Calcutta High Court (Appellete Side)
Sri Pradip Ghosh vs State Of West Bengal And Others on 10 August, 2022
10th August,
(AK)
W.P.A 13652 of 2022
Sri Pradip Ghosh
Vs.
State of West Bengal and others
Mr. Arijit Sarkar
...for the petitioner.
Dr. Madhusudan Saha Ray
...for the WBSEDCL.
Learned counsel for the petitioner submits that an
allegation of theft of electricity was made against the
petitioner.
However, subsequently a criminal proceeding,
lodged against the petitioner under Section 135 of the
Electricity Act, 2003, was disposed of on acquittal of the
petitioner.
It is submitted that under Section 154(4) of the
2003 Act, it is the jurisdiction of the Special Court to
assess the civil liability in cases of alleged theft. However,
in the present case, a provisional assessment was made
under Section 126 which was subsequently made final by
way of a final assessment.
It is submitted that in view of acquittal of the
petitioner in the criminal proceeding, no further
assessment under Section 126 or Section 154 of the 2003
Act can remain valid.
Learned counsel appearing for the Distribution
Licensee contends that it has been well-settled by this
court and the Supreme Court that Sections 126 and 135
of the 2003 Act operate in different fields.
Learned counsel cites an unreported Division Bench
judgment of this court (Basudeb Paine vs. WBSEDCL &
ors.), that is, MAT 263 of 2015, where the Division Bench
held that two parallel proceedings, one under Section 126
and another Section 135 of the 2003 Act, can proceed
parallelly.
It was clearly held by the Division Bench that under
Section 135, the proceeding is a penal one to punish the
person accused of the theft of energy, whereas Section
126 involves a civil determination.
Learned counsel next cites the judgment rendered
by the Supreme Court in West Bengal State Electricity
Distribution Company Ltd. Vs. M/s. Orion Metal Pvt. Ltd.
Reported at 2019 (5) CHN (SC) 72, wherein it was held,
inter-alia, that a civil determination under Section 154 is
different and distinct from a determination under Section
126 of the 2003 Act.
Whereas Section 154 liability arises in the context of
an offence under Sections 135 to 140 and 150 of the
2003 Act, the same rider is not applicable to Section 126,
which is independent in nature.
Upon hearing learned counsel for the parties, it
transpires from the record that the WBSEDCL levelled the
allegations of unauthorized use of electricity and theft
against the petitioner.
Upon such allegation, a provisional assessment was
made and thereafter, a final order of assessment was
passed on October 4, 2016.
Despite the limitation period for preferring an appeal
against such order having long passed, no appeal under
Section 127 of the 2003 Act has been preferred till date
by the petitioner.
The acquittal of the petitioner in the criminal
proceeding, as it appears from the copy of judgment of the
criminal court annexed to the writ petition, was on the
ground of benefit of doubt.
That apart, as held by the Division Bench and the
Supreme Court, Section 126 on the one hand and
Sections 135 and 154 of the 2003 Act on the other
operate in several fields.
Although the unauthorized use of electricity in the
present case might have been connected with the
allegation of theft, the acquittal of the petitioner before
the criminal court does not ipso facto negate the liability
of the petitioner to pay the amount assessed under
Section 126.
As well-settled by the Supreme Court and this court,
Section 126 operates in respect of a civil liability whereas
Section 135 and consequentially the liability under
Section 154 arisefrom a proceeding of criminal nature.
Whereas in a civil proceeding, the yardstick of
deciding the weight of evidence is preponderance of
probabilities, in a criminal case the standard is, beyond
all reasonable doubt.
In view of the standard of proof being distinct and
different in respect of the two sections, it cannot be said
that acquittal under Section 135 by itself relieves the
petitioner from the liability to pay the final order of
assessment.
Since Section 154, that is, either the civil liability or
the criminal liability therein, arises directly out of the
allegation under Section 135 to 140 and 150, an acquittal
before the criminal court might lead to dropping any
proceeding under Section 154, whereas the proceeding
under Section 126 has no nexus with either of the two.
Thus, in the present case, the argument of the
petitioner cannot be accepted.
Hence, WPA 13652 of 2022 is dismissed without any
order as to costs.
Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
