Common Order:

1. Heard Sri M.L.Narasimham, learned counsel for petitioners as well as Sri N. Sreedhar Reddy, learned Standing Counsel for respondents.

2. As both the Writ Petitions are with similar set of facts, they are taken up together. For convenience sake, the facts in Writ Petition No. 12 of 2010 are taken up for discussion.

3. Learned Counsel for petitioner contends that petitioner is a consumer of electricity bearing SC No. 019000979 under LT Cat.III-A for the Premises bearing No. 15/B, Phase IV, IDA, Jeedimetla, Shapur Nagar, Ranga Reddy District since 2003. From the date of availing power supply, he has been paying the bills without there being any default and at no point of time, the consumption bills of the petitioner exceeded Rs. 6000/- p.m. on an average.

               3.1. It is submitted, the 3rd respondent inspected the premises of petitioner on 04.12.2009 and the said Officer without preparing any inspection report as prescribed under General Terms & Conditions of Supply (GTCS), without serving copy of such report on petitioner, had taken away the meter existing in petitioner’s premises and replaced the same with another meter, on the ground that the existing meter was found defective. According to learned counsel, on 18.12.2009, petitioner received information on phone to be present for meter testing; though the men of petitioner attended at that time, no copy of the meter testing report was furnished, but power supply was disconnected on 23.12.2009.

               3.2. Learned counsel submits that provisional assessment order was passed by the 1st respondent on 26.12.2009 and also a criminal case was registered against petitioner alleging the offence of theft of energy by tampering the meter. The said provisional assessment proceedings were served on petitioner without any calculation sheet. It is contended that monthly consumption bills are issued to petitioner regularly and at no point of time, was there any allegation that meter seals have been tampered. Respondents, without even recording the percentage of error, have straightaway assessed the amount and registered a theft case under Section 135 of the Electricity Act, without there being any incriminating material. It is contended that the report of the meter test result would show that there was burning of meter; therefore, the case of theft registered against petitioner was totally illegal.

               3.3. Learned Counsel for petitioner further contends that there is no tampering of meter, as alleged and therefore prayed to allow the Writ Petition by declaring all actions pursuant to the inspection made by the 3rd respondent in respect of petitioner’s service connection, as illegal and void; to declare that the criminal complaint registered against him vide FIR No. 2746 of 2009 dated 24.12.2009 as illegal and also to declare the Provisional Assessment Notice dated 26.12.2009 as one without jurisdiction.

               3.4. It is further contended that though inspection has taken place on 04.12.2009, FIR was registered on 24.12.2009 which is contrary to Section 135 of the Act; therefore, the same shall be quashed. As per Section 135, the officer of the licensee shall lodge the complaint, in writing, relating to commission of such offence in the Police Stating having jurisdiction within 24 hours.

4. Learned Standing Counsel for Respondents, based on the counter, contends that Writ Petition is neither maintainable in law nor on facts. It is contended that Service Connection No. 019000979 of petitioner was inspected by the DPE Wing of Respondent Company on 04.12.2009 and it was observed that two meter cover MTR side seals were found to be in tampered condition. The meter was tested with 2 KW heater load and found that meter disc is rotating in R and B phases but not rotating in Y phase. Therefore, the meter was removed for the purpose of testing in MRT Laboratory which is equipped to detect the sophisticated tampering of the machinery in the electricity meters.

               4.1. It is further contended that on 08.12.2009, the meter was tested in MRT Laboratory and it was observed that there is no voltage being recorded in Y phase. On opening the meter, it was found that Y phase pressure coil got burnt by external means and coil winding damaged. It is contended that this has been damaged due to meddling of the meter, therefore, petitioner indulged in theft of energy. It is further contended that meter has been tampered in such a way that -32.04% less energy was being recorded in the meter. In view of the report of the MRT Laboratory, it has been concluded that meter has been tampered to conceal actual consumption of electricity and therefore, a letter was addressed to the SHO, Vigilance & APTS team on 24.12.2009 and the FIR was registered on 24.12.2009 itself. It is contended that Provisional Assessment Order has been issued in tune with provisions of law and General Terms & Conditions of Supply which are applicable. It is contended that there is no illegality or irregularity in the entire proceedings conducted from the time of inspection to the date of registration of FIR and issuance of provisional assessment order.

               4.2. Learned Standing Counsel further contends that FIR was lodged on 24.12.2009 in view of the inspection report of the MRT Laboratory being made available on 23.12.2009. Unless it is concluded by evidence such as report of the MRT Laboratory, Respondents could not conclude that there was theft of energy for the purpose of registering a case against petitioner. In any event, learned Standing Counsel contends that proviso to Section 135 (1A) of the Act empowers lodging of complaint within 24 hours from the time of such disconnection which means that there shall be proof of theft and disconnection and only thereafter, registration of crime can be done. It is further contended that in a Writ Petition seeking mandamus, petitioner cannot seek to declare the crime registered vide FIR No. 2746 of 2009 as illegal. It is contended that this Court can quash the FIR if an appropriate writ such as Writ of Certiorari is sought for and merely declaring the FIR as illegal would not serve any purpose and it cannot be treated as quashed.

               4.3. It is contended by learned Standing Counsel that as it is a case of theft of energy, loss of revenue to Respondents was assessed at Rs. 2,27,048/- and that the said assessment is only provisional in nature and the actual assessment for the civil liability shall be made by competent Court constituted under Section 153 of the Act on a reference made under Section 154 (5). Therefore, by no stretch of imagination can a provisional assessment made by the Department be interdicted by this Court.

               4.4. While drawing attention of this Court to the inspection report of the Detection of Pilferage of Energy Wing, learned Standing Counsel contends that petitioner himself has signed on the said inspection report dated 04.12.2009; hence, he cannot now contend that no inspection has been made nor a copy of inspection report was served on him. In view of the said submissions and availability of evidence, learned Standing Counsel prayed to dismiss the Writ Petition with costs.

5. This Court has considered the rival submissions made by Learned Counsel on either side. It is an admitted fact that inspection had taken place on 04.12.2009. The documents filed by Respondents along with counter-affidavit show that petitioner himself had signed the inspection report. Therefore, the averment of petitioner that no inspection report was drawn and served on him cannot be believed.

6. The further contention of petitioner that FIR was lodged after 10 days and therefore the same is contrary to the provisions of Section 135 of the Act is rejected, since Section 135 deals with theft of energy. Sub-section (1A) of Section 135 reads that “without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity, PROVIDED that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorized shall disconnect the supply line of electricity, PROVIDED FURTHER that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection”. As rightly contended by learned Standing Counsel, Lab Test report was made available to Respondents by the MRT Laboratory on 23.12.2009 and immediately thereafter, power supply was disconnected and FIR was lodged/registered on 24.12.2009. Therefore, the prayer of petitioner to declare the FIR as illegal is rejected.

7. As regards assessment made vide proceedings dated 26.12.2009 for Rs. 2,27,048/-, the same is only a provisional assessment made by the Assistant Divisional Engineer being the loss caused to the company based on the report of MRT Laboratory which has tested the meter. Petitioner was directed to pay 50% of the said amount i.e. Rs. 1,13,524/- and the same would be subject to the proceedings to be referred to the competent Special Court under Section 154 (5) of the Act for determination of civil liability of petitioner. Therefore, this Court sees no reason to interfere with the provisional assessment notice issued by Respondents. The aspect as to whether petitioner has committed theft of energy or not would be decided by the criminal Court after filing the charge sheet by the Police concerned and trial to be conducted under the provisions of Criminal Procedure Code/ BNSS.

8. Learned counsel for petitioner, on the point of limitation to lodge FIR, relied upon the judgments in Public Prosecutor, Madras v. R. Raju (AIR 1972 SC 2504) , Pritam Singh v. The State of Haryana (AIR 1973 SC 1354). For the purpose of distinction between Sections 135 and 126 of the Act, he has relied upon the judgment reported in The Executive Engineer v. M/s Sri Seetaram Rice Mill (2011 (12) SCALE 243). He has also filed copy of the order passed by this Court in Writ Petition No. 5422 of 2004 and batch dated 18.03.2014 regarding determination of civil liability and some other judgments regarding non-adherence to Section 102 of Cr.P.C. read with Section 135 (4) of the Act.

9. All these judgments have been perused. These judgments are not applicable to the facts of the present case. As discussed above, unless report of MRT Laboratory is received to show that there was tampering of meter, Respondents could not have registered the FIR and in any event, after disconnection of power supply, immediately FIR was lodged. Therefore, viewed from any angle, this Court holds that petitioner has not made out any case for interference either to quash the FIR or to set aside the provisional assessment made by Respondents. Therefore, both the Writ Petitions are liable to be dismissed.

10. The Writ Petitions are accordingly, dismissed. No costs.

11. Consequently, the miscellaneous petitions pending, if any, shall stand closed.