IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 Crl.Rev.Pet.No. 1438 of 2011() ------------------------------ CRA.95/2011 of SESSIONS COURT, KOLLAM MC.9/2011 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- PAULACHAN, AGED 40 YEARS, S/O.JOSEPH, KUNNIKUDI VEEDU, KALADI, ALUVA. BY ADV. SRI.S.RAJEEV RESPONDENT: COMPLAINANT & STATE ---------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (MC.NO.9/2011 IN CC NO.425/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM). BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No.1438 OF 2011 ---------------------------------------- Dated 7th Day of June, 2011 ORDER The above Crl.R.P is directed against the order dated 25.3.2011 in Crl.A.No.95/2011 of the court Sessions Judge, Kollam and the order dated 24.1.2011 in CMP No.410/2011 in M.C.No.9/2011 of the court of Judicial First Class Magistrate-II, Kollam. 2. Revision Petitioner is the first accused in the above Calendar case and owner of the vehicle bearing Reg.No. KL 07/A 8343 involved in C.C.No.425/2005 pending in the trial court. As per the impugned order of the learned Magistrate, the entire bond has been forfeited and accordingly, the revision petitioner, who is the counter petitioner in the M.C, is directed to pay penalty of Rs.1,50,000/- for non production of the vehicle before the trial court. The challenge against the above order in the appeal also failed and hence this Crl.Revision Petition. 3. Heard the counsel for the revision petitioner as CRL.R.P.No.1438/11 -:2:- well as the learned Public Prosecutor. 4. C.C.No.425/2005 was registered in the court of Judicial First Class Magistrate-II, Kollam on taking cognizance upon a private complaint filed by the Assistant Controller (Flying Squad), Legal Metrology, Kollam, alleging offence punishable under section 37(1)(vii) of Standard of Weights and Measures (Enforcement) Act, 1985 wherein the allegation is that on 1.8.2003, on inspection conducted by the complainant with respect to the vehicle in question, he noticed that 138.4 litres of diesel in excess was delivered into the underground tank of the petrol bunk from tanker lorry and thus the accused have committed the above offences. Altogether there are three accused. Revision petitioner is the R.C.owner and Accused Nos.2 and 3 are the driver and cleaner respectively. 5. Pending trial of the above case, CMP No.5906/2003 was moved before the trial court for interim custody of CRL.R.P.No.1438/11 -:3:- the vehicle under section 451 Cr.P.C. The learned Magistrate dismissed the above petition against which the petitioner herein approached this Court and by order dated 27.2.2004 in Crl.M.C.No.304 of 2004, this court allowed the Crl. M.C with a direction to give interim custody of the vehicle on certain conditions including production of documents and on making undertaking and offering sufficient security of immovable property to the value of the tanker lorry to be fixed by the learned Magistrate. Certain other conditions are also imposed in the above order of this court. Accordingly, the vehicle was released in favour of the petitioner on executing kychit. Thus, the petitioner executed bond for Rs.1,50,000/- and got custody of the lorry in question and he had undertaken to pay the said sum of Rs.1,50,000/- in the event of his failure to produce the vehicle. 6. It is discernible from the order of the learned Magistrate that when the above case was ripe for trial, it CRL.R.P.No.1438/11 -:4:- was posted for evidence and when the case came up for evidence, the Asst.Public Prosecutor attached to the said court reported that the revision petitioner/Ist accused did not produce the vehicle before the Deputy Controller Legal Metrology, Central Zone. Consequently, the learned Magistrate directed the petitioner to produce the vehicle before the court, but he failed to comply with the direction but filed an explanation stating that he could not produce the vehicle as the vehicle is not in a position to drive. The learned Magistrate being dissatisfied with the explanation offered, instituted M.C.No.9/2011 in the above case and show cause notice was issued to him, consequent to which, the petitioner preferred written explanation stating that he is unable to produce the vehicle since the same is not in a driving condition. the learned Magistrate, after considering the explanation and holding that the petitioner clandestinely removed the vehicle and he is not in a position to produce the vehicle CRL.R.P.No.1438/11 -:5:- as undertaken by him, the bond executed by the petitioner was forfeited and accordingly, imposed a penalty of Rs.1,50,000/- for non production of the vehicle. Though the above order of the learned Magistrate was challenged in appeal, the learned Sessions Judge came into a conclusion that there is breach of contract by the petitioner and he undertook payment of a sum of Rs.1,50,000/- in case of breach and it is further found that the conduct of the petitioner in not intimating the court with regard to the damage to the vehicle and his unwillingness to produce the vehicle disentitle the petitioner for any relief. Thus according to the learned Sesisons Judge, the petitioner is not entitled to get any relief and accordingly, the appeal was dismissed. It is the above orders of the trial court as well as the appellate court challenged in this Crl.R.P. 7. The learned counsel for the petitioner vehemently submitted that there is no willful laches or negligence or deliberate attempt from the part of the petitioner in CRL.R.P.No.1438/11 -:6:- producing the vehicle before the court and the petitioner is unable to produce the same since the vehicle is not in a driving position and the engine of the vehicle became fault. It is also the submission of the learned counsel that there is no provisions in the standard of Weights and Measures Act, 1985 for confiscation of the vehicle and the production of the vehicle during the trial is absolutely not necessary for identification or for any other purpose and without producing the vehicle all other purposes can be served by production of the mahazar. 8. I am unable to accept the above contention. Though initially, the learned Magistrate was not inclined to release the vehicle on interim custody to the petitioner, interim custody of the vehicle was granted only at the intervention of this court by order dated 27.2.2004 in M.C.No.304/2004, and even at the time of granting custody, this Court has already incorporated sufficient conditions so as to secure the production of the vehicle. CRL.R.P.No.1438/11 -:7:- Accordingly, the vehicle was released on the undertaking made by the petitioner and on furnishing security. Therefore, the question to be considered is whether the petitioner can be exempted from producing the vehicle in question who failed to produce the same in violation of the undertaking made by him before the trial court, that too, on the basis of the order issued by this court. The explanation offered by the petitioner appears to be very evasive and irresponsible one. As rightly pointed out by the learned Public Prosecutor, even though there is no provision in the Act, for which the petitioner is facing the trial, it is for the trial court to decide the question on completing the proceedings particularly in terms of Section 452 Cr.P.C as to how to deal with the property produced before it. In the present case, it is also beyond dispute that the trial has already commenced and it is likely to end in its logical conclusion without delay. If that be so, it is for the trial court to pass appropriate orders CRL.R.P.No.1438/11 -:8:- regarding the disposal of vehicle or the penalty amount ordered to be realised from him. As the petitioner failed to produce the vehicle, in spite of the undertaking made by him, that too in terms of the order issued by this court, I find no reason to interfere with the order of the trial court as well as the appellate court. Though the counsel for the petitioner sought leniency of this court with respect to the penalty amount, in the background under which the vehicle involved and the case registered and the conduct of the petitioner, he is not entitled to get any leniency. In the result, this Crl.R.P is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.No.1438/11 -:9:-