Tamil Nadu Electricity Board vs M.Veerappan
2021 Latest Caselaw 10749 Mad

                                                                                 S.A.(MD)No.792 of 2014


                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 27.04.2021

                                                         CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                   S.A.(MD)No.792 of 2014

                Tamil Nadu Electricity Board,
                Karur Electricity Distribution Circle,
                Represented by Executive Engineer,
                (O & M) (Rural), Karur                                      ... Appellant

                                                            Vs.

                M.Veerappan                                                 ... Respondent

                Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
                against the judgment and decree in A.S.No.61 of 2008 on the file of the District
                Court, Karur dated 20.07.2010, reversing the judgment and decree passed in
                O.S.No.190 of 2005 on the file of the Sub Court, Karur dated 21.02.2008.

                                   For Appellant      : Mrs.M.Parameshwari,
                                                            For Mr.S.M.S.Johnny Basha

                                   For Respondent : Mr.R.Mathiyalagan


                                                       JUDGEMENT

The plaintiff in O.S.No.190 of 2005 on the file of the Sub Court, Karur,

is the appellant in this second appeal. The case of the plaintiff is that the

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S.A.(MD)No.792 of 2014

defendant/respondent herein namely., M.Veerappan had taken the suit

electricity connection on 12.01.2001. On 28.07.2003, the Anti-Theft Squad of

TNEB detected energy theft from the said connection. The respondent was

called upon to show cause vide Ex.A.3 dated 29.07.2003. It was made clear

that the respondent will be levied with assessment charges for the energy theft

committed by him, if his explanation was not found satisfactory.

2.The respondent is said to have given his explanation dated 11.08.2003.

Not satisfied with the same, Ex.A.4/assessment order dated 20.08.2003 was

passed and the extra levy payable by the respondent was quantified at

Rs.1,79,786/-. The respondent was called upon to pay the same in ten

installments of Rs.17,979/-. A detailed worksheet was also enclosed along with

Ex.A.4/assessment order. Thereafter, several communications were issued to

the respondent calling upon him to pay the levied amount. Exs.A6 and A7 are

the demands issued by the plaintiff. Exs.A.8, A.9 and A.10 are the

acknowledgement cards signed by the defendant. Since the assessed amount

was not paid by the defendant, the aforesaid suit came to be filed. The

respondent filed his written statement denying the suit claim. The learned Trial

Judge framed the issue as to whether the defendant was obliged to pay the suit

claim. On the side of the plaintiff, an assistant engineer by name Jegatheesan

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S.A.(MD)No.792 of 2014

was examined as P.W.1 and Exs.A.1 to A.10 were marked. The defendant

examined himself as D.W.1 and no documentary evidence was marked on the

side of the defendant. The learned Trial Judge by judgment and decree dated

21.02.2008 decreed the suit as prayed for.

3.Questioning the same, the defendant filed A.S.No.61 of 2008 before

the District Court, Karur. The first appellate court by judgment and decree

dated 20.07.2010 allowed the appeal and set aside the judgment and decree

passed by the Trial Court. Challenging the same, this second appeal came to be

filed.

4.The second appeal was admitted on the following substantial questions

of law:-

“(a) Whether the Courts below right in holding that the civil court have jurisdiction to entertain the energy theft case?

(b) Whether the Courts below ought to have given proper inference to Ex.B.1?

(c) Whether the Courts below ought to have given proper inference to Ex.B.2?

(d) Whether the Courts below perverse the decreed suit without giving proper reason to Exs.B.1 and B.2?

(e) Whether in law the judgment and decree of the Lower Court is sustainable in reversing the well consider judgment of the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.792 of 2014

Trial Court without rendering any specific findings?

(f) Whether the finding of Lower Appellate Court that the appellant has not proved the theft of energy is sustainable in view of Exs.A.6 and A.7, which are not disputed by the defendant? and

(g) Whether the finding of Lower Appellate Court that the Board has not proved theft of energy is sustainable when the defendant admittedly not questioned the final assessment order of the Board in a manner known to law?”

5.Heard the learned counsel on either side.

6.The learned counsel for the appellant reiterated all the contentions set

out in the memorandum of grounds and took me through the evidence on

record and also the judgments of the Courts below and submitted that the

substantial questions of law deserve to be answered in favour of the appellant.

She called for setting aside the judgment and decree passed by the first

appellate court and restoring the judgment and decree passed by the trial court.

7.Per contra, the learned counsel for the respondent submitted that the

defendant was prosecuted but the prosecution ended in acquittal. He would

point out that the acquittal of the defendant was not challenged by the State.

The plaintiff also did not file any criminal revision questioning the acquittal.

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S.A.(MD)No.792 of 2014

He submitted that the first appellate court has given strong, cogent and

convincing reasons for setting the judgment and decree passed by the trial

court. He pressed for dismissal of the second appeal.

8.I carefully considered the rival contentions and went through the

evidence on record. It is well settled that where the consumer of electricity has

been levied with an order of assessment in cases of energy theft, the consumer

or the noticee must necessarily avail the remedy provided under the statute

namely., the Electricity Act, 2003 and a civil suit questioning the assessment

order will not be maintainable.

9.The learned standing counsel drew my attention to a recent judgment

passed by the Madras High Court in S.A.No.114 of 2000 (The Assistant

Engineer Distribution, Madras (North)/Tiruvottiyur, Chennai-19 and Others Vs.

Raja Metal Corporation, Rep. by its Managing Partner, Selvaraj Nadar), dated

31.01.2019 in this regard. This being the legal position, the first appellate

court could not have called upon TNEB to establish the factum of energy theft

in these proceedings.

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S.A.(MD)No.792 of 2014

10.More than anything else, the fact remains that the

defendant/Veerappan did not choose to challenge the validity of Ex.A.4/levy of

assessment. When Ex.A.4 remains unchallenged, TNEB was very much

entitled to institute the instant suit for recovery of the sum covered under

Ex.A4.

11.I wanted to know if Ex.A.4 was served on the appellant. The learned

standing counsel drew my attention to Exs.A.8, A.9 and A.10/acknowledgment

cards in which the signatures of the defendant are found. When the defendant

was confronted in the box, he denied his signatures found in Exs.A.8, A.9 and

A.10. When the trial court wanted to compare the same with the signatures

found in vakalat and the written statement, the defendant went to the extent of

denying his signatures found in those documents!

12.The plaintiff can only be expected to send the communication by

RPAD. In the case on hand, the communications were sent by RPAD.

Therefore, the presumption under Section 27 of the General Clauses Act,1897

will come to the rescue of the plaintiff. The defendant had not let in any

evidence to show that Ex.A.4 has been set aside or stayed in any proceeding

instituted by him. So long as Ex.A.4 stands, the right to recover the amount

covered thereunder is very much available to the plaintiff. The trial

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S.A.(MD)No.792 of 2014

court correctly appreciated the facts and the legal aspects involved and decreed

the suit. The first appellate court totally misdirected itself and by a faulty

reasoning set aside the well considered decision of the trial court. The seventh

substantial question of law is answered in favour of the appellant and in view

of the same, it is not necessary to go into other substantial questions of law

framed by this Court. The second appeal is allowed and the judgment and

decree passed by the first appellate court is set aside and the judgment and

decree passed by the trial court is restored. No costs.

                                                                                    27.04.2021
                Index              : Yes / No
                Internet           : Yes/ No
                ias

Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To:

1.The District Court, Karur.

2.The Sub Court, Karur.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD)No.792 of 2014

G.R.SWAMINATHAN, J.

ias

S.A.(MD)No.792 of 2014

27.04.2021

https://www.mhc.tn.gov.in/judis/