Amjadh Mohamed vs State Of Kerala And Ors

The petitioner is the Senior Area Sales Manager of the company, Hindustan Petroleum Corporation Limited (HPCL). He is the second accused in the case C.C.No.211/2019 pending in the Court of the Chief Judicial Magistrate, Kollam.

The case against the accused was registered on the basis of the complaint filed by the second respondent (hereinafter referred to also as 'the complainant') in the Court of the Chief Judicial Magistrate, Kollam which was forwarded to the police for investigation under Section 156(3) Cr.P.C.

After completing the investigation, the Sub Inspector of Police, Kollam East Police Station filed final report (Annexure-D) against the two accused persons for the offence punishable under Section 420 read with 34 of the Indian Penal Code.

The prosecution case is as follows: On 17.08.2018, at about 07:30 hours, the complainant purchased diesel for Rs.2,369.58/- and filled it in his car KL-02-AV-8736 from the petroleum products retail outlet by name 'M/s.K.Thajudeen' which was conducted by the first accused. When the car was driven for some distance, it started shivering. On inspection of the car at the showroom, it was found that the diesel filled in the car was mixed with water and serious damage had been caused to the internal parts of the vehicle. The complainant informed the matter to the second accused, who was the Senior Area Sales Manager of HPCL. But, the second accused did not take any action in the matter. However, on 19.08.2018, the second accused, with a view to help the first accused, took sample of diesel from the petrol pump conducted by the first accused and got a report, which is favourable to the first accused, that there was no adulteration of the fuel. The first accused, the dealer, sold adulterated diesel to the complainant and thus cheated him. The second accused assisted the first accused by obtaining a test report in his favour. Thus, the accused have committed the offence punishable under Section 420 read with 34 of the Indian Penal Code.

This application is filed by the second accused under Section 482 Cr.P.C for quashing the proceedings taken against him on the basis of Annexure-D final report.

Heard learned counsel for the petitioner and also the second respondent and the learned Public Prosecutor.

The only allegation against the petitioner in Annexure-D final report is that he prepared test report in favour of the first accused in respect of the sample of diesel collected from the petrol pump conducted by the first accused.

Learned counsel for the petitioner contended that, even if the entire allegation against the petitioner in Annexure-D final report is accepted as true, it will not attract the ingredients of the offence punishable under Section 420 of the Indian Penal Code against him. Per contra, learned counsel for the second respondent contended that, it was only on 19.08.2018 that the petitioner took sample of the diesel from the petrol pump conducted by the first accused and it was done with a view to get a favourable test report in favour of the first accused.

As per the allegations in Annexure-D charge-sheet, it was the first accused who was conducting the petrol pump and who sold the adulterated diesel to the complainant. Even if it is accepted that the petitioner took sample of the diesel only on 19.08.2018 from the petrol pump conducted by the first accused and that he had deliberately caused delay in taking the sample with a view to obtain a test report which is favourable to the first accused, his act or omission does not attract the ingredients of the offence punishable under Section 420 of the Indian Penal Code. There is no allegation against the petitioner that he sold adulterated diesel to the complainant and thereby, he committed the offence of cheating. There is no allegation against the petitioner that he shared common intention with the first accused to sell adulterated fuel to the complainant. The act allegedly committed by the petitioner is not sufficient to implicate him for the offence allegedly committed by the first accused, with the aid of Section 34 of the Indian Penal Code. The petitioner had no role in selling adulterated diesel to the complainant. There is no allegation that he had any dishonest intention to sell adulterated diesel to the complainant and to cheat him.

It is also pertinent here to note that, there is no allegation against the petitioner that, though he took sample of the diesel only on 19.08.2018, the test report obtained in respect of that sample was manipulated by him as if it was a test report in respect of the diesel which was sold by the first accused on 17.08.2018 or as if it was a test report in respect of the sample which was taken on 17.08.2018 itself.

When there is no allegation against the petitioner that he deceived the complainant and thereby induced him to part with money or to purchase adulterated diesel, he cannot be implicated for an offence under Section 420 of the Indian Penal Code with the aid of Section 34 of that Code (See B.R.Zaveri v. State of Maharashtra : AIR 1981 SC 476).

The entire allegations against the petitioner, contained in Annexure-D final report, even if they are accepted as true, will not attract the ingredients of the offence punishable under Section 420 of the Indian Penal Code. Therefore, continuation of the criminal proceedings against the petitioner would be an abuse of the process of the court. It follows that it is a fit case in which the power of this Court under Section 482 Cr.P.C has to be invoked to quash the proceedings against the petitioner.

Consequently, the petition is allowed. The entire proceedings against the petitioner in the case C.C.No.211/2019 pending in the Court of the Chief Judicial Magistrate, Kollam, based on Annexure-D final report, are hereby quashed.