V.L.Thomas vs State Of Kerala
2023 Latest Caselaw 2417 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
  FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                     CRL.MC NO. 5224 OF 2014
 AGAINST THE ORDER/JUDGMENTCC 217/2010 OF JUDICIAL MAGISTRATE
                  OF FIRST CLASS - I, ETTUMANUR
        SC 359/2013 OF ADDITIONAL DISTRICT COURT, KOTTAYAM
   CRIME NO.369/2010 OF Ettumanoor Police Station, Kottayam


PETITIONER/ ACCUSED :

           V.L.THOMAS,
           AGED 60 YEARS,
           S/O.LUKA, VALLIKKATTIL HOUSE,
           ETTUMANOOR P.O., KOTTAYAM DISTRICT.

           BY ADVS.
           SRI.J.JULIAN XAVIER
           SRI.FIROZ K.ROBIN



RESPONDENT/ COMPLAINANT :

    1      STATE OF KERALA,
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM
           REPRESENTING THE SUB INSPECTOR OF POLICE,
           ETTUMANOOR POLICE STATION,
           KOTTAYAM DISTRICT.

    2      ASSISTANT ENGINEER
           KSEB, MODEL SECTION,
           ETTUMANOOR,
           KOTTAYAM DISTRICT.

           BY SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR

           BY ADV B.PREMOD, SC


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 5224 OF 2014
                                      2

                        BECHU KURIAN THOMAS, J.
                     =-=-=-=-=-=-=-=-=-=-=-=-=-=
                        Crl.M.C.No.5224 of 2014
                    =-=-=-=-=-=-=-=-=-=-=-=-=-=
                Dated this the 24th day of February, 2023


                                  ORDER

Petitioner is indicted as an accused in C.C.No.217/2010 of the

Judicial First Class Magistrate's Court, Ettumanoor, which was later

committed to the Sessions Court, Kottayam as S.C.No.359/2013 alleging

offences punishable under Section 135(e) of the Electricity Act, 2003.

2. According to the prosecution, the accused who was the

consumer of electricity with No.7706 had unauthorisedly extended the

connection to a nearby shed and committed the offence alleged against

him.

3. Sri.J.Julian Xavier, the learned counsel for the petitioner

contended that the prosecution against the petitioner is inherently

baseless and is liable to be quashed since petitioner was not the

consumer of electricity connection No.7706. In support of his contention,

it was pointed out that in Annexure 4 order of this Court dated

06.04.2010, one Aleyamma Thomas, who was actually petitioner's wife

had approached this Court seeking a relief for change in tariff category.

The learned counsel submitted that the very fact that Mrs.Aleyamma

Thomas had approached this Court seeking a direction for change of tariff

category itself indicates that she was the consumer. Apart from the

above, Annexure 5 judgment in W.P.(C) No.15483/2010 dated CRL.MC NO. 5224 OF 2014

26.05.2010 was also referred to wherein the said Aleyamma Thomas was

shown as the consumer. Annexure 6 order dated 22.11.2007 issued by

the Deputy Chief Engineer of Electrical Circle also specifically mentioned

that the Consumer No.C7706 of Ettumanoor stood in favour of

Smt.Aleyamma Thomas. During the course of arguments, the learned

counsel pointed out that even the proceedings of the assessing officer

dated 15.11.2016 had also mentioned that the Consumer No.7706 stood

in the name of Smt.Aleyamma Thomas.

4. In short, the contention of the learned counsel for the petitioner

is that while the consumer number stands in the name of Smt.Aleyamma

Thomas, the criminal prosecution has been initiated against the petitioner

who has no role in the alleged offence and in the absence of any

allegation against the petitioner, he cannot be roped in as an accused on

an assumption that petitioner is the consumer.

5. After the case was heard and the order dictated on 14.12.2022,

the learned Standing Counsel for the 2 nd respondent requested for an

opportunity to be heard again and to produce certain documents. The

request was accepted. Thereafter, a counter affidavit dated 22.02.2023

was filed. It was thereafter argued that the service connection for

consumer No.7706 of Electrical Section, Ettumanoor stands in the name

of Sri.Thomas V.L. and in support thereof produced copy of a consumer

profile as well as consumer's personal deposit register as Annexure R2(b)

and R2(c).

CRL.MC NO. 5224 OF 2014

6. I have considered the rival contentions and have also perused

the documents.

7. It is relevant to mention that Annexure R2(b) and R2(c) are not

documents that are part of the final report. They are not documents

which by themselves ensures its authenticity or veracity. Further, those

documents are produced after almost 13 years of filing the final report.

Those documents by themselves do not ensure its genuineness and are

instead self serving documents. In such circumstances, the additional

documents especially Annexure R2(b) and R2(c), now produced by the

Electricity Board cannot be looked into or relied upon by this Court in this

jurisdiction. As far as Annexure R2(e) is concerned, the same is a

subsequent document allegedly of the year 2016 and therefore it cannot

depicts the situation as of 2010.

8. The prosecution has been initiated against the petitioner on an

assumption that he is the consumer of electricity connection No.7706. As

rightly pointed out by the learned counsel for the petitioner, it is evident

from the order of this Court in Annexure 4, judgment of this Court in

Annexure 5 and even the order of the Deputy Chief Engineer in Annexure

6 that Consumer No.7706 stands in the name of Smt.Aleyamma Thomas

and not the petitioner. These documents are not disputed and cannot be

ignored under any circumstances. The findings therein are binding on the

Board.

9. Going by the nature of allegations in Annexure 7 final report, CRL.MC NO. 5224 OF 2014

petitioner has been arrayed as an accused only as the consumer of

electricity, for consumer number 7706. No individual overact other than

being a consumer is attributed against the petitioner in the final report.

10. It is trite law that when a consumer is alleged to have

committed an unauthorised use or theft of electricity or any other offence

contemplated by law, the prosecution can be initiated only against the

consumer and in the absence of any specific overt act committed by a

third party, a non-consumer cannot be proceeded against.

11. The final report does not indicate any specific overt act

committed or alleged to have been committed by the petitioner in his

individual capacity. Every act is alleged to have been committed by the

consumer. Since it is eminently clear that petitioner is not the consumer

of electricity connection No.7706 of Ettumanoor electrical section, I am of

the view that Annexure 7 final report initiating criminal proceedings

against the petitioner is inherently an abuse of the process of the court

and is liable to be set aside.

Accordingly, I quash all further proceedings in S.C.No.359/2013 of

the Additional Sessions Court, Kottayam.

The Crl.M.C. is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM CRL.MC NO. 5224 OF 2014

APPENDIX OF CRL.MC 5224/2014

PETITIONER'S ANNEXURES :

ANNEXURE-1: A TRUE COPY OF THE LICENSE DATED 13.5.2014 ISSUED BY THE SECRETARY ETTUMANOOR GRAMA PANCHAYATH

ANNEXURE-2: A TRUE COPY OF THE MAHAZER DATED 22.3.2010

ANNEXURE-3: A TRUE COPY OF THE PENALTY BILL DATED 27.3.2010 ISSUED BY THE 2ND RESPONDENT

ANNEXURE-4: A TRUE COPY OF THE INTERIM ORDER DATED 6.4.2010 IN WPC NO.11141/2010

ANNEXURE-5: A TRUE COPY OF THE JUDGEMENT DATED 26.5.2010 IN WPC NO.15483/2010

ANNEXURE-6: A TRUE COPY OF THE ORDER DATED 22.11.2007 ISSUED BY THE DEPUTY CHIEF ENGINEER.

ANNEXURE-7: A TRUE COPY OF THE FINAL REPORT/CHARGE SHEET IN CC NO.217/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR.

ANNEXURE-8: A TRUE COPY OF THE ORDER DATED 29.7.2008 ISSUED BY THE KERALA STATE ELECTRICITY REGULATORY COMMISSION.