The determination of theft of electricity and civil liability is within the jurisdiction of the criminal court and the Special court under Section 154(5) of the Electricity Act.

1. Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board.

2. The petitioner seeks quashing of the provisional punitive bill dated 26.8.2008 for Rs. 8,73,935/- which has been raised by the respondent-Electricity Board for theft/pilferage of electricity. The further claim of the petitioner is for a direction commanding the respondents to revise the quantum of connected load from 22KVA to 14KVA and to restore the electrical connection of the petitioner.

3. The petitioner, who runs a Hotel in the name of Hotel Swagatara on Exhibition Road, Patna, is a consumer of the Bihar State Electricity Board under NDS-II category and the load was enhanced from 10KW to 14KW on 26.9.2005. The petitioner alleges that on 22.8.2008 the premises of the petitioner was visited by some persons posing themselves as members of the Special Task Force (STF) of the respondent-Board who interfered and tampered with the meter and related equipments and also started pointing out the irregularities in the meter and demanding consideration for settjng the things right. Since they could not show any proof of their identity when challenged by the staff of the petitioner-hotel they ultimately had to leave on being challenged as imposters. The petitioner claims to have immediately informed the Electrical Chief Engineer (Commercial) on 22.8.2008 itself but no receipt in respect of the petition dated 22.8.2008 was given. It is the case of the petitioner that the news regarding the visit of fake STF personnel in the petitioners premises spread immediately in the neighbouring areas and the news was published even in the daily Hindi newspaper Dainik Jagran in its issue dated 23.8.2008. The petitioner again sent the said information to the officials of the Electricity Board on the next day, i.e., on 25.8.2008 for which a receipt was granted.

4. On 25.8.2008 a team of STF inspected the premises of the petitioner from 11.30 A.M. to 4.30 P.M. and found tampering with the meter and its seals. Thereafter an FIR was lodged in the Police Station on the same day against the petitioner for committing theft of electricity and tampering with the meter. On 17.9.2008 a provisional punitive bill showing the date of billing as 26.8.2008 was also given to the petitioner raising a demand of Rs. 8,73,935/-.

5. Learned counsel for the petitioner has assailed the action of the authorities on various grounds. It is firstly submitted that no case of theft is at all made out in the aforesaid facts of the case since whatever tampering of the meter has been done was caused by the fake STF team which had come on 22.8.2008. He further submits that the letter regarding the same having been received by the Officials of the Board on 25.8.2008 the same should be treated at worst as a voluntary declaration of tampered meter under clause 11.4 of the Bihar Electricity Supply Code, 2007, which provides for declaration of tampered meter and for assessment in terms of the said provision.

6. Learned counsel also challenges the finding regarding load of 22KW recorded by the inspection team in its report since on the same equipments and apparatus on 26.9.2005 the load was enhanced from 10KW to 14KW.

7. Lastly it is contended by learned counsel for the petitioner that the provisional punitive bill of Rs. 8,73,935/- has been raised without passing any provisional assessment order in terms of paragraph 11.2.3 of the Bihar Electricity Supply Code and, thus, the petitioner has been debarred from exercising her right of objection under the said provision.

8. Learned counsel also points out that in paragraph 9.15 of the Supply Code it is the duty of the meter reader to make an inspection of the meter and its seals and if anything unusual is found the same should be reported to the higher authority, and since the last visit of the meter reader was on 5.8.2008, therefore, in terms of the said provision it is to be presumed that at least on 5.8.2008 there was no tamp