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.

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
C.A.@S.L.P(c) No.22207/2018 2
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.
C.A.@S.L.P(c) No.22207/2018 3
(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).
C.A.@S.L.P(c) No.22207/2018 4
(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
C.A.@S.L.P(c) No.22207/2018 5
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
C.A.@S.L.P(c) No.22207/2018 6
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
C.A.@S.L.P(c) No.22207/2018 7
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,
C.A.@S.L.P(c) No.22207/2018 8
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.
C.A.@S.L.P(c) No.22207/2018 9
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
C.A.@S.L.P(c) No.22207/2018 10
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 subsection (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.)
C.A.@S.L.P(c) No.22207/2018 11
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
C.A.@S.L.P(c) No.22207/2018 12
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
C.A.@S.L.P(c) No.22207/2018 13
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 subsection (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
C.A.@S.L.P(c) No.22207/2018 14
(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
C.A.@S.L.P(c) No.22207/2018 15
(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
C.A.@S.L.P(c) No.22207/2018 16
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:
C.A.@S.L.P(c) No.22207/2018 17
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:
C.A.@S.L.P(c) No.22207/2018 18
 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
C.A.@S.L.P(c) No.22207/2018 19
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
C.A.@S.L.P(c) No.22207/2018 21
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 fortyeight(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