P. S. NARAYANA, J. ( 1 ) THE Inspector of Police, vigilance and APTS, APSEB, Guntur, represented by the Public Prosecutor, High court of Andhra Pradesh, Hyderabad, had preferred the present criminal appeal as against the order of acquittal recorded in CC no. 13 of 1998 on the file of II Additional munsif Magistrate, Gurazala. ( 2 ) THE learned Additional Public prosecutor Sri Mohd. Osman Shaheed had taken this Court through the evidence available on record and would contend that the acquittal recorded on the ground of non-examination of the Investigating Officer cannot be sustained, if otherwise there is acceptable evidence on record, this view expressed by the learned Magistrate cannot be said to be one recorded in accordance with law. The learned Additional Public prosecutor also would contend that the circumstances amply prove that respondent-accused has indulged in pilfering the energy deliberately and knowingly and hence sections 39 and 44 of the Indian Electricity act (hereinafter in short referred to as the act ) had been contravened and respondent-accused is liable to be punished under the said provisions. The learned Additional public Prosecutor had also pointed out to the evidence of PWs. 1 to 5 and also Exs. P1 to p18 and MOs. 1 and 2. ( 3 ) PER contra, Sri K. Ananda Rao, learned Counsel representing respondent- accused would contend that the evidence of pws. l and 2 is to the effect that they received written complaint from one lady by name Vidyullatha of Dachepalli relating to the pilferage and the said Vidyullatha was not examined. The learned Counsel also had pointed out the other discrepancies in the evidence of the prosecution witnesses. The Counsel would submit that the investigating Officer was not examined and that is not the only ground on which acquittal had been recorded. Apart from this aspect of the matter the learned Counsel would also submit that in view of the fact that Section 50 of the Act would be applicable to these offences, inasmuch as the prosecution failed to prove that prosecution had been launched at the instance of one of the persons mentioned in section 50 of the Act, especially in the light of the absence of the evidence of investigating Officer the acquittal recorded by the learned Magistrate is well justified. ( 4 ) THE learned Counsel also placed strong reliance on a decision of the Apex court in Avatar Singh v. State of Punjab, air 1965 SC 666 . ( 5 ) HEARD both the Counsel. ( 6 ) THE Inspector of Police, Vigilance and APTS, A. P. S. E. B, Guntur filed charge-sheet against the respondent-accused- dr. Konakanala Krishna Mohan under sections 39 and 44 of the Act. The case of the prosecution in brief is as hereunder: on 12-5-1997 at 14-10 hours LW1 Sri d. Yesunadhu, A. D. E. , A. P. S. E. B, Guntur, with the help of his staff, inspected the premises of the accused relating to Devi nursing home, Gurazala as regards supply of electricity to the two connections in SC nos. 1779 and 1383 to the building of the hospital of the accused. Sri D. Yesunadhu found that the energy was being pilfered through both the service connections by bypassing the meters. It is observed that the meter disc in all the 3 phases was struck up with heater load and the consumer load. After testing at the terminal block of the meter with 1. 5 K. W. heater, it was found that the meter was functioning well. Hence, on detailed examination, it was established that the meter rotation was controlled by a rotar switch at the accused s consulting room side wall, when the switch was in one position the meter disc was not reading with consumer load and in other position the meter disc was rotating. On detailed examination it was identified that the consumer had taken a direct supply from service incoming wire before the meter and utilizing the load and thereby bypassing the meter the consumer pilfered the energy. The same is the case in respect of both the meters in SC Nos. 1779 and 1383 connected to the same building. The revenue loss of Rs. 5,50,263-35 ps. was assessed as per the rules and conditions of the APSEB in respect of both the meters. Sri D. Yesunadhu prepared an Inspection notes for both the meters and sent a report for criminal action. LW8 Inspector of Police, Vigilance and A. P. T. S. , APSEB, guntur, registered a case in Crime No. 39 of 1997 under Sections 39 and 44 of Indian electricity ACT, 2003, 1910 and investigated into. Sri D. Yesunadhu prepared an Inspection notes for both the meters and sent a report for criminal action. LW8 Inspector of Police, Vigilance and A. P. T. S. , APSEB, guntur, registered a case in Crime No. 39 of 1997 under Sections 39 and 44 of Indian electricity ACT, 2003, 1910 and investigated into. He examined the scene of offence and also inspected the staff and recorded their statements. He arrested the accused on 14-5-1997 and sent him for remand. Thus, the accused having pilfered the electricity energy to his hospital building through both the service connections and caused a revenue loss Rs. 5,50,263-35 ps. and rendered himself liable for punishment under sections 39 and 44 of Indian ELECTRICITY ACT, 2003. The case was taken on file under Sections 39 and 44 of the Act and inasmuch as the accused pleaded not guilty, prosecution examined PWs. 1 to 5 and Exs. P1 to P18 and MOs. 1 and 2 were marked. ( 7 ) PWS. 1 and 2 specifically deposed that they received a written complaint from one lady by name Vidyullatha of Dachepalli to the effect that SC Nos. 1779 and 1383 of the accused were being abused by pilferage of energy by illegal means and basing on the said complaint they had taken this matter to the notice of their higher-ups on 8-5-1997 and PW1 was instructed to inspect the said SC numbers. On 12-5-1997 as they happened to go to the nursing home of the accused at Gurazala at about 2-00 p. m. , collected details of SC numbers etc. , from PW3 and proceeded at 2-10 p. m. and found tampering of SC numbers by providing rotar switches. They detected malpractice and prepared inspection notes as in Exs. P1 and P4 in the presence of accused, PW2, 4 and 5. Even according to pws. 1 and 2, at the time of inspection there was no power supply and they detected the meter was static and was not showing any reading at all. PWs. l and 2 also deposed about the search and seizure of MOs. 1 and 2. The evidence of PWs. 4 and 5 also had been discussed. Ex. P1 is the inspection notes of PW1 ; Ex. P2 is the signature on ex. P1 by PW1. Ex. P4 also is the inspection notes by PW1. Ex. PWs. l and 2 also deposed about the search and seizure of MOs. 1 and 2. The evidence of PWs. 4 and 5 also had been discussed. Ex. P1 is the inspection notes of PW1 ; Ex. P2 is the signature on ex. P1 by PW1. Ex. P4 also is the inspection notes by PW1. Ex. P3 is the signature of the accused in the inspection notes report by PW1, Ex. P5 and P6 are the signatures of the consumer, Exs. P7 and P8 are the inspection reports, Ex. P9 is the complaint given to the Inspector, Ex. P10 is the signature of PW4 in Column No. 10. Likewise, Ex. P11 is also signature of PW4 in Column No. 10 of Ex. P4. Exs. Pl2 and P13 also relate to the signatures of PW4. Ex. Pl4 is the 161 Cr. PC statement of PW4. Ex. Pl8 is the 161 Cr. PC statement of PW5. Ex. P16 is the endorsement by PW5 in the inspection notes and ex. Pl7 is the signature of the accused on ex. P4 by PW5. MO. 1 is rotar switch pertaining to SC No. 1779 and MO. 2 is the rotar switch pertaining to SC No. 1383. The evidence available on record had been dealt within detail by the learned Magistrate and several infirmities in search and seizure of mos. 1 and 2 also established by pointing out at Para 10. Apart from the matter the person on whose instance the very inspection was done also had not been examined. The investigating Officer also was not examined and a specific finding had been recorded by the learned Magistrate that in the facts of the case, non-examination of the investigating Officer also would be fatal. In Avtar Singh v. State of Punjab (supra) while dealing with Section 50 of the Act in relation to Section 39 of the Act, the Apex court held that the onus of proving the fact that prosecution has been instituted at the instance of one of persons mentioned in 50 of the Act, is on the prosecution. In the light of the same, definitely the examination or non-examination of the Investigating officer would assume importance. Unless it is proved and established that the provisions of Section 50 of the Act had been complied with, the prosecution itself would be incompetent. In the light of the same, definitely the examination or non-examination of the Investigating officer would assume importance. Unless it is proved and established that the provisions of Section 50 of the Act had been complied with, the prosecution itself would be incompetent. Hence, the findings recorded by the learned Magistrate in the facts of the case, cannot be found fault in any way and accordingly all the findings recorded by the learned Magistrate in relation to the appreciation of evidence also are hereby confirmed. No reasons to interfere with either the findings recorded by the learned magistrate or the acquittal recorded by the learned Magistrate. ( 8 ) NO merit in the appeal. Criminal appeal shall stand dismissed.