An acquittal on the charge of theft under Section 135 of the Indian Electricity act, 2003 does not automatically absolve the consumer from the civil liability under Section 126, as the two operate on different legal principles and standards of proof.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The short question which has arisen for consideration in the present case is as follows:

2. Whether the acquittal of a consumer in a criminal proceeding on the allegation of theft of electricity ipso facto absolves the consumer from the liability to pay the amount finally assessed under Section 126 of the Indian Electricity act, 2003 (hereinafter referred to as 'the 2003 act').

3. In the present case, the petitioner, being a consumer of electricity from the distribution company, contested a criminal proceeding against him for alleged theft of electricity by direct hooking from nearby LT lines of WBSEDCL under Sections 135(1)(a) and (b) of the 2003 act, initiated on the basis of an FIR, and was ultimately acquitted.

4. Learned counsel for the petitioner alleges that no copy of any provisional order of assessment under Section 126 of the 2003 act was ever served on the petitioner, nor was the final order of assessment passed in the presence of the petitioner and/or after hearing the petitioner.

5. Such contention is controverted by learned counsel for the distribution company.

6. Learned counsel for the petitioner places reliance on a judgment of the allahabad High Court in M/s. Citi Hotel Vs. Commissioner, Lucknow Divn., Locknow & others, reported at aIR 2009 aLL 137, where the learned Single Judge had absolved the petitioner therein from the civil liability for theft of electricity on the ground of acquittal of the petitioner by the Criminal Court. In the said case, the power corporation had failed to show that any wrongful loss had been caused to them on account of the acts of the petitioner and that there were any dues against the petitioner before the raid was conducted and even after restoration of the electrical energy through a new meter, the petitioner had paid the bills. The Criminal Court, in the said case, had found that the petitioner was not using any excess load over and above the sanctioned limit.

7. Learned counsel next places reliance on West Bengal State Electricity Distribution Company Ltd. and others Vs. M/s. Orion Metal Private Limited and another, rendered on august 21, 2019 by a two-Judge Bench of the Supreme Court in Civil appeal No.6547 of 2019. In the said judgment, cited by learned counsel for the petitioner in reply, the Supreme Court held that, from the scheme of the 2003 act, it appeared that after an inspection team notices unauthorised use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy by invoking power under Section 126(1) of the 2003 act. The term 'unauthorised use of energy' was held to be of wide connotation. There may be cases of unauthorised use of energy not amounting to theft, namely, exceeding the sanctioned load of using the electricity in the premises where the use is not authorised, etc. But, at the same time, when there is an allegation of unauthorised use of energy by tampering the meter, such cases of unauthorised use of energy include 'theft' as defined under Section 135 of the 2003 act. after considering the powers conferred on the authorities for making assessment under Section 126(1) of the 2003 act and the power to determine civil liability under Section 154(5) of the 2003 act, the Supreme Court held that the said powers could not be said to be parallel to each other. The finding of the High Court in the said case, that both proceedings cannot operate parallelly, was set aside by the Supreme Court, holding that in a given case where there is no theft of energy, amounting to unauthorised 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 unauthorised use of energy not amounting to theft, it was always open for the authorities to assess the loss of energy by resorting to power under Section 126(1) of the 2003 act, the Supreme Court held. It was f