JUDGMENT :

Heard.

2. The appeal is directed against the judgment and order dated 27.11.2009 passed by the learned 2nd Additional Sessions Judge, Amravati passed in Special Case (Elect) No.22/2008, wherein the accused i.e. present respondent is acquitted for the offence punishable under Sections 135 and 138 of the Electricity Act,2003.

3. Brief facts:-

The Flying Squad visited Ice Factory of the accused on 15.06.2006, which included the informant and other members. The accused/respondent is running the said Ice Factory. The Electricity Meter was inspected by the Flying Squad in presence of the accused. It was found that the meter was tampered with. On conducting the pulse test, it was found that the meter was running slow by 73.68% as compared to regular running of meter. Inspection report was prepared in presence of witness and the respondent, meter was opened and it was found that there were three resistances in PVC cover. Accordingly, a detailed Panchanama was drawn, inspection report was prepared and meter was seized. Thereafter, it was found that there was theft of electricity of 8768 units during the period of last 24 months thereby, causing financial loss to the tune of Rs.46,032/- to the Electricity Company. Accordingly, on 19.06.2006, the FIR was registered vide Crime No.3034/2006 for the offence punishable under Sections 135 and 138 of the Electricity Act. After completing the investigation by the Investigating Officer, charge-sheet came to be filed against the respondent. Cognizance was taken by the learned Judicial Magistrate First Class, Court No.11, Amravati, however the case was transferred by an order dated 20.12.2007 to the Special Court. Accordingly, the charge was framed at Exh.7. The same was read over and explained to the accused in the vernacular language. Accused pleaded not guilty and claimed to be tried.

4. In order to substantiate the case, the prosecution examined as many as three witnesses namely PW-1 Mr. Shrikant Deshmukh (informant), PW-2 Mr. Suresh Dhawale (Vigilance Officer of the Company) and PW-3 Rahul Kujare, (panch witness) After leading the evidence, the Trial Court acquitted the respondent. It is against this judgment, the present appeal is preferred by the appellant/State.

5. I have heard both the parties. The learned APP submitted that the prosecution has proved the guilt of the accused beyond reasonable doubt, however on a technical ground, the accused was acquitted. The electricity was stolen by the respondent and when the Flying Squad went to the Ice Factory of respondent and it was found that the meter was tampered with. Further, the pulse rate in pulse test conducted using external resistive load was found to be low with reference to the load and it was running slow by 73.68%. After following the entire procedure like preparation of Panchanama and inspection of the Electricity Meter, the FIR was registered. She further submitted that the prosecution has proved through evidence of PW-1 that there was theft of 8768 units which is to the tune of Rs. 46,032/- and though PW-3 was declared hostile, however the case was proved by PW-1 and PW-2. She contended that the lodging of FIR by the PW-1 assuming he is not authorized to lodge the report then also upon such report, if the cognizance is taken by the competent Court then it would amount to an irregularity and not illegality. Accordingly, she prayed to allow the appeal and convict the accused.

6. On the other hand, learned counsel for the respondent submitted that the very foundation of the FIR by an unauthorised person is not tenable, as PW-1 is not authorized to lodge the report as per Section 151 of the Electricity Act and Courts’ below ought not to have taken cognizance under such circumstances. He further submitted that the prosecution has utterly failed to prove the case beyond reasonable doubt. He invited my attention to the cross-examination of PW-1 which mentions the date of inspection of the Electric Meter as 15.06.2006, whereas FIR