Judgment : 1. By this instant Appeal, the appellant has challenged legality, propriety and correctness of the order passed by learned 4th Additional Sessions Judge, Akola, on 7.7.2006 in Special Case No.20/2005 whereby the special case was dismissed and accused was discharged. 2. Heard submissions advanced on behalf of the appellant, at length. Perused the R & P. The accused/Respondent No.2 remained absent. It appears that FIR No. 3085 /2005 was reported on 30th August 2005 at Borgaon Manju Police Station Dist. Akola under section 135 of the Electricity Act, 2003 ( in short, “the Act of 2003”). It was informed to police that electricity meter in the name of consumer Uttam Bajirao Gawande was inspected by Flying Squad on behalf of the appellant on 27.8.2005 which was in use in respect of the flour mill occupied by Bhaskar Uttam Gawande as consumer No.312340900482. The meter was not transferred to the respondent Bhaskar Gawande notwithstanding the fact that his father Uttam Bajirao Gawande had left for his heavenly abode on 1.5.2005. It was meter bearing No.129597 manufactured by Genus Co. with Resolution 1600 and meter reading was found to be 05497. It was found by the Flying Squad that the legal heir of the consumer was still using electricity meter unauthorizedly in the result the meter was not making entry in respect of 66 per cent power user. Thus, panchnama was drawn and complaint was lodged upon conclusion of the investigation and the respondent accused was charge sheeted before the learned Addl. Sessions Judge on the ground that the Inspector of the meter found user of the respondent/accused which shown theft of electrical energy valued at Rs. 8,812/. The complaint appears to have been signed by the Deputy Executive Engineer, Flying Squad on behalf of the appellant clearly accusing that as per the Company's record units to the tune of 1278 were utilized for a sum of Rs. 8,812/thereby causing loss to the Company provisionally stated in the sum of Rs. 8,812. The prayer was also made to condone the delay in lodging the complaint. 3. 8,812/thereby causing loss to the Company provisionally stated in the sum of Rs. 8,812. The prayer was also made to condone the delay in lodging the complaint. 3. After the respondent/accused appeared in the Court of learned Additional Sessions Judge, Akola he filed an application for discharge on the ground that his father ( original consumer) had already expired before the complaint was lodged for alleged loss of Rs.8,812/and since the amount was already paid respondent accused was really not concerned with the offence. However since he deposited the sum of an assessment made on behalf of the appellant ( original complainant), he shall not be subjected to any further liability or action on behalf of the appellant and he be discharged from the above offence. It appears that the application for discharge filed by the respondent/accused was opposed on the ground that the companion bill has been given by the authority for compounding the offence under section 152 of the Act of 2003 on 31.8.2005 for amount of Rs.1,60,000/which has not been paid hence accused cannot be discharged. As such, application for discharge was allowed. The learned Additional Sessions Judge appears to have made reference to Section 126 of the Act of 2003 but failed to consider the provision in its proper perspective, in view of the specific contention opposing the prayer for discharge. Section 126 of the Act of 2003 indicates that on an inspection any gadget or device at any premises, the Assessing officer if leads the conclusion that occupant is indulging into unauthorised use of electricity, he can provisionally assess the electricity charges which may be payable to the best of judgment by the assessor. After such provisional assessment is made, the order thereof shall be served upon the occupant and such occupant or any person to whom an assessment order has been served u/s 126(2) the user of the electricity is entitled to file objection against provisional assessment and can avail of reasonable opportunity of hearing before final order of assessment is passed within 30 days from the date of service of such order of provisional assessment of electricity charges. Thus, any person who is served with an order of provisional assessment may either accept such assessment and deposit the assessed amount within seven days of the service of such provisional assessment order upon him and thereafter when Assessing Officer reaches a conclusion that unauthorized use of electricity has taken place, then assessment shall be made for the entire period during which such unathorised use of electricity continued and if such period cannot be ascertained, the assessment can be limited to a period of 12 months immediately preceding the date of inspection. It appears that the amended provisions appear to have been introduced with effect from 15.6.2007. However, even if existing provision of section 126 prior to the amendment dated 15.6.2007 are considered, one can distinguish between provisional assessment and final assessment as contemplated under existing section 126 when the complaint was lodged. Hence it would be necessary for the learned Addl. Sessions Judge, Akola to consider the liability of the respondent/accused as a result of assessment made under the provisions of Sec. 126 of the Act of 2003. Merely because the amount as a result of provisional assessment was paid, the contention opposing the application for discharge could not have been ignored or overlooked while passing the impugned order. There is no whisper in the impugned order regarding the say endorsed upon an application for discharge on behalf of the appellant on 7.7.2006 before the impugned order was passed. Therefore, the grievance on behalf of the appellant is just and proper that the learned Addl. Sessions Judge did not consider the complainant's contention opposing the application for discharge. The impugned order dated 7th July, 2006 passed by the learned Special Judge & Addl. Sessions Judge, Akola, resulted in miscarriage of justice ; hence it is set aside and the matter is remanded back to the learned Addl . Sessions Akola, with a direction that he shall give an opportunity of hearing to parties concerned and shall consider the application afresh on merits in accordance with law, considering the contention endorsed on application for discharge for opposing the prayer for discharge. The Appeal is allowed accordingly. Parties shall appear before the learned Spl.Judge (Addl.Sessions Judge, Akola) dealing with cases under the Electricity Act of 2003 on 2nd March 2010 . R & P be sent back forthwith.