Judgment The defendants in O.S. No. 379 of 1996 on the file of the learned Additional District Munsif, Tuticorin, are the appellants in this second appeal. The Plaintiff/respondent herein has filed the suit for a declaration to declare that the show cause notice dated 26.09.1994 issued by the appellants is null and void and for a consequential injunction restraining the appellants or their men from in any manner disconnecting the high tension electricity service connection provided to them bearing HTSC No.71. The suit was dismissed and the appeal filed by the respondent thereagainst was allowed by the first appellate Court, hence, the present second appeal has been filed by the appellants/ electricity Board. 2. For the sake of convenience, the parties shall be referred to as per their litigative status in the suit as 'plaintiff' and 'defendants' respectively. 3. The plaintiff filed the suit contending that they are the consumers of high tension energy supplied by the defendants bearing HTSC No.71. According to the plaintiff, the defendants used to carry out an inspection on 27th of every month and note down the meter reading. Such meter reading taken by the defendants up to August 1994 and the consumption charges payable thereof has been promptly paid by the plaintiff. While so, on 23.09.1994, at about 9.00 pm, the factory of the plaintiff was inspected by the Assistant Executive Engineer, Urban (North), Tuticorin; Assistant Executive Engineer, Anti Power Theft Squad, Tuticorin, Assistant Executive Engineer/MRT, Tuticorin and Executive Engineer, Urban, Tuticorin and after inspection, it was reported to the plaintiff that there was theft of electricity energy in the high tension service connection. Based on such inspection, a criminal complaint was also given by the defendants before the Puthiampathu Police Station and a case in Crime No. 290 of 1994 came to be registered for the offence under Sections 39 (1), 44 (3) and 49 (A) Indian Electricity Act, 1910 read with Section 484 of IPC. Thereafter, on 26.09.1994, a show cause notice was issued calling upon the plaintiff to show cause as to why extra levy for having indulged in theft of electricity energy should not be collected from them. According to the plaintiff, the show cause notice dated 26.09.1994 is vague and bereft of any material particulars. Thereafter, on 26.09.1994, a show cause notice was issued calling upon the plaintiff to show cause as to why extra levy for having indulged in theft of electricity energy should not be collected from them. According to the plaintiff, the show cause notice dated 26.09.1994 is vague and bereft of any material particulars. The notice is silent as to how many units were pilfered and the duration of such pilferage or under what basis the defendants have come to the conclusion that there was theft of electricity energy in the service connection provided to the plaintiff. According to the plaintiff, as per the terms and conditions of supply of electricity energy, which was in force by then, the defendants are bound to furnish the material particulars to show as to how they have come to the conclusion that there was electricity energy. The show cause notice is silent and it was issued only on the basis of conjuncture and surmises. According to the petitioner, there was no theft of electricity energy, as alleged. On the date of inspection, the inspecting team did not mention that there was theft of electricity energy nor given a report to the plaintiff. The inspecting team did not furnish any copy of the records maintained by them on the date of inspection. The plaintiff also, narrating all these points, have issued a reply notice dated 16.10.1994 to the show cause notice dated 26.09.1994 denying all the allegations made thereunder. While so, on 14.11.1994, the officials of the defendants/electricity board attempted to disconnect the electricity supply provided to the plaintiff, hence, the plaintiff has filed the suit. 4. The defendants/electricity Board has filed a detailed written statement contending that on 23.09.1994, at about 9.00 pm, a surprise inspection was conducted in the factory of the plaintiff by the Assistant Executive Engineer, Urban (North), Tuticorin, Assistant Executive Engineer, Anti Power Theft Squad, Tuticorin, Assistant Executive Engineer/MRT, Tuticorin and Executive Engineer, Urban, Tuticorin along with other officials. At the time of such inspection, the Assistant Executive Engineer, Meter Relay Test, Tuticorin informed that second defendant that 8 Nos. security seals provided by the Electricity Board in their service was changed by bogus seals by the plaintiff, by which theft of energy was committed. At the time of such inspection, the Assistant Executive Engineer, Meter Relay Test, Tuticorin informed that second defendant that 8 Nos. security seals provided by the Electricity Board in their service was changed by bogus seals by the plaintiff, by which theft of energy was committed. On the basis of this report, a complaint was given Puthiampathu Police Station and a case in Crime No. 290 of 1994 came to be registered for the offence under Sections 39 (1), 44 (3) and 49 (A) o Indian Electricity Act, 1910 read with Section 484 of IPC. In the meantime, the 8 Nos. of bogus seals were taken by the police officials and produced before the learned Judicial Magistrate No.I, Tuticorin. The meter with bogus seals were also sent to forensic laboratory at Madras for expert opinion on 03.10.1994. Thereafter, the notice dated 26.09.1994 was sent to the plaintiff, which was refused to be received. Therefore, the show cause notice dated 26.09.1994 was served to the plaintiff in the presence of Village Administrative Officer, Meelavittan. The plaintiff also sent their explanation dated 16.10.1994 and the same was received by the defendants on 17.10.1994. According to the defendants, the plaintiff has committed theft of electricity energy by replacing the genuine security seals. In any event, the defendants, in compliance of principles of natural justice, have issued the show cause notice dated 26.09.1994 for which a reply dated 16.10.1994 was also sent by the plaintiff. Therefore, the show cause notice dated 26.09.1994 was validly issued especially when it was based on a physical inspection. Under those circumstances, the defendants prayed for dismissal of the suit filed by the plaintiff. 5. Before the trial Court, on behalf of the plaintiff, one Ganesh was examined as PW1 and Exs. A1 to A9 were marked. On behalf of the defendants, one Kalidoss and five others were examined as Dws 1 to 6 and Exs. B1 to B9 were marked. The trial court, upon analysis of the oral and documentary evidence dismissed the suit filed by the plaintiff. As against the same, the plaintiff has filed A.S. No. 295 of 1997 before the first appellate Court. The first appellate Court, by the impugned judgment dated 14.09.1998 reversed the decree and judgment passed by the trial court, against which the present second appeal is filed by the defendant/appellant. 6. As against the same, the plaintiff has filed A.S. No. 295 of 1997 before the first appellate Court. The first appellate Court, by the impugned judgment dated 14.09.1998 reversed the decree and judgment passed by the trial court, against which the present second appeal is filed by the defendant/appellant. 6. At the time of admission of this second appeal, the following substantial questions of law have been framed by this Court for consideration and they are:- (i) Whether the lower appellate Court is correct in allowing the appeal in view of the Judgment delivered by the Honourable Supreme Court in Punjab State Electricity Board vs. Ashwani Kumar (1998 5 SCC 120) that the Civil Court shall not be justified in entertaining the suit and giving declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity Supply Act and the Instructions issued by the Board in that behalf from time to time? (ii) Whether the lower appellate Court is correct in not considering the Judgment delivered by the Honourable Supreme Court in a case between Hyderabad Vanaspathy vs. A.P.S.E.B. ( 1998 4 SCC 470 ) wherein the Honourable Supreme Court has held that the terms and conditions of supply are statutory in nature? (iii) Whether the lower appellate Court is correct in not considering the finding of the trial court that the respondent company has pilfered electricity by breaking the seals and later on affixing bogus seals? (iv) Whether the finding given by the lower appellate Court is relevant in view of the finding given by the Hon'ble Supreme Court in case between Mathyapradesh Electricity Board and others vs. Harsh Food Products and another ( AIR 1996 SC 2258 ) that no notice is necessary for disconnection in view of prima facie conclusion of theft? 7. The learned counsel appearing for the defendants/appellants would contend that the show cause notice dated 26.09.1994 was validly issued by the defendants in compliance of principles of natural justice. The plaintiff also submitted his explanation dated 16.10.1994. Thereafter, the plaintiff has filed the suit without exhausting the remedy available under law. In any event, the show cause notice dated 26.09.1994 was preceded by an inspection by the competent Anti Power Theft Squad personnel and during such inspection, it was found that the plaintiff had unauthorisedly replaced genuine security seals and replaced bogus seals. Thereafter, the plaintiff has filed the suit without exhausting the remedy available under law. In any event, the show cause notice dated 26.09.1994 was preceded by an inspection by the competent Anti Power Theft Squad personnel and during such inspection, it was found that the plaintiff had unauthorisedly replaced genuine security seals and replaced bogus seals. The defendants have also initiated criminal proceedings against the plaintiff company for having indulged in energy theft. The trial court, after elaborate discussion has held that the plaintiff indulged in theft of electricity energy and therefore, the notice dated 26.09.1994 cannot be declared as invalid. However, the first appellate court found that the show cause notice is silent with regard to the nature and manner of electricity energy said to have been committed by the plaintiff or the unit of energy said to have been stolen. Therefore, the first appellate Court found that in the absence of the aforesaid details, the plaintiff was prevented from submitting an effective reply to the show cause. The first appellate Court failed to consider the fact that the show cause notice was preceded by an inspection by a team of officials and there were evidences made available to show that the plaintiff indulged in theft of electricity energy. Therefore, the learned counsel appearing for the appellants prayed to set aside the decree and judgment passed by the lower appellate Court. 8. Per contra, the learned senior counsel appearing for the respondent/plaintiff would contend that the show cause notice is bereft of any material particulars with regard to alleged theft of electricity energy committed by the plaintiff. In the absence of any particulars furnished in the show cause notice, it is impossible for the plaintiff to submit an explanation especially when the plaintiff was not put on notice regarding the manner in which theft of electricity energy said to have been committed. According to the learned senior counsel for the plaintiff/respondent, when it is the case of the department that 8 genuine security seals were tampered with, the details regarding the same ought to have been mentioned in the show cause notice, which was issued at the earliest point of time. A reading of the show cause notice would indicate that there was no mention as to how and in what manner theft of electricity was committed by the plaintiff. A reading of the show cause notice would indicate that there was no mention as to how and in what manner theft of electricity was committed by the plaintiff. This was taken note of by the first appellate Court while allowing the first appeal preferred by the plaintiff. The first appellate Court, being a fact finding court, has analysed the evidence available on record to hold that the impugned show cause notice is bad in law and such a finding rendered by the first appellate court need not be interfered with. 9. I considered the rival submissions made by both sides and perused the materials on record. The plaintiff has filed the suit questioning the validity of the impugned show cause notice dated 26.09.1994 mainly on the ground that it was silent with regard to the manner in which theft of electricity energy was allegedly committed by the plaintiff. Therefore, it is necessary to look into the show cause notice dated 26.09.1994, Ex.A1, issued by the Executive Engineer, O&M, Urban, Tuticorin, which reads as follows:- "On 23.09.1994 at about 9 pm, the HT Service connection No.71 of M/s. Pneumatics Products Ltd., Mela Arasaradi which is held in your name was inspected by Assistant Executive Engineer, Urban (North), Tuticorin, Assistant Executive Engineer/ APTS/Tuticorin, Assistant Executive Engineer/MRT, Tuticorin and Executive Engineer/Urban/Tuticorin. Theft of Energy in your service connection has been reported. You are hereby called upon to show cause within seven days from the date of receipt of this letter as to why extra levy for the above in accordance with the terms and conditions of supply of electricity should not be collected from you. If no reply is received from you with reference to para 2 above within the time stipulated or if your reply is found not convincing, further action to collect the extra levy as per the terms and conditions of supply of electricity will be taken. You are requested to acknowledge the receipt of this notice immediately." 10. It is evident from the show cause notice issued by the defendants that it is bereft of any material particulars. Even though it was claimed by the defendants that the plaintiff indulged in replacing genuine security seals by bogus parts, nothing was mentioned in the show cause notice issued by the department. It is evident from the show cause notice issued by the defendants that it is bereft of any material particulars. Even though it was claimed by the defendants that the plaintiff indulged in replacing genuine security seals by bogus parts, nothing was mentioned in the show cause notice issued by the department. Therefore, the first appellate Court is right in holding that the show cause notice does not contain any details with regard to the manner in which the electricity energy was stolen or the quantum of units stolen. In the absence of the same, it is not possible for the plaintiff to submit an effective explanation to the show cause notice issued by the department. 11. Before dealing with the case, it is necessary to look into the subsequent events that took place in this case. The defendants have given a complaint to the Puthiampathu Police Station and a case in Crime No. 290 of 1994 came to be registered for the offence under Sections 39 (1), 44 (3) and 49 (A) of Indian Electricity Act, 1910 read with Section 484 of IPC against the plaintiff. Admittedly, the criminal case ended in acquittal by an order dated 04.10.1999 passed by the learned Judicial Magistrate No.I, Thoothukudi in C.C. No. 415 of 1997. As against the same, the Department has preferred a Criminal Revision Case No. 1301 of 1999 before this Court. This Court, by an order dated 05.09.2002 dismissed the Criminal Revision Case, wherein in para Nos. 3 and 4, it was held as follows:- "3. On perusal of the judgment of the trial Magistrate, I find that there is no illegality or irregularity in the said judgment. It is not the case of the prosecution that the meter was actually tampered with since no evidence was let in to that effect. The only complaint against the first respondent is that the seals found affixed on the meter do not tally with the sample seals kept in the office. The trial Magistrate refused to accept the prosecution version, since, PW7 has admitted, in his evidence, that the seals were cut and removed even before the arrival of the police officers and the seals so removed were ony the seals which were used to close the outer door. The trial Magistrate refused to accept the prosecution version, since, PW7 has admitted, in his evidence, that the seals were cut and removed even before the arrival of the police officers and the seals so removed were ony the seals which were used to close the outer door. The very fact that the seals on the outer door were intact indicates, according to the learned Magistrate, that the seals affixed on the meter could not have been tampered with since to tamper with the seals on the meter, one should also tamper with the seals affixed on the door and the absence of any tampering of the seals on the door indicates that seals in the meter were tampered with. I am unable to hold that the said finding of the learned trial Magistrate is erroneous. The trial Magistrate also found that in view of the evidence of the witnesses, there could not have been any illegal extraction of electric energy, on account of the fact that there was no tampering of the meter affixed by the Department. 4. On going through the reasoning given by the learned trial Magistrate, I feel that the reasons given by him are satisfactory and they do not require interference in a revision against acquittal. The revision is therefore, dismissed." 12. Thus, by virtue of the order dated 05.09.2002 passed by this Court, the criminal proceedings initiated against the plaintiff came to an end by specifically holding that there was no tampering of the meter at the instance of the plaintiff. 13. Another aspect for consideration is that during the pendency of the civil proceedings, subsequent to the impugned show cause notice dated 26.09.1994, a final assessment order was passed by the Electricity Board, against which, the plaintiff preferred an appeal before the authority concerned and the same was rejected. As against the same, the plaintiff filed an appeal before the Chairman, Tamil Nadu Electricity Board and the appeal is still pending. In that appeal, an order dated 17.09.1998 was passed by the Chairman of Electricity Board stating that the Board cannot take any decision until the civil suit is finally adjudicated. However, even after dismissal of the civil suit and the allowing of the appeal there against, till date, the appeal filed by the plaintiff before the Chairman of Tamil Nadu Electricity Board is pending without passing any orders thereof. 14. However, even after dismissal of the civil suit and the allowing of the appeal there against, till date, the appeal filed by the plaintiff before the Chairman of Tamil Nadu Electricity Board is pending without passing any orders thereof. 14. The first question of law framed for consideration is as to whether the Civil Court is justified in entertaining the suit without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity Supply Act and the Instructions issued by the Board in that behalf from time to time. Admittedly, the present suit was filed challenging the show cause notice dated 26.09.1994 and during the pendency of the suit a final assessment order was passed, which was also questioned by the plaintiff by filing a statutory appeal. The statutory appeal is still pending before the Chairman of Tamil Nadu Electricity Board. In this context, it is necessary to refer to the decision of this Court reported in (Divisional Engineer (West) Tamil Nadu Electricity Board, Salem vs. J. Rajendra Prasad (2007) 3 MLJ 282 wherein this Court held that the respondent/Electricity Board has the responsibility to pass an initial assessment of notice directing the party to pay 50%, thereafter issue show cause notice to the consumer, conduct an enquiry, after giving an opportunity, final order should be passed. Admittedly, in this case, a show cause notice was issued before passing an initial order of assessment, hence, the show cause notice is not valid in the eye of law. In para No.5 of the said decision, it was held as follows:- "5. In this regard, it is relevant to point out that even under the Terms and Conditions of Supply of Electricity, the respondent-Board has the responsibility to pass initial assessment of notice directing the party to pay 50% and thereafter giving show cause notice to the consumer and conducting an enquiry after giving opportunity, the final order should be passed, which is admitted. In view of the above said factual position and based on Terms and Conditions of which the supply of electricity has been given to the consumer, the Courts below have correctly come to the conclusion that the order passed by the appellant Board is not enforceable in law. It was also found that the order came to be passed by the appellate-Board inspite of the specific directions given in W.P. Nos. It was also found that the order came to be passed by the appellate-Board inspite of the specific directions given in W.P. Nos. 1630 to 1632 of 1984 marked as Exhibit A-1. 6. Further, in the circumstance that the criminal Court itself has acquitted the plaintiff on the charge of the power theft and there is no question of subsequent inspection stated to have been made by the Board, as it was seen in the additional documents filed on behalf of the defendants, which was found by the learned First Appellate Judge and is not in conformity with the order of this Court passed in WP No. 1630 to 1632 of 1984 in Ex.A-1." 15. As far as the jurisdiction of the Civil Court is concerned, reliance was placed by the learned Senior counsel for the plaintiff/respondent to the decision of the Andhra Pradesh High Court reported in (Chairman and Managing Director, APCPDCL, Hyderabad and others vs. M/s. P.C. Dhoot and Sons & etc.,) 2006 AIHC 3458 for the proposition that as per the Electricity Amendment Act, the Special Court is competent to try only matters relating to offences referred to under Sections 135 to 139 of Act or matters relating to civil liability arising out of offences under said Sections. The jurisdiction of Civil Court is only barred relating to matters under Section 126 and 127 of the Act. In para Nos. 26 and 27, the Andhra Pradesh High Court held as follows:- "26. A bare reading of the above provision shows that the jurisdiction of the Civil Court is barred only relating to matters referred to under Sections 126 and 127 of the Act i.e., with regard to assessment of the electricity charges by the Electrical Inspector and the order of the appellate authority against such assessment, but not the matters relating to other provisions of the Act. Hence, with regard to civil liability arising out of other provisions of the Act, it is always open to the aggrieved paty to maintain a suit in a Civil Court having jurisdiction." 16. Per contra, the learned counsel appearing for the defendants/appellants, relied on the decision of the Honourable Supreme Court reported in Punjab State Electricity Board vs. Ashwani Kumar (1998 5 SCC 120) which also arise for consideration by this Court for determination of first substantial question of law. Per contra, the learned counsel appearing for the defendants/appellants, relied on the decision of the Honourable Supreme Court reported in Punjab State Electricity Board vs. Ashwani Kumar (1998 5 SCC 120) which also arise for consideration by this Court for determination of first substantial question of law. This decision cannot be made applicable to the facts of the present case as it factually differs. Therefore, I hold that the first substantial question of law is answered in favour of the plaintiff and against the defendants. 17. Similarly, the learned counsel appearing for the defendants/appellants placed reliance on the decision of the Honourable Supreme Court reported in (Hyderabad Vanaspathy vs. A.P.S.E.B. ( 1998 4 SCC 470 ) which arise for consideration by this Court for determination of the second question of law. A reading of the decision of the Honourable Supreme Court would makes it clear that the Honourable Supreme Court held that the terms and conditions of supply of electricity is a contract between the parties and they have entered into such contract voluntarily and it has got a statutory binding force as per Section 49 of the Act. But now we are governed by the new terms and conditions of supply and the Electricity Act was amended even during the year 2003. There is no dispute in so far as enforceability of terms and conditions of supply based on the amended Act. But in the present case, the occurrence took place prior to the coming into force of the Amended Act besides that the suit was filed questioning the validity of the show cause notice issued by the defendants. Therefore, this decision of the Honourable Supreme Court factually differs and it cannot be made applicable for this case. Therefore, in view of the above legal position, I hold that the Civil Court has jurisdiction to try the suit and I answer the 2nd question of law also in favour of the plaintiff and against the defendants. 18. In the decision of this Court reported in (Annamalai Rubber Products, rep. by its Partner, Madurai vs. Tamil Nadu Electricity Board, rep. by its A.E. (Distribution), Kappalur, Madurai District) (2006) 4 MLJ 357 wherein this Court considered the scope and consequences of the amendment brought in to Tamil Nadu Electricity Supply Code of 2004 with effect from 01.09.2004. In Para Nos. 9, 10 and 11, it was held as follows:- "9. by its Partner, Madurai vs. Tamil Nadu Electricity Board, rep. by its A.E. (Distribution), Kappalur, Madurai District) (2006) 4 MLJ 357 wherein this Court considered the scope and consequences of the amendment brought in to Tamil Nadu Electricity Supply Code of 2004 with effect from 01.09.2004. In Para Nos. 9, 10 and 11, it was held as follows:- "9. Admittedly, the Electricity Act, 2003 has come into effect with effect from 10.06.2003, under Section 185 of the said Act, the previous Acts, including the Electricity Supply Act, 1948 stands repealed. However, Section 185 (2) saves certain action taken up by the authorities under the earlier Act, while leaving the saving clause, Section 185 (2) categorically states that the saving under the earlier enactments shall be insofar as the same are not inconsistent with the provisions of the present Act. In the present case,it is admitted by the respondent that the impugned order passed is based on Clause 19.16 of Terms and Conditions of Supply of Electricity which was framed as per the previous Act of 1948. 10.It is relevant to point out that the impugned order which is dated 27.12.2004 was admittedly passed, based on the report of the officials of the respondent dated 24.12.2004. On the said date, namely 24.12.2004, admittedly, the Tamil Nadu Electricity Supply Code of 2004 has come into effect from 01.09.2004. The said Code framed by the Tamil Nadu Government in accordance with the powers conferred under Section 50 of the Electricity Act of 2003 provides an exhaustive procedure of assessment of billing in cases where there was no meter or defective meter. The relevant Rule under the Tamil Nadu Electricity Supply Code, 2004, namely, Rule 11 which formulates the procedure is as follows:- "11.Assessmnet of billing in cases where there is no meter or meter is defective.- (1) Where supply to the consumer is given without a meter or where the meter is fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, shall be assessed as mentioned hereunder. 2) The quantity of electricity supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months in respect of both high tension service connections and low tension service connections, provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question. 3) In respect of high tension service connections, where the meter fixed for measuring the maximum demand becomes defective, the maximum demand shall be assessed by computation on the basis of the average of the recorded demand during the previous four months. 4) Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding four months period after installation of a correct meter, provided the conditions in regard to the use of electricity in respect of such low tension service connections are not different. The consumer shall be charged monthly minimum provisionally for defective period and after assessment the actual charges will be recovered after adjusting the amount collected provisionally. 5) If the conditions in regard to the use of electricity during the periods as mentioned above were different, assessment shall be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing. 6) Where it is not possible to select a set of four months, the quantity of electricity supplied will be assessed in the case of low tension service connections by the engineer in charge of the distribution and in the case of high tension service connections by the next higher level officer on the basis of the connected load and the hours of usage of electricity by the consumer. 7) In case the consumer does not agree with the assessment made by the engineer or the higher level officer, as the case may be, the matter may be referred to the next higher level officer of the licensee. In case the consumer is still not satisfied, the consumer is at liberty to approach the respective Consumer Grievance Redressal Forum of the licensee. 11. In case the consumer is still not satisfied, the consumer is at liberty to approach the respective Consumer Grievance Redressal Forum of the licensee. 11. It is not even the case of the respondent in the counter affidavit that this was the procedure available under the earlier Act of 1948 and the rules framed thereunder by the Government of Tamil Nadu. While so, it is clear that the impugned order passed under clause 19 of the earlier Rules cannot be stated to have been saved by the saving clause under Section 185(2) of the Electricity Supply Act, 2003. A reference to the report dated 24.12.2004 stated to be the basis for passing of the impugned order also shows that the assessment has been arrived at even after finding that MRT Security seals are intact but stating that the CT wirings were checked and found that CT Secondary Wiring in B phase was found reversed as M and L points were interchanged that was the reason stated to have been found for less recording of the metres. Apparently, that is not the procedure contemplated under the Tamil Nadu Electricity Supply Code of 2004 Rule 11 which I have enumerated above. 19. In the decision reported in (R. Sethumadhavan vs. The Executive Engineer, O&M, Tamil Nadu Electricity Board, Kangeyam, Periyar District and 2 others) 2002 (4) CTC 46 this Court held that in the absence of any material to show that there was any mechanical device used to prevent the consumption of electricity, it is not possible to conclude or presume that the consumer was using some device and thereby committed theft of electricity by preventing the meter recording the actual consumption. In para No.6, it was held as follows:- "6.........In the absence of any material to show that there was any mechanical device used to prevent the consumption of electricity, it is not possible to conclude or presume that the consumer was using some device and thereby committed theft of electricity by preventing the meter recording the actual consumption. There is also no evidence to show that the meter was defective. When that being the case, the department has no power to collect the damages. In the absence of any such proof, there is no right to collect damages. Therefore, the amount demanded by way o3f consumption has no basis. There is also no evidence to show that the meter was defective. When that being the case, the department has no power to collect the damages. In the absence of any such proof, there is no right to collect damages. Therefore, the amount demanded by way o3f consumption has no basis. Therefore, the trial court's judgment, which decreed the suit, appears to be correct and the lower appellate court's judgment dismissing the suit does not appear to be legal and valid. Hence, the lower appellate Court's judgment is liable to be set aside. 20. The very same view was taken by this Court in the decision reported in (P. Subramaniam vs. The Asst. Divisional Engineer (O&M), South Tamil Nadu Electricity Board, Rajaram Nagar, Salem and others) 1994 Writ Law Reporter 197 wherein it was held in para-4 that "there is absolutely no evidence to show that the petitioner committed theft and respondents either in the pre-assessment notice or in the assessment order or in the impugned appellate order have not referred to any piece of evidence to show that the petitioner had committed theft. Without this basic fact being properly proved, I do not know how the question of calculating damages at all arises. The respondents proceed as if the petitioner had committed theft continuously for a period of one year prior to the dates of inspection, but there is absolutely no scope for such assumption. While I do not want to minimise the crime of theft of electrical energy if it could be properly proved, I do not appreciate the manner in which the respondents are taking action in such cases." This decision is squarely applicable to the facts of the case inasmuch as the appellants Department has not produced any material to show that the plaintiff indulged in theft of electricity energy. In fact, this Court, in the order dated 05.09.2002 made in Crl.R.C. No. 1301 of 199 categorically given a finding that the seals on the outer doors are intact, which means the seals affixed on the meter could not have been tampered with without tampering the outer door. Therefore, I hold that the the Electricity Board failed to prove that the plaintiff indulged in theft of electricity energy and consequently, I answer the question of law Nos. 3 and 4 in favour of the plaintiff and against the defendants. 21. Therefore, I hold that the the Electricity Board failed to prove that the plaintiff indulged in theft of electricity energy and consequently, I answer the question of law Nos. 3 and 4 in favour of the plaintiff and against the defendants. 21. In the result, the second appeal fails and it is dismissed by confirming the decree and judgment passed by the lower appellate court. No costs. Consequently, MP No. 1 of 2013 is closed.