IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 10TH DAY OF SEPTEMBER 2009/19TH BHADRA 1931 Crl.MC.No. 515 of 2007 -------------------------- ST.201/2006 of C.J.M.,THRISSUR ST.3498/2004 of J.M.F.C., CHALAKUDY .......... PETITIONER/ACCUSED: C.L.ANTONY, S/O.LONAPPAN, CHIRAKKAL HOUSE, AYROOR P.O. ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.TOM K.THOMAS RESPONDENT/COMPLAINANT: THE SUB INSPECTOR, R.P.F., TRICHUR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.B.VINOD BY ADV. SRI.ALEXANDER THOMAS, SC,RAILWAYS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. --------------------------- Crl.M.C.No.515 of 2007 --------------------------- Dated this the 10th day of September, 2012 ORDER Petition is to quash the proceedings initiated against the petitioner on a complaint filed before Chief Judicial Magistrate, Thrissur. 2. A complaint was filed against the petitioner by the Sub Inspector, R.P.F., Thrissur alleging offences under Sections 155(a) and 138(2)(b) of the Railways (Second Amendment) Act, 2003 ('the Act' for short). According to prosecution, Sri.A.Biju, Train Ticket Examiner ('TTE' for short), Ernakulam North, lodged a complaint to the Sub Inspector, RPF, Thrissur on 20.08.2005 at about 2 p.m. alleging that on 19.08.2005, while he was performing duty in Island Express proceeding from Ernakulam North to Coimbatore, petitioner attempted to get down at Angamaly Railway Station and on checking his ticket, it was found that he was in possession of a general ticket valid from Thiruvananthapuram to Aluva. CRMC 515/07 2 3. The TTE explained that he had overridden from Aluva to Angamaly and also travelled in reservation coach with general ticket, for which he has to pay Rs.370/- as due to Railways. Petitioner refused to remit the fine amount stating that he had only Rs.10/-. In the meantime, two police constables, who were on beat duty in the same train, came there. Since petitioner failed to remit the fine amount, TTE collected the name and address and asked him to remit the money on the next day to the Chief Train Ticket Inspector in Ernakulam North Railway Station. 4. A letter was also written to this effect and petitioner admitted his guilt and his signature was obtained. A case was registered in Thrissur against the petitioner under Sections 155 (a) and 138(2)(b) of the Act. On enquiry, it is revealed that as per the statement of the TTE, petitioner committed the offences stated above. The case was taken on file originally by Judicial Magistrate of First Class and it is now pending as S.T.No. 201/2006 on the file of Chief Judicial Magistrate Court. Summons was also issued to the petitioner. CRMC 515/07 3 5. Heard both sides in detail. According to learned counsel for petitioner, the complaint is filed to wreck vengeance on the petitioner and as a counter blast to the complaint filed by the petitioner against TTE, alleging offences under Sections 341 and 323 of Indian Penal Code. Annexure-B is the copy of the said complaint. Petitioner's case is that he was forcibly taken from Aluva to Thrissur by the TTE. There is no case for the prosecution that petitioner refused to leave the reserved compartment, when he was required to do so by any railway servant. Therefore, offence under Section 155(a) of the Act will not be attracted. 6. Learned standing counsel for Railways argued that going by Annexure-R1(a) complaint lodged by TTE to the Sub Inspector, offences under Sections 155(a) and 138(2)(b) of the Act are clearly attracted. Petitioner has no dispute that he was having ticket only up to Aluva and he was travelling in S-5 coach which is a service coach. Therefore, under Section 138, he is liable to pay the excess charges. He has not paid the charges and hence, he is liable to be prosecuted for offence under Section 138 (2)(b) of the Act. The allegation in the complaint will constitute CRMC 515/07 4 the offences alleged against him, it is submitted. 7. On hearing both sides and on going through the documents produced, it appears that demand was made for payment of Rs.370/- as due to the Railways, since petitioner is alleged to have overridden from Aluva to Angamaly and he had taken ticket only up to Aluva. As per Section 138(2)(b), if any passenger travels by a train in a higher class than that for which he has purchased a ticket, he is liable to pay, on the demand of any railway servant authorised, any difference between the fare paid by him and the fare payable in respect of the journey he has made and the excess charge referred to in sub-section (3). He is also liable to pay such amount, if he travels beyond the place authorised by his ticket. But, by virtue of sub-section (4) of Section 138, he will be liable for the offence only if the passenger fails or refuses to pay the excess amount on demand being made. The failure or refusal to pay the excess charge is the necessary factor to be established for making out an offence under Section 138(2)(b) read with Section 138(4)(a) of the Act. CRMC 515/07 5 8. But, admittedly, as revealed from paragraph 4 of the complaint-Annexure-A, while a demand was made, petitioner explained that he had only Rs.10/- with him and hence, he was asked to remit the money on the next day to the Train Ticket Inspector, Ernakulam. A letter to that effect was also obtained under petitioner's signature, in which he had admitted to pay the amount to the CTTI. In the complaint itself, it is mentioned that when petitioner was questioned and a statement was recorded, he stated that he could not remit the amount on the next day because the authorities informed him that there was no record regarding the incident in this case and hence, the amount was not accepted from him even though he went to the CTTI office. The above facts are revealed from the complaint itself. 9. Therefore, it cannot be said that there is failure or refusal on the part of the petitioner in remitting the amount. The complaint itself reveals that there was an offer to pay and he had also gone to the office as directed by TTE and the amount, though offered, was not accepted by the authorities. In the complaint, it is not mentioned that statements given by the CRMC 515/07 6 petitioner are not true. In such circumstances, petitioner cannot be made liable for offence under Section 138(2)(b) read with Section 138(4) of the Act. 10. Petitioner is also called upon to face a charge under Section 155(a) of the Act. If any passenger having unauthorisedly occupied a berth or seat reserved by a railway administration for the use of another passenger or having entered a compartment, wherein no berth or seat has been reserved by a railway administration for his use, refuses to leave the same, when required to do so by any railway servant authorised, he shall be punishable under the said Section. Such a person may also be removed or caused to be removed with the aid of another from the compartment. 11. A reading of the complaint Annexure-A and Annexure-R1(a) will not go to show that there was any attempt on the part of the railway servant to remove the petitioner from the compartment which he unauthorisedly occupied. There is also nothing to show that petitioner was asked to leave the compartment and he had refused to do so. On the other hand, CRMC 515/07 7 the case is that he was found to get down from the compartment at Angamaly and on examination, he was found overridden from Aluva to Angamaly, in a higher class than that for which he had purchased a ticket. Therefore, offence under Section 155(a) of the Act is also not attracted and he cannot be proceeded against for such offences. 12. In the result, the following order is passed: The entire proceedings pending against the petitioner in S.T.No.201/2006 on the file of Chief Judicial Magistrate, Thrissur are quashed. Petition is allowed. (K.Hema, Judge) tkv