Fiem Industries Ltd. (Unit III) Vs The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., The Superintending Engineer, Krishnagiri Electricity Distribution Circle and The Executive Engineer

AI Structured Summary

Not yet generated for this judgment

No AI summary yet

Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.

Judgment

1,300 paragraphs · 25,222 words

S. Manikumar, J.—The petitioner-Factory is an Automobile Industry. It is the case of the petitioner that during 2012, the factory had an

installed capacity of 1000 KVA by TANGEDCO. A new shed was put up for moulding unit and apart from that, a rest shed/training room was

sought to be put up, for which, roofing was required, consisting of iron poles, which were welded at joints, over which, tin sheets were to be laid,

so that, the workmen could rest in the covered area, adjoining to Shed No. 2. Due to severe power shortage, the Industrial areas in Hosur were

severely affected and they were allowed to use only 40% of the maximum demand. According to the petitioner, they could use 40% of the installed

capacity. However, in order to augment supply of electricity and carry on the production activity, without any disruption, the petitioner had a

captive generation. On account of addition of a Moulding Unit, the total usage of the power in the factory doubled from 1000 KVA to 2000

KVA. The petitioner had also purchased a new generation set, for which, cabling work was required. The new cabling was sought to be provided

from the power house, by means of a metallic tray, which would support the cables. While that be so, on 25.09.2012, at 2.30 P.M., the Executive

Engineer, (Operation and Maintenance), Tamil Nadu Generation and Distribution Corporation Ltd., Hosur, 3rd respondent, along with the

Assistant Executive Engineer (O and M), C and I, Tamil Nadu Generation and Distribution Corporation Ltd., and the Assistant Executive

Engineer, Enforcement (Vigilance), Tamil Nadu Generation and Distribution Corporation Ltd., came to the petitioner-Factory and made a surprise

inspection of the service connection HT SC No. 303/1A. The petitioner and Mr. Gunasekaran, Electrical Incharge, were present at the time of

surprise inspection. The 3rd respondent questioned about the additional building construction works and the source of electricity for such

construction activities. The petitioner replied to them that they have got a captive generator, which was used for the construction. It was actually a

minor construction to provide a roof covered with tin sheets, intended to be used as a rest shed/training room to provide the tray for additional

cables from the power house, for which, they had outsourced tresses and captive power generator was only used. They have also submitted that

necessary permission has been obtained from the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri

Electricity Distribution Circle, Dharmapuri, 1st respondent, for operating the captive generators,

The petitioner has further submitted that without considering their reply, the 3rd respondent has prepared an observation mahazar and

demanded an acknowledgement of the same. Going through the said observation, the petitioner found that the contents were actually contrary to

the actual physical situation, prevailing at the time of surprise inspection and mover over, the machines mentioned therein were not in use, at the

time of inspection. However, the Executive Director of the petitioner-factory had acknowledged the same, under protest.

Thereafter, the 3rd respondent and his men, visited the factory premises, on the same day, during the night hours and handed over a demand

notice for Rs. 94,000/-, towards penalty, for unauthorised use of electricity for the new building under construction. The petitioner has protested

against the illegal demand. Nevertheless, taking into consideration that there should not be any disruption in the manufacturing activity, the petitioner

was constrained to make payment of Rs. 94,000/-, by way of cash, under protest. Subsequently, at 11.00 P.M., on the same day, i.e., on

25.09.2012, the Assistant Executive Engineer (O and M), C and I, Tamil Nadu Generation and Distribution Corporation Ltd., came to the factory

premises and disconnected the electricity service connection, without any notice and thereafter, he has served the disconnection notice, stating that

electricity service connection would be restored, only if the petitioner pays an additional amount of Rs. 6,78,661/- towards additional charges.

Since the petitioner was not able to pay the said amount immediately, during night hours, the petitioner issued a cheque. But, the 3rd respondent

refused to accept the same and the entire factory work, had come to a standstill, on the night of 25.09.2012.

The petitioner has further submitted that on the next day, they paid the said amount of Rs. 6,78,661/- along with the reconnection charges of Rs.

3,000/-, under protest. In this regard, a detailed letter, dated 26.09.2012, was sent to the 3rd respondent, through registered post. A copy of the

same was also handed over to the 3rd respondent, in person. Thereafter, the 3rd respondent issued a final assessment order, dated 26.09.2012,

wherein, it was stated that as the petitioner had paid the additional charges of Rs. 6,78,661/- and compounding charges of Rs. 94,000/- and

service connection had been reconnected on 26.09.2012. It is in these circumstances, the petitioner has preferred this writ petition for a

Mandamus, directing the respondents to initiate proceedings contemplated under the Electricity Act, 2003, pursuant to the proceedings of the 3rd

respondent, dated 25.09.2012 and 26.09.2012 respectively.

Reiterating the facts, stated supra and inviting the attention of this Court to the specific endorsement made by the Executive Director of the

petitioner-factory, Mr. J.S.S. Rao, in the notice, u/s 152 of the Electricity Act, 2003, directing payment of compounding fee, for the alleged

contravention of Section 135(1)(a) to (e) of the Electricity Act, 2003, Mr. Karthick, learned counsel for the petitioner submitted that payment of a

sum of Rs. 94,000/-, towards compounding fee, was under protest. He also took this Court to the notice, issued by the Assistant Executive

Engineer (O and M), C and I, Tamil Nadu Generation and Distribution Corporation Ltd., dated 25.09.2012, directing the petitioner to pay a sum

of Rs. 6,78,661/- towards additional charges and in default, there was a threat of disconnection. He also took this Court through the contents of

the order, dated 26.09.2012, by which, a final assessment has been made to the tune of Rs. 6,78,661/-, as hereunder:

Additional Charges (46,368 x 2= Rs. 8,62,444.80

x 100 x 93)

Tax (5%) = Rs. 21,561.12

(-)

Amount already remitted = Rs. 2,05,345.00

Total = Rs. 6,78,660.00

Or say Rs. 6,78,661/-

He further submitted that when unauthorised use of electricity, falls within the definition of theft, there is no appeal remedy against the final

assessment and hence, this Writ Petition.

Material on record discloses that upon payment of the abovesaid amount, the Executive Director of the petitioner-Factory has immediately sent

a letter, dated 26.09.2013, to the 3rd respondent, with a copy marked to the Chief Engineer, Vellore, Superintending Engineer, TNEB,

Dharmapuri, as to how, the energy was used. In the said letter, the petitioner has also contended that he had not misused or committed theft of

energy. Reference was made to Regulation 19-A(6) of the Supply Code, which states that, ""in case of default in payment of the assessed amount,

a 15 days'' notice, has to be given in writing, before disconnecting supply of electricity."" and it was contended that the assessing officer, ought to

have given sufficient time before disconnection.

In the abovesaid letter, the petitioner has also contended that they have not used the equipments, as described in the observation report and

APTS team had also witnessed the non-usage of the said machines. The petitioner has also denied violation of Section 135(1)(e) of the Tamil

Nadu Electricity Act, 2003, as claimed in the observation Mahazar, dated 25.09.2012. Learned counsel for the petitioner also submitted that the

power was only used from capacitive generators, for the purposes, stated supra. In the abovesaid circumstances, learned counsel for the petitioner

has requested the said authority to review the whole episode, by considering the Companies track record in adhering to TNEB regulations and

recall all the charges and adjust the money, paid by them, under protest.

Material on record further discloses that inasmuch as the compounding fee has been paid under protest on 25.09.2012 and thereafter, under

threat of disconnection, when the entire amount has been paid, the petitioner has filed an appeal before the Superintending Engineer, Tamil Nadu

Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle, Dharmapuri, 1st respondent, enclosing the copy of the

following documents,

(i) Observation Mahazar

(ii) Demand notice for Rs. 94,000/-

(iii) Disconnection notice

(iv) Additional charges list

(v) Final assessment order

(vi) Letter, dated 26.09.2012 sent by the appellant

(vii) Letter, dated 10.10.2012 sent by the appellant

(viii) Outsource contract for the tin tresses

(ix) Captive Generator unit regarding details for 25.09.2012

(x) Photographs (already copies attached to the letter, dated 26.09.2012)

(xi) Authorisation Letter Original

xii) Form 7 Affidavit - Original

But the Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Krishnagiri Electricity Distribution Circle,

Dharmapuri, 1st respondent, vide Lr. No. SEK/Gen/AE-2/F.APTS Theft HT. SC. 303/D.215/12, dated 20.12.2012, has informed the petitioner

that in respect of HT service connection, the Executive Engineer, O and M concerned, is the authorised person, to issue the provisional assessment

order, conduct enquiry and pass a final assessment order and for the cases, booked u/s 135 of the Electricity Act, 2003, there is no provision of

further appeal. In these circumstances, the writ petition has been entertained and heard.

10.

Part-XII of the Electricity Act, 2003, deals with Investigation and Enforcement. Sections 126 deals with assessment and the said Section is

extracted hereunder:

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 judgement 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 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 rates applicable for the relevant category of services specified

in sub-section (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

(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.

11.

Section 127 speaks about filing of an appeal to the appellate authority, in the event of assessment made u/s 126 of the Act and the said Section

reads as follows:

Section 127. Appeal to Appellate Authority:--(1) Any person aggrieved by the final order made u/s 126 may, within thirty days of the said order,

prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an

appellate authority as may be prescribed.

(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to 3 [half of the assessed amount

is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send

copy of the order to the assessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.

(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of

thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.

12.

Part XIV deals with offences and penalties and Section 135 speaks about theft of electricity, which reads as follows:

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,

(d) uses electricity through a tampered meter; or

(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 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 disconnection:

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:

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, relating to search and seizure shall apply, as far as may be, to searches and seizure

under this Act.

13.

Section 151 speaks about the cognizance of offences and it reads as follows:

Section 151. (Cognizance of offences): No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing

made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an

Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.

Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed u/s 173 of the

Code of Criminal Procedure, 1973:

Provided further that a special court constituted u/s 153 shall be competent to take cognizance of an offence without the accused being committed

to it for trial.

14.

Section 151A deals with power of the Police to investigate and it is stated that for the purposes of investigation of an offence punishable under

the Electricity Act, the Police Officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973. Section

151B states that offences under Sections 135 to 140 or Section 150 are cognizable and non-bailable, notwithstanding anything contained in the

Code of Criminal Procedure, 1973.

15.

Compounding of offences is provided for, u/s 152 and the same reads as follows:

Section 152. (Compounding of offences):--(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, the Appropriate

Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected

of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified

in the Table below:

Nature Rate at which the sum of money

for compounding to the

collected per Kilowat

KW)/Horse Power (HP) or part

thereof for Low Tension (LT)

supply and per Kilo

Volt Ampere (KVA) of

contracted demand for High

Tension (HT)

Industrial service Twenty thousand rupees

Commercial service Ten thousand rupees

Agricultural service Two thousand rupees

Other service Other service

Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.

(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at

liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.

(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an

officer empowered in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code

of Criminal Procedure, 1973.

(4) The Compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer.

16.

Part XV deals with Special Courts and Section 153 deals with the Constitution of the same. Section 154 deals with the procedure and power

of the Special Court and the said Section is extracted hereunder:

Section 154. (Procedure and power of Special Court):--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every

offence punishable under sections 135 to 140 and section 150 shall be triable only by the Special Court within whose jurisdiction such offence has

been committed.

(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any

offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer

such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions

of this Act:

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused

before the transfer of the case to any Special Court:

Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses

whose evidence has already been recorded, is required in the interest of justice, it may re-summon any such witness and after such further

examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged.

(3) The Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code of Criminal

Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said

Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:

Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it

is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear

the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of

imprisonment for a term not exceeding five years.

(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy

to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge

relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered

shall, for the purposes of section 308 of the Code of Criminal Procedure, 1973, be deemed to have been tendered u/s 307 thereof.

(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 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 139 and Section 150.

17.

In a recent judgment in The Executive Engineer and Another Vs. Sri Seetaram Rice Mill, , the Supreme Court, after considering the preamble,

statement of objects, legislative history and salient features of the Electricity Act, 2003, explained the difference between Section 126 and 135 of

the Electricity Act. The Supreme Court has also explained the objective difference between the abovesaid Sections, the ambit and scope of

Section 126, with reference to the construction of words, unauthorised use and means, the effect and impact of change in applicability of tariff upon

the power of assessment, in accordance with the provisions of Electricity Act, 2003, and the relevant Regulations, pertaining to the facts and

circumstances of the reported case.

18.

The facts in nutshell in Sri Seetaram Rice Mill''s case (cited supra), are as follows:-

The Respondent-Industry was categorised as Medium Industry Unit, which deals with the demand of 99 KVA and above but below 110 KVA.

On inspection of the business premises of the respondent, the Executive Engineer has noticed as follows: ""Dump of the Meter taken. Calibration of

meter done and error found within limit. If any abnormality detected in Dump, it will be intimated later on."" No further intimation was given to the

respondent-Industry, as to the finding of defects, if any, in dump. While issuing the provisional assessment order, intimation was given that there

was unauthorized use of electricity, falling squarely within the ambit of provisions of Section 126 of the 2003 Act. The provisional assessment

order was made u/s 126(1) of the 2003 Act, for unauthorized use of electricity and the Consumer was required to file objections, if any, and to

also pay the amount. The relevant part of the said provisional assessment order reads as under:

And Whereas you are entitled to file objections against the aforesaid - provisional assessment order u/s 126(3) of Electricity Act, 2003, within 30

days from receipt hereof and further entitled to appear before the undersigned for an opportunity of being heard on 25.08.2009 during working

hours from 11.00 AM to 5.00 PM. And Whereas you are further entitled U/s. 126(4) to deposit the aforesaid amount within 7 days and upon

such deposit being made within 7 days, you shall not be subject to any further liability or any action by any authority whatsoever.

And Whereas if you fail to file the objection within 30 days from receipt hereof, the undersigned shall presume that you have no objection to the

provisional assessment and the undersigned shall proceed to pass final order U/s. 126(3) on assessment of electricity charges payable by you. And

Whereas, if you fail to appear before the undersigned at the aforesaid date and time after filing objections, if any, the undersigned shall proceed to

pass the final order u/s 126(3), based on the objection filed by you and evidence available on record.

The consumer did not file its objections/reply, but challenged the said provisional assessment order and the intimation of unauthorized use, by way

of filing a writ petition. The said writ petition was opposed by the Electricity Department. The High Court, while accepting the contention of the

respondent-Industry, held that overdrawal of Maximum Demand would not fall under the scope of ''unauthorized use of electricity'', as defined

under the 2003 Act and the appellants-Department had no jurisdiction to issue the intimation in question and pass the assessment order, in terms of

Section 126 of the 2003 Act. Testing the same, the Southern Electricity Supply Co., of Orissa Ltd., filed an appeal.

19.

In the above reported case, the Supreme Court has framed following points for consideration,

(a) Wherever the consumer consumes electricity in excess of the maximum of the contracted load, would the - provisions of Section 126 of the

2003 Act be attracted on its true scope and interpretation?

(b) Whether the High Court, in the facts and circumstances of the case, was justified in interfering with the provisional order of assessment/show

cause notice dated 25th July, 2009, in exercise of its jurisdiction under Article 226 of the Constitution of India?

(c) Was the writ petition before the High Court under Article 226 of the Constitution of India not maintainable because of a statutory alternative

remedy being available u/s 127 of the 2003 Act?

(emphasis supplied)

20.

The discussion of the Hon''ble Supreme Court, on merits, on Question No. 1, is reproduced hereunder:

13.

On the simple analysis of the facts as pleaded by the parties, it is contended on behalf of the respondent that the provisions of Section 126 of

the 2003 Act are not attracted and no liability could be imposed upon them by the authorities in exercise of their power under that provision. Even

if the case advanced by the appellants against the respondent without prejudice and for the sake of argument is admitted, even then, at best, the

demand could be raised under Regulation 82 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Regulations,

2004 (for short, ''the Regulations''). But recourse to the provisions of Section 126 was impermissible in law. The contention is that the case of a

consumer consuming the electricity in excess of maximum and the installed load does not fall within the mischief covered u/s 126 of the 2003 Act.

To put it plainly, the argument is that the appellants lack inherent authority to raise such demand with reference to the present case on facts and law

both.

14.

On the contra, submission on behalf of the appellants is that the case of excessive consumption of power beyond the sanctioned load would be

a case falling within the ambit of Section 126 of the 2003 Act. Section 126 of the 2003 Act is incapable of an interpretation which would render

the said provision otiose in cases which do not specifically fall under-Section 135 of the 2003 Act.

15.

In order to answer these contentions more precisely, we find it appropriate to examine the question framed above, under the following sub-

headings:

(a) Interpretation;

(b) Distinction between Sections 126 and 135 of the 2003 Act;

(c) The ambit and scope of Section 126 with reference to the construction of the words ''unauthorised use'' and ''means''; and

(d) Effect and impact of change in applicability of tariff upon the power of assessment in accordance with the provisions of the 2003 Act and the

relevant Regulations in the facts of the case.

16.

First and foremost, we have to examine how provisions like Section 126 of the 2003 Act should be construed. From the objects and reasons

stated by us in the beginning of this judgment, it is clear that ''revenue focus'' was one of the principal considerations that weighed with the

Legislature while enacting this law. The regulatory regime under the 2003 Act empowers the Commission to frame the tariff, which shall be the

very basis for raising a demand upon a consumer, depending upon the category to which such consumer belongs and the purpose for which the

power is sanctioned to such consumer. We are not prepared to accept the contention on behalf of the respondent that the provisions of Section

126 of the 2003 Act have to be given a strict and textual construction to the extent that they have to be read exhaustively in absolute terms.

17.

This is a legislation which establishes a regulatory regime for the generation and distribution of power, as well as deals with serious fiscal

repercussions of this entire regime. In our considered view, the two maxims which should be applied for interpretation of such statutes are ex

visceribus actus (construction of the act as a whole) and ut res magis valeat quam pereat (it is better to validate a thing than to invalidate it). It is a

settled cannon of interpretative jurisprudence that the statute should be read as a whole. In other words, its different provisions may have to be

construed together to make consistent construction of the whole statute relating to the subject matter. A construction which will improve the

workability of the statute, to be more effective and purposive, should be preferred to any other interpretation which may lead to undesirable

results.

18.

It is true that fiscal and penal laws are normally construed strictly but this rule is not free of exceptions. In given situations, this Court may, even

in relation to penal statutes, decide that any narrow and pedantic, literal and lexical construction may not be given effect to, as the law would have

to be interpreted having regard to the subject matter of the offence and the object that the law seeks to achieve. The provisions of Section 126,

read with Section 127 of the 2003 Act, in fact, becomes a code in itself. Right from the initiation of the proceedings by conducting an inspection, to

the right to file an appeal before the appellate authority, all matters are squarely covered under these provisions. It specifically provides the method

of computation of the amount that a consumer would be liable to pay for excessive consumption of the electricity and for the manner of conducting

assessment proceedings. In other words, Section 126 of the 2003 Act has a purpose to achieve, i.e., to put an implied restriction on such

unauthorized consumption of electricity.

21.

After referring to many decisions, as to how, a statute should be interpreted, the Supreme Court, at Paragraphs 22 and 23, held as follows:

22.

The relevancy of objects and reasons for enacting an Act is a relevant consideration for the court while applying various principles of

interpretation of statutes. Normally, the court would not go behind these objects and reasons of the Act. The discussion of a Standing Committee

to a Bill may not be a very appropriate precept for tracing the legislative intent but in given circumstances, it may be of some use to notice some

discussion on the legislative intent that is reflected in the - substantive provisions of the Act itself. The Standing Committee on Energy, 2001, in its

discussion said, ''the Committee feel that there is a need to provide safeguards to check the misuse of these powers by unscrupulous elements''.

The provisions of Section 126 of the 2003 Act are self-explanatory, they are intended to cover situations other than the situations specifically

covered u/s 135 of the 2003 Act. This would further be a reason for this Court to adopt an interpretation which would help in attaining the

legislative intent.

23.

By applying these principles to the provisions of this case requiring judicial interpretation, we find no difficulty in stating that the provisions of

Section 126 of the 2003 Act should be read with other provisions, the regulations in force and they should be so interpreted as to achieve the aim

of workability of the enactment as a whole while giving it a purposive interpretation in preference to textual interpretation.

22.

Then, while considering the distinction between 126 and 135 of 2003 Act, at Paragraphs 24 to 30, the Supreme Court, held as follows:

24.

Upon their plain reading, the mark differences in the contents of Sections 126 and 135 of the 2003 Act are obvious. They are distinct and

different provisions which operate in different fields and have no common premise in law. We have already noticed that Sections 126 and 127 of

the 2003 Act read together constitute a complete code in themselves covering all relevant considerations for passing of an order of assessment in

cases which do not fall u/s 135 of the 2003 Act.

25.

Section 135 of the 2003 Act falls under Part XIV relating to ''offences and penalties'' and title of the Section is ''theft of electricity''. The

Section opens with the words ''whoever, dishonestly'' does any or all of the acts specified under clauses (a) to (e) of Sub-section (1) of Section

135 of the 2003 Act so as to abstract or consume or use electricity shall be punishable for imprisonment for a term which may extend to three

years or with fine or with both. Besides imposition of punishment as specified under these provisions or the proviso thereto, Sub-section (1A) of

Section 135 of the 2003 Act provides that without prejudice to the provisions of the 2003 Act, the licensee or supplier, as the case may be,

through officer of rank authorized in this behalf by the appropriate commission, may immediately disconnect the supply of electricity and even take

other measures enumerated under Sub-sections (2) to (4) of the said Section. The fine which may be imposed u/s 135 of the 2003 Act is directly

proportional to the number of convictions and is also dependent on the extent of load abstracted.

26.

In contradistinction to these provisions, Section 126 of the 2003 Act would be applicable to the cases where there is no theft of electricity but

the electricity is being consumed in violation of the terms and conditions of supply leading to malpractices which may squarely fall within the

expression ''unauthorized use of electricity''. This assessment/proceedings would commence with the inspection of the premises by an assessing

officer and recording of a finding that such consumer is indulging in an ''authorized use of electricity''. Then the assessing officer shall provisionally

assess, to the best of his judgment, the electricity charges payable by such consumer, as well as pass a provisional assessment order in terms of

Section 126(2) of the 2003 Act.

27.

The officer is also under obligation to serve a notice in terms of Section 126(3) of the 2003 Act upon any such consumer requiring him to file

his objections, if any, against the provisional assessment before a final order of assessment is passed within thirty days from the date of service of

such order of provisional assessment. Thereafter, any person served with the order of provisional assessment may accept such assessment and

deposit the amount with the licensee within seven days of service of such provisional assessment order upon him or prefer an appeal against the

resultant final order u/s 127 of the 2003 Act. The order of assessment u/s 126 and the period for which such order would be passed has to be in

terms of Sub-sections (5) and (6) of Section 126 of the 2003 Act. The Explanation to Section 126 is of some significance, which we shall deal

with shortly hereinafter. Section 126 of the 2003 Act falls under Chapter XII and relates to investigation and enforcement and empowers the

assessing officer to pass an order of assessment.

28.

Section 135 of the 2003 Act deals with an offence of theft of electricity and the penalty that can be imposed for such theft. This squarely falls

within the dimensions of Criminal Jurisprudence and mens rea is one of the relevant factors for finding a case of theft. On the contrary, Section 126

of the 2003 Act does not speak of any criminal intendment and is primarily an action and remedy available under the civil law. It does not have

features or elements which are traceable to the criminal concept of mens rea.

29.

Thus, it would be clear that the expression ''unauthorized use of electricity'' u/s 126 of the 2003 Act deals with cases of unauthorized use, even

in absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the

methods enlisted u/s 135 of the 2003 Act. A clear example would be, where a consumer has used excessive load as against the installed load

simpliciter and there is violation of the terms and conditions of supply, then, the case would fall u/s 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 bypassing the installed meter.

30.

Therefore, there is a clear distinction between the cases that would fall u/s 126 of the 2003 Act on the one hand and Section 135 of the 2003

Act on the other. There is no commonality between them in law. They operate in different and distinct fields. The assessing officer has been vested

with the powers to pass provisional and final order of assessment in cases of unauthorized use of electricity and cases of consumption of electricity

beyond contracted load will squarely fall under such power. The legislative intention is to cover the cases of malpractices and unauthorized use of

electricity and then theft which is governed by the provisions of Section 135 of the 2003 Act.

23.

While considering the acts enumerated u/s 135 of the Electricity Act, 2003, with reference to the word ""dishonestly"" occurring at the

commencement of Section 135 of 2003 Act and the dictionary meaning of the word ""dishonest"", at Paragraph 35, the Supreme Court, held as

follows:

22.

All these explanations clearly show that dishonesty is a state of mind where a person does an act with an intent to deceive the other, acts

fraudulently and with a deceptive mind, to cause wrongful loss to the other. The act has to be of the type stated under Sub-sections (1)(a) to (1)(e)

of Section 135 of the 2003 Act. If these acts are committed and that state of mind, mens rea, exists, the person shall be liable to punishment and

payment of penalty as contemplated under the provisions of the 2003 Act. In contradistinction to this, the intention is not the foundation for

invoking powers of the competent authority and passing of an order of assessment u/s 126 of the 2003 Act.

24.

As regards the ambit and scope of Section 126, with reference to the words, ""unauthorised use"" and ""means"", at Paragraphs 36 to 41, the

Supreme Court, held as follows:

27.

Wherever the assessing officer arrives at the conclusion that unauthorized 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 such period cannot be ascertained, it shall be limited to a

period of 12 months immediately preceding the date of inspection and the assessment shall be made at the rate equal to twice the tariff applicable

for the relevant category of service specified under these provisions. This computation has to be taken in terms of Sections 126(5), 126(6) and

127 of the 2003 Act. The complete procedure is provided under these sections. Right from the initiation of the proceedings till preferring of an

appeal against the final order of assessment and termination thereof, as such, it is a complete code in itself.

28.

We have already indicated that the provisions of Section 126 do not attract the principles of Criminal Jurisprudence including mens rea. These

provisions primarily relate to unauthorized use of electricity and the charges which would be payable in terms thereof. To determine the

controversy in the present case, it will be essential to examine the implication of the expression ''unauthorised use of electricity'' as contained in

Explanation (b) of Section 126 of the 2003 Act.

29.

In order to explain these expressions, it will be necessary for us to refer to certain other provisions and the Regulations as well. These

expressions have to be understood and given meaning with reference to their background and are incapable of being fairly understood, if examined

in isolation. It is always appropriate to examine the words of a statute in their correct perspective and with reference to relevant statutory

provisions. The expression ''unauthorized use of electricity'' on its plain reading means use of electricity in a manner not authorized by the licensee

of the Board. ''Authorization'' refers to the permission of the licensee to use of electricity, subject to the terms and conditions for such use and the

law governing the subject.

30.

To put it more aptly, the supply of electricity to a consumer is always subject to the provisions of the 2003 Act, State Acts, Regulations framed

thereunder and the terms and conditions of supply in the form of a contract or otherwise. Generally, when electricity is consumed in violation of any

or all of these, it would be understood as ''unauthorized use of electricity''. But this general view will have to be examined in the light of the fact that

the legislature has opted to explain this term for the purposes of Section 126 of the 2003 Act.....

41.

The ''unauthorized use of electricity'' means the usage of electricity by the means and for the reasons stated in sub-clauses (i) to (v) of clause

(b) of Explanation to Section 126 of the 2003 Act. Some of the illustratively stated circumstances of ''unauthorised use'' in the section cannot be

construed as exhaustive. The ''unauthorized use of electricity'' would mean what is stated under that Explanation, as well as such other unauthorized

user, which is squarely in violation of the above-mentioned statutory or contractual provisions.

25.

After referring to the dictionary meaning of the word, ""unauthorised"" and considering the decision of the Apex Court in M.C. Mehta Vs. Union

of India (UOI) and Others, , the Supreme Court, held as follows:

44.

The unauthorized use of electricity in the manner as is undisputed on record clearly brings the respondent ''under liability and in blame'' within

the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different tariff for the

period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions

of Section 126 of the 2003 Act.

45.

The expression ''means'' used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context

in which such expression is used. In terms of Black''s Law Dictionary (Eighth Edition) page 1001, ''mean'' is - ''of or relating to an intermediate

point between two points or extremes'' and ''meaning'' would be ''the sense of anything, but esp. of words; that which is conveyed''. The word

ordinarily includes a mistaken but reasonable understanding of a communication. ''Means'' by itself is a restrictive term and when used with the

word ''includes'', it is construed as exhaustive. In those circumstances, a definition using the term ''means'' is a statement of literal connotation of a

term and the courts have interpreted ''means and includes'' as an expression defining the section exhaustively. It is to be kept in - mind that while

determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the Section, scheme of the Act,

the object of the Legislature and its intent.

46.

''Purposive construction'' is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be over-

stated or over-extended. Without being over-extended or over-stated, this rule of interpretation can be applied to the present case. It points to the

conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation

which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though

to a limited extent.

47.

The precepts of interpretation of contractual documents have also undergone a wide ranged variation in the recent times. The result has been

subject to one important exception to assimilate the way in which such documents are interpreted by judges on the common sense principle by

which any serious utterance would be interpreted by ordinary life. In other-words, the common sense view relating to the implication and impact of

provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.

48.

Another similar rule is the rule of practical interpretation. This test can be effectuatedly applied to the provisions of a statute of the present kind.

It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not

be accepted against the common sense view which will further such application.

49.

Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be

achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions

of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We have also indicated above

that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered

under the provisions of Section 135 of the 2003 Act.

50.

In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorized use of the electricity as well as to ensure

prevention of revenue loss. It is in this background that the scope of the expression ''means'' has to be construed. If we hold that the expression

''means'' is exhaustive and cases of unauthorized use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then

it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply,

regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the Legislature under the provisions

of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.

51.

The primary object of the expression ''means'' is intended to explain the term ''unauthorized use of electricity'' which, even from the plain

reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The

Legislature has intentionally omitted to use the word ''includes'' and has only used the word ''means'' with an intention to explain inter alia what an

unauthorized use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-Section (5) of Section 126 of the 2003 Act

were both amended/substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not

amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning

which will fit into the scheme of the 2003 Act and would achieve its object and purpose.

52.

The expression ''means'' would not always be open to such a strict construction that the terms mentioned in a definition clause under such

expression would have to be inevitably treated as being exhaustive. There can be a large number of cases and examples where even the expression

''means'' can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending

upon the facts of a given case and the provisions governing that law.

26.

After considering K.V. Muthu Vs. Angamuthu Ammal, and Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, , the Apex

Court explained the word ""means"", as follows:

58.

The above judgments clearly support the view that we have taken with reference to the facts and law of the present case. It cannot be stated

as an absolute proposition of law that the expression ''means'' wherever occurring in a provision would inevitably render that provision exhaustive

and limited. This rule of interpretation is not without exceptions as there could be statutory provisions whose interpretation demands somewhat

liberal construction and require inclusive construction. An approach or an interpretation which will destroy the very purpose and object of the

enacted law has to be avoided. The other expressions used by the Legislature in various sub-clauses of Explanation (b) of Section 126 of the 2003

Act are also indicative of its intent to make this provision wider and of greater application. Expressions like ''any artificial means'', ''by a means not

authorised by the licensee'' etc. are terms which cannot be exhaustive even linguistically and are likely to take within their ambit what is not

specifically stated. For example, ''any artificial means'' is a generic term and so the expression ''means'' would have to be construed generally.

60.

The expressions ''means'', ''means and includes'' and ''does not include'' are expressions of different connotation and significance. When the

Legislature has used a particular expression out of these three, it must be given its plain meaning while even keeping in mind that the use of other

two expressions has not been favoured by the Legislature. To put it simply, the Legislature has favoured non-use of such-expression as opposed to

other specific expression. In the present case, the Explanation to Section 126 has used the word ''means'' in contradistinction to ''does not include''

and/or ''means and includes''. This would lead to one obvious result that even the Legislature did not intend to completely restrict or limit the scope

of this provision.

61.

Unauthorised 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 terms and conditions of supply and the regulations and provisions of the 2003 Act governing such supply.

''Unauthorised 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.

62.

The requirement of grant of licence itself suggests that electricity is a controlled commodity and is to be regulated by the regulatory authorities.

If a person unauthorisedly consumes electricity, then he can certainly be dealt with in accordance with law and penalties may be imposed upon him

as contemplated under the contractual, regulatory and statutory regime. The Orissa Electricity Regulatory Commission, in exercise of its powers u/s

181(2)(t), (v), (w) and (x) read with Part VI of the 2003 Act, Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf,

made the regulations to govern distribution and supply of electricity and procedure thereof such as system of billing, modality of payment, the

powers, functions and applications of the distribution licensees form for supply and/or suppliers and the rights and obligations of the consumers.

These were called Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (hereinafter referred to as Conditions

of Supply) vide notification dated 21st May, 2004.

27.

The word dishonestly defined in Section 24 of the Indian Penal Code, states that, Whoever does anything with the intention of causing

wrongful gain to one person or wrongful loss of another person, is said to do that thing dishonestly. Collins English Dictionary explains the word

''dishonest'' as ''not honest or fair; deceiving or fraudulent''. Black''s Law Dictionary (Eighth Edition) explains the expression ''dishonest act'' as a

fraudulent act, ''fraudulent act'' being a conduct involving bad faith, dishonesty, a lack of integrity or moral turpitude.

28.

In Dr. S. Dutt Vs. State of Uttar Pradesh, , the Supreme Court has coined the word, dishonestly as a person, who does anything with the

intention of causing wrongful gain to one person or wrongful loss to another person. In yet another decision made in Ram Ratan alias Ratan Ahir

and Others Vs. The State of Bihar and Another, , the Supreme Court observed as follows:

A person is said to do a thing dishonestly when he does anything with the intention of causing wrongful gain to one person or wrongful loss to

another person. In the case of illegal seizures and impounding of cattle, the person seizing the cattle does not gain anything. He simply takes the

cattle to the pound. He does not use them for his purpose.

29.

Reverting back to the case on hand, perusal of the notice, dated 25.09.2012, issued by the Executive Engineer, Hosur, clearly shows that the

word theft in Paragraph 2 has been struck off and instead the word use has been mentioned. However, the said authority has alleged that the

petitioner had unauthorisedly used electricity supply for construction activities, with an intention to cause loss to TANGEDCO Limited and thus,

the said act falls within Section 135(1)(a) to (e) of the Electricity Act, 2003.

30.

Though the Executive Engineer, at Paragraph 2 of the said Notice, while directing the petitioner, u/s 152 of the Electricity Act, 2003, to make

the compounding charges of Rs. 94,000/-, has struck off, the word, theft and on the contrary, employed the word used, but at the same time, at

Paragraph 3 of the said notice, the said Authority has observed the unauthorised use as, theft, in terms of Section 135(1)(a) to (e) of the Act,

punishable under the Electricity Act.

31.

Notice, dated 25.09.2012, directing the petitioner to pay a sum of Rs. 6,28,616/-, for the alleged loss to the Electricity Department, also

shows that what has been alleged against the petitioner is that the Electricity given for factory purpose, has been used for construction activity,

which according to the respondents, is an act, falling u/s 135(1)(a) to (e) of the Electricity Act, 2003.

32.

Explanation (b)(iv) to Sub-Section (6) of Section 126 of the Electricity Act, substituted by Act 26 of 2007, with effect from 15.06.2007,

states that, for the purpose other than for which the usage of electricity was authorised Section 135 of the Act, before and after substitution by Act

26 of 2007, with effect from 15.06.2007, is given below:

Before Substitution:

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

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, 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 if it is proved that any artificial means or means not authorised by the Board or Licensee 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.

After Substitution:

(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