Supreme Court Allows Appeal by Electricity Distribution Company in Theft Case: Parallel Assessment Under Section 126 Permissible Despite Criminal Complaint Under Section 135. Assessment Under Section 126 Not Conditional on Consumer Seeking Restoration of Supply.

Civil appeal against judgment of Calcutta High Court in intra-court appeal concerning provisional assessment under Section 126 of Electricity Act, 2003 for alleged theft of energy.

Appellants sought to set aside the High Court's order quashing the provisional assessment and to uphold the validity of assessment under Section 126 despite criminal proceedings under Section 135.

The respondent consumer challenged the provisional assessment made by the appellant electricity company for alleged theft of energy, arguing that once a criminal complaint is lodged, assessment under Section 126 is not permissible.

Single Judge of Calcutta High Court quashed the provisional assessment on the ground that the Assessing Officer was not part of the inspection team, and directed fresh assessment by a member of the inspection team. Division Bench allowed the respondent's appeal, holding that assessment under Section 126 is not permissible when a criminal complaint for theft is lodged, unless the consumer seeks restoration of supply.

Whether provisional assessment under Section 126(1) of the Electricity Act, 2003 can be made simultaneously with criminal proceedings under Section 135(1)(a) for theft of energy. Whether the power to make assessment under Section 126(1) is dependent on the consumer seeking restoration of supply after disconnection.

Appellants argued that assessment under Section 126 is for civil liability and can proceed independently of criminal prosecution under Section 135, as the degree of proof differs; reliance on Executive Engineer v. Seetaram Rice Mill. Respondents argued that unauthorized use and theft are distinct; once a criminal complaint is lodged, only the Special Court can determine civil liability under Section 154(5); assessment under Section 126 is not permissible unless restoration of supply is sought; reliance on Hotel Adityaz Ltd. v. M.P. Kshetra Vidyut Vitran Co.

The power to make provisional assessment under Section 126(1) of the Electricity Act, 2003 for unauthorized use of electricity is independent of criminal proceedings for theft under Section 135. The two provisions operate in different spheres; assessment is for civil liability and can be made even after lodging a criminal complaint. The exercise of power under Section 126(1) is not conditional upon the consumer seeking restoration of supply after disconnection.

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. 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. Such degree of proof is not required for the purpose of assessing loss of energy under Section 126(1) of the Act.

The respondent consumer filed a writ petition before the Calcutta High Court challenging the provisional assessment under Section 126. The single Judge quashed the assessment on the ground that the Assessing Officer was not part of the inspection team and directed fresh assessment. The respondent appealed to the Division Bench, which allowed the appeal, holding that assessment under Section 126 is not permissible when a criminal complaint for theft is lodged unless restoration of supply is sought. The appellant then appealed to the Supreme Court.

• Electricity Act, 2003: 126, 135, 153, 154
• West Bengal Electricity Regulatory Commission Electricity Supply Code, 2007: Class IV