Gujarat High Court
Pashchim Gujarat Vij Company Limited vs Bajrang Plastic Industries on 11 September, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2201 of 2003
With
R/FIRST APPEAL NO. 2202 of 2003
With
R/CROSS OBJECTION NO. 113 of 2009
In
R/FIRST APPEAL NO. 2201 of 2003
With
R/CROSS OBJECTION NO. 126 of 2006
In
R/FIRST APPEAL NO. 2202 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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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 ?
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PASHCHIM GUJARAT VIJ COMPANY LIMITED & ANR.
Versus
BAJRANG PLASTIC INDUSTRIES & ORS.
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Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1,2
VMP LEGAL(7210) for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/09/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1 These appeals arise out of two separate judgements
arising out of two Special Civil Suits, namely, Special
Civil Suit No. 382 of 2001 and Special Civil Suit No. 383
of 2001, filed by the erstwhile Gujarat Electricity Board,
now Paschim Gujarat Vij Company Limited, challenging
the judgements dated 25.06.2003 passed by the Civil
Judge, Senior Division, Dhoraji. Since common set of facts
and evidence arise in these appeals, facts of First Appeal
No. 2201 of 2003, by which, Special Civil Suit No. 383 of
2001 was decided are discussed.
2 The respondents were the original defendants. They
were the consumers of electrical energy. It was the case
of the appellants before the Civil Court that the
respondents - consumers had committed theft of
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electrical energy by by-passing the electricity through
meter. A criminal complaint was lodged. Thereafter, a
suit for recovery of Rs.19,45,522.07/- towards bill for
power theft was filed.
2.1 In Special Civil Suit No. 383 of 2001, from which
First Appeal No. 2201 of 2003 arises, the suit for
recovery of Rs.26,03,323.38/- was filed by the Board. In
the suit in question, the consumer company had also filed
a counter claim that as a result of illegal disconnection by
the Company, the consumer company was entitled to
recovery of an amount of Rs.1,37,291.57/-. By the
impugned judgement, the suit was dismissed on merits of
the Electricity Board, however, counter claim of the
consumer was allowed.
3 Mr.Premal Joshi, learned counsel appearing for the
appellants, would make the following submissions:
3.1 That the Trial Court below in both the Suits
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committed an error in not accepting the version of the
Officers of the Electricity Board. He would submit that it
was an admitted case of theft of electric power by
unscrupulous consumers.
3.2 From the rojkam prepared and the panchnama, it
was evident that the meter was by-passed. The Trial
Court, therefore, committed an error in answering the
issue No.8 in the affirmative and holding that the
disconnection of the respondents electricity supply was
illegal.
3.3 Mr.Joshi, learned counsel, would submit that the
evidence of Shri Gambhirsinh V. Zala, clearly indicated
that where the fuse was applied, it was found that there
were wires coming from the window to the transformer
and the circuit breaker was applied which was going to
Chirag Plastics from Bajrang Plastics.
3.4 Mr.Joshi, learned counsel, would further submit that
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the rojkams at Exhs. 19 and 20 when read together with
the Examination - in - Chief of Shri Mukesh G. Amin at
Exh.23, would indicate that the meter was not moving
whereas the factory was carrying out its production.
There was, therefore, ample material to suggest that
there was tampering of meters which proved the case of
the Board that there was theft of electricity.
3.5 On the Cross-Objections, Mr.Joshi, learned counsel,
would submit that the Trial Court without any evidence
on record had allowed the counter claims, and therefore,
the Cross Objection deserve to be dismissed.
4 Mr.Vimal Patel, learned counsel appearing for the
original defendants would submit as under:
4.1 He would submit that it was the case of the plaintiffs
that the respondents had committed theft of electricity at
the two respective units, namely, Bajrang Plastic
Industries and Chirag Plastic Industries respectively.
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From the pleadings, it was the case of the plaintiffs that
when the checking squad had gone to these units on
06.05.2000, though a rojkam was prepared, it was an
admitted fact on reading the rojkam and the panchnama
that no case was made out of theft of electric energy by
by-passing of meters. In the submission of Mr.Patel,
learned counsel, the Trial Court had rightly held that no
case of theft of electricity was made out and the plaintiffs
were not entitled to recover the amounts.
4.2 Mr.Vimal Patel, learned counsel for the respondents,
would further submit that there was no evidence as is
found by the Trial Court on discussion of the deposition of
the Officers of the Board that in fact, it was " a case of no
evidence to prove the theft".
4.3 Mr.Patel, learned counsel, would submit that in the
criminal case which was filed against the defendants,
they have been acquitted and the Trial Court while
appreciating the evidence in the criminal Court, which
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judgement was produced at Exh.102, indicated that no
case of alleged theft of electrical energy was made out. In
support of his submissions, Mr.Patel, learned counsel,
would rely on the following decisions:
(1) In the case of Seth Ramdayal Jat vs. Laxmi
Prasad., reported in (2009) 11 SCC 545.
(2) In the case of M/s. Citi Hotel Vs.
Commissioner, Lucknow Divn., Lucknow & Ors.,
reported in AIR 2009 Allahabad 137.
(3) In the case of Pritam Singh & Anr vs. The
State of Punjab., reported in AIR 1965 SC 415.
4.4 Mr.Patel, learned counsel, would take us through
the deposition of the witnesses of the Board, namely, one
Shri G.V.Zala, Exh. 16, Shri M.G.Amin, Exh. 23, Shri
V.K.Khunt, Exh.24 and one Shri D.J.Shah, to submit that
from these testimonies it was apparently clear that the
officers had not read the contents of the complaint.
Checking could not have been done as a result of the fact
that when the checking was being undertaken, the
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electricity supply to the power units had snapped and
there was darkness.
4.5 Mr.Patel, learned counsel, would further submit that
from reading of the rojkam, it was clear that there was no
clear identification of the location and in fact, it was not a
possible theory that a theft could have occurred by or
through transmission / transformer between Chirag
Plastics and Bajrang Plastics. Relying on a drawing,
Mr.Patel, learned counsel, would submit that there was a
road between Chirag and Bajrang Plastics, and therefore,
the case of the Board that the wires would transmit
supply of electricity from a transformer by-passing the
meter in the two units was not rightly believed.
4.6 Mr.Patel, learned counsel, would reiterate that it
was evident from the deposition of the witness Shri
G.V.Zala at Exh.16 that he had not seen transformer at
the site, and therefore, was not in a position to ascertain
the position of the transformer and that he had also not
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inquired or seen the cable wire post on which a story of
theft of electrical energy was made out. Mr.Patel, learned
counsel, would emphasize on the testimonies, especially
that of one Mr.D.J.Shah, who in his evidence would
indicate that he has stated that if the connected load of
Bajrang Plastics was 74 Horse Power, and that of Chirag
Plastics was added, then it could be 197.39 Horse Power
and the transformer being of 100 Kv then would burn.
5 Having considered the submissions made by the
learned counsels appearing for the respective parties, it
will be in the fitness of things to peruse the judgements of
the Trial Court. In Special Civil Suit No. 383 of 2001, as
far as issues No. 2 and 8 are concerned, the Trial Court
had held that the Board was not in a position to prove
that the defendants / respondents had committed theft of
electrical energy. This finding of fact and disbelieving the
stand of the plaintiffs was based on examining of various
witnesses. Shri Gambhir Velubhai Zala, was examined on
oath at Exh.16. Reading of his evidence would indicate
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that he was an Officer of the Board from Vadodara. He
had proceeded to Dhoraji as a part of Squad to detect
theft of electrical energy. He has deposed that he had
accompanied one Shri D.J.Shah and Shri M.G.Amin and
when they were inspecting the concerned unit, the power
supply had gone off. The lines were out. He found that a
crowd of people had gathered near the unit known as
Kailash unit. As a result of this they were compelled to
leave the premises and go to Dhoraji.
5.1 The checking-sheets and the rojkams were prepared
at Jetpur. Reading of the testimony of Shri Zala further
indicates that these proceedings were not drawn on the
spot which were part of the evidence at Exhs. 19 and 20.
The cross-examination of this witness indicates that it is
his case that when they have just started to undertake an
exercise of checking theft, the lines went out within
fifteen minutes and that there was complete darkness,
and therefore, it was impossible to undertake the exercise
of inspection. The cross-examination further indicates
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that they had not read the complaint based on which the
inspection was to be carried out. That he was not aware
of what machinery and what meters were to be inspected
and what instruments were they supposed to carry. That
he was also not aware of the location of the transformer
and that the transformer also was not checked.
5.2 The reading of the cross-examination further
indicates that these witnesses denies the connection of
wires between Chirag Plastics and Bajrang Plastics to
substantiate the by-passing of meters for the theft of
electrical energy. He deposed that if the transformer is of
63 kv then the connected load would be 197.39 HP and
the transformer would burn. Mr.M.G.Amin was examined
as a witness at Exh.26. This witness also during his cross-
examination had admitted that the rojkam was not
prepared at the site but the rojkam and the checking-
sheets were prepared at Jetpur. He would submit that the
rojkam and the panchnamas at Exhs. 19 and 20 had his
signatures. Reading of these witnesses' cross-examination
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would indicate that he was not aware of the existence of
the transformer and he would not remember whether
there was a 30 meter road between two factories. That
nothing was recorded as to the capacity of the
transformer. That the rojkam was prepared on the basis
of rough notes and the rough notes were subsequently
destroyed.
5.3 In other words, the witnesses have deposed on the
same lines and even in the criminal court, the judgement
of which is recorded, indicated that the basis of the
Electricity Board to come to a conclusion that there was
theft i.e. Exhs. 19 and 20 being checking-sheet and the
rojkam itself appears to be completely doubtful. The Trial
Court on examination of these witnesses came to the
conclusion that when these two documents are tested in
light of the evidence of Shri G.V.Zala, D.J.Shah and
G.M.Amin, it was not a case that there was tampering of
meter and direct connection of cables by by-passing the
meter. The notes of inspection which were made on the
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rough paper which were made at the site and which had
an important bearing on the dispute involved were
destroyed after preparing the rojkam as is evident from
the testimony of one of the witnesses of the Board.
5.4 Even otherwise, these documents were drawn not at
the site but at Jetpur, the next morning. What has also
come on record through the map of the site given by Shri
Patel, learned counsel, when compared in juxtaposition at
Exh.20 is that Chirag Plastic Industries was not situated
in the compound of the Dhoraji Ginning Plastic Unit, but
both were separated by a road, and therefore, the version
of the Electricity Board that there was tampering of
electricity by connecting of loads between these two units
could not be proved. What is also evident from the
witnesses' statement is that both the factories had got
separate transformers and there was a road from east to
west in front of Bajrang Plastics and Chirag Plastics.
5.5 Based on these evidences, when the Trial Court had
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relied on the judgement of the Criminal Court, where the
test of evidence is much stronger, as is held by the
Hon'ble Supreme Court in the case of Seth Ramdayal
Jat (supra), that a judgement rendered by any criminal
Court proceedings is admissible in evidence in
accordance with Sec.43 of the Evidence Act and it can be
relied for a limited purpose as has been done by the Trial
Court in the present case. We, therefore, find that the
Trial Court committed no error in dismissing the suits of
the Board.
6 As far as the counter claims filed by the defendants
for the loss of business that they suffered as a result of
disconnection of electricity, though the counter claims
have been entertained by the Trial Court, perusal of the
judgements under challenge would indicate that such
findings of the quantum of loss is based on surmises and
conjectures. It is accordingly held that the consumer, who
had prayed for damages on account of the counter claims
filed by them, are not entitled to the amounts decreed in
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the relevant suits, as there is no evidence on record for
computation of the amount of loss suffered by them.
Accordingly, First Appeals are partly allowed only
qua challenge to order of damages awarded by the Trial
Court in counter claim is concerned. For the reasons
recorded as regards Exh.20, the cross objection stands
allowed to that extent.
(BIREN VAISHNAV, J)
(NISHA M. THAKORE,J)
BIMAL
