Madhya Pradesh HC: Electricity Department cannot recover the dues assessed in the name of electricity theft until adjudicated by the Special Court

After hearing learned counsel for the rival parties and going through the provisions of Sections 135 and 154 of the Act, 2003, this Court finds that notwithstanding anything contained in the Code of Criminal Procedure, every offence punishable under Section 135 of the Act, 2003 shall be triable by the Special Court. As per Sub Section 5 of Section 154 of the Act, the Special Court is even empowered to determine the civil liability against the consumer or a person in terms of money for theft of energy. Thus, when the

Special Court is very well empowered to determine the civil liability apart from taking any penal action against the person who has committed theft of energy, the authorities could not have usurped such powers and could not had determined the liability and could not have raised a demand of Rs.1,93,561/- vide Annexure P/1 dated 23.07.2022.The aforesaid analogy finds support from the matter of Sangita wd/o Suresh Chandra Gupta and Another Vs. State of M.P. reported in 2009(1) MPLJ 366.

 IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

WRIT PETITION No. 11729 of 2023

NAVEEN KUMAR JAIN Vs  MADHYA PRADESH.

BEFORE

HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

Dated: 24 th OF FEBRUARY, 2025.

Citation: 2025:MPHC-GWL:3898.

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Whether Special court under Electricity Act 2003 can determine civil liability in civil misc application?

 I am in the agreement with the view taken by the Allahabad High Court. In these circumstances, it was permissible for the Special Court to determine the civil liability and it was not necessary for the Court to wait till the conclusion of the trial. As stated hereinabove, the respondents have not filed the charge sheet before the special Court although the FIR was registered on 29th September, 2017. The applicant cannot be left with no remedy as the liability has to be determined in accordance with Section 154(5) of the said Act. The decision referred to by the Counsel for the respondent is in a different context and the same is not applicable in the present case. For all the reasons stated hereinabove, the application is required to be allowed. Hence, I pass the following order. {Para 13}

ORDER

i) Criminal Application No. 749 of 2018 is allowed.

ii) The impugned order dated 13th June, 2018, passed by the special Judge, Barshi below Exhibit-21 in Civil Misc. Application No. 77 of 2017, is set aside and the special Court is directed to adjudicate the application preferred by the applicant in accordance with law;

iii) The interim application preferred by the applicant be decided within a period of four weeks from today.

 In the High Court of Bombay

(Before Prakash D. Naik, J.)

Dhairyashil Arun Doifode Vs Maharashtra State Electricity Distribution Company Ltd. and Another 

Criminal Application No. 749 of 2018

Decided on August 7, 2018.

Citation: 2018 SCC OnLine Bom 2770

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Whether proceedings under Sec 154 of Electricity Act before the special court for fixing civil liability need payment of court fee as a civil case?

 Section 154 of Electricity Act which prescribes the procedure and power of special court does not say that the special court, while determining civil liability u/s 154(5) of the Act would adopt the procedure prescribed in the Code of Civil Procedure for trial of suits. It does not even say that the special court, while determining civil liability u/s 154(5) of the Act shall be deemed to be a civil court. Use of the words as if it were a decree of the civil court in Section 154(5) of Electricity Act is a strong indicator of the legislative intent and clearly shows that the determination of civil liability by special court by itself will not be a “decree” passed by the civil curt and it is only by fiction of law that such a liability would be recovered as if it were a decree of civil court. Had the intention of the legislature been that the special court while dealing with a request for determination of civil liability, should adopt the procedure prescribed for trial of a civil suit, it would have stated so either expressly or by necessary implication and it would not have merely said that the amount of civil liability shall be recovered as if it were a decree of civil court. The legislature would then have said that the special court while determining such a liability would act as a civil court or that the determination made by it shall be deemed to be the decree of a civil court. {Para 22}

24. Taking into consideration the proposition of law enunciated by the Hon'ble Supreme Court in the case of Paramjeet Singh Patheja (Supra), special courts cannot be deemed to be civil court, the same having been specially set up u/s 153 of the Special Courts Act primarily for the purpose of trial of offence punishable U/ss 135 to 140 and Section 150 of Electricity Act. These special courts are not regular courts envisaged under Article 136 of the Constitution irrespective of the fact that the person who can be appointed as a Judge of a Special Court needs to be an Additional District & Sessions Judge immediately before his appointment as a Judge of a Special Court. In any case, in the absence of any specific statutory provision to this effect, a court set up primarily for the purpose of trial of the criminal offences cannot be considered to be a civil court within the meaning of Article 1 of Schedule 1 of Court Fee Act.

31. For the reasons given in the preceding paragraphs. I am of the considered view that ad valorem court fee is not payable on the complaints filed by the petitioner before the Special Courts. The view taken by the learned Judge of the Special Court is not sustainable in law and is liable to be set aside. Hence, the impugned order is hereby quashed and the Special Court is directed to proceed further in the matters without insisting upon payment of ad valorem court fee.

 High Court of Delhi

Before V.K. Jain, J.

BSES Rajdhani Power Ltd. Vs State N.C.T. of Delhi & Anr.

Crl. M.C. 3284/2008 with Crl. M.C. 3454/2008, 

Decided on November 25, 2009

Citation: 2009 SCC OnLine Del 3817 : (2011) 121 DRJ 34 : AIR 2010 Del 91 : 2010 AIHC 2958 : (2010) 175 DLT 74 : (2010) 114 DRJ 193 : (2011) 1 CCR 113

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Whether court must direct payment of court fees in proceeding U/S 154 of Electricity Act before the special court for fixing of civil liability?

 Article 1 of Schedule 1 of Court Fee Act provides for payment of ad valorem court fee on plaint, written statement pleading a set off or counter claim or memorandum of appeal or cross-objections presented to civil or revenue courts except those mentioned in Section 3. Unless the respondent can bring its case within the parameters of Article 1 of Schedule 1, ad valorem court fee would not be payable in respect of the amount claimed by the petitioner as civil liability of the respondents. Therefore, the question which arises is whether the complaint filed by the petitioner can be deemed to be a „plaint‟ within the meaning of Article 1 of Schedule 1 of Court Fee Act and whether the special court can be said to be a civil court for the purpose of this article. Taking into consideration the proposition of law enunciated by the Hon‟ble Supreme Court in the case of Paramjeet Singh Patheja (Supra), special courts cannot be deemed to be civil court, the same having been specially set up u/s 153 of the Special Courts Act primarily for the purpose of trial of offence punishable U/ss 135 to 140 and Section 150 of Electricity Act. These special courts are not regular courts envisaged under Article 136 of the Constitution irrespective of the fact that the person who can be appointed as a Judge of a Special Court needs to be an Additional District & Sessions Judge immediately before his appointment as a Judge of a Special Court. In any case, in the absence of any specific statutory provision to this effect, a court set up primarily for the purpose of trial of the criminal offences cannot be considered to be a civil court within the meaning of Article 1 of Schedule 1 of Court Fee Act.

24. In any case, the complaint filed by the petitioner before the Special Court cannot be construed as a „plaint‟ by any logical construction of the document. A bare perusal of this document, styled as a complaint u/s 135 r/w Section 151 of Electricity Act would show that the main prayer made by the complainant/petitioner was to summon, try and punish the respondents/accused persons on the ground that they had committed theft of electricity and had thereby committed offences punishable u/s 135(1) of Electricity Act, 2003. The complaint also contains an additional prayer to the court to determine the civil liability as provided in Section 154(5) of the Act. In my view, merely because this complaint also contains a prayer for determination of civil liability that by itself does not convert it into a „plaint‟. A document cannot be said to be a criminal complaint as well as a plaint at the same time. A criminal plaint lies before a criminal court whereas the plaint lies before a civil court. The procedure prescribed in Code of Criminal Procedure for trial of a case instituted on a complaint is altogether different from the procedure prescribed in the Code of Civil Procedure, for trial of a suit instituted by filing a plaint. Therefore, this document cannot be termed as a plaint within the meaning of Article 1 of Schedule 1 of Court Fee Act.

25. Section 26(2) of Code of Civil Procedure provides that in every plaint, facts shall be proved by affidavit. On the other hand, Section 154 of Electricity Act, 2003 provides that the special court may try the offences referred to in Section 135 to 140 and Section 150 in a summary way in accordance with the procedure prescribed in the Code of Criminal Procedure and the provisions of Section 263 to 265 of the Code of Criminal Procedure shall, so far as may be, apply to such trial. It does not prescribe any separate procedure for determination of civil liability. The Electricity Act does not envisage application of two procedures, by special court, one for the purpose of trial of offences referred to in Section 135 to 140 and Section 150 of the Act and the other for determination of civil liability u/s 154(5) of the Act. Had the legislative intent been that for the purpose of determination of civil liability, the special court would adopt the procedure prescribed in the Code of Civil Procedure for trial of a suit, it would have expressly stated so in the Act. In any case this is not the case of the respondents that the Special Courts, are conducting two independent proceedings, one in accordance with the procedure prescribed in Cr.P.C. for trial of the offences of which the complaint has primarily been filed and the other in accordance with the procedure prescribed in CPC for trial of civil suits, for determining civil liability u/s 154(5) of Electricity Act.

29. The entire procedure for trial of a civil suit instituted by presentation of a plaint as prescribed in the Code of Civil Procedure is altogether different from the procedure prescribed for dealing with the complaints in respect of the offences referred to in Section 135 to 140 and Section 150 of Electricity Act. Neither adoption of such a procedure has been prescribed by Section 154 of Electricity Act nor is such a procedure otherwise implicit in that Act.

30. The interpretation given by the Hon‟ble Supreme Court in the case of Gujarat Industrial Finance Corpn. (Supra), followed by this court in Prakash Playing Cards Manufacturing Co. (Supra) equally applies to Section 154 (5) of Electricity Act, 2003. The view being taken by me also finds full support from the decision of the Hon‟ble Supreme Court in, Paramjit Singh Patheja (Supra), interpreting Section 15 of Arbitration Act of 1899 and Section 36 of Arbitration and Conciliation Act, 1996.

31. For the reasons given in the preceding paragraphs, I am of the considered view that ad valorem court fee is not payable on the complaints filed by the petitioner before the Special Courts. The view taken by the learned Judge of the Special Court is not sustainable in law and is liable to be set aside. 

 Delhi High Court

Bses Rajdhani Power Ltd. vs State N.C.T. Of Delhi & Anr. on 25 November, 2008

Author: V. K. Jain

Crl.M.C.3284/2008

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Whether accused is entitled to get reduced punishment if law is subsequently amended?

 In T. Barai v. Henry Ah Hoe and Anr.: (1983) 1 SCC 177, the Supreme Court had explained that insofar as a new enactment creates 

new offences or enhances punishment for a particular type of offence, no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment, be imposed. However, if a punishment for an offence is reduced, there is no reason why the accused should not have the benefit of the reduced punishment. It was further explained that the rule of beneficial construction requires that even an ex post facto law should be applied to mitigate the rigors of the law. The relevant extract of the said decision is set out below:-

“22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th Edn., at pp. 388-89:

“A retrospective statute is different from an ex post facto statute. “Every ex post facto law…” said Chase, J., in the American case of Calder v. Bull [3 US (3 Dall) 386: 1 L Ed 648 (1798)] “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.”

23. To illustrate, if Parliament were to reenact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life instead of the present sentence of death or imprisonment for life, then it cannot be that the courts would still award a sentence of death even in pending cases.

24. In Rattan Lal v. State of Punjab [AIR 1965 SC 444: (1964) 7 SCR 676: (1965) 1 SCJ 779: (1965) 1 Cri LJ 360] , the question that fell for consideration was whether an appellate court can extend the benefit of Probation of Offenders Act, 1958 which had come into force after the

accused had been convicted of a criminal offence. The Court by majority of 2: 1 answered the question in the affirmative. Subba Rao, J. who delivered a majority opinion, concluded that in considering the question, the rule of beneficial construction required that even ex post facto law of the type involved in that case should be applied to reduce the punishment.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 04.09.2019

 CRL.A. 877/2017

FINANCIAL INTELLIGENCE UNIT-IND Vs CORPORATION BANK 

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

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Important provisions of Electricity Act, 2003.

135. Theft of electricity

136. Theft of electric lines and materials

137. Punishment for receiving stolen property.
138. Interference with meters or works of licensee.
139. Negligently breaking or damaging works.
140. Penalty for intentionally injuring works
150. Abetment.—(1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence.

151. Cognizance of offences.—No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:

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Distinction between Civil Liability and Criminal Liability for Defamation

The view consistently taken by this Court has been that there is a distinction between criminal and civil liability for defamation. Civil liability is to be determined by the principles of English Law, but criminal liability is governed by the provisions of the Indian Penal Code and by those provisions alone. This view was taken by Mr. Justice Aikman in Isuri Prasad Singh v. Umrao Singh 22 A. 234 : A.W.N. (1900) 46 : 9 Ind. Dec. (N.S.) 1187, and was re-affirmed by a Full Bench in Emperor v. Ganga Prasad 29 A. 685 : 4 A.L.J. 605 : 6 Cr. L.J. 197 : A.W.N. (1907) 235. The view taken by this Court has quite recently been unanimously approved by a Full Bench of five Judges of the Calcutta High Court in Satis Chandra Chakrabarti v. Ram Dayal De 59 Ind. Cas. 143 : 48 C. 388 : 32 C.L.J. 94 : 24 C.W.N. 982 : 22 Cr. L.J. 31.

Allahabad High Court

Musammat Champa Devi And Anr. vs Pirbhu Lal And Ors. on 14 December, 1925

Equivalent citations: 92 Ind Cas 429

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Whether sale of truck by accused before repayment of loan amounts to offence U/S 420 of IPC?

PENAL CODE - Section 420--Cheating--Complainant--advancing Rs. 20,000/- on execution of pronote for purchasing truck-Orally agreed not to sell truck till loan is repaid-Accused selling truck before repayment-Held, complainant was not defrauded to part with Rs. 20,000/-It is a case of breach of agreement and civil liability is incurred-Charge of cheating is quashed.

On 13th June, 1980, the petitioner obtained a loan of Rs. 20,000/- from the complainant and executed a pronote in favour of the complainant and at the time of the execution of the said pro-note, it was orally agreed that so long as the petitioner did not repay the aforesaid amount of loan, the petitioner would not take his share of the income from the truck and it was also agreed that so long as the petitioner did not repay the amount of the pronote, he would not be entitled to sell the truck and that the aforesaid agreement was also re-evolved on the back of the pronote.

The allegations contained in the complaint, do not make out the case that at the time when the complainant advanced the sum of Rs. 20,000/- to the petitioner, the petitioner had deceived the complainant by fraudulently including the complainant to advance the loan of Rs. 20,000/- to the petitioner & that but for the aforesaid inducement, the petitioner would not have paid the sum of Rs. 20,000/- to the complainant.

The petitioner in selling the truck before repaying the amount of the loan of Rs. 20,000/-, has committed breach of the agreement, which is said to have been entered into between the complainant and the petitioner on 13th June, 1980 when the complainant advanced the loan of Rs. 20,000/-to the petitioner. The aforesaid alleged breach of the agreement may give rise to civil liability but it would not give rise to any criminal liability.

Petition Allowed

Equivalent Citation: 1982WLN(UC)195

IN THE HIGH COURT OF RAJASTHAN

S.B. Criminal Misc. Petition No. 123/82

Decided On: 30.07.1982

Kayhaiya Lal Vs.  The State of Rajasthan

Hon'ble Judges/Coram:
S.C. Agrawal, J.
Equivalent Citation: 1982WLN(UC)195

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