JUDGMENT Shambhu Prasad Singh, J. The petitioner has been convicted for an offence under section 379 of the Indian Penal Code read with section 39 of the (Indian) Electricity Act (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default, to undergo rigorous imprisonment for two months. This was the sentence passed by the trial court and has been affirmed by the lower appellate court. 2. The prosecution case, briefly, stated is that on 15th May, 1968 at about 6 P. M. P. W. 1, Electrical Sub-divisional Officer of Biharsharif along with a Magistrate and police force and workers of his department raided the premises of the petitioner on the basis of a confidential information about theft of the electricity and found that the pump of the petitioner was discharging water and direct connection of electricity to the motor from the electricity line had been taken. The petitioner was present there and when he saw the raiding party approaching he fled away. The raiding party disconnected the line and seized the materials. 3. The defence of the petitioner was that he was not guilty and was falsely implicated on account of an enmity. A written statement was filed on his behalf in which a point was also taken that as a resolution of the Board authoring P. Ws. 1 to institute a prosecution of offence under the Act was not filed, the prosecution was bad. 4. Mr. Ramchandra Pd. Sinha appearing for the petitioner has firstly urged that the evidence on the record does not establish that the petitioner was committing theft of electric energy. Both the courts below have accepted the evidence of prosecution on the question. In my opinion, the finding on the question is supported by the evidence. The petitioner, therefore, cannot be allowed to raise this point at the revisional stage. 5. Mr. Sinha has next contended that P. W. 1, who lodged first information report to the police about the occurrence, was not Government nor an electrical Inspector nor a person aggrieved by the offence of theft and as such the entire prosecution on the basis of first information report lodged by him was illegal. 5. Mr. Sinha has next contended that P. W. 1, who lodged first information report to the police about the occurrence, was not Government nor an electrical Inspector nor a person aggrieved by the offence of theft and as such the entire prosecution on the basis of first information report lodged by him was illegal. In support of this he placed reliance on section 50 of that Act which runs as follows: "No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order there under, except at the instance of the Government or an Electrical Inspector or of a person aggrieved by the same." He has also placed reliance on the decision of the Supreme Court in Avtar Singh Vs. State of Punjab1 and on the decision of a learned Single Judge of this court in Rama Shanker Sinha Vs. State2. In Avtar Singh's case the Supreme Court merely held that the onus to prove the fact that prosecution had been launched at the instance of one of the persons mentioned in section 50 of the Act was on the prosecution, and the prosecution having never disputed at any earlier stage that prosecution had not been at the instance of one of the persons mentioned in section 50 it could not be allowed to be urged before the Supreme Court that the prosecution was not at the instance of one of the persons mentioned in that section. In Rama Shanker Sinha's case Kamla Sahay, J. held that the prosecution having failed to prove as to what were the duties of the secretary of an Electric company, the prosecution of a person at the instance of the Secretary was illegal. According to him, in absence of necessary materials on the record, it could not be held that the Secretary was a person aggrieved within the meaning of the term as used in section 50 of the Act in my opinion, the facts of these two cases are distinguishable from the facts of the present case. In the instant case P. W. 1 has specifically said in his evidence that he was a person aggrieved within the meaning of section 50 of the Act. There was no cross-examination on this point. Of course, P. W. 1 referred to a resolution of the Board and, that has not been legally brought on the record. In the instant case P. W. 1 has specifically said in his evidence that he was a person aggrieved within the meaning of section 50 of the Act. There was no cross-examination on this point. Of course, P. W. 1 referred to a resolution of the Board and, that has not been legally brought on the record. The petitioner's lawyer, it appears, took advantage of that lacuna and took 'a point in the written statement filed on behalf of the petitioner. The evidence of P. W. 1 that he was a person aggrieved within the meaning of section 50 of the Act being exparte, the courts below have rightly held that the prosecution at his instance was maintainable and the conviction and sentences passed against the petitioner could not be set aside on that ground. 6. Mr. Sinha has also urged that the prosecution could start only upon a petition of complaint and since in this case it started on the basis of a charge-sheet submitted by the police, the conviction of the petitioner was bad in law. He has relied on a decision of a learned Single Judge of Kerala High Court in case of Assistant Engineer, Electrical V. Ramankutty3 In that case the Sessions Judge had taken the view that no complaint was necessary under section 50 of the Act for an offence under section 39 as theft is a cognizable offence under the Penal Code. The learned judge of Kerala High Court observed that the aforesaid view taken by the Sessions judge was faulty. The learned judge referred to the decision of the Supreme Court in Autar Singh's case according to which section 379 of the Indian Penal Code need not be tacked to section 39 of the Act. In my opinion, the learned Single Judge of Kerala High Court is not right in observing that the offence under section 39 of the Act was not a cognizable offence. Section 39 of the Act does not prescribe any sentence for the offence. But by way of fiction it lays down that the sentence will be the same as the sentence for an offence of that under section 379 of the Indian Penal Code. The maximum sentence for an offence under section 379 of the Indian Penal Code is three years. But by way of fiction it lays down that the sentence will be the same as the sentence for an offence of that under section 379 of the Indian Penal Code. The maximum sentence for an offence under section 379 of the Indian Penal Code is three years. The Code of Criminal Procedure (1898) hereinafter referred to as the Code) defines cognizable offence to mean an offence in which a police-officer within or without the presidency-towns, may in accordance with the second schedule, or, under any law for the time being in force, arrest without warrant. Second schedule of the Code towards the end provides that so far offences against other laws are concerned, if they are punishable for imprisonment for three years or upwards but less than seven years, they are cognizable offences. Therefore, even if section 379 of the Indian Penal Code has not to be tacked on to section 39 of the Act, Section 39 by itself is a cognizable offence. Lodging of a first information report itself amounts to institution of a prosecution. Therefore, prosecution under section 50 may be instituted for an offence under section 39 of the Act by lodging a first information report before the cognizance is taken and trial held thereafter on the basis of charge-sheet submitted by the police can not be held to be illegal. 7. Mr. Sinha, lastly, has submitted on the question of sentence and has contended that the sentence passed in this case is severe. Theft of electrical energy is becoming common and, therefore the sentence passed against the petitioner ordinarily cannot be said to be severe. But it appears that this is the first offence of the petitioner. At least there is no evidence that the petitioner has committed any other offence before. In the circumstances I would set aside the sentence of imprisonment passed against the petitioner and instead impose a fine of Rs. 1000/- (including the fine imposed in the courts below). In case of default of payment of fine, he shall have to undergo rigorous imprisonment for four months. 8. Subject to the above modification on the question of sentence the application IS dismissed. Application dismissed.