JUDGMENT : 1. The petitioner is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the impugned memorandum (Annexure-L) bearing No.PoAa/Jada/CB.Memo/36/2019 dtd. 7/8/2019 issued by the 3rd respondent and for a writ of mandamus directing the 4th respondent to consider the objections (Annexure-C) dtd. 13/11/2019 to the "Back Billing notice and thereafter to pass final assessment order as required under Sec. 126 (3) of the Electricity Act, 2003 (for short 'the Act'). 2. Heard Sri K. Srinivasa, learned counsel for the petitioner and Sri G.C. Shanmukha, learned counsel for the respondents 1 to 4. Perused the writ petition papers. 3. Learned counsel for the petitioner would submit that the power was sanctioned to the petitioner's premises bearing RR. No. AKLHT 305 with sanctioned load of 500 KVA. The petitioner was engaged in the business of manufacture and supply of tiles and civil contract works. It is submitted that on 25/9/2019 the 3rd respondent inspected the petitioner's premises and it is alleged that the petitioner is dishonestly and unauthorizedly using the power sanctioned for other than the purpose for which it was sanctioned. It is further alleged that as the petitioner was using the power for hot mix plant, it would not fall under industrial use and separate tariff under HT-2(a)(i) would be applicable. Thus on the report of the 3rd respondent, 4th respondent issued Back Billing notice (Annexure-B) dtd. 19/10/2019. Learned counsel for the petitioner would contend that utilization of power, at the best would be unauthorized use and it would not amount to theft. Therefore, the respondents are required to consider the objections of the petitioner as per Annexure-C dtd. 13/11/2019 and 4th respondent is required to pass order under Sec. 126 of the Act. Thus he submits that without going into the question of validity of Memorandum (Annexure-L) dtd. 7/8/2019, 4th respondent be directed to consider the objection filed by the petitioner to the back billing notice and pass orders under Sec. 126 of the Act. 4. Per contra, Sri G.C. Shanmukha, learned counsel for the respondents submits that the petitioner was sanctioned power for granite industry, whereas the petitioner as on the date of inspection on 25/9/2019 was utilizing the power sanctioned for the purpose of godown, for Hot Mix Plant without permission. Therefore, FIR was filed and criminal case was registered against the petitioner. 4. Per contra, Sri G.C. Shanmukha, learned counsel for the respondents submits that the petitioner was sanctioned power for granite industry, whereas the petitioner as on the date of inspection on 25/9/2019 was utilizing the power sanctioned for the purpose of godown, for Hot Mix Plant without permission. Therefore, FIR was filed and criminal case was registered against the petitioner. Since the petitioner is using the power unauthorizedly, it is his submission that Sec. 135 of the Act would be applicable and not Sec. 126 of the Act. Thus he prays for rejection of the petition. 5. It is not in dispute that power was sanctioned to the petitioner's premises bearing R.R.No. AKLHT 305 with sanctioned load of 500 KVA for industrial purpose. On 25/9/2019 the petitioner's installation was inspected by the staff of Executive Engineer (Electrical) Vigilance and it was found that the petitioner was utilizing the power sanctioned for the purpose, other than the purpose for which it was sanctioned. Criminal case was filed in Cr.No.109/2019 with Ramanagara Police Station under Sec. 135(1), of Electricity Act, 2003 r/w Sec. 379 IPC. Thereafter, on 19/10/2019 notice Annexure-B is issued directing the petitioner to pay the back billing charges within 15 days as per the KERC (ES&D) Sec. 42.07 from the date of receipt of the letter or to file objection if any within 15 days from the date of receipt of the letter. It is the case of the petitioner that, petitioner filed objections as per Annexure-C dtd. 13/11/2019, but the said objection is not considered by the 4th respondent. Annexure-B indicates that the back billing notice is issued under Clause 42.07 of the Conditions of Supply of Electricity of the Distribution Licensees in the State of Karnataka (for short 'the Supply Code'). Clause 42.07 provides for passing assessment order on account of prejudicial use of power under Clauses 42.01, 42.02 and 42.05. Chapter X - Clause 42.00 deals with prejudicial use of supply; 42.01 deals with unauthorized increase in load; 42.02 deals with misuse of electricity; 42.05 deals with unauthorized extension of supply. 6. In the instant case, it is seen that the petitioner was utilizing power sanctioned for industrial purpose to the commercial purpose. Sec. 135 of the Act deals with theft of electricity. Whereas Sec. 126 of the Act provides for assessment. Sec. 126 of the Act reads as follows: "126. 6. In the instant case, it is seen that the petitioner was utilizing power sanctioned for industrial purpose to the commercial purpose. Sec. 135 of the Act deals with theft of electricity. Whereas Sec. 126 of the Act provides for assessment. Sec. 126 of the Act reads as follows: "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. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. 1[(3) The person, on whom an order has been served under sub-sec. (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person.] (4) Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him. 2[***] 3[(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.] (6) The assessment under this sec. shall be made at a rate equal to 1[twice] the tariff applicable for the relevant category of services specified in sub-sec. (5). Explanation.- For the purposes of this sec. shall be made at a rate equal to 1[twice] the tariff applicable for the relevant category of services specified in sub-sec. (5). Explanation.- For the purposes of this sec. ,- (a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) "unauthorised use of electricity" means the usage of electricity - (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or 2[(iv) for the purpose other than for which the usage of electricity was authorised; or (iv) for the premises or areas other than those for which the supply of electricity was authorized.]" A reading of the above provision indicates that if in a premises, if it is found that the power is unauthorizedly used, the Assessing Officer has to provisionally assess to the best of his judgment the electricity charges payable and on service of provisional assessment, the person against whom unauthorized use of electricity is alleged shall file objections if any. Thereafter, the Assessing Officer shall pass final order of assessment within 30 days from the date of service of such order of provisional assessment. 7. In the instant case provisional order under Clause 42.07 of the Supply Code is served on the petitioner. The petitioner has filed objections to the provisional assessment order. 8. The Hon'ble Apex Court in the case of EXECUTIVE ENGINEER, SOUTHERN ELECTRICITY SUPPLY COMPANY OF ORISSA LIMITED (SOUTHCO) AND ANOTHER VS. SRI SEETHARAM RICE MILL reported in (2012) 2 SCC 108 , while considering Sec. 126 of the Act explained unauthorized use of electricity at para 61 as follows :- "61. Unauthorized use of electricity cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so as to cover cases of violation of the terms and conditions of supply and the Regulations and provisions of the 2003 Act governing such supply. "Unauthorized use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the Explanation. "Unauthorized use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the Explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and provisions of the 2003 Act." A reading of the above portion of the judgment makes it clear that unauthorized use of electricity would mean misuse of electricity or even malpractices adopted while using electricity. 9. In the case on hand, provisional assessment order Annexure-B dtd. 19/10/2019 is issued under 42.07 of the Supply Code. 42.07 of the Code reads as follows :- "42.07. Provisional Assessment order on account of prejudicial use of power under Clause 42.01, 42.02 and 42.05 :- (1) The Assessing Officer shall serve the order of provisional assessment within 7 days from the date of inspection upon the person in occupation or possession or in charge of the place or premises with a 15 days' notice. (2) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him: Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever. (3) The person, on whom the order has been served shall be entitled to file objections, if any, against the provisional assessment before the Assessing officer within 15 days, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. (4) The Assessing officer shall indicate in the above order, the provisions of appeal under Clause 44.00 of these Conditions (5) Any person served with the final order of assessment, may, accept such assessment and deposit the assessed amount with the Licensee within 30 days of service of such final order of assessment order upon him. (4) The Assessing officer shall indicate in the above order, the provisions of appeal under Clause 44.00 of these Conditions (5) Any person served with the final order of assessment, may, accept such assessment and deposit the assessed amount with the Licensee within 30 days of service of such final order of assessment order upon him. (6) If the person served with the final order fail to deposit the assessed amount within 30 days, power supply to the installation shall be disconnected and such amount shall be deemed to be arrears of electricity charges. (7) When a person defaults in making payment of the assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of receipt of the order of assessment, an amount of interest at the rate of sixteen percent per annum compounded every six months." The above provision of the Supply Code provides for assessment order on account of prejudicial use of power under Clauses 42.01, 42.02 and 42.05. When a provisional assessment order is served on any person, he may accept such assessment or he could file objections if any, against such provisional assessment within the time prescribed therein. Thereafter the assessing officer shall afford a reasonable opportunity of hearing to such person and pass final order of assessment within the time prescribed therein. 10. The contention of the respondent that since criminal case is filed in Crime No.109/2019 under Sec. 135(1) of the Act with Ramanagara Police Station, hence it is not a case for passing assessment order under Sec. 126 of the Act, is untenable in the facts and circumstances of the present case. Having passed provisional assessment order under clause 42.07 of the Supply Code and as the petitioner has filed objection to such provisional order as per Annexure-C dtd. 13/11/2019, the respondent No.4 is legally bound to pass final assessment order. Moreover, merely because crime is registered under Sec. 135(1) of the Act, and criminal proceedings is set in motion, is not an impediment for the Assessing Authority to proceed in accordance with Sec. 126 of the Act. This position is made clear by the Hon'ble Apex Court in a decision in WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED AND OTHERS Vs. ORION METAL PRIVATE LIMITED AND ANOTHER reported in 2019 SCC ONLINE SC 1077. This position is made clear by the Hon'ble Apex Court in a decision in WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED AND OTHERS Vs. ORION METAL PRIVATE LIMITED AND ANOTHER reported in 2019 SCC ONLINE SC 1077. Relevant para 19 reads as follows :- "19. We also do not find any valid reason for making a distinction as made by the High Court in applying Sec. 126 of the Act. From the scheme of the Act, it appears that after inspection team notices unauthorized use of energy by tampering the meter, the authorities can disconnect the power supply immediately and make immediate assessment for loss of energy, by invoking power under Sec. 126(1) of the Act. The term "unauthorized use of energy" is of wide connotation. There may be cases of unauthorized use of energy, not amounting to theft, which are cases viz. exceeding the sanctioned load or using the electricity in the premises where its use is not authorized etc. But at the same time, when there is an allegation of unauthorized use of energy by tampering the meter, such cases of unauthorized use of energy include 'theft' as defined under sec. 135 of the Act. The power conferred on authorities for making assessment under sec. 126(1) of the Act and power to determine civil liability under sec. 154(5) of the Act, cannot be said to be parallel to each other. In this regard, we are of the view that the High Court has committed an error in recording a finding, that both proceedings cannot operate parallelly. In a given case where there is no theft of energy, amounting to unauthorized use of energy, in such cases no complaint of theft can be lodged as contemplated under sec. 135 of the Act. In such cases for loss of energy, on account of unauthorized use of energy not amounting to theft, it is always open for the authorities to assess the loss of energy by resorting to power under Sec. 126(1) of the Act. In cases where allegation is of unauthorized use of energy amounting theft, in such cases, apart from assessing the proceedings under sec. 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under sec. 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Sec. 154(5) of the Act. 126(1) of the Act, a complaint also can be lodged alleging theft of energy as defined under sec. 135(1) of the Act. In such cases, the Special Court is empowered to determine civil liability under Sec. 154(5) of the Act. On such determination of civil liability by the Special Court, the excess amount, if any, deposited by the petitioner, is to be refunded to the consumer. It is a settled principle that to prove the guilt of the accused in a criminal proceeding, authorities have to prove the case beyond reasonable doubt and the element of mens rea is also to be established. On the other hand, such a strict proof is not necessary for assessing the liability under Sec. 126(1) of the Act." 11. For the reasons stated above, writ petition is partly allowed. Writ of mandamus is issued to the 4th respondent to consider the objections (Annexure-C) dtd. 13/11/2019 filed by the petitioner, to the provisional assessment order (Annexure-B) dtd. 19/10/2019 and pass final assessment order after affording an opportunity of hearing to the petitioner, within three months from the date of receipt of a copy of this order.