JUDGMENT : 1. Writ petitioner was before us in this appeal challenging the judgment of the learned Single Judge in WP (C) No. 34365/2008 dated 11.1.2017. The writ petition was filed challenging Ext.P8 proceedings of the Assistant Engineer, KSEB and Ext.P11 order dismissing the appeal under Section 127 of the Electricity Act, 2003 (“the Act” for short). The petitioner is engaged in the manufacture of wire-cut bricks and is a consumer of KSEB bearing Consumer No. 10696. The third respondent conducted an inspection at the petitioner’s premises and found that the electric meter was disconnected and some tampering was done. The petitioner contended that the third respondent himself had removed the electric meter and cut open the seals for the purpose of inspecting the internal mechanism of the meter. However, the petitioner is aggrieved with the fact that a provisional bill (Ext.P1) was served on him demanding a sum of Rs. 1,99,579/- on 17.8.2007, taking into consideration the monthly consumption as 2800 units for a period of 12 months. The petitioner challenged the provisional bill before this Court by filing WP (C) No. 28937/2007. This Court directed the second respondent to consider the representation made by the petitioner and pass appropriate orders, in pursuance to which Ext.P2 order was made on 11.10.2007 declining the representation of the petitioner, and consequently, Ext.P3 final bill was issued. The petitioner once again approached this Court by filing WP (C) No. 31767/2007 which too was disposed of with a direction to the fourth respondent to issue copy of the mahazar to the petitioner that was prepared during the inspection and to hear the matter afresh. The petitioner also made a request to get the meter tested by the fifth respondent Electrical Inspector. After the inspection, Ext.P7 report was filed which states thus: “The condition of the seals and screws were as shown in para 1. The meter was tested in the received condition and seen that the meter is having a positive error. The counter was working properly and no irregularity or evidence for tampering, as recorded in the site mahazar was noticed.” 2. The grievance of the petitioner is that despite Ext.P7 report being placed before the fourth respondent, he did not give any importance to that report contradicting the statement in the mahazar and went ahead to issue Ext.P8 order upholding the provisional bill for Rs. The grievance of the petitioner is that despite Ext.P7 report being placed before the fourth respondent, he did not give any importance to that report contradicting the statement in the mahazar and went ahead to issue Ext.P8 order upholding the provisional bill for Rs. 1,99,579/- and ordered that to be treated as the final bill. The petitioner challenged Ext.P8 by filing WP (C) No. 9473/2008. This Court as per Ext.P9 judgment disposed of the Writ Petition directing the petitioner to prefer an appeal as provided under Section 127 of the Act. The appeal that was preferred was disposed of as per Ext.P11 order dated 5.11.2008. The appellate authority modified the impugned order and re-assessed at 16 KW @ 65% load factor for 8 hours per day for 20 days per month for 10 months at 2 times normal rate. The petitioner was still aggrieved and hence, challenged Exts.P8 and P11 final assessment orders in the present Writ Petition. 3. The main contention of the appellant/petitioner in the present Writ Petition is that Exts.P8 and P11 orders were passed without any importance being given to Ext.P7 report of the fifth respondent, wherein it is very clearly stated that there is no evidence of any tampering as is mentioned in Ext.P5 site mahazar. After considering rival contentions raised by both sides, the learned Single Judge dismissed the Writ Petition holding that the report of the Electrical Inspector by itself would not help the petitioner in overcoming the finding as per Exts.P8 and P11 to the effect that he has tampered with the meter and needs to be visited with penal action. 4. Assailing this judgment of the learned Single Judge, the petitioner is before us on the following grounds: The observation of the learned Single Judge placing reliance on the site mahazar to discard the finding in Ext.P7 test report of the fifth respondent is not proper. Ext.P5 mahazar was also not prepared in the presence of independent witnesses and therefore, ought to have been discarded. Ext.P7 report has evaluated the possibility of theft of electrical energy as suggested in Ext.P5 mahazar. The appellant also alleges that the statement in the mahazar that his son though present at the time of inspection, refused to sign the inspection mahazar, is not believable. All these facts were not properly appreciated by the learned Single Judge. Ext.P7 report has evaluated the possibility of theft of electrical energy as suggested in Ext.P5 mahazar. The appellant also alleges that the statement in the mahazar that his son though present at the time of inspection, refused to sign the inspection mahazar, is not believable. All these facts were not properly appreciated by the learned Single Judge. That apart, the appellant also points out Regulation 52(5)(ii) of the Kerala State Electricity Board Terms and Conditions of supply, 2005 (“Regulation” for brevity) and submits that though the appellant had filed Ext.P6 application to verify the consumption pattern during the previous 12 months prior to the date of inspection, respondents 2 and 4 ignored that request totally. The learned Single Judge ought to have considered this contention raised by the petitioner. In view of the failure of respondents 2 and 4 to comply with the provisions of Regulation 52(5)(ii) referred to above, the findings as per Exts.P8 and P11 ought to be set aside totally. 5. We have heard the learned counsel for the appellant/petitioner and the learned Standing Counsel for the KSEB. 6. The petitioner’s challenge of the impugned judgment is mainly on the basis of improper preparation of Ext.P5 mahazar and also on noncompliance of Regulation 52(5)(ii). The contents of the mahazar is appreciated by the initial order as well as in the appellate order. The petitioner’s son was present at the site when the inspection was carried out, as is seen from the mahazar. We do not find any reason to disbelieve the officer who prepared the mahazar. There is also no reason for the officers of the KSEB to deliberately pose a false charge against the appellant of tampering with the meter. Nothing has been pointed out or brought in evidence to indicate a mala-fide intention for foisting a false charge against the appellant of having tampered with the meter. The meter, as found in Ext.P7 by the Electrical Inspector, was working properly, as it is recorded to have a positive error. However, the specific finding of the inspection team was that there was tampering of the meter. The mahazar at Ext.P5 indicates that the inspection revealed that three MRT seals, which prevent access into the meter, were removed and re-fixed. On further examination, it was revealed that the counter of the meter was tampered adjusting the reading. However, the specific finding of the inspection team was that there was tampering of the meter. The mahazar at Ext.P5 indicates that the inspection revealed that three MRT seals, which prevent access into the meter, were removed and re-fixed. On further examination, it was revealed that the counter of the meter was tampered adjusting the reading. The paper seal placed on the counter was torn evidencing access into the counter having been resorted to. There was also seen etchings on the lock indicating a tool having been used to open the meter. There were found scratches on the stopper attached to the meter. However, it is not clear, on what basis the Electrical Inspector indicated that there is no evidence of tampering as recorded in the site mahazar. Once the seals are broken, the counters could very well have been altered as suggested in Ext.P5, resulting in adjustment of the reading. The mahazar indicates certain marks on the meter, which could in fact be the tampering as suggested. The Electrical Inspector does not state anything about that. 7. It is also pertinent to note that the functions of the Electrical Inspector has undergone changes consequent to the repeal of the Indian Electricity Act 1910. Under section 26(6) of that Act, the Electrical Inspector was authorised to decide upon correctness of meters and it was the Electrical Inspector who decided the quantity of electricity consumed, in cases of such dispute. As per the amended Act of 2003, it does not come within the authority of the Electrical Inspector to verify regarding the tampering of the meter or the use of electricity. Section 126 of the present Act takes care of all sorts of unauthorised use of electricity. Explanation (b) (iii) of Section 126 includes “unauthorised use” as usage of electricity through a tampered meter. Hence, the report of the fifth respondent is inconsequential, insofar as the allegation of tampering, which is outside the scope of examination of the Electrical Inspector. 8. Coming to the argument of the learned counsel for the appellant with regard to non compliance of Regulation 52 (5)(ii), we find that Regulation 52 refers to theft of energy. In case where there is theft of energy, estimation has to be made in accordance with Regulation 52(5). 8. Coming to the argument of the learned counsel for the appellant with regard to non compliance of Regulation 52 (5)(ii), we find that Regulation 52 refers to theft of energy. In case where there is theft of energy, estimation has to be made in accordance with Regulation 52(5). The relevant portion of the Regulation reads thus:- “(5) Estimation of value of electricity abstracted, used or wasted or diverted: (i) Where it is prima facie established to the satisfaction of the authorized Engineer of the Board that the Consumer or his agent, servant etc. has committed/is committing an offence in terms of section 135 of the Act, such Engineer of the Licensee shall estimate the value of the electricity thus abstracted, used or wasted or diverted, for a period of six months or for such other period as may be deemed justified in the circumstance of any given case at one and half times the rate of Tariff applicable to such category of installation or at one and half times the normal Tariff applicable to the purpose for which the energy is abstracted, used or consumed or 52 wasted or diverted, which ever is higher and demand and collect the same by including the same in the next bill or in a separate bill. Such amount shall be deemed to be arrears of electricity charges. (ii) This is in addition to any criminal proceedings that may be instituted under the provisions of the Act. However no theft case shall be booked for breakage of window glass or seal of the energy meter when it is concluded that the consumption pattern for the last 12 months is reasonably uniform unless prima-facie evidence of theft of energy is made out.” 9. The appellant also argues that if there is breakage of window glass or seal of the energy meter, there should be no penalty imposed unless the consumption pattern for the last 12 months is examined. This exercise is not done in the instant case, which vitiates the assessment and demand raised is the plea. 10. Criminal proceedings also can be initiated in case of theft of electricity. Section 135 of the Act provides for that. However, in the instant case, no action for theft of electricity is initiated against the appellant. This exercise is not done in the instant case, which vitiates the assessment and demand raised is the plea. 10. Criminal proceedings also can be initiated in case of theft of electricity. Section 135 of the Act provides for that. However, in the instant case, no action for theft of electricity is initiated against the appellant. Compliance with Regulation 52(5)(i) and (ii) refers to the estimation for the purpose of action under 135 of the Act for theft of electricity and not for estimation made under section 126 of the Act. Sections 126 and 135 though could be simultaneously invoked, the prohibition in Rule 52(5) is only with respect to booking of a theft case; which can be done only on reference to the consumption pattern of the last three months or on there being prima facie evidence for the alleged theft. The fact that criminal proceedings has not been initiated in the instant case makes inapplicable Section 135 and Regulation 52(5). 11. The proceedings were initiated only under Section 126(1) of the Act, which reads thus:- “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 judgment the electricity charges payable by such person or by any other person benefited by such use.” 12. The power conferred under Section 126(1) is for assessment of unauthorised use of electricity. Tampering of meter would also come within the explanation of “unauthorised use” as already referred to by us. The mere fact that proceedings for theft were not initiated by the Board will not come to the assistance of the appellant. Sections 126 and 135 operate in two different fields. Section 126 deals with assessment for unauthoried use and Section 135 is in the realm of prosecution for offence of theft of energy. There does not appear to be any irregularity insofar as the site mahazar is concerned, which categorically states about the tampering carried out by the appellant/petitioner and that would definitely indicate the unauthorised use of electricity by the appellant. The assessing authority as well as the appellate authority have concurrently found that tampering has been carried out. There does not appear to be any irregularity insofar as the site mahazar is concerned, which categorically states about the tampering carried out by the appellant/petitioner and that would definitely indicate the unauthorised use of electricity by the appellant. The assessing authority as well as the appellate authority have concurrently found that tampering has been carried out. The assessment made on the appellant is for unauthorised use in the nature of a civil liability. Though there could have been a criminal prosecution initiated, the Board has not thought it fit so to do. That cannot absolve the appellant from the liability to be assessed under Section 126 nor can the rigorous conditions mandated for a criminal prosecution be imported into the procedure for imposition of a civil liability. 13. The appellate authority has made certain concession regarding the assessment made on the appellant. The learned Single Judge has gone through all these aspects and concluded that the penal action against the petitioner was justified and there is no reason to interfere with the same. On going through the provisions, we are also convinced that there is no need to upset the findings of the learned Single Judge. The Writ Appeal fails and the same is, accordingly, dismissed. No order as to costs.