IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 CRL.A.No. 198 of 2009 ( CC.1044/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY) .................... APPELLANT/COMPLAINANT: ----------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. RESPONDENT/ACCUSED: ----------------------------------- R.SHIVADMAJAN, S/O.RAMASWAMY ACHARI, ANANDA METAL, MARKET ROAD, KARUNAGAPPALLY. ADV. SRI.P.C.SASIDHARAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 198 of 2009 - D --------------------------------------------- Dated this the 16th day of February, 2009 J U D G M E N T This is an appeal at the instance of the State against the order of acquittal passed by the court below in C.C.No.1044 of 2003 which is a case instituted for the offences under Sections 22,25,26(1)(3) and 28(1)(3) and punishable under Sections 45,48 and 59 of the Standards of Weights and Measures (Enforcement) Act, 1985 (for short 'the Act'). As per the impugned order, the accused is acquitted under Section 255(1) of the Code of Criminal Procedure and hence, this appeal. 2. The case of the complainant, State is that on 19.12.2002, the complainant, who is the Inspector of Legal Metrology, Karunagappally, inspected the Ananda Metals, Market Road, Karunagappally in the presence of the accused who was the proprietor of the said shop. According to the complainant, on inspection, it was found that an electronic weighing machine, which was verified and rejected earlier by the Legal Metrology Department, was being kept in the said shop for weighing purposes. A white paper noting “weighing Crl.A.No. 198 of 2009 :-2-: machine rejected LM not in use” was affixed on the machine by the proprietor. Thus, the said machine did not show the maximum capacity of 60 Kg. at the time of inspection and it was seized and a mahazar was prepared at the spot. The accused failed to produce the relevant records, and on verification of the office records, it was found that the above said machine was rejected on 27.09.2002 as per the verification certificate No.58/831. Though show cause notice was given, there was no effective and satisfactory reply. Hence, the complaint. 3. During the trial, PWs.1 and 2 were examined from the side of the complainant and Exts.P1 to P7 were produced and marked as documentary evidence of the complainant. The weighing machine was produced and identified as MO1. The trial court, after an elaborate discussion and appreciation of the materials on record, came into a conclusion that the prosecution has failed to prove the offence alleged against the accused beyond reasonable doubt and the accused was found not guilty and thus the court below acquitted him. It is the above finding and order of acquittal challenged in this appeal. 4. I have heard learned Public Prosecutor appearing for the appellant as well as learned counsel appearing for the Crl.A.No. 198 of 2009 :-3-: respondent/accused. 5. The evidence of PWs.1 and 2 shows that on 19.12.2002, an inspection was conducted at the Ananda Metals in the presence of the accused and MO1 weighing machine was seized as per Ext.P2 mahazar. Ext.P3 is the receipt of seizure. Ext.P1 is the Inspection Certificate issued by the Legal Metrology Department rejecting MO1 weighing machine on 27.9.2002. The case of the complainant is that the accused has used or kept MO1 machine for use without effecting records. The defence taken is to the effect that MO1 weighing machine, which was rejected earlier by the Department, was got repaired by the technicians of the company and it was kept in the shop for taking to the Legal Metrology Office for conducting fresh verification. The accused has also affixed a sticker in the MO1 weighing machine showing that it was not in use. It is also brought on record that for the purpose of the use in shop, another weighing machine was used. PW1 has also deposed in that way. The specific case put up by the defence is to the effect that the case was registered because of the hostile and inimical approach of the complainant against the accused, since the accused did not take Government lottery tickets though PW1 tried for the same. Crl.A.No. 198 of 2009 :-4-: 6. The trial court, in para 10 of the judgment, observed that PW1 has deposed that label on MO1 was not affixed by the Legal Metrology Department and the same could have been done by the Management of the Ananda Metals. It was also deposed by PW1 that the defects noticed in the weighing machine when it was verified and rejected earlier and when it was seized on 19.12.2002, were entirely different. PW1 has also stated that the said MO1 machine might have been repaired by the technicians. Thus, the trial court had observed that the facts that the earlier defect in MO1 has been noted in Ext.P1 that it showed excess four Kg. of maximum capacity and on the subsequent inspection on loading 60 Kg, it showed help signal, would evidence that some repairs had been carried out in MO1. So, according to the trial court, the defence put forward by the accused that the weighing machine was already repaired appears to be probable. In para 11 of the judgment, the trial court has also found that PW1 had admitted that he has not seen MO1 weighing machine being used in the shop. It was only his presumption that it was possessed for use as it was electrically connected. According to the accused, during the relevant time, a mechanical weighing machine was used in the shop. PW1 has also admitted that he Crl.A.No. 198 of 2009 :-5-: saw the mechanical weighing machine, which was stamped by the Legal Metrology Department, in the shop. The court below has also found that in the reply notice itself, the defence has stated that the label that MO1 was rejected and not in use, was affixed in it., conspicuously, to give notice to the customers that MO1 was not being kept for use. PW1 has also admitted as he had seen the label affixed by the management. Thus the trial court, who got opportunity to observe the demeanour of the witnesses and parties, came to a conclusion on the basis of the material that the accused succeeded in rebutting the presumption under Section 60 of the Act. It was on the above basis, the trial court, entered into a finding that the accused is not guilty. 7. Though the learned Public Prosecutor vehemently argued that MO1 machine was found connected with electric power which itself is sufficient to show that the same was under use, the evidence of PW1 probabilise the defence version. Defence has proved through PW1 that another weighing machine was being used at the time of inspection. MO1 weighing machine was also bearing the label affixed by the management so as to give a message to the consumers that the said machine is not in use. If that be so, I find no illegality in the finding arrived on by Crl.A.No. 198 of 2009 :-6-: the court below. There is no case for the State that the trial court has overlooked any materials in evidence. Therefore, I confirm the order of acquittal passed by the court below. 8. In the decision in Ghurey Lal v. State of U.P. [2008 (4) KLT SN 17 (C.No.17), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the said decision, the Apex Court has further held that the Appellate Court can interfere with an order of acquittal only for very substantial and compelling reasons. Reiterating the same decision, the Apex Court had held in Batcu Venkateshwarlu and Ors. v. Public Prosecutor, High Court of A.P. [2009(1) Supreme 67] that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong and then only, the appellate court can, while exercising the appellate jurisdiction, interfere with the order of acquittal passed by the trial court. 9. In the light of the above legal position and on application of the same in the present facts and circumstances of the case, I find no compelling and substantial reasons to interfere Crl.A.No. 198 of 2009 :-7-: with the order of acquittal passed by the trial court. In the result, there is no merit in the appeal and accordingly the same is dismissed. V.K.Mohanan, Judge MBS/ Crl.A.No. 198 of 2009 :-8-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -1-2009 Crl.A.No. 198 of 2009 :-9-: