IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.MC.No. 2199 of 2006() ----------------------------------- ( CC.3488/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM) .................... PETITIONER(S): --------------------- 1. T.J. KURIAKOSE, ASSISTANT CONTROLLER, FLYING SQUAD, LEGAL METROLOGY, KAKKANAD. 2. K.K. ISSAC, ASSISTANT CONTROLLER FLYING SQUAD, LEGAL METROLOGY, KAKKANAD. 3. C.V. BABU, SENIOR INSPECTOR, FLYING SQUAD, LEGAL METROLOGY, KAKKANAD. BY ADV. SRI.S.RAJEEV RESPONDENT(S): ------------------------ 1. P. RAMACHANDRAN, AGED 60 YEARS, PARTNER, MAHALAKSHMI FUELS, UDYOGAMANDAL. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. P.A.SALIM ADV. SRI.P.B.ASOKAN SRI.R.VINU RAJ THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.2199 OF 2006 --------------------------------------------- Dated 27th October, 2010 O R D E R Petitioners are accused 1 to 3 in C.C.3488/2005 on the file of Judicial First Class Magistrate's Court-I, Ernakulam, taken cognizance for the offence under Section 499 punishable under Section 500 of Indian Penal Code on Annexure-III complaint filed by the first respondent. First respondent is the partner of Mahalakshmi Fuels, Eloor. During inspection made by Flying Squad of Ernakulam Legal Metrology on 17/9/2004, finding that two of the units, one diesel and other petrol were showing variation in the delivery of oil, beyond the tolerance limit, memo was prepared and served on the first respondent. First respondent filed W.P.C.28009/20004 challenging Crmc 2199/06 2 the action of Assistant Controller of Legal Metrology department. Based on the statement filed by the Assistant Controller, Legal Metrology, this Court found that even if the variation, which was beyond the tolerance limit statutorily fixed, was without any positive action on the part of the first respondent and there was no mens rea, stillhe is liable to be prosecuted, as no mens rea is required for the offence under the Standards of Weights and Measures (Enforcement) Act, 1985. By Annexure-II judgment this Court found that the offence is compoundable and as first respondent did not compound the offence, final report has been submitted which is pending before the learned Magistrate. This Court therefore, held that if first respondent is willing, he may compound the offence, in which Crmc 2199/06 3 event Assistant Controller, Legal Metrology shall re-stamp the instruments and if first respondent does not come forward for compounding the offence within one week, they are entitled to seize and remove the said two units immediately thereafter and first respondent can get new dispensing units and take steps to establish them in accordance with law and run them. 2. First respondent admittedly did not approach the authorities for compounding the offence. Two units were thus removed by the petitioners. With regard to the removal of two units, a news item was published in Mathrubhumi Daily, which contains a report that third petitioner, Senior Inspector of Legal Metrology disclosed that by making alterations in the units, huge loss was caused to the Crmc 2199/06 4 consumers. Alleging that the said report is defamatory, Annexure-III complaint was filed before Judicial First Class Magistrate's Court- I, Ernakulam. It was taken cognizance by the learned Magistrate. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken against the petitioners. 3. Learned counsel appearing for the petitioners and first respondent were heard. 4. Learned counsel appearing for the petitioners pointed out that by Annexure-II judgment, this Court directed the Officers of the Legal Metrology to remove the two offending units, if first respondent is not coming forward to compound the offence within seven days from the date of Annexure-II judgment. As first respondent did not come Crmc 2199/06 5 forward, they were removed. As it was found that the units were tampered with, Annexure-I complaint was filed before Judicial First Class Magistrate's Court-I, North Paravur after getting necessary sanction. It was taken cognizance as C.C.647/2005. Annexure-IV newspaper does not contain any defamatory statement and therefore, continuation of the prosecution against the petitioners is only an abuse of process of Court. 5. Argument of the learned counsel appearing for the first respondent is that Annexure-IV report contains statement of the third petitioner that first respondent had tampered with the two units, which was not found by this Court in Annexure-II judgment and by reading the said report, public may think that first respondent has committed a Crmc 2199/06 6 fraud by tampering with the units and hence it is to be quashed. 6. Annexure-IV report is not a report published by any of the petitioners. It is not a statement made by the petitioners also. At best, it could be termed as a report prepared by the correspondent of Mathrubhumi based on the information furnished by third petitioner. That will not connect other petitioners with the publication of the report. Therefore, as against the remaining petitioners, even if the allegations in Annexure-III complaint is accepted, no offence would be attracted. Question is even against third petitioner whether an offence is attracted. 7. Annexure-II judgment establishes that the firm challenged the action of the officers of the Legal Metrology Department in Crmc 2199/06 7 sealing the two units, one of petrol and other diesel. This Court did not find that there was no tempering with the units. This Court only said that even if first respondent did not do anything, if the outlet of the two dispensing unit showed variation beyond the tolerance limit, it would be sufficient to prosecute first respondent as to attract an offence mens rea is not necessary. There was no finding that there is mens rea. Question whether first respondent committed the offence by interfering with the two units is a matter to be decided by the learned Magistrate, based on the evidence to be adduced in C.C.647/2005. Even if Annexure-IV report as such is read, it does not contain any defamatory statement as canvassed by first respondent even against third petitioner. At best it could be said that Crmc 2199/06 8 third petitioner had disclosed the prosecution case to the correspondent, based on which the correspondent prepared the report. For that third petitioner cannot be prosecuted. In such circumstances, continuation of the proceedings against the petitioners is only an abuse of process of the Court. Hence cognizance taken against petitioners on Annexure-III complaint in C.C.3488/2005 on the file of Judicial First Class Magistrate's Court-I, Ernakulam is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.