1. 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 (AIR 1965 Supreme Court 666)of the Supreme Court and Arekipudi Sankara Rao v. State of A.P. (2007 (2) ALD (Crl.) 775 (AP)) 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. (1997 Crl.L.J. 4578) 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 exer