West Bengal State Electricity Distribution Company Limited and others vs M/S Orion Metal Pvt. Ltd. and Another

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 Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.08.21

07.02.2018. By the impugned order, the intra Court 17:18:24 IST Reason:

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 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.) 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 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 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 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