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.
    … … … …
  14. 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.”
  15. 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.
  16. 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