C.A.@S.L.P(c) No.22207/2018   1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6547 OF 2019 [Arising out of S.L.P.(C) No.22207 of 2018]

West Bengal State Electricity Distribution Company Ltd. & Ors. … Appellants

Versus

M/s. Orion Metal Pvt. Ltd. & Anr.     … Respondents

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This civil appeal is filed by the appellant- West

Bengal State Electricity Distribution Company Limited

and others, aggrieved by the judgment and order dated

18.12.2017 passed by the High Court of Calcutta in

F.M.A. No.520 of 2017 and the corrected order dated

07.02.2018.  By the impugned order, the intra Court

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appeal  preferred  by  the  respondent  company  was

allowed by the Division Bench of High Court.

3.   Necessary facts, in brief, are as under:

(a)  The  1st respondent  herein  is  the  consumer  of

electricity  from  the  appellant-  West  Bengal  State

Electricity Distribution Company Limited & Ors. There

is  a  supply  agreement  entered  into  between  the

parties on 22.12.2004. The officials of the appellant

company served a notice dated 28.10.2016 upon the 1st

respondent, in exercise of power under Class IV of

the  West  Bengal  Electricity  Regulatory  Commission

Electricity  Supply  Code,  2007  for  conducting  an

inspection in the metering system of the respondent.

The  respondent-company  is  a  centralized  bulk  high

voltage  consumer  of  electricity  in  the  Hooghly

region, with a contracted load of 1450 KVA.  After

service of notice on the 1st respondent on 28.10.2016,

inspection was made by the Superintending Engineer,

Divisional  Engineer,  Divisional  Engineer  (Manager),

Assistant Engineer of Chandanangore Division, in the

premises of the respondent herein.  

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(b)  During the inspection, it was noticed by the

inspecting team that input current is abnormally high

from output current at TTB end in respect of the R &

B Phase of PT secondary wires. The inspecting team on

breaking open the TTB has also found some foreign

material inside. In view of such discrepancies found

during the inspection, the inspection team was of the

view that there was a theft of energy by tampering

the meter by the respondent-company. The three-phase

meter and the metering equipment was seized by the

inspecting team by preparing a seizure list. In view

of such discrepancies noticed during inspection, in

exercise  of  power  under  Section  126(1)  of  the

Electricity  Act,  2003  (for  short  ‘the  Act’),

provisional  assessment  for  loss  of  energy  by

un-metered consumption was made by one Mr. B. Saha,

Superintending  Engineer/Assessing  Officer  of  the

appellant-company.  The  provisional  assessment  was

made assessing the value of energy which was consumed

on  account  of  un-metered  consumption  at

Rs.13,41,17,482-30  paise  (Rupees  thirteen  crores

forty one lakhs seventeen thousand four hundred and

eighty two only).  

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(c)  After inspection, a criminal complaint was also

lodged before the local police by the Superintending

Engineer  (Commercial),  Hooghly  region,  of  the

appellant company, complaining theft of energy by the

respondent. In the complaint made by the appellant,

it was alleged that by inserting a foreign material

into the meter, the respondent-company has indulged

in theft of energy.

(d)  On the basis of criminal complaint made by the

Superintending Engineer (Commercial), a criminal case

has  been  registered  against  the  respondent-company

and the police have submitted a charge-sheet in the

criminal case.   

(e)  Aggrieved by the provisional assessment and the

consequential demand, the respondents have filed writ

petition in W.P. No.30449(W) of 2016 before the High

Court, questioning the jurisdiction of the Assessing

Officer in issuing the provisional assessment and the

consequential demand for a sum of Rs.13,41,17,482-30

paise. In the writ petition, one of the grounds was

that  the  Assessing  Officer,  who  prepared  the

provisional  assessment,  not  being  a  party  to  the

inspection  team,  had  no  authority  to  make  the

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provisional  assessment  under  Section  126(1)  of  the

Act.   In  the  writ  petition,  it  was  alleged  that

provisional  assessment  made  was  not  in  accordance

with  Section  126(1)  of  the  Act,  as  such,  such

assessment cannot be given effect to.   

(f)  Learned single Judge of the High Court, on the

ground  that  the  appellant-Distribution  Company  has

not produced any material to show that the Assessing

Officer was part of the inspection team, has held

that  assessment and consequential demand made in the

provisional  assessment  proceedings  was  not  in

accordance with Section 126(1) of the Act and quashed

the  same.   While  allowing  the  writ  petition,  the

learned  single  Judge  has  directed  the  State

Government to appoint any member of the inspection

team  as  an  Assessing  Officer  to  make  fresh

assessment.

(g)  Aggrieved by the order of the learned single

Judge  dated  15.12.2016,  the  respondent-writ

petitioners have filed intra Court appeal before the

High Court.  Following the directions, as contained

in the order passed by the learned single Judge, it

appears,  a  Member  of  the  inspection  team  was

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appointed  as  an  Assessing  Officer  by  the  State

Government  and  the  said  officer  has  provisionally

assessed  the  value  of  un-metered  consumption  of

electricity  and  also  made  final  assessment  after

giving opportunity for filing objections.   

(h)  The fresh assessment order, which is made in

compliance of directions issued by the learned single

Judge, is also questioned in the pending appeal by

filing  an  interlocutory  application  by  the

respondents.  In  view  of  the  said  interlocutory

application, the Division Bench of the High Court has

allowed such application permitting the respondents

to challenge the fresh assessment made pursuant to

directions issued by the learned single Judge, and

passed  the  impugned  order  allowing  the  appeal

preferred by the respondents.   

(i)  In the intra Court appeal, before the Division

Bench, the respondents have raised a ground that two

parallel  proceedings  i.e.  the  criminal  complaint

before  the  Competent  Court  and  also  assessment

proceedings under Section 126(1) of the Act cannot go

simultaneously.  Precisely,  it  was  the  case  of  the

respondents that once a complaint is filed, alleging

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theft of energy under Section 135(1)(a) of the Act,

no assessment is permissible under Section 126(1) of

the Act.   

(j)   Before  the  High  Court,  it  appears  that

respondents  have  also  pleaded  that  the  civil

liability,  if  any,  of  the  respondents  can  be

determined only under sub-section (5) of Section 154

of the Act. While considering the scope of Sections

154, 135(1)(a) and 126 of the Act, the High Court has

held  that  when  a  criminal  complaint  is  lodged

alleging theft of energy by the consumer and when

supply of electricity is disconnected on account of

such offence alleged, only in cases where restoration

of  supply  is  sought  by  the  consumer,  agreeing  to

deposit  the  assessed  amount  of  un-metered

consumption, provisional assessment can be made under

Section 126 of the Act.  The High Court has drawn a

distinction to exercise power under Section 126(1) of

the Act, in cases where consumer seeks restoration of

supply  after  disconnection  and  in  cases  where

restoration of supply is not sought for. The High

Court has held that only in cases where restoration

is sought after disconnection, authorities can resort

to make assessment under Section 126(1) of the Act,

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otherwise, the civil liability can be determined by

Special Court only by following the procedure under

sub-section (5) of Section 154 of the Act.   

4.  We have heard Mr. Jaideep Gupta, learned Senior

counsel appearing for the appellants and Mr. Gaurav

Jain, learned counsel for the respondents.  

5.  Having heard the learned counsels on both sides,

we  have  perused  the  impugned  order  and  other

materials placed on record.

6.  The  learned  Senior  counsel  appearing  for  the

appellants  has  submitted  that  the  High  Court  has

misconstrued the provisions under Sections 126, 135

and 154 of the Act and erroneously allowed the appeal

and  quashed  the  assessment  order  made  by  the

appellants under Section 126(1) of the Act. It is

submitted  by  learned  Senior  counsel  that,  whenever

there  is  an  allegation  of  theft  of  energy  by  the

consumer,  even  after  lodging  a  complaint  for

commission of such offence before the police, it is

always open for the appellants to make provisional

and final assessment to recover loss of energy in

exercise of power under Section 126(1) of the Act.

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Precisely, it is submitted that in all cases covered

by  Section  135  of  the  Act,  it  is  open  for  the

authorities  to  make  provisional  assessment  under

Section  126  of  the  Act.  It  is  submitted  that  the

power conferred under Section 126(1) of the Act to

make provisional assessment, will not depend, whether

consumer seeks restoration of supply or not, after

disconnection of supply.   

(a)  It is submitted that to prove theft of energy

before  the  Special  Court,  case  has  to  be  proved

beyond reasonable doubt and further the element of

mens rea is a sine qua non to prove the guilt of the

accused. It is submitted that such degree of proof is

not required for the purpose of assessing loss of

energy  under  Section  126(1)  of  the  Act.  Learned

Senior  counsel  has  also  placed  reliance  on  the

judgment in the case of  Executive Engineer Southern

Electricity  Supply  Company  of  Orissa  Limited

(SOUTHCO) & Another v. Shi. Seetaram Rice Mill1.

7.  On the other hand, learned counsel appearing for

the respondents, in support of the findings recorded

by  the  High  Court,  has  submitted  that  the

1  (2012) 2 SCC 108

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unauthorized use of energy and theft of energy are

two  different  aspects  covered  under  different

provisions of the Act. It is submitted that the power

conferred  for  provisional  assessment  under  Section

126(1) of the Act, is confined to cases where there

is an allegation of unauthorized use of energy and

the allegation of theft of energy is to be prosecuted

only  under  Section  135(1)(a)  of  the  Act.  It  is

submitted that only in cases where authorities prove

the  guilt  of  the  accused,  the  Special  Court  is

empowered  to  determine  civil  liability  under  sub-

section (5) of Section 154 of the Act.

(a)  It is further submitted that once power supply

is  disconnected,  where  there  is  a  request  by  the

consumer  for  restoration  of  power  supply,  the

authorities can make assessment under Section 126(1)

of  the  Act.  In  support  of  this  plea,  the  learned

counsel  brought  to  our  notice  a  judgment  of  the

learned single Judge of Madhya Pradesh High Court in

the  case  of  The  Hotel  Adityaz  Limited  v.  Madhya

Pradesh Kshetra Vidyut Vitran Company Limited, Bhopal

& others2 . In the aforesaid judgment, learned single

Judge of the High Court has held that where there is

2  AIR 2016 (NOC) 39 (M.P.)

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an allegation of theft of energy, such cases will

fall only under Section 135 of the Act and Section

126 of the Act, as no application.

8.  Before we proceed further, we have looked into

the Objects and Reasons of the Electricity Act, 2003,

and also the relevant provisions i.e Sections 126,

135(1)(a), 153 and 154 of the Act.   

9.  Prior to Electricity Act, 2003,  generation and

supply of electricity was governed by the provisions

under Indian Electricity Act, 2010, the Electricity

(Supply)  Act,  1948  and  the  Electricity  Regulatory

Commissions  Act,  1998.  With  the  policy  of  the

Government to encourage private sector participation

in  generation,  transmission  and  distribution  of

energy  and  with  the  objective  of  distancing

regulatory  responsibilities  from  the  Government  to

the Regulatory Commissions, it was felt that there is

a  need  for  harmonizing  and  rationalizing  the

provisions  of  the  electricity  by  bringing  a  new

legislation.  That is how the Electricity Act, 2003,

was enacted and brought into force. In the objects

and  reasons,  a  specific  reference  is  made  to

incorporate  provisions  relating  to  theft  of

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electricity, to have a revenue focus. Part XII of the

Act  deals  with  the  provisions  relating  to

investigation and enforcement and Part XIV of the Act

deals with the provisions relating to offences and

penalties.  The  Constitution  of  Special  Courts  and

procedure  and  powers  of  the  Special  Courts  are

covered by Part XV of the Act.

10. The relevant sections for the disposal of this

appeal reads as under:   

“Section 126. Assessment:- (1) If on an inspection of any place or premises or after  inspection  of  the  equipments, gadgets,  machines,  devices  found connected or used, or after inspection of records maintained by any person, the assessing  officer  comes  to  the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.  

(2) The order of provisional assessment shall  be  served  upon  the  person  in occupation or possession or in charge of the place or premises in such manner as may be prescribed.  

(3)  The  person,  on  whom  an  order  has been  served  under  sub-  section  (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days

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from the date of service of such order of  provisional  assessment,  of  the electricity  charges  payable  by  such person.

(4) Any person served with the order of provisional assessment may, accept such assessment  and  deposit  the  assessed amount  with  the  licensee  within  seven days  of  service  of  such  provisional assessment order upon him:  

(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity  has  taken  place,  the assessment shall be made for the entire period  during  which  such  unauthorized use of electricity has taken place and if,  however,  the  period  during  which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6)  The  assessment  under  this  section shall be made at a rate equal to twice the tariff applicable for the relevant category of services specified in sub- section (5).  

Explanation.- For the purposes of this section,-  

(a) “assessing officer” means an officer of  a  State  Government  or  Board  or licensee, as the case may be, designated as such by the State Government;  

(b)  “unauthorised  use  of  electricity” means the usage of electricity –  

(i)   by any artificial means; or   (ii) by a means not authorised by the

concerned  person  or  authority  or licensee; or

(iii) through a tampered meter; or

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(iv)  for the purpose other than for which  the  usage  of  electricity  was authorised; or

(v)   for the premises or areas other than  those  for  which  the  supply  of electricity was authorized.”

The procedure for ‘theft of energy’ is covered by

Section 135 of the Act under Part IX. Section 135 of

the Act reads as under:

“Section 135. Theft of Electricity:- (1) Whoever, dishonestly,-

(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires,  or  service  facilities  of  a licensee  or  supplier,  as  the  case  may be; or  

(b) tampers a meter, installs or uses a tampered  meter,  current  reversing transformer,  loop  connection  or  any other device or method which interferes with  accurate  or  proper  registration, calibration  or  metering  of  electric current or otherwise results in a manner whereby electricity is stolen or wasted; or  

(c)  damages  or  destroys  an  electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged  or  destroyed  as  to  interfere with the proper or accurate metering of electricity; or  

(d) uses electricity through a tampered meter; or

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(e)  uses  electricity  for  the  purpose other  than  for  which  the  usage  of electricity was authorised,  

so  as  to  abstract  or  consume  or  use electricity  shall  be  punishable  with imprisonment for a term which may extend to  three  years  or  with  fine  or  with both:  

Provided that in a case where the load abstracted,  consumed,  or  used  or attempted  abstraction  or  attempted consumption or attempted use –  

(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall  not  be  less  than  three times  the  financial  gain  on account  of  such  theft  of electricity and in the event of second  or  subsequent  conviction the  fine  imposed  shall  not  be less than six times the financial gain on account of such theft of electricity;  

(ii) exceeds  10  kilowatt,  the  fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event  of  second  or  subsequent conviction, the sentence shall be imprisonment for a term not less than  six  months,  but  which  may extend  to  five  years  and  with fine not less than six times the financial gain on account of such theft of electricity:  

Provided  further  that  in  the event  of  second  and  subsequent conviction of a person where the load abstracted,  consumed,  or  used  or attempted  abstraction  or  attempted consumption or attempted use exceeds

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10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred  from  getting  supply  of electricity for that period from any other source or generating station:  

Provided  also  that  if  it  is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be,  exist  for  the  abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction,  consumption  or  use  of electricity  has  been  dishonestly caused by such consumer.  

(1A)  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  authorised  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 disconnect:

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Provided  also  that  the  licensee or supplier, as the case may be, on deposit  or  payment  of  the  assessed amount  or  electricity  charges  in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of  electricity  within  forty-eight hours of such deposit or payment;]  

(2)  Any  officer  of  the  licensee  or supplier as the case may be, authorized in this behalf by the State Government may –  

(a)  enter,  inspect,  break  open  and search any place or premises in which he has reason to believe that electricity has  been  or  is  being,  used unauthorisedly;  

(b) search, seize and remove all such devices,  instruments,  wires  and  any other facilitator or article which has been, or is being, used for unauthorized use of electricity;  

(c)  examine  or  seize  any  books  of account  or  documents  which  in  his opinion shall be useful for or relevant to,  any  proceedings  in  respect  of  the offence under sub-section (1) and allow the person from whose custody such books of account or documents  are seized to make  copies  thereof  or  take  extracts therefrom in his presence.  

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to  such  occupant  or  person  who  shall sign the list:

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 Provided that no inspection, search and  seizure  of  any  domestic  places  or domestic premises shall be carried out between sunset and sunrise except in the presence  of  an  adult  male  member occupying such premises.  

(4)  The  provisions  of  the  Code  of Criminal  Procedure,  1973  (2  of  1974), relating  to  search  and  seizure  shall apply, as far as may be, to searches and seizure under this Act.”  

The procedure to be followed by the Special Court

constituted  under  Section  153  of  the  Act  is

prescribed  under  Section 154 of  the Act.   

Sub-sections (5) and (6) of Section 154 of the Act

read as under:

“(5) The Special Court shall determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection  of  theft  of  energy  or  the exact  period  of  theft  if  determined whichever  is  less  and  the  amount  of civil liability so determined shall be recovered as  if it  were a  decree of civil court.  

(6)  In  case  the  civil  liability  so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may

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be, shall be refunded by the Board or licensee  or  the  concerned  person,  as the  case  may  be,  within  a  fortnight from the date of communication of the order  of  the  Special  Court  together with interest at the prevailing Reserve Bank of India prime lending rate for the  period  from  the  date  of  such deposit till the date of payment.  

Explanation.-  For  the  purposes  of this section, “civil liability” means loss or damage incurred by the Board or licensee  or  the  concerned  person,  as the case may be, due to the commission of an offence referred to in sections 135 to 140 and section 150.”

11.  A perusal of the aforesaid provisions and on

giving a conjoint reading of the same, it appears to

us  that  after  an  inspection  of  any  place  or  any

premises  of  any  consumer,  when  Assessing  Officer

comes to a conclusion that the consumer is indulging

in unauthorized use of electricity, the provisional

assessment to the best of his judgment is to be made

in accordance with Section 126(1) of the Act and such

provisional  assessment  shall  be  served  upon  the

person in occupation of the premises.  After giving

an opportunity to file objections to the provisional

assessment,  the  Assessing  Officer  is  empowered  to

pass a final order of the assessment assessing the

loss of energy, on account of unauthorized use of

C.A.@S.L.P(c) No.22207/2018   20

energy.  The  unauthorized  use  of  electricity  is

defined under Section 126(6)(b) of the Act. It is

clear from the aforesaid definition that unauthorized

use of electricity means, the usage of electricity by

any artificial means or by a means not authorized by

the  concerned  person  or  authority  or  licensee;  or

through a tampered meter; or for the purpose other

than  for  which  the  usage  of  electricity  was

authorized; or for the premises or areas other than

those  for  which  the  supply  of  electricity  was

authorized.

12.  It is clear from the reading of Section 126 (6)

(b)(iii) of the Act that instances of use of energy

through  a  tampered  meter  is  included  in  the

definition  of  unauthorized  use  of  electricity.  If

that is so, there is no reason, for excluding the

power of the authorities for making assessment under

Section  126(1)  of  the  Act  to  assess  the  loss  of

energy, where electricity is used through a tampered

meter. All instances of unauthorized use of energy

may not amount to theft of electricity within the

meaning of Section 135 of the Act, but at the same

time, the theft of electricity which is covered by

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Section  135  of  the  Act,  will  fall  within  the

definition of unauthorized use of electricity. As per

Section 135(1A) of the Act, without prejudice to the

other  provisions  of  the  Act,  the  licensee  or

supplier, as the case may be, upon detection of theft

of electricity, is empowered to disconnect the power

supply immediately. Further, as per the third proviso

to  Section  135(1A)  of  the  Act,  the  licensee  or

supplier, as the case may be, on deposit or payment

of  assessed  amount  or  electricity  charges,  without

prejudice to the obligation to lodge a complaint, can

restore  the  power  supply  electricity  within  forty-

eight(48) hours of deposit /payment of such amount.

Thus, it is clear that the authorities under the Act

are  empowered  to  make  a  provisional  and  final

assessment by invoking power under Section 126(1) of

the  Act,  even  in  cases  where  electricity  is

unauthorisedly used by way of theft. When a consumer

deposits  the  assessed  amount,  the  licensee  or  the

supplier  has  to  restore  the  power  supply.  The

assessed amount referred to in the aforesaid proviso,

relates  to  assessment  which  is  contemplated  under

Section 126(1) of the Act only.  There is apparent

distinction between Section 126 and Section 135 of

C.A.@S.L.P(c) No.22207/2018   22

the Act.  Section 126 forms part of the scheme which

authorizes electricity supplier to ascertain loss in

terms of revenue caused to it by the consumer by his

act  of  “unauthorized  use  of  electricity”  whereas

Section  135  deals  with  offence  of  theft  if  he  is

found to have indulged himself in the acts mentioned

in clauses (a) to (e) of sub-section (1) of Section

135 of Electricity Act. Further, it is also clear

from  Section  154  of  the  Act,  which  prescribes

procedure  and  power  of  Special  Court,  that  the

Special Court is empowered to convict the consumer

and impose a sentence of imprisonment. The Special

Court,  in  cases,  where  a  criminal  complaint  is

lodged,  is  also  empowered  to  determine  civil

liability under Section 154(5) of the Act. As per

Section 154(6) of the Act, in case civil liability so

determined  by  the  Special  Court  is  less  than  the

amount deposited by the consumer or the person, the

excess amount so deposited by the consumer or the

person,  shall  be  refunded  by  the  licensee  or  the

concerned person, as the case may be. Merely because

the  Special  Court  is  empowered  to  determine  civil

liability under Section 154(5) of the Act, in cases

where a complaint is lodged, it cannot be said that

C.A.@S.L.P(c) No.22207/2018   23

there is no power conferred on authorities to make

provisional assessment/final assessment under Section

126 of the Act.

13.   In  the  case  of  Executive  Engineer  Southern

Electricity  Supply  Company  of  Orissa  Limited

(SOUTHCO)  &  Another  v.  Shi.  Seetaram  Rice  Mill,

reported  in  (2012)2  SCC  108,  this  Court  has

considered the scope of Explanation to Section 126(b)

(iv) of 2003 Act. In the aforesaid case, as there was

no  allegation  of  theft,  this  Court  has  held

consumption in excess of sanctioned/contracted load,

comes  within  the  meaning  of  unauthorized  use  of

electricity as per Explanation (b)(iv) of Section 126

of  Electricity  Act,  2003.  Drawing  a  distinction

between Section 126 to that of Section 135 of the

Act, paragraphs 29 and 61 of the aforesaid judgment

read as under:-

“29. Thus, it would be clear that the expression  “unauthorized  use  of electricity”  under  Section  126  of  the 2003 Act deals with cases of unauthorized use, even in the absence of intention. These cases would certainly be different from  cases  where  there  is  dishonest abstraction of electricity by any of the methods enlisted under Section 135 of the 2003 Act. A clear example would be, where a  consumer  has  used  excessive  load  as against  the  installed  load  simpliciter

C.A.@S.L.P(c) No.22207/2018   24

and there is violation of the terms and conditions  of  supply,  then,  the  case would fall under Section 126 of the 2003 Act. On the other hand, where a consumer, by  any  of  the  means  and  methods  as specified under Sections 135(a) to 135(e) of the 2003 Act, has abstracted energy with  dishonest  intention  and  without authorization,  like  providing  for  a direct  connection  by  passing  the installed  meter,  the  case  would  fall under Section 135 of the Act.  

... ...  ...  ... 61.  Unauthorized  use  of  electricity

cannot  be  restricted  to  the  stated clauses under the Explanation but has to be given a wider meaning so as to cover cases  of  violation  of  the  terms  and conditions of supply and the Regulations and provisions of the 2003 Act governing such  supply.  ”Unauthorized  use  of electricity”  itself  is  an  expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the explanation. It is indisputable that the electricity supply to a consumer is restricted  and  controlled  by  the  terms and conditions of supply, the Regulations framed  and  the  provisions  of  the  2003 Act.”

14.  We also do not find any valid reason for making

a distinction as made by the High Court in applying

Section 126 of the Act. From the scheme of the Act,

it  appears  that  after  inspection  team  notices

unauthorized use of energy by tampering the meter,

the  authorities  can  disconnect  the  power  supply

C.A.@S.L.P(c) No.22207/2018   25

immediately and make immediate assessment for loss of

energy, by invoking power under Section 126(1) of the

Act. The term  “unauthorized use of energy” is of

wide connotation. There may be cases of unauthorized

use  of  energy,  not  amounting  to  theft,  which  are

cases viz. exceeding the sanctioned load or using the

electricity  in  the  premises  where  its  use  is  not

authorized etc. But at the same time, when there is

an  allegation  of  unauthorized  use  of  energy  by

tampering the meter, such cases of unauthorized use

of energy include ‘theft’ as defined under Section

135 of the Act. The power conferred on authorities

for making assessment under Section 126(1) of the Act

and power to determine civil liability under Section

154(5) of the Act, cannot be said to be parallel to

each other. In this regard, we are of the view that

the High Court has committed an error in recording a

finding,  that  both  proceedings  cannot  operate

parallelly. In a given case where there is no theft

of energy, amounting to unauthorized use of energy,

in such cases no complaint of theft can be lodged as

contemplated under Section 135 of the Act. In such

cases for loss of energy, on account of unauthorized

use of energy not amounting to theft, it is always

C.A.@S.L.P(c) No.22207/2018   26

open for the authorities to assess the loss of energy

by resorting to power under Section 126(1) of the

Act. In cases where allegation is of unauthorized use

of energy amounting to theft, in such cases, apart

from assessing the proceedings under Section 126(1)

of the Act, a complaint also can be lodged alleging

theft of energy as defined under Section 135(1) of

the  Act.  In  such  cases,  the  Special  Court  is

empowered to determine civil liability under Section

154(5) of the Act. On such determination of civil

liability by the Special Court, the excess amount, if

any, deposited by the petitioner, is to be refunded

to the consumer. It is a settled principle that to

prove  the  guilt  of  the  accused  in  a  criminal

proceeding, authorities have to prove the case beyond

reasonable doubt and the element of mens rea is also

to be established. On the other hand, such a strict

proof is not necessary for assessing the liability

under Section 126(1) of the Act.

15.  For the aforesaid reasons, this civil appeal is

allowed and the judgment and order dated 18.12.2017

passed by the High Court of Calcutta in F.M.A. No.520

C.A.@S.L.P(c) No.22207/2018   27

of 2017 and the corrected order dated 07.02.2018, are

set aside. No order as to costs.

  .................... J.     [R. Banumathi]

   .................... J.     [R. Subhash Reddy]

NEW DELHI,

August 21, 2019