Full Judgment
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 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:
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 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).
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,
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 Corrigendum dated 23.03.2023 The date shown as '14.12.2022' in the last portion of the cause title shall stand corrected and read as '24.02.2023'. Sd/- BECHU KURIAN THOMAS, JUDGE RKM 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.