which the Civil Court should consider

and the suit questioning the legality of the bill was

plausible and once it was proved that there was a theft of

electricity, the electricity company was entitled to

recover the amount of supplementary bill by filing a suit.

4 Mr.Ashish Dagli, learned counsel appearing for the

respondent - original defendant would defend the decree

and the judgement which dismissed the suit of the

appellant. Mr.Dagli, learned counsel, would take the

Court through the plaint and the amended plaint to

submit that the contention of the plaintiff that the order

of the Appellate Committee was in context of a separate

consumer number which was HT 21036 whereas the suit

was connected with consumer number 3258. Mr.Dagli,

learned counsel, would take the Court through the

response filed vide application at Exh.54 in which it was

specifically pointed out by the defendant that the suit was

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

misconceived.

4.1 Mr.Dagli, learned counsel, would take the Court

through the written statement filed by the defendant

where it was specifically denied that there was theft. That

the raiding party had come to the premises of the

respondent - defendant. That the electricity connection

was disconnected without notice and panchnama was

drawn after taking statements under coercion of the

Manager Mr.Pandya and that of one Mr.Lakhani. That the

officers of the company had no information of the dycode

seals. That the Dy.Executive Engineer and an officer,

equivalent thereto would visit the premises every month,

open the seal, lock with the keys which were in exclusive

possession of the Electricity Company, do the meter

reading, lock the meter board, and therefore, the

contention that the defendant had tampered with the

seals was not proved.

4.2 Mr.Dagli, learned counsel, would further submit that

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

the contention of the plaintiff that there was theft of

electricity was misconceived and that the bill that was

issued on the basis of the ABCD Formula was also

incorrect. Mr.Dagli, learned counsel, would take us

through the amended issues which were framed from 4A

to 4G which indicated that based on the amended issues,

the Trial Court had come to the conclusion that the

defendant had proved on the basis of the cross-

examination of the witnesses of the electricity company

itself that there was no theft of electricity, that there was

no tampering of the meter, that the suit was filed on the

basis of surmises and conjectures, that every month the

meter reading was carried out by the officer in the rank

of Dy. Engineer and the keys to the meter were in his

custody, and therefore, there was no opportunity or an

occasion for the defendant to tamper with the seals. That

the G7 card which were recorded every day and which

were in the custody of the defendant would then be

handed over to the officers of the electricity company

every month and the Trial Court had rightly observed that

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

these documents were in the possession of the company,

which the company had withheld, and therefore, the

findings of the Trial Court, especially on issues 4A to G,

which were read by the learned counsel could not be

faulted.

4.3 Mr.Dagli, learned counsel, would place reliance on

the decision of the Division Bench of this Court rendered

in First Appeal No. 836 of 2001 dated 10.12.2014 in

respect of the same parties which, on assessing the

evidence came to the conclusion that the meter was not

tampered with or was running slow, the First Appeal of

the Board was dismissed. He also relied on the decision of

the Division Bench rendered in First Appeal No. 69 of

2011, in the case of Paschim Gujarat Vij Co. Ltd vs.

Samat Thariya Gadhavi Ramesh Kankhara.

4.4 Mr.Dagli, learned counsel, would also rely on a

decision of the Division Bench in the case of Kiran

Industries, Mehsana vs. Gujarat Electricity Board,

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

Baroda & Anr., rendered in A.O No. 505 of 1990 with

A.O No. 165 of 1994., which had held that the suit

questioning the legality and validity of the bill of the

electricity company was not barred in light of condition

No.34 and merely because an Appellate authority was not

available, the consumer was not disentitled to file a suit.

5 Having considered the submissions made by the

learned counsels appearing for the respective parties and

having perused the judgement and decree of the Trial

Court and the issues framed thereunder, on the question

whether the plaintiff was entitled to file a suit for

recovery of Rs.24,09,963/- while answering the issue in

the negative, the Trial Court considered the evidence of

one witness of the electricity Board, namely, that of one

Prakashchandra Parekh at Exh.137. Reading of the

deposition of this witness would indicate that in the cross-

examination, the witness has deposed that the bill was

issued based on the instructions of his higher officer, one

Mr.Mahesh Vasavada, that the bill was issued on his oral

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

instructions. That when the bill has to be made on the

basis of theft of electricity, the records are examined.

That he was not aware of report of the raiding party in

context of the defendant assessee - Girnar Cements. In

his cross-examination, he admitted that while assessing

the bill and preparing it, he did not take into

consideration the Rule Book, i.e. the Tariff Book, and

therefore, the Trial Court came to the conclusion that the

plaintiff was not in a position to prove whether it was

entitled to suit for recovery of the aforesaid amount.

5.1 Further, assessment of the evidence would indicate

that he had not gone to examine as to what extent theft

had occurred and the supplementary bill was issued

without the signature of the Executive Engineer. The

Trial Court, therefore, and in our opinion rightly so

assessed the evidence of the cross-examination of this

witness and found that the bill in question was not

prepared in light of the provisions of the Act and without

the knowledge that the assessment had to be done based

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

on the theft of electricity and the issue whether the

plaintiff was entitled to file the suit was therefore rightly

held to be in the negative.

5.2 On the issue whether the plaintiff was entitled to

recover the sum of Rs.15,45,141/- the issue was also

answered in the negative. The assessment of evidence

was done based on the deposition of one Bharat

Gautamrai Majmudar at Exh.114. Cross-examination of

the witness when read indicates that he is not aware of

the tendering of the original bill and also not aware that

there was a contract by which the electricity company

was entitled to recover an additional amount @2.5% on

delayed payment. The bill also is not produced. The issue,

therefore, was held in favour of the defendant and against

the plaintiff and rightly so.

5.3 As is contested between the parties, issue 4A and its

sub issues need to be essentially based on the evidence

on record for the Court to come to the conclusion

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

whether the judgement and decree of the Trial Court is

just and proper. The root issue is whether the plaintiff is

able to prove that in fact there was a power theft. That

issue i.e. issue No.4 was answered in the negative. While

doing so, the Trial Court assessed the deposition of one

Bharat Gautamrai Majmudar at Exh.114, that one Ashvin

Kantilal Talati at Exh.130, and that of one Devidas Hari

Chaudhari at Exh.136 and some documentary evidences

which these witnesses had sought to admit or deny.

5.4 Exh.114 is the deposition of Bharat Gautamrai

Majmudar who has admitted in his cross-examination that

there was no complaint that the respondent - defendant

had indulged in power theft and that while installing the

meter, there are signs of scratches on the meter and that

therefore it cannot be a case where merely because of the

scratches on the meter it would amount to a case of theft.

Reading of the deposition of the witness Ashvin Kantilal

Talati at Exh.130 would indicate that he in his cross-

examination had admitted that where there are areas in

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

which the electricity consumption is less than normal, it

is a case of presuming theft. That he had not opined that

the usage of power in the defendant company was lower

than the estimated actual consumption and that there

was no complaint which was received by the Board that

the defendant had indulged in theft of electricity. Reading

of the examination of this witness would further indicate

that that the meter that was checked was not taken to the

laboratory for examination or inspection and if it was not

so done, a case of power theft cannot be recorded. He

admitted that the meter in question was not sent for

examination for laboratory testing. Examination of one

Devidas Hari Chaudhari at Exh.136 and his cross-

examination indicated that the presumption that the

defendant company had indulged in theft was not

concluded without sending the meter for laboratory

testing or for examination and inspection of the meter as

to the readings that were recorded were based on an

assessment of theft. That the police complaint at Exh.118

was recorded without assessing whether in fact the meter

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

was tampered with and it was a case of theft.

5.5 The Trial Court, on assessing the evidence of these

three officers came to the conclusion that it was

essentially the burden of the company to prove that the

theft of electricity had occurred due to tampering of the

meter. The evidence on record by the company suggested

that there was no laboratory examination done of the

meter, that in fact, it was the case where theft could not

be proved and the bill was raised on the basis of

presumption, and therefore, adverse inference had to be

drawn in accordance with the provisions of Sec.114 of the

Evidence Act.

6 In our submission and opinion, the Trial Court,

therefore, on assessment of this evidence, rightly came to

the conclusion that the case of theft was not proved. On

the question of additional issues framed by virtue of an

application at Exh.167, it is a burden on the plaintiff to

prove whether there was tampering of seals and that the

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

suit was not filed based on surmises and conjectures.

That the contention of the defendant that the raiding

party officers had recorded the statement of Manager and

the Clerk and that the keys for the meter were not in

exclusive possession of the Dy.Engineer and G7 Card

which was given was not produced and that the meter

box seals were not duplicate are assertions which the

defendant had, through the weakness in the link of

evidence, made the plaintiff fail to prove its case and the

issue therefore was answered in the affirmative and in

favour of the defendant.

6.1 In context of the issues whether the plaintiff proves

that the dycode numbers of the seals were not changed,

when we see the discussion of issue 4A, the Trial Court

has again examined the evidence of one Prakashchandra

Parekh at Exh.137. Reading of the evidence and the

discussion on the issue indicates that one Bharat

Gautamrai Majmudar had admitted that whenever a

meter is installed and so done in the present case, Form 4

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

is filled, which is on the record of the Company and the

Company records the dycode numbers. That during the

course of filing of the suit, no such record suggesting the

dycode numbers, in case of the defendant, has been

produced. The witness further goes on to depose that he

has no support to suggest that the dycode numbers had

undergone a change. That while filing a report on the

change of dycode numbers, he had done so without any

record. It was therefore a clear case where the evidence

of the officer and the plaintiff had suggested that before

filing the suit a particular dycode number was implanted

on the plastic seal and that the dycode number had

changed was an assertion without any base and any

record being produced, and therefore, the Trial Court, in

our opinion rightly so came to the conclusion that there

was no base to suggest that the dycode numbers and the

plastic seals had been tampered to suggest a change in

numbers.

7 Even the evidence of one Ashvin Kantilal Talati at

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

Exh.130 had admitted that the dycode numbers of the

manufacturing company on the plastic seal of the meter

were not known. That such plastic seals undergo wear

and tear with passage of time and that in case of such

wear and tear, such meters are sent to the laboratory for

examination and then replaced with a new seal and it was

an exercise not done in the case of the defendant, and

therefore, it can safely be presumed that the seals were

not original.

7.1 Devidas Hari Chaudhari, was examined at Exh.136.

The deposition of this witness also indicated that the

entire record of the numbers of the dycode on the plastic

seals is in the possession of the electricity company which

has not been produced. He has admitted that such record

is in their custody and the Trial Court, therefore, in our

opinion rightly came to the conclusioin that all the three

witnesses had testified that the dycode numbers were

recorded in Form 4. That with the passage of time there

can be wear and tear on the dycode numbers which can

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

be changed with replacement of seals after undertaking a

laboratory test, which was not done in the case on hand

and that the records with regard to dycode numbers and

plastic seals were in the exclusive custody of the

electricity company, was not proved. The Trial Court,

while answering this issue and in our opinion rightly so

held that no such records were produced by the plaintiff

company to suggest a change in the dycode numbers and

that it was not even informed as to which dycode

numbers existed initially. The base therefore of the suit

that the meter was tampered with and that the dycode

numbers had changed was a case which fell on its feet as

rightly recorded by the Trial Court.

8 Coming to the other essential issue as to whether

the suit was filed on the basis of surmises and

conjectures, once again based on the assessment of the

evidence of the witness Ashvin Kantilal Talati at Exh.130,

it was clearly proved and it was admitted by the witness

that there could be scratches on the seal while operating

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

the meter and merely because there were scratches on

the plastic seal of the meter, the suit was based on

presumption that there was tampering. It has also come

on record through the deposition of this witness that the

meter had not been taken and sent to the laboratory for

inspection. Relying on a decision of this Court in the case

of Ladhabhai Munnabhai Mangukiya vs. Gujarat

Electricity Board., reported in 2003 (2) GCD 1433

(Gujarat), the Trial Court held that the seals were not

duplicate or that the meter was imperfect, the burden

was on the plaintiff and once there was evidence on

record to suggest that there was no defect in the meter,

the burden shifts on the plaintiff. The plaintiff in the

present case had failed to prove. Furthermore, no dycode

numbers were produced. The G7 Card which as per the

deposition of the witnesses of the Company were filled in

by the defendant every day to record power consumption

and which were collected at the end of each month by the

officers were not produced on record to suggest that the

meter readings had discrepancies and the supplementary

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

bill was prepared based on such discrepancies, and

therefore, the Trial Court held that the documents which

were exclusively in possession of the appellant were not

placed on record, and therefore, the suit was based on

surmises and conjectures.

9 The Trial Court then, further went on to discuss the

evidence on the issue and opined that based on the

evidence on record of one Bharat Gautamrai Majmudar, it

had come on record through his testimony that the meter

boxes are locked and they are examined every month by

an officer of the cadre of Dy.Executive Engineer. The keys

are exclusively in possession of such officer who would

visit the premises, unlock the meter box and prepare a

report. No diversion or tampering of such locks has come

on record to suggest that the meter boxes and the locks

thereon were opened otherwise except by an officer every

month. That there was no evidence produced on record to

suggest that the dycode numbers had changed or that the

seals were tampered with, and therefore, the Trial Court,

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

in our opinion rightly held that there was an adverse

inference drawn in favour of the plaintiff which had failed

to prove its case that the meters were tampered with.

10 On the other essential issue as to whether the

plaintiff proves that the seals were duplicate, the Trial

Court again on assessment of evidence found that one

Devidas Chaudhari at Exh.136 had admitted that there

are separate numbers on separate seals, that the dycode

numbers on the seals change every five years, that there

is no record to suggest that the questioned dycode

numbers on the plastic seals of the meter in question

were different from the one originally installed. This

witness had admitted that without any record produced

on the dycode numbers and any material with him, a case

was made out for change in the numbers and the

panchnama at Exh.115 and the Inspection Report at

Exh.116 did not show the original dycode numbers, nor

such documentary evidence were proved through any

other evidence. The Trial Court, therefore, came to the

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

conclusion that there was no evidence on record putforth

by the plaintiff to suggest change in the dycode numbers.

This would also answer the submission of the learned

counsel for the company that a checking sheet recording

change in dycode numbers should be taken as gospel

truth when the witnesses of the electricity company have

deposed otherwise.

11 On issue 4I, as to whether the reading of the meter

was tampered with, it was found based on the assessment

of Ashvin Kantilal Talati at Exh.130, particularly reading

paragraph 19 thereof that there is a movement of the disk

in the meter and that all the equipments are connected.

That there is no evidence on record to suggest that the

reading of the meter had been tampered with or the

meter was tampered to run slow. He in his testimony

admitted that there was no evidence to suggest that the

meter was made to run slow or stop and that the meter

reading had been obtained otherwise to suggest such a

tampering of the meter.

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

12 All these therefore would suggest that there was no

evidence on record for the plaintiff to come to a

conclusion that it was entitled to decree of recovery of

Rs.24 lakhs and odd when based on its own evidence it

had failed to prove its case.

13 Mr.Dagli, learned counsel, has taken us through the

judgement of the Trial Court and it had come on record

from their officer's cross-examination which brought out

the inherent defects in the evidence to suggest whether

the meters were tampered with, whether the dycode

number was changed and that based on the rojkam, the

evidence of the witnesses. The Trial Court had come to

the conclusion and in our opinion rightly so that the suit

of the plaintiff does not deserve to be decreed.

14 At this stage, it will be in the fitness of things to

appreciate the contention of learned counsel for the

defendant by relying on the decision of the Division

Bench of this Court rendered in First Appeal No. 836 of

2001 in respect of the same parties, where albeit on

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

different evidence, the Trial Court findings on assessment

of evidence by the First Appellate Court had been held

more or less on the same standards as correct and the

first appeal of the company was dismissed. Paragraphs 13

to 15 of the oral judgement of the Division Bench read as

under:

"13.We may assess the evidence in this background. Admittedly, on 29.11.1994, there was no occasion for the Board officials to come to the premises of the plaintiff company and replace the old cable and the meter. The Executive Engineer of the electricity company admitted that the meter reading was taken only few days before this. No report for any replacement of the cable or the meter was made by the officers of the Board. He had not received any complaint from the plaintiff in this regard. He had not drawn any Panchnama before setting out to visit the plaintiff's premises for such purpose. There was no initial point of any suspicion that the meter was tampered or that it was running slow. In absence of any such prior reason, the act of removal of the meter can, at the best, be seen as fishing inquiry. The Board failed to establish the basic reason for the officers to visit the site on 29.11.1994 and to remove the meter. For what reason they visited and on what grounds they suspected a possible tampering of meter is simply not stated.

14. Further, we may not enter into the disputed question whether the representative of the plaintiff company was present at the time or

NEUTRAL CITATION

C/FA/2936/2009 CAV JUDGMENT DATED: 18/12/2023

undefined

not. However, it remains admitted that the officers of the electricity company did not draw any Panchnama of the removal of the meter, did not draw any Rojkam of the condition of the meter and its seals, did not seal the meter and remove the same and send it to the laboratory for its testing. Admittedly, the meter was tested almost a day later. In the meantime it remained in an unsealed and unprotected condition. Quite apart from these fundamental defects in the procedure, the electricity company also could not explain how the inner seals could be tampered when the outer seals and lock were found intact. As admitted by the witness of the electricity company, the outer lock and the seals were untampred and the keys of the lock were in possession of the officers of the Board. The outer seals would be removed and the locks opened only if for the purpose of recording the consumption it was found so necessary. Ordinarily, the recording of the consumption could be done through the glass pane in front of the meter box. All in all, in our opinion, the trial Court committed no error in holding that the entire procedure was tainted, resulting into rendering the laboratory report unreliable.

15. With respect to nonraising the issue of the legality of the Appellate Committee's order, when the trial Court, after hearing both the sides and appreciating the evidence on record, came to the conclusion that the bill for theft of electricity was unsustainable as there was no evidence of theft of electricity, rendering of the Appellate Committee's order invalid was a mere consequence. Even if the error of the Civil Court was in a nature of an irregularity, it would not render the decision invalid.