Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 425 (MP)

GAURAV KHANDELWAL v. STATE OF M. P.

2019-06-19

SHAILENDRA SHUKLA

body2019
JUDGMENT : 1. Submissions were made on admission of this petition filed under section 482 of the Code of Criminal Procedure (in brief “the Code”). After hearing learned counsel, the same is admitted for final hearing. Final submissions of both the counsel on petition under section 482 of the Code were made. 2. As per the petitioners, Respondent No. 1 in utter violation of provisions of the Legal Metrology Act, 2009 has registered a criminal case under section 420 of Indian Penal Code against the petitioners and filed charge-sheet before the Judicial Magistrate, First Class, Badnawar, District Dhar. Section 51 of the Legal Metrology Act, 2009 provides that the provisions of Indian Penal Code and Criminal Procedure Code, in so far as they relate to the offences with regard to weight and measures shall not be applicable and in spite of such explicit provision, a criminal case has illegally been registered against the petitioners. Therefore, petition under section 482 of the Code has been filed seeking quashment of FIR and all further consequential proceedings. 3. As per the fact of the case, petitioner No. 1 is a Contractor and is into the business of Weigh Bridges. The petitioner No. 2 is the Operator of Weigh Bridge installed in the campus of Krishi Upaj Mandi Samiti, Badnawar. The petitioner No. 1 was allotted a contract on the build-operate-transfer basis by the Krishi Upaj Mandi Samiti vide sanction dated 3-1-2012. In the light of such sanction, Weigh Bridge/Weighing Station is being run in the name of “Shri Shivom Tirth Tol Kanta”. On 26-9-2018, a farmer namely Pop Singh made a complaint to the Secretary of Mandi Board, Badnawar in respect of alleged discrepancy pointed out by him in petitioners’ station. As per the complaint, the grains of the complainant were weighed by the petitioner as 7250 kgs; whereas the complainant on cross-checking the weight of his grains at other Tol Kanta, found it to be weighing 7305 kgs. Thus, there was discrepancy of 55 kgs in the weighing scales of petitioners, consequence of which would have been that the complainant would have got lesser price for his grains which were weighed discrepantly by the petitioners. Thus, there was discrepancy of 55 kgs in the weighing scales of petitioners, consequence of which would have been that the complainant would have got lesser price for his grains which were weighed discrepantly by the petitioners. The Respondent No. 2 i.e. the Secretary of Krishi Upaj Mandi Samiti lodged a written complaint with the Police Station Badnawar alleging cheating and a case under section 420 of Indian Penal Code was registered against the petitioners. On the date of registration of FIR, the Respondent No. 2 made a request to the Legal Metrology Inspector, District Dhar to inspect the weighing station of the petitioners. The inspection was carried out on 28-9-2018 and the seal and verification were found to be correct. The Respondent No. 1 without making any further investigation in respect of difference of the quantity/weight filed the charge-sheet based upon the statements of the farmers. 4. The petitioners submit that as per the provisions of the Legal Metrology Act, 2009, special law has been put in force to regulate offences relating to weights and measures. There is a complete procedure for registration, verification, powers of the Controller and Legal Metrology Officers. The Act provides for offences and penalties and section 51 of the Act specifically bars invocation of provisions of Indian Penal Code and Criminal Procedure Code. The Rules promulgated by the State of Madhya Pradesh called “The Legal Metrology (General) Rules, 2011” provide for complete process of inspection; process of licencing; the verification and the validity. Rule 14 provides that weight or measures which is, or is deemed to be verified and stamped under the rules, shall be deemed to conform to the standard established by or under the Act. It is thus requested that FIR has been registered on the basis of false and cooked up story and no case under section 420 of Indian Penal Code could have been registered against the petitioners. It is requested that the FIR bearing Crime No. 521/2018 registered at Police Station Badnawar, District Dhar and charge-sheet dated 6-12-2018 bearing No. 580/2018 be quashed and Criminal Case bearing No. 805/2018 arising out of Crime No. 521/2018 be set aside. 5. It is requested that the FIR bearing Crime No. 521/2018 registered at Police Station Badnawar, District Dhar and charge-sheet dated 6-12-2018 bearing No. 580/2018 be quashed and Criminal Case bearing No. 805/2018 arising out of Crime No. 521/2018 be set aside. 5. Respondent No. 2 in his reply has stated that written complaints were repeatedly received against the petitioners regarding difference in the weights and measurement dated 7-3-2013, 25-7-2013, 3-9-2014, 10-2-2015, 12-2-2015, 5-3-2015 and 1-4-2015 and thereafter vide letter dated 8-3-2016, the petitioner’s Tol Kanta was ordered to become dysfunctional. On 13-4-2018 farmers had complained against the petitioner on which inspection was carried out by weights and measurement department on 13-4-2018 and panchnama was prepared and indicator boxes, mother board. Indicator boxes were tied to Tarboli and seal was put in place. Thereafter on 25-5-2018 weight and measurement department carried out sudden inspection and it was found that seal was broken and the wire was repaired with the indicator boxes and seal was intentionally interfered. Thereafter the department wrote a letter dated 8-8-2018 mentioning that allotment needs to be cancelled and therefore the answering respondent issued a notice to the petitioner on 13-8-2018. Thereafter another complaint was revived against the petitioner on 26-9-2018 by one farmer namely Pop Singh. Panchnama was then prepared and investigation was carried out. It is further submitted that cognizable offence has been found to be attracted against the petitioner, therefore FIR has rightly been allowed and at this primary stage the petitioner cannot be allowed to aver that ingredient of the offence are not made out. Hon’ble apex Court in catena of judgments has held that FIR could not be quashed at the primary stage and petitioner shall be at liberty to contest before the trial Court and he can make his submission before the trial Court only. The power under section 482 of the Code are supposed to be exercised very sparingly with due caution and in rare of the rarest cases. In the present case the conduct of the petitioner has not been bona fide from the beginning and is against the interest of farmers and traders and therefore this petition be rejected. 6. The power under section 482 of the Code are supposed to be exercised very sparingly with due caution and in rare of the rarest cases. In the present case the conduct of the petitioner has not been bona fide from the beginning and is against the interest of farmers and traders and therefore this petition be rejected. 6. The main question before this Court is whether in view of the expressed provisions of Legal Metrology Act, 2009 (for short the ‘Act of 2009’), a case under section 420 of Indian Penal Code, 1860 could not be registered against the petitioners ? 7. The case against the petitioners was that there was a defect in weighing scales which showed lesser weight than the original weight. 8. Section 24 of the Act of 2009 provides for verification of weight and measure of payment of fees at a Government approved test centre. “Section 25 of the Act of 2009 provides for penalty for the use of non-standard weight or measure. Section 26 of the Act of 2009 provides for penalty for alteration of weight and measure. Thus, the provision prescribed for fine on first default and prescribed for imprisonment on subsequent default. Section 51 of the Act of 2009 is reproduced as under :— “The provisions of Indian Penal Code, 1860 and section 153 of Criminal Procedure Code, 1973 insofar as such provision relates to offence with regard to weight or measure shall not apply to any offence which is punishable under this Act. The above provision clearly shows that when the offence relates to weight or measure, provision of Indian Penal Code, 1860 will not be applicable.” 9. Learned counsel for the petitioners submitted that this case clearly involves offence pertaining to weight and measure and, therefore, bar under section 51 of the Act of 2009 would apply and no offence could be registered under the provisions of Indian Penal Code, such as section 420, Indian Penal Code, 1860. 10. Learned counsel has referred to the citation of Kerala High Court in the case of C. P. Mohammedkutty vs. State of Kerala reported in 2015 SCC Online Ker 21049: (2015) 3 KLJ 492 in which the excerpts from the State of Haryana vs. Bhajanlal reported in AIR 1992 SC 604 have been mentioned. It would be appropriate to reproduce para 17 of the judgment which is as under: “17. It would be appropriate to reproduce para 17 of the judgment which is as under: “17. In State of Haryana and others vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court has lsaid down that where there is an express legal bar engrafted in any of the provisions of the Code or of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious Cri. M. C. 4424/13 13 redress for the grievance of the aggrieved party, a High Court in exercise of powers under section 482 will be justified in quashing the proceedings. In the instant case, Annexure-B would reveal that the criminal proceeding has been initiated on the basis of an illegal procedure which would vitiate the trial itself. If the proceeding is permitted to continue it would amount to abuse of process of the Court resulting in great hardship and injustice to the accused. So, exercise of powers under S.482 of the Code, to quash Annexure-B FIR would indeed secure the ends of justice.” 11. Learned counsel for the petitioners has further cited the judgment of Patna High Court which is Subodh Kumar Purbey vs. State of Bihar and five others (Criminal Writ Jurisdiction case No. 2083/2017). In this case, as per facts of this case an offence under sections 419 and 420 of Indian Penal Code, 1860 were registered against the petitioners. The Court, referring to section 51 of the Act of 2009, held that such FIR violates the provision of section 51 and criminal prosecution on the petitioners would amount to abuse of process of this Court. Learned counsel has also referred to Madhya Pradesh Legal Metrology Rules, 2011 promulgated for effectively carrying out the mandate of provisions of the Act of 2009. He has further pointed out the letter of Secretary of Krishi Upaj Mandi, Badnavar, District Dhar (MP) written to SHO, Badnavar, on 4-10-2018, in which it has been pointed out that on 25-5-2018, although the Inspector had found some maneuvering in the weighing scales, however, the Sub-Controller constituted an Inquiry Committee who again carried out inspection and found that there was no interference/maneuvering with the weighing scales. Learned counsel has also pointed out to AnnexureP/1 which is a document dated 13-9-2018 showing verification of weighing scale which has found to be absolutely correct and it has been mentioned that the next verification would be done on 12-9-2019. He further submits that no cheating has been taken place because it is not the case of prosecution when after weighing grains, the petitioners themselves purchased the grains from the farmers. It is also not proven that farmers sold off his grains to another person showing the weight of grains lesser than its exact weight. Thus, there is not even an attempt of cheating leaving alone committing the offence of cheating. 12. Per contra, learned counsel for the respondents submitted that section 482 of the code should be done very sparingly in rarest of rare cases and Court should not consider defence in detail. Learned counsel has referred to a citation of this Court in the case of S. K. Murti and another vs. Govind Prasad Agrawal, reported in 2003(3) M.P.L.J. 396 and in the case of Maruti Udyog Limited and others vs. State of MP and others, reported in 2005(2) M.P.L.J. 440 . 13. After duly considering the submissions made by learned counsel for both the parties, I am of the opinion that in view of prevalence of specific law relating to violation of provisions pertaining to weights and measures, provision of Indian Penal Code, 1860 would not be applicable in view of the express bar of section 51 of the Act of 2009. The complainant is the Secretary of Krishi Upaj Mandi, Badnavar, District-Dhar (MP) and action against the petitioners could only have been taken under the provisions of Legal Metrology Act, 2009 and not under Indian Penal Code, 1860. Further, there are no ingredients of cheating or attempt to cheating by the petitioners. Consequently, petition under section 482 of the Code is allowed and FIR against the petitioners bearing Crime No. 521/2018 registered at Police Station, Badnavar, District-Dhar (MP) and charge-sheet dated 6-12-2018 bearing No. 580/2018 and all consequential proceedings are ordered to be quashed. 14. Petition filed under section 482 of the Code is allowed in the above terms.