STATE OF KARNATAKA Vs. ADIMURTHY ALIAS B MOORTHY

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment of the Karnataka High Court dt. Dec. 15, 1980 affirming the order of acquittal passed by the Munsiff and Judicial Magistrate First Class, Krishnarajanagar dt. July 10, 1979 acquitting the respondent of an offence punishable under Ss. 39 and 44 of the Indian Electricity Act, 19 10 read with S. 379 of the I. P.C., 1860.

(2.) The prosecution case in brief was as follows. On August 25, 1976 at about 12 noon P.W. I Syed Ameer, Supervisor. Karnataka Electricity Board, went to the house of the respondent on a routine inspection to check the electric meter installed there. He found the meter board at the entrance and though the meter was not recording consumption of electric energy, the lights and fans were on. It appeared that the respondent had tampered with the main connection by fixing two switches to the wall of the houses and by operating the switches the lights and fans inside the house could be used without the meter recording any consumption. Later in the day, he along with the Assistant Engineer attached to the Karnataka Electricity Board, Krishnarajanagar and the Junior Engineer went to the house of the respondent and saw that there was theft of electric energy. Accordingly, on the direction of the Assistant Engineer, P.W. 1 Syed Ameer lodged a report with the police Ex. P-1. After an investigation into the complaint, the Krishnarajanagar police filed a challan. The prosecution led evidence of five witnesses including that of P.W. 1 Syed Ameer. Supervisor and P.W. 2 Bheemanna, Junior Engineer to substantiate the charge. The learned trying Magistrate however acquitted the respondent of the offence with which he was charged under Section 248 (1) of the Cr. P.C., 1973 on the ground that the prosecution had failed to establish that page No. W. 1 Syed Ameer had been authorized to lodge a complaint. On a reading of S. 50 of the Act, he held that a Junior Engineer of the Electricity Board could lodge a complaint but not the Supervisor and the mere presence of the Junior Engineer after detection of the theft does not imply that the Supervisor had been authorized to lodge a complaint. The High Court has upheld the order of acquittal passed by the learned trying Magistrate on the ground that the notification issued by the Karnataka Electricity Board authorizing Junior Engineers, Section Officers and Supervisors to institute prosecutions in terms of Section 50 of the Act not having been published in the Official Gazette, the Court could not take judicial notice of any such notification and it was for the prosecution to lead evidence in proof thereof to establish that page No. W. 1 Syed Ameer was competent to lodge a complaint. It rejected a prayer of the learned Public Prosecutor to lead additional evidence in proof of the notification on the ground that that would be tantamount to allowing the prosecution to fill up a lacuna in the case.

(3.) The decision of the appeal must turn on the construction of S. 50 of the Act which reads as follows:-