P. Damodaran vs M. Viswanathan

Sengottuvelan, J.—The petitioner one P. Damodaran had filed the above petition under S. 482 Crl. P.C. to call for the records in C.C. No. 6735/85 on the file of the Chief Metropolitan Magistrate, Eg more, Madras, and quash the same.

The facts of the case are briefly as follows : The respondent herein is a tenant in respect of the northern portion of the shed Door No. 59 (Old No. 65), Nelson Manicka Mudaliar Road, in the site bearing Plot No. 2 and situate at Vada Akaram Village, Madras, comprised in part of Old R. S. No. 17/1 and 17/2 A, part of P.S. No. 1/7 in Block No. 4, covering 300 sq. ft. area and behind Southern Furrace Company. The lease is governed by a lease deed dated 6th October, 1980. In the lease deed the lessee is mentioned at the proprietorship firm to which one Mr. M. Viswanathan is the proprietor. Cl. 7 of the lease deed relates to the electricity supply which is as under:

The Lessor shall help and co-operate with the Lessee in his application to the Madras Electricity Board for the purpose of getting the necessary power connection for running the industry. All the expenses in regard to the securing of such connection from the Madras Electricity Board by tray of security deposit, and other installation expenses will be borne only by the Lessee. A separate matter will be fixed on the demised premises at the cost of the Lessee.

There is also another Cl. 9(b) in the lease deed, relating to the supply of electricity which is as follows:

(b) To regularly pay the electricity consumption charges (as shown by the separate meter fixed in the demised premises), water tax and other licence fees in respect of the industry to be carried on by the lessee.

The fact that electrieity supply was extended to the portion of the premises leased out to the respondent from the electricity connection to the landlord''s portion is not disputed. The lease deed provides for establishment of a separate connection in the name of the tenant the respondent herein. But such a connection had not been taken. The landlord viz., V. Kameswaran seems to have sold the premises bearing Door No. 59, Nelson Manicka Mudaliar Road to one P. Damodaran, the petitioner herein, and after effecting the sale deed a notice was sent to the respondent herein viz., the tenant, by the erstwhile landlord V. Kameswaran that he has sold the premises to the petitioner herein and asking the respondent herein to attorn to the petitioner and pay the monthly rent to the petitioner. The respondent was also intimated that his advance amount of Rs. 3,000 had been transferred to the credit of the petitioner as advance amount paid by the respondent.

After purchase the new landlord, viz. the petitioner herein, cut off the electricity supply to the respondent. According to the case of the petitioner the respondent was illegally using the electricity with an understanding with the previous landlord and that there was inspection by the staff of the Tamil Nadu Electricity Board which prompted the petitioner to discontinue the supply of electricity to the respondent''s portion. The petitioner was compelled to resort to the action so as to prevent any prosecution under the Indian Electricity Act by the Department. The petitioner has not shifted the electricity control switch and he wanted to avoid any action being taken against him. So the petitioned disconnected the electricity supply and on such disconnection the respondent instituted a complaint in C.C. 6735 of 1985 on the file of the Chief Metropolitan Magistrate, Egmore. It is also the case of the petition that respondent has also filed a rent control petition for the restoration of the electricity supply, which according to the respondent is an amenity, and in view of the pendency of the civil proceeding under the provisions of the Rent Control Act, the respondent cannot start criminal proceedings under the provisions of the Indian Electricity Act. Hence both on the ground that the section of the petitioner disconnecting the electricity supply will not amount to an offence under S. 40 of the Indian Electricity Act and also on the ground that the prosecution is not sustainable in view of the pendency of the rent control proceedings for the restoration of electricity supply, the petitioner prays for quashing the complaint made by the respondent before the Chief Metropolitan Magistrate* Egmore, Madras.

Before considering the case of the petitioner we will have to take into consideration the relevant provision of the Indian Electricity Act, 1910, and see whether an offence contemplated by any of the provisions of the said Act had been committed by the petitioner by disconnecting the electricity supply to the respondent. S. 40 of the Indian Electricity Act, 1910 is the penal provision" for the cutting the electricity supply and the same is as follows:

Whoever maliciously causes energy to be wasted or diverted, or, with intent to cut off the supply of energy, cuts or injuries, or attempt to cut or any injure, any electric supply line or works," shall be punishable with imprisonment for a term which may extend to two years, of with fine which may extend to one thousand rupees, or with both.

S.2, sub-S. (n) defines "works� as follows :

�Works� includes electric supply-line and any building, plant, machinery, apparatus, and any other thing of whatever description required to supply energy to the public and to carry into effect the objects of a licence or sanction granted under this Act or any other law for the time being in force.

According to the petitioner in order to attract the penal provision in S. 40 of the Indian Electricity Act there must be a cutting of the supply at electrical energy by disrupting the electricity supply to a registered consumer from the licenses who is authorised to distribute electricity. The further case of the petitioner is that the landlord cutting the electric supply to the tenant who is not a consumer by holding the service connection from the licensee will not amount to an offence under S. 40 of the Indian Electricity Act. On the other hand the case of the respondent is that S. 40 of Indian Electricity Act lays down in that cutting of the electricity supply line to who msoever it may be to an offence under S.40 of the Indian Electricity Act.

Similar matters came up for decision before the several High Courts. In the case reported in Ram Kumar Sarogi Vs. Babulal Goenka, , a single Judge of the Calcutta High Court held that a consumer is entitled to cut the electric supply line of his own premises and so discontinue a supply himself unless this in some way adversely affects the Electric Supply Company. Whether in doing so he has broken his contract with the tenant is a matter which the Civil Court can determine. Hence where a landlord consumer, an refusal of his tenant to pay enhanced rent cuts electric supply line for the room occupied by the tenant he cannot be convicted under S.40 of the Indian Electricity Act. The same learned Judge in the case reported in P. Bose Vs. H.C. Sen, , held as follows:

S 40 deals with the interference or attempted interference with the supply of electric current by a licence to a person to whom the licensee contracted to supply electricity. Hence it is applicable to a case where the electric connection of a person having a separate meter is interfered with.

The definition of "Works" in S.2(r) of the Act is so wide that anybody who cuts the wires or removes switcher pr in any other way interferes with the connection between the distributing source and this meter of the consumer will be deemed to have injured the works.

Where, therefore, a tenant has his own mete and the landlord with intent to cut off supply of energy severes the electric connection of the tenant. He is "malificiously injuring the works with intent to cut off supply of energy" within the meaning of S.40.

The learned Single Judge of the Calcutta High Court held that S 40 of the Indian Electricity Act deals with the interference or attempted interference with the supply of electric current by a licensee to a consumer; or more strictly by a licensee to a person to whom the licensee has contracted to supply electricity, If a tenant has his own meter he will be deemed to have his own separate contract with the licensee. Therefore, if the landlord maliciously severed the electric supply line of the tenant, it is an offence punishable under S.40 of the Indian Electricity Act. If the tenant has not separate electric connection in his name by which he is entitled to receive the electric supply from the licensee but has got only a supply of electricity from the landlord''s electric connection, then if the landlord cuts off such supply it cannot be said that the landlord committed an offence under S.40 of Indian Electricity Act, because by such disconnection there is no interference with any electric supply from the licensee to the consumer to whom the licensee had contracted to supply electric energy.

On behalf of the respondent reliance is placed upon the case reported in Bhagalpur Electricity Supply Co. Ltd. Vs. Hari Prasad Saha and Others, , where a single judge of the Patna High Court held that the definition of ''consumer'' includes any person who is supplied with energy by a licensee, and any person whose premises are for the time being connected for the purpose of supply of energy with the works of the licensee. That was a case where five members of the joint family interfered with the meter, with the result a prosecution was launched by the person who is in charge of the property of the electrical company, who was a licensee to distribute the electricity. The Magistrate held that the accused in that case cannot be called as a consumer. Disagreeing with the view of the Magistrate the Single Judge of the Patna High Court observed as follows:

The definition includes any person who is supplied with energy by a licensee, and any person whose premises are for the time being connected for the purpose of a supply of energy with the works of a licensee. Prima facie, it should be enough to prove either that energy was supplied for the use of the accused, or that accused were owners or occupiers of premises connected with the licensee''s electric system.

Relying upon this observation it Is contended by the respondent that in order to constitute an offence under S.40 of the Indian Electricity Act it is enough if the electric supply is interfered with. The observation of the Patna High Court is only to the effect that the members of a joint family of a consumer will be deemed to be consumers. The above case cannot be said to lay down a proposition that the occupiers of the premises to which electric supply is extended without reference to the licence authorised, to supply electricity. S.2(c) of the Indian Electricity Act, 1910 is as follows:

2(c) ''consumer'' means any person who is applied with energy by a licensee or the Government or by any other person engaged in the business of supplying energy to the public under this Act or any other law for the time being in force, and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a lisensee, the Government or such other person, as the case may be.

The observation of the Patna High Court taken along with the definition of ''consumer� occurring in S.2(c) of the Indian Electricity Act, 1910, will only indicate that the word ''consumer� can only denote a person who by means of a contract is supplied with the electricity by the licensee. In other words, the concerned person should have service connection in his name and the definition of ''consumer� cannot be extended to the supply of electricity by a landlord to a tenant without reference to the licensee distributing electrical energy under the provisions of the Indian Electricity Act, 1910. In the came reported in Manickam v. Dhanakoti 1983 M.L.J. (Cri.) 315 a single Judge of this Court in dealing with a case where both the owner and the occupier of the premises were prosecuted under Ss.44(c) and 39 of the Indian Electricity Act, 1910, read with S.379, I.P.C. acquitted both the accused on the reasoning'' that it is not possible to ascertain which of the accused tampered with the meter. The learned lodge on revision observed as follows:

with respect, I am not able to agree'' with the reasoning rendered in that decision. This is virtually asking for an impossibility. Here is a case where the first respondent is the owner of the meter connection and the second respondent is running some business therein; It is futile to expect direct evidence as to whether the first respondent or the second respondent has tampered with the meter. This is a matter exclusively within the knowledge of the accused persons. The further evidence it that the licence stands in the name of the first respondent and the second respondent is running a business. When once the prosecution discharges, the initial onus of proof, it is for the accused to'' show that the tampering or the abstraction of electricity was done without their knowledge. At stated already, S.39(1) of the Act says that if it is proved that any artificial mean or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that such abstraction, consumption or use of energy has been dishonestly caused by such consumer. S.44 also raises a similar presumption.

An argument is advanced on behalf of the respondent that from the observation of the learned Judge that the tenant may also be held responsible for tampering with the meter. It follows that if an electric supply to the tenant is interfered with by the landlord S.40 of the Indian Electricity Act is attracted. This argument cannot be accepted tiling into consideration the general scheme of the Act. S.44(c) is the penal provision for interfering with the meter or other apparatus intended to measure the electrical energy and whoever maladroitly injuries any meter is punishable under S.44. But S.44 is intended to prevent any interference with the supply of electrical energy by the licensee to a consumer who can only be a person who entered into a contract with the licensee for the supply of energy. The supply Of energy by the landlord to the tenant by means of an agreement entered into between themselves cannot come within the purview of S.40 of the Indian Electricity Act and the same will have to be governed by the provision of the contract inter se between themselves. The next case relied upon by the respondent is the one reported in Birdhi Chand v. the State ILR (1954) 4 Raj. 655 where a single Judge of the Rajasthan High Court held that if a person removes a certain switch and thereby stops the electric energy from proceeding beyond the point where the switch is removed, he cuts the electric supply-line within the meaning of S. 40 of the Indian Electricity Act, even though he does not damage to the line in any shape or form. The Word "maliciously� in S.40 of the Act does not qualify the words "with intent to cut off the supply of energy" but only qualifies the words �causes energy to be wasted or diverted". Therefore, where a person, with intent to cut off the supply of energy, cuts the supply-line, he is guilty under S. 40 of the Act and no proof of malice is required at all. Relying on the observation of the Rajasthan High Court it is contended that the action of the petitioner in cutting off the supply line is sufficient to attract the provisions of S. 40 of the Indian Electricity Act. But the facts of the above case are entirely different, where one of the employees of the Police Electric Supply who is also a Secretary of the Trade Union wanted to attend a meeting of the Trade Union on the 19th June, 1953, at 6 p.m., and the Company refused permission and on such refusal he stopped the supply of electric energy for a period of 10 minutes from 7. 30 p.m., by switching off the mainline, with the result no electric energy was supplied to the town for that period. The Court held that under the circumstances the employee is bound to be held liable under S.40 of the Indian Electricity Act because switching off resulted in interference with the supply to the consumers. The principle laid down in that case cannot be applied to the facts of the present case because in the present case by the act of the petitioner the supply of electricity by the licensee to the consumer is not affected. The cases relied on by the respondent do not support the contention that any disruption in supply by the landlord of a premises to the tenant in respect of which the landlord had supplied electric energy by an agreement can come under S. 40 of the Indian Electricity Act in case such a supply is discontinued.

Farther in this case the respondent/tenant had also taken proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, for the restoration of the electric supply as an amenity and the said proceedings are also said to be pending. Single Judge of this Court in the case reported in M.N. Subramanian v. S. Pasupathy 1981 L.W.Crl. 251, observed that when there is a bona fide civil dispute between the partner and suit has also been laid, by permitting a criminal proceedings in respect of the same matter will not in any way advance the course of Justice. In the case reported in Ramokrishnan, R. v. V.S. Dhanasekar 1961 L.W. Crl. 178, a single Judge of this Court observed that where the facts of the case do not disclose the esential ingredients of the offence, then it will be an abuse of process of Court to allow the criminal proceedings to go ahead.

In view of the conclusion that the ingredients of an offence under S. 40 of the Indian Electricity Act, 1910 are not made out in this case, the prosecution launched by the respondent cannot allowed to be proceeded with. The complaint filed by the respondent in C.C. No. 6735/85 on the file of the Chief Metropolitan Magistrate, Egmore, Madras, is hereby queshed and this petition is allowed.