*HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.2488 OF 2004 %24-08-2011 #.K. Venkata Reddy …. Appellant Vs. $ The State of A.P., rep by its Public Prosecutor. …. Respondent !Counsel for the Appellant: Sri T.Niranjan Reddy Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. AIR 1965 Supreme Court 666 2. 2007 (2) ALD (Crl.) 775 (AP) 3. 1997 Crl.L.J. 4578 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2488 OF 2004 JUDGMENT: The appellant/accused was convicted of the offences under Sections 39 and 44 of Indian Electricity Act, 1910 (in short, ‘the Act’) and was sentenced to simple imprisonment for one year and fine of Rs.10,000/- under Section 39 of the Act and simple imprisonment for three months under Section 44 of the Act by the lower Court in Transco C.C.No.16 of 2003 by judgment dated 04-11- 2004. Questioning the same, the accused filed this appeal. 2. The prosecution alleges that on 01-09-2001 at about 5.30 hours when PWs.1 and 2 and their staff inspected slab polishing industry premises of the accused bearing ISC No.633 at Ramapuram village, Owk Mandal, Kurnool District, they found the accused committing theft of electrical energy by bypassing the meter completely connecting three PVC wires of about 12 meters length from L.T. bushing of the nearby distribution transformer to the load points duly keeping the main switch at the meter board in “off” position. Plea of the accused is one of not guilty. After trial, the lower Court found him guilty of the above offences. 3. According to the prosecution, the value of pilfered energy was Rs.7,45,478/-. As per Ex.P-5 order of the Superintendent Engineer, the value of pilfered energy was ultimately determined as Rs.1,27,584/-. It is contended by the appellant’s counsel that since the appellant has paid value of the pilfered energy, the appellant is not entitled to be prosecuted for the above offences. 4. Payment of value of pilfered energy is by way of compensating the electricity Board or Corporation and it cannot be equated with penalty under Criminal Law. So payment of value of pilfered energy by the accused will not absolve him from criminal liability. It is not as if the said amount was paid towards compounding fees. By the date of offence, there was no provision for compounding these offences. 5. It is contended by the appellant’s counsel that M.O.1 P.V.C. wires which were said to have been seized by PWs.1 and 2 at the time of inspection are 7/20 copper wires with which motor of 54 HP cannot be run. DW-1 who is examined on behalf of the accused tested M.O.1 and found it to be of 7/16 size which is capable of conducting electricity for running 54 HP motor in the appellant’s industry. As per the suggestions given to PWs.1 and 2, they have changed the actual wires which are 7/20 capacity with M.O.1 wire of 7/16 capacity realizing the mistake that 7/20 capacity wire cannot conduct electrical energy for running 54 HP motor. PWs.1 and 2 denied the said suggestions. There is no material produced by the accused to show that there was any change of wire after the inspection and after taking Ex.P-2 photographs. DW-1 certified that M.O.1 is a wire of 7/16 capacity. 6. Placing reliance on Avtar Singh v. State of Punjab[1] of the Supreme Court and Arekipudi Sankara Rao v. State of A.P.[2] of this Court it is contended by the appellant’s counsel that in order to institute prosecution for the offences under Sections 39 and 44 of the Act, the person who instituted the prosecution should be competent under Section 50 of the Act and that he should have been notified as Electrical Inspector under Section 36 of the Act. 7. The Supreme Court in Avtar Singh ultimately found no fault with the accused on the ground that the prosecution failed to prove competency of the persons under Section 50 of the Act by filing a notification. It was held that as onus of proving the same is on the prosecution, which failed to discharge the said burden, the prosecution has to fail. 8. On the other hand, though the Additional Public Prosecutor could not produce the notification under Section 50 of the Act, placed reliance on Nizamuddin v. State of A.P.[3] of this Court wherein the notification under Section 50 of the Act is extracted. 9. The said notification in B.P. (V and S) Ms.No.8 dated 27.11.1993 issued by the State Electricity Board in exercise of powers conferred under Section 79 of the Electricity (Supply) Act, 1948 read with Section 50 of the Indian Electricity (Amendment) Act, 1986 reads: “In exercise of the powers conferred by Section 79 of the Electricity (Supply) Act, 1948, (Central Act LIV of 1948) read with Section 50 of I.E. (Amendment) Act 1986 (Act 81 of 1986) the Andhra Pradesh State Electricity Board, hereby authorises all the Officers who are in charge of Anti-Power Theft Squad Police Stations, detailed in para 1 above and all Officers of Assistant Engineer/Additional Assistant Engineers and above rank to initiate prosecution or make complaints to the jurisdictional Officers in charge of Police Stations, for instituting prosecutions when the offences under any of the Sections 39, 41, 43 and 44 of the Electricity Act or Rule 56 read with Rule 138 of the Indian Electricity Rules, 1956 are committed or are reasonably believed to have been committed in their respective jurisdiction”. 10. The Supreme Court in Avtar Singh and this Court i n Arekipudi Sankara Rao decided against the prosecution because the prosecution was unable to produce notification empowering the complainants therein to institute prosecutions in accordance with Section 50 of the Act. When the Additional Public Prosecutor in this appeal is able to establish existence of a notification in this regard, in my opinion, the prosecution herein cannot fail. 11. It is contended by the appellant’s counsel that it is for the person who filed the charge sheet to come to Court and state the authority under which he is empowered to institute this prosecution and that Inspector of Police, who filed the charge sheet in this case was not examined during trial in the lower Court. Non-examination of Inspector of Police who filed the charge sheet in this case, is in no way detrimental to the prosecution case. In fact, this point was not raised by the accused in the trial Court. It being a question of fact, I doubt whether the appellant can be permitted to raise the present argument based on a question of fact. In any event, there can be no doubt of the fact that the prosecution in this case was initiated in accordance with Section 50 of the Act. 12. Alternatively it is contended by the appellant’s counsel that since the appellant has paid value of pilfered energy as per Ex.P.5 determination by the Superintending Engineer and since the offence took place in the year 2001 more than 10 years ago, the sentence of imprisonment of one year ordered by the lower Court is on higher side. There is minimum sentence of imprisonment prescribed under Section 39 of the Act to the extent of at least three months. 13. In the result, the appeal is dismissed, but altering sentence of imprisonment under Section 39 of the Act from one year to three months. _______________________________ SAMUDRALA GOVINDARAJULU, J Date: 24.08.2011 PN/PNV HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2488 OF 2004 24.08.2011 PN/PNV [1] AIR 1965 Supreme Court 666 [2] 2007 (2) ALD (Crl.) 775 (AP) [3] 1997 Crl.L.J. 4578