The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.253/2021 BETWEEN: M.R. INGERSOL, S/O C.M.RANGASWAMY, AGED ABOUT 55 YEARS, R/O. DR. AMBEDKAR NAGARA, BELIEF COURT PREMISES, ROBERTSONPET POST, K G.F. - 563 122. … PETITIONER (BY DR. G. SUKUMARAN, ADVOCATE) AND: STATE OF KARNATAKA, REP. BY THE ASSISTANT CONTROLLER OF LEGAL METROLOGY, SURESH BUILDING, OPP. RTO OFFICE, KOLAR-563 101. … RESPONDENT (BY SRI. CHANNAPPA ERAPPA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE SENTENCE AND THE CONVICTION PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT K.G.F. IN C.C.NO.793/2018 DATED 19.10.2020, AND THE ORDER DATED 11.01.2021 III ADDITIONAL SESSIONS JUDGE, KOLAR SITTING AT K.G.F. FOR THE OFFENCE UNDER SECTION 26 OF THE LEGAL METROLOGY ACT, 2009. IN CRL.A.NO.34/2020 PASSED BY THE 2 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.03.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER This revision petition is filed by accused No.2 challenging the judgment of conviction and sentence dated 19.10.2020 passed in C.C.No.793/2018 and the judgment of confirmation dated 11.01.2021 passed in Crl.A.No.34/2020. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case of the complainant is
Legal Reasoning
that on 07.07.2018, a complaint was received from one Sri G.E.Suresh Kumar, CDRSM, Bengaluru, DO, I.O.C.L., stating that weights and measures seal both totalizer and one of the pulsar unit MIDCO DU having Sl.No.15BC1190V (MIDCO DUAL HSD) were broken/cut and not in one single piece. Based on the complaint, inspection was conducted on 17.08.2018 at about 4.30 p.m. in the trading premises of M/s Mahavishnu Agencies, IOCL Petrol Bunk No.217/2, V.Kota Road, Bethamangala, 3 Bangarpet Taluk, Kolar District along with Sri Srinivas Rao Nagereddy, IOCL and found that removed/tampered the stamps specified under the Legal Metrology Act, 2009 (‘the Act’ for short) with an intention to alter the delivery of the quantity. It is also the case that at the time of inspection, accused No.1 was present and was in-charge of the petrol bunk and accused No.2 is a dealer of the above said petrol bunk and they had removed the stamped seals and wire, thus violated Section 26 of the Act with an intention to alter the quantity of the delivery. It is further submitted that accused Nos.1 and 2 are responsible for having tampered the weights and measures seals and wire of the dispensing pump, which is punishable under Section 26 of the said Act of 2009. Hence, a private complaint was filed against the accused persons. 4. Having registered the private complaint, the sworn statement was dispensed with as the complainant happened to be a Government employee and the Trial Court took the cognizance and issued the process against the accused persons. The accused persons were secured and granted bail and they did not plead guilty and claims to be tried. The complainant examined two witnesses as P.W.1 and P.W.2 and got marked the 4 documents at Exs.P1 to P9. The accused were subjected to 313 statement and did not choose to lead any defence evidence. The Trial Court considering both oral and documentary evidence placed on record, convicted the accused persons and directed to pay a fine of Rs.50,000/- each, in default, directed to undergo simple imprisonment for a period of six months. 5. Being aggrieved by the judgment of conviction and sentence, an appeal was preferred by the accused persons in Crl.A.No.34/2020. The Appellate Court having re-assessed the material on record, acquitted accused No.1 on the ground that merely because accused No.1 was present in the petrol bunk, she cannot be held responsible for the alleged violation and confirmed the judgment of the Trial Court in respect of accused No.2 on the ground that accused No.2 being the dealer has not taken any steps to repair the same and accused No.1 was not having any knowledge about such violation and there is absolutely no evidence to show that accused No.1 had any mens rea in order to commit the alleged offence and merely because she has signed the document, she cannot be convicted and there is no any vicarious liability in the case of criminal case and hence not responsible. 5 6. Being aggrieved by the judgment of conviction and sentence passed by the Trial Court as well as the judgment of confirmation passed by the Appellate Court, the present revision petition is filed by accused No.2 before this Court. 7. The learned counsel for the appellant would vehemently contend that there are no material to invoke Section 26 of the Act. The learned counsel would contend that paragraph No.7 of the Appellate Court order while reversing the finding of the Trial Court as against accused No.1 would comes to the conclusion that there is no material against accused No.1, but confirmed the judgment of the Trial Court in respect of accused No.2 and fails to take note of the fact that there were no independent witness and relies upon the interested witnesses evidence of P.W.1 and P.W.2. The learned counsel contend that the person who reported the lapses has not been examined and the author of the document Ex.P.4 was not examined. Apart from that, it is the charge that with an intention to supply lesser quantity, the said act was done, but not taken any sample or sent with regard to shortage in supply of petrol to the customers and there is no legal evidence before the Court. The Trial Court ought not to have convicted and the Appellate Court also ought 6 not to have confirmed the same and hence it requires interference of this Court by exercising the revisional jurisdiction. 8. Per contra, the learned High Court Government Pleader appearing for the respondent State would contend that the evidence of P.W.1 and P.W.2 is consistent. P.W.1 and P.W.2 have not visited voluntarily and based on the complaint dated 07.07.2018, inspection was conducted by P.W.1 and P.W.2 on 17.08.2018 and found that weights and measures seal both totalizer and one of the pulsar unit MIDCO DU were broken/cut and not in one single piece and hence reported the same and there is no explanation on the part of the accused and hence both the Courts rightly convicted and confirmed the same. 9. This Court had directed the learned High Court Government Pleader to verify whether any sample of shortage of petrol having supplied was collected and sent the same for examination and the learned High Court Government Pleader made the submission that no such sample was collected and obtained any report. 10. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for 7 the respondent State, the points that arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in coming to the conclusion that the complainant proved the case beyond reasonable doubt that accused No.2 being the dealer of M/s Mahavishnu Agencies, IOCL Petrol Bunk, illegally removed the stamped seals and wire and thereby tampered the weights and measures, seals and wire of the dispensing pump, in convicting for the offence punishable under Section 26 of the Act and whether the Appellate Court committed an error in confirming the same and whether it requires interference of this Court? (ii) What order? Point No.(i): 11. Having heard the learned counsel for the respective parties, the main allegation against the petitioner is that he illegally removed the stamped seals and wire and thereby tampered the weights and measures, as a result, dispensing pump was not in order supplying the short fall of petrol. It has to be noted that the main case of the prosecution is that the author of the document Ex.P.4 visited and found the same. 8 Having perused the document of Ex.P.4, it is reported to the Assistant Controller, Department of Legal Metrology by one Sri G.E.Suresh Kumar that, the subject outlet was inspected by the Corporation on 02.07.2018, wherein it was observed that weights and measures seal of both totalizer and one of the pulsar unit of MIDCO DU were broken/cut and not in one single piece. Immediately, the sale from the DU was stopped and hence views and opinions from Weights and Measurement Department should be obtained before initiating any action and hence requested to visit the retail outlet and check the DU and render the views on the condition of seal. Accordingly, P.W.1 and P.W.2 visited the unit and drawn the mahazar in terms of Ex.P.2 and Ex.P.3 is the seizure receipt and found that offence was committed. 12. Having perused the material on record, first of all, a person who visited the outlet on 02.07.2018 and gave the report was not examined before the Trial Court, who is the author of Ex.P.4 Sri G.E. Suresh Kumar and he must have been examined before the Trial Court, that only on his inspection and report, legal action was initiated and Ex.P.4 was not proved. It is important to note that P.W.1 though says that he also noticed 9 seal was cut, but in the cross-examination, the answer was elicited that he went along with P.W.3 to the petrol bunk and filed the private complaint and also admits that MIDCO Company dispensing pump would be examined every year and they used to put the seal. He also admits that in 2018 the same was subjected to inspection and put the dispensing seal, but says that the same was cut. He says that C.W.3 was already in the spot and he himself and C.W.2 went together. It is elicited that public were also there, but they have not signed the panchanama. He says that request was made, but they did not agree. He categorically admits that the same was not mentioned in the complaint as well as in the panchanama. He categorically admits that no complaint was given by the public and also the said G.E.Suresh Kumar also not given any complaint except visit and inspection. He admits that they have not produced the model seal. It is suggested that accused No.2 was having issue with Oil Corporation and hence false case has been registered and the same was denied. He admits that along with Ex.P.4, G.E.Suresh Kumar did not send any proof for having removed pulsar unit seal illegally in the petrol bunk and admits that when 10 petrol bunk starts, pulsar unit will be installed by the Indian Oil Corporation. 13. Having considered the evidence of P.W.2, he is only a panch witness. He admits that when they inspected the petrol bunk, there were 7 to 8 public, including accused No.1. Hence, it is clear that general public were also there at the spot. He categorically admits that nothing is seized while drawing panchanama, Ex.P.2 except photographs were taken and except him, no one signed the same. He admits that he was taken by P.W.1 along with him while visiting the petrol bunk. He admits that while signing any document he used to mention his designation and put his seal. It is important to note that he is the Inspector of Legal Metrology Department and P.W.1 also belongs to the same department and P.W.1 volunteers that public did not come forward to sign the mahazar and nothing is shown in the panchanama or complaint when the complaint was filed. These materials were not taken note of by the Trial Court and the Appellate Court and there is no any independent evidence. Apart from that, there is no complaint by the public. It is important to note that while invoking Section 26 of the Act, no sample of petrol supplied to the customer were taken and 11 sent for evaluation whether it is shortfall or not. When the charge was made against the accused that by tampering the same they are supplying inadequate or shortfall of petrol, unless there is an evidence before the Court, there cannot be any criminal prosecution invoking Section 26 of the Act. Section 26 of the Act must be read before considering the same. This Court would like to extract Section 26 of the Act. 26. Penalty for alteration of weight and measure.— Whoever tampers with, or alters in any way, any reference standard, secondary standard or working standard or increases or decreases or alters any weight or measure with a view to deceiving any person or knowing or having reason to believe that any person is likely to be deceived thereby, except where such alteration is made for the correction of any error noticed therein on verification, shall be punished with fine which may extend to fifty thousand rupees and for the second and subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to one year or with fine or with both. 14. Having read Section 26 of the Act, the charges levelled against the petitioner is that he illegally removed the stamped seal and wire and thereby tampered the weights and 12 measures, seals and wire of the dispensing pump. I have already pointed out that with regard to tampering the weights and measures is concerned, there is no material before the Court. It is the case of the prosecution that seal and wire of the dispensing pump was damaged and there are no independent witness and P.W.2 also accompanied P.W.1. I have already pointed out that during the course of argument, the learned High Court Government Pleader was directed to verify whether any shortfall of quantity of petrol was seized and sent to the concerned department for weighing and whether there is any shortfall of petrol and no such steps were taken. The proceedings was initiated at the instance of Sri G.E.Suresh Kumar, who gave the report and requested to inspect and he has not been examined before the Trial Court and Ex.P.4 was not proved. Though mahazar and seizure were drawn in terms of Exs.P.2 and 3, there are no independent witnesses. P.W.1 though says that public have not come forward to sign the same, but answer is elicited from the mouth of P.W.1 that he did not mention the same either in the complaint or in the mahazar. The Trial Court ought to have taken note of the said fact into consideration and the same has not been considered. P.W.2 13 categorically states that he went along with P.W.2. When a suggestion was made to P.W.1 that accused No.2 was having issue with the Company, though it was denied, there is no cogent evidence to bring home accused No.2 to invoke Section 26 of the Act and only self-styled evidence, particularly P.W.1 and P.W.2 no other independent evidence with regard to taking of photographs as well as witnessing cut and removed the seal and the same has not been proved beyond reasonable doubt. While invoking Section 26 of the Act in a criminal prosecution, the prosecution has to prove beyond reasonable doubt the charges levelled against the accused. It is important to note that accused No.2 was not present at the time of inspection and accused No.1 was present. The Appellate Court already exercised its discretion by acquitting accused No.1 on the ground that merely because accused No.1 was present at the spot, there cannot be any vicarious liability and accused No.1 is not a dealer. With regard to factum that accused No.2 is a dealer also, nothing is placed on record before the Court. When such legal flaw is available on record, the same has not been considered by both the Courts and hence it is a fit case to exercise the revisional jurisdiction and unless there is a legal 14 evidence on record, there cannot be any criminal prosecution. Hence, I answer the point in the affirmative. Point No.(ii): 15. In view of the discussions made above, I pass the following: (i) (ii)
Decision
ORDER The criminal revision petition is allowed. The impugned judgment of conviction and sentence dated 19.10.2020 passed in C.C.No.793/2018 and the judgment of confirmation dated 11.01.2021 passed in Crl.A.No.34/2020, are hereby set aside. (iii) Consequently, the petitioner is acquitted for the offence punishable under Section 26 of the Act. (iv) If any fine amount is deposited by the petitioner, the same is ordered to be refunded in favour of the petitioner, on proper identification. Sd/- (H.P. SANDESH) JUDGE MD