Chhattisgarh State Power Distribution Company Limited Vs Shyamlal Jaiswal and Another

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2025:CGHC:45344

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Digitally signed by AVINASH AVINASH SHARMA SHARMA Date: 2025.09.08 10:25:19 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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ACQA No. 149 of 2020

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Chhattisgarh State Power Distribution Company Limited Through- Assistant Engineer Chhattisgarh State Power Distribution Company Limited, Ambikapur, District- Surguja, Chhattisgarh. (complainant).

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... Appellant.

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versus

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1 - Shyamlal Jaiswal S/o Late Shri Mahadev Jaiswal Aged About 50 Years Occupation- Businessman.

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2 - Shivlal Jaiswal S/o Late Shri Mahadev Jaiswal Aged About 40 Years Occupation- Businessman.

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Both R/o Deviganj Road, Gandhi Chowk, Police Station Ambikapur, Civil And Revenue District- Ambikapur, Surguja, Chhattisgarh.

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... Respondents/Accused.

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For Appellant	: Shri Sudeep Agrawal along with Ms. Subhi Rusia, Advocates.
For Respondents	: Shri Rohan Shukla appears on behalf of Shri Vinod
	Kumar Pandey, Advocates.

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Judgment On Board

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04/09/2025

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This Acquittal Appeal has been preferred against the judgment dated

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19.09.2013 passed by the Special Judge, Electricity Act, Ambikapur

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Surguja (Chhattisgarh) in Special Criminal case No.251/2010 whereby, respondents/accused were acquitted of the charges under Sections 135 to 139 of The Electricity Act, 2003 (hereinafter the Act, 2003) for theft of electricity.

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Necessary facts, as per the averments of the complaint, are that complainant namely R.A. Namdeo, the then Assistant Engineer, Chhattisgarh State Electricity Distribution Company, in his official capacity was authorized to institute the complaint on behalf of the said Company. Respondent No.1/accused - Shyamlal Jaiswal has taken license of electricity connection No.67-14-001629, who runs a business of hotel namely Jaiswal Hotel at Deviganj road, Gandhi chowk, Ambikapur. Respondent No.2/accused, younger brother of Respondent No.1, is a business partner in the said concern, who has also obtained different electricity connection in a 100 meter distance from the connection of Respondent No.1, bearing service No.65-25-12214. An information was received that Respondent No.1, in an unauthorized manner, with the help of Respondent No.2, has illegally installed electric connection line from the premises of Respondent No.2 and is using electrical equipments in his hotel and is thereby committing theft of electricity.

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A panchnama was prepared in proforma-4 vide Ex.P/1 in terms of Rule 6 (i) of the Chhattisgarh State Electricity Rules, 2006. Spot Inspection report was also drawn vide Ex.P/2. For the inspection, a team was constituted vide Ex.P/3 and notice was given to the occupant of the premises vide Ex.P/4. The seized electrical equipments were handed over to the occupant vide Ex.P/5. Spot sketch map was drawn vide ExP/6 and Ex.P/7. Total load was ascertained to the tune of 19922 watt for different

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phases of connection viz. Phase-I, Phase-II and Phase-III. Provisional assessment was made against Respondent No.1 to the tune of Rs.4,27,733/- vide Ex.P/8 and a bill was drawn vide Ex.P/9 according to the calculation made vide Ex.P/10.

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During trial, respondents/accused abjured their guilt and claimed to be tried. A defence was taken that on 31.07.2010, a complaint was made to the Officers of Electricity company to restore the electricity line vide Ex.D/3 but the same has not been corrected and an inspection has been carried out by the Officers of the Electricity company and a case has been registered.

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In the defence, no witnesses were examined and four documents were exhibited vide Ex.D/1 to Ex.D/4.

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Learned trial Court, after evaluating the evidence, acquitted the respondents/ accused as mentioned in para 1 of this judgment. Hence this Appeal.

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Counsel for the appellant submits that the trial Court has not appreciated the evidence in its proper perspective though accused persons moved an application under Section 311 Cr.P.C for recalling of complainant R.A. Namdeo but the same was dismissed on 19.09.2013 and on the same day, judgment was passed. Learned counsel further submits that there is ample evidence available on record against the respondents/accused persons that they, in an unauthorized manner, used the electricity against the tariff, therefore, offence under Section 135 of the Act, 2003 squarely attracts and as such, finding of acquittal recorded by the trial Court is not justifiable. He prays to allow the Appeal and convict the respondents/accused persons.

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On the other hand, counsel for the respondents/accused would support the

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impugned judgment and would submit that the bill which has been generated and the tariff dispute raised has already been settled before the Consumer Forum. He submits that as per para 14 of the impugned judgment, learned trial Court has taken cognizance of the fact that an amount of Rs.1,06,933/- has been paid by Respondent No.1 and the said amount has been adjusted in pursuance of the order dated 31.05.2011 passed by the concerned District Consumer Forum. He further submits that there was no dishonest intention on the part of respondents/accused as there is a clear distinction between Section 126 and Section 135 of the Act, 2003. He also submits that from the case of complainant, it is explicit that Respondent No.1/accused who, for his livelihood, runs a hotel in the form of business and despite his complaint before the Electricity company vide Ex.D/3, the Officers of the said company were so negligent to restore the electricity line though, Respondent No.1 is duly licensed by the said Electricity company and has obtained authorized connection. Learned counsel, for the sake of arguments, submits that in such circumstances, if Respondent No.1 obtained temporary electricity line from the premises of his younger brother for smooth functioning of his hotel, then there is no dishonest intention on his part to commit theft of electricity. He submits that if the Rule regarding use of electricity has been changed by the complainant-Company, for which, the accused were not authorized, then the complainant-Company can only make assessment in terms of Section 126 of the Act, 2003. In such backdrop, counsel for the respondents submits that the trial Court has rightly acquitted the respondents/accused and this Appeal being devoid of merits deserves to be dismissed.

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I have heard learned counsel for the parties and perused the material

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annexed with the Appeal.

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10.In the matter of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) And Another vs. Sri Seetaram Rice Mill {(2012) 2 SCC 108} , the distinction between scope of unauthorized use of electricity in terms of Section 126 vis-a-vis Theft of electricity under Section 135 of the Act, 2003 has been examined and it was held that both are operative in different fields and have no commonality. Section 135 deals with offence of and penalty for Theft of electricity which falls within criminal jurisprudence and mens rea is a constituent of said offence; whereas Section 126 primarily falls under civil law and does not involve meas rea. Relevant paras 24 to 35 of the said judgment, read as under:-

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“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 under Section 135 of the 2003 Act.

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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 (1-A) of Section 135 of the 2003 Act provides that without prejudice to the

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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 under Section 135 of the 2003 Act is directly proportional to the number of convictions and is also dependent on the extent of load abstracted.

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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 unauthorized 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.

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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 under Section 127 of the 2003 Act. The order of assessment under Section 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

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Section 126 is of some significance, which we shall deal with shortly hereinafter. Section 126 of the 2003 Act falls under Part XII and relates to investigation and enforcement and empowers the assessing officer to pass an order of assessment.

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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.

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29. Thus, it would be clear that the expression `unauthorized use of electricity' under Section 126 of the 2003 Act deals with cases of unauthorized use, even in the absence of intention. These cases would certainly be different from cases where there is dishonest abstraction of electricity by any of the methods enlisted under Section 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 under Section 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, the case would fall under Section 135 of the Act.

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30. Therefore, there is a clear distinction between the cases that would fall under Section 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

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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.

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31. Section 135 of the 2003 Act significantly uses the words whoever, dishonestly' does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act. Dishonesty' is a state of mind which has to be shown to exist before a person can be punished under the provisions of that Section.

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32. The word dishonest' in normal parlance means wanting in honesty'. A person can be said to have dishonest intention' if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled. Dishonestly' is an expression which has been explained by the Courts in terms of Section 24 of the Indian Penal Code, 1860 as:

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“ 24. ‘ Dishonestly ’.- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly'.”

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[The Law Lexicon (2nd Edn. 1997) by P. Ramanatha Aiyar]

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33. This Court in the case of Dr. S. Dutt v. State of U.P. [AIR 1966 SC 523] stated that a person who does anything with the intention to cause wrongful gain to one person or wrongful loss to another is said to do that dishonestly.

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34. 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.

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35. 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 under Section 126 of the 2003 Act.

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In view of the aforesaid dictum, it is explicit that what constitutes Theft is clearly defined under Section 135 (1) of the Act, 2003 with the additional component of dishonesty which is essential requirement of proving Theft on the standards of criminal jurisprudence and the same is opposed to a general case of unauthorized use of electricity.

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12.In the present case, from the facts of the complaint, it is explicit that Respondent No.1, in an unauthorized manner, temporarily obtained electricity connection line from the premises of his younger brother Respondent No.2 as his electricity line was disturbed, for which, he had also made a complaint, but the electricity line was not set right. In such circumstances, this Court is of the view that niether the mens rea for committing theft nor dishonest intention on the part of respondents/accused was established and the dispute regarding assessment of tariff can be said to be civil dispute.

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13.Recently, in the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand, 2025 INSC 114, the Hon’ble Supreme Court has observed that the interference with the finding of acquittal recorded by the trial judge would be warranted by the High Court only if the judgment of

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acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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14.For the foregoing, this Court is of the opinion that the view taken by the trial Court while acquitting the respondents/accused is just and proper and the same does not warrant any interference.

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15.Resultantly, this Appeal fails and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Avinash

Chhattisgarh State Power Distribution Company Limited v. Shyamlal Jaiswal and Another

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Chhattisgarh State Power Distribution Company Limited v. Shyamlal Jaiswal and Another

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