[Cites 3, Cited by 0]
Gujarat High Court
Executive Engineer, G.E.B. (Now ... vs Janta Ice Factory,Proprietor ... on 3 December, 2025
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
