Distinction exists between civil liability under Section 126 and criminal liability under Section 135 of the Electricity Act, with mens rea being essential for theft prosecution.

JUDGMENT :

R.K. PATTANAIK, J.

1. The petitioner has filed the instant petition under Section 482 Cr.P.C. for quashing of the criminal proceeding in connection with Special Case No.32(E) of 2011 arising out of Energy P.S. Case No.29 dated 17th May, 2011 registered under Section 135 of the Electricity Act, 2003 (hereinafter referred to as ‘the Act’) pending in the file of learned Additional District and Special Judge, Balasore on the grounds inter alia that no prima facie case is made out for prosecution and therefore, the same is not tenable in law.

2. In brief, the allegation is that on an inspection dated 10^th May, 2011, it was found that the industry, namely, M/s SNM Business Pvt. Ltd. run by the petitioner with the consumer No.L51637 has given extended load of 69 KVA to an under construction oil refinery unit situated just adjacent to it in violation to the provisions of OERC Distribution (Conditions of Supply) Code, 2004 (shortly as ‘the OERC Code, 2004’) for which the FIR was lodged.

3. Heard. Mr. Mohanty, learned counsel for the petitioner, Mr. Praharaj, learned counsel for the State-opposite party Nos.1 and 2 and Mr. Tripathy, learned counsel for opposite party No.3.

4. Mr. Mohanty, learned counsel for the petitioner submits that the criminal prosecution under Section 135 of the Act cannot be sustained in law when there has been an assessment under Section 126 thereof. It is contended that the petitioner’s unit which is dealing with manufacture and processing of rice, rice bran, oil from cake etc. availed power supply in the year 1999 with a contract demand of 83 KW and was classified by the licensee as a medium industry and on account of expansion/modernization/diversification (EMD) installed additional machineries for the purpose of downstream units like oil mill, solvent plant etc. and the unit as a whole has functioned since then. It is further submitted that initial contract demand of 83 KW was enhanced to 160 KVA in 2001, then to 260 KVA in 2003, 340 KVA with effect from November, 2006 and was classified under large industry category. It is claimed that when the matter for enhancement of contract demand from 340 KVA to 600 KVA was pending with the additional security including processing fee were deposited with the NESCO, the inspection was held on 10^th May, 2011 in a manner contrary to the procedure specified in the OERC Code, 2004 leading to a conclusion that the consumer exceeded in utilizing the power beyond the contract demand thereby violating Clauses 34, 104 to 106 of the said Code. According to the petitioner on receiving provisional assessment objection was filed to drop the same since the power under the contract demand was never used for any other purpose save and except for the purpose of expansion of unit within its own premises having one and single service connection meant for a consumer of large industry, however, without considering the objection and appreciating Clause (b) appended to the Explanation of sub- section (6) of Section 126 of the Act in its proper perspective, the final assessment was passed under Section 126 (3) thereof which was challenged in appeal under Section 127 (1) before the Electrical Inspector (T&D), Balasore in AAC No.01 of 2011 and the said order of the Appellate Authority, at the assessment was interfered with, was questioned by the NESCO in WP(C) No.972 of 2012 which was allowed relying upon the judgment of the Apex Court in Executive Engineer Vrs. M/s. Sri Seetaram Rice Mill 2012 AIR SCW 616 even when the above deci