Pawan vs State of Rajasthan

Vijay Bishnoi, J.—This criminal misc. petition under section 482 CrPC has been filed by the petitioners against the order dated 06.12.2013 passed by Special Judge, S.C. and S.T. (Prevention of Atrocities Cases), Bikaner (for short ''the revisional court'' hereinafter) in Revision Petition No. 74/2013 (283/2011), whereby the revision petition filed by the petitioners against the order dated 11.08.2011 passed by the Additional Chief Judicial Magistrate, Bikaner (for short ''the trial court'' hereinafter) has been dismissed. Vide order dated 11.08.2011, the trial court has rejected the FR No. 161/2009 in FIR No. 164/2009 pertaining to Police Station, Beechhwal, District Bikaner and accepted the protest petition filed by the respondent No. 2 and has taken cognizance against the petitioners for the offences punishable under sections 420, 323, 341, 506 IPC.

Brief facts of the case are that respondent No. 2 filed a complaint in the trial court on 29.08.2009 while alleging that he along with his friend Trilok Singh reached a petrol pump viz. Sanjay City Filling Company situated at N.H. 15 in front of Urmool Dairy Plant, Sri Ganganagar Road, Bikaner at about 7:30 P.M. on 25.08.2009 and asked the salesman of the said petrol pump to fill the tank of his motorcycle. On his asking, the salesman filled the petrol in the tank of the motorcycle and asked him to make payment of Rs. 966.80 and handed over a bill of the said amount. The complainant had thereafter paid Rs. 967/- to the salesman but suddenly he realised that the petrol tank of the motorcycle is of 15 litres, whereas the salesman has charged money of 20 liters of petrol and when he drew attention of the salesman towards the fact that how he filled 20 litres of petrol, whereas the capacity of petrol tank of his motorcycle is 15 litres, suddenly one grey haired man came out from the office of the petrol pump, shouted upon the complainant and his friend, abused them and told them that he is a higher officer of Sales Tax Department and this petrol pump belongs to him. He further instructed the salesmen to dispel the complainant from the petrol pump. It is further alleged in the complainant that when the complainant asked them that he would complaint about the discrepancies of the petrol pump, suddenly, Kundan Mal Bohra caught hold of his neck and started buffeting with him, and other persons also did the same thing with him. Other customers of the petrol pump rescued them, then the accused-persons had threatened them with dire consequences and also told them that the police will also not take action against them and then the complainant being feared went away from the petrol pump. It is alleged that when the complainant went to the police station, the police did not register the FIR and, therefore, this complaint was lodged.

On receiving the said complaint, the trial court sent the same for investigation to the Police Station, Beechwal under section 156(3) CrPC and the police registered the FIR No. 164/2009 on 07.09.2009. The police, after thorough investigation, filed a negative final report bearing FR No. 161/2009 and submitted the same before the concerned court. The complainant thereafter filed a protest petition and the trial court has recorded the statement of the complainant and other witness-Trilok Singh under section 200 and 202 CrPC. Thereafter, the trial court vide order dated 11.08.2011 has rejected the FR submitted by the police and accepted the protest petition filed by the complainant and took cognizance against the petitioners along with other accused-persons for the offences punishable under sections 420, 109, 323, 341, 506, 147 IPC. The revision petition filed by the petitioners against the order dated 11.08.2011 passed by the trial court, has been rejected by the revisional court vide order dated 06.12.2013. Hence, this criminal misc. petition.

Learned counsel for the petitioners has argued that the trial court has grossly erred in passing the impugned order without taking into consideration the conclusion of the negative final report. It is contended that for the same incident, a complaint was made to the Officers of the Petroleum Company, upon which the Officers of the Petroleum Company have got the dispensing unit of the petrol pump checked by the Service Engineer of manufacturing company of the dispensing unit and in that inspection, it was found that the dispensing unit was delivering correct quantity of petrol. It is also contended that the trial court has disbelieved the said report without any reason and simply observed that the said report is doubtful. The learned counsel for the petitioner has further contended that the trial court has failed to clarify as to how the said report is doubtful. It is also contended that the trial court has grossly erred in taking cognizance against the petitioners for the offences punishable under section 420 IPC as the offence of cheating has not been made out. It is further contended that there is no allegation against the accused-persons that they have deceived the complainant or induced him fraudulently or dishonestly to deliver any property. It is also contended that the complainant on his own went to the petrol pump for buying petrol and the accused-persons have not induced the complainant by fraudulent or dishonest means to come to his petrol pump. It is further contended that it is usual practice on the petrol pumps that the regular customers buy the fuel on credit and get one bill of two or three transactions by making joint payment of two and three transactions. It is also contended that the police, after thorough investigation, has concluded that earlier, the complainant bought 10 litres of petrol on credit and later on again, he purchased 10 litres of petrol on the day of incident and paid the amount of 20 liters of petrol and received the bill of 20 litres of petrol, however, the trial court has disbelieved the said conclusion of the police merely on the basis of surmises and conjectures while observing that the accused-persons have failed to produce any documentary evidence to prove that on earlier occasion, 10 litres of petrol was given to the complainant on credit. It is also contended by the learned counsel for the petitioners that the trial court has erred in dismissing the negative final report submitted by the police and also erred in taking cognizance against the petitioners for the offences punishable under sections 420, 109, 323, 341, 506, 147 IPC. It is further contended that the revisional court has also not taken into consideration this aspect of the matter and dismissed the revision petition filed by the petitioners in a mechanical manner. The learned counsel for the petitioners has, therefore, prayed that this criminal misc. petition may be allowed and the orders passed by both the courts below may be set aside.

Per contra, learned Public Prosecutor as well as the counsel appearing for the respondent No. 2 have supported the orders passed by the courts below and argued that the trial court has not committed any illegality in passing the order dated 11.08.2011 as ample evidence is available on record to take cognizance against the petitioners for the offences punishable under sections 420, 109, 323, 341, 506, 147 IPC.

Heard learned counsel for the rival parties and perused the impugned orders as well as the charge-sheet.

The allegation levelled by the complainant in the complaint is to the effect that the tank capacity of his motorcycle is 15 litres, whereas the salesman of the petrol pump had filled 20 litres of petrol in the said tank and the metre of the petrol dispensing unit had also shown delivery of 20 litres of petrol. In their statements recorded by the trial court under sections 200 and 202 CrPC, the complainant and witness-Trilok Singh have reiterated that on the date of the incident, the dispensing unit of the petrol had also shown delivery of 20 litres of petrol. During the course of investigation, the police collected the report of the Sales Officer, HPCL and Engineer of the L and T Company, which is reproduced hereunder:

"To,

Date : 29/9/09

SHO PS Beechwal Bikaner,

Reference : Your Letter dated 29/9/09

Subject : FIR No. 164 Dated 7/9/09 under police station Beechwal, Bikaner.

Dear Sir,

In reference to above subject, we have also received a complaint about M/s. Sanjay City Filling Company Bikaner on 5/9/09. In this regard we have also investigated the matter on 7/9/09 and found that all the machines at the outlet are dispensing correct quantity of petrol and diesel. Further on 8/9/09 we have got inspected the petrol machine with the original equipment manufacturer (Make L and T) with its service engineer and in his report is found that there is no external fitting/tempering done with the original machine.

Thanking you,

Enclosed: Report by the L and T service Engg dated 8/9/09. Yours truly sd/ Nilesh Vyas Sales Officer HPCL Bikaner"

In the said report, it is mentioned that the said dispensing unit was delivering correct volume of petrol. The trial court has simply observed that the said report is doubtful. The trial court has failed to clarify as to how the said report is doubtful. If on the day of the incident, the dispensing unit was delivering correct volume of petrol, then how the metre of the dispensing unit had shown the delivery of 20 litres of petrol in the motorcycle having fuel capacity of 15 litres. The trial court has not given any reason for disbelieving the above noted report.

In view of the above discussions, this criminal misc. petition is allowed. The impugned orders dated 11.08.2011 and 06.12.2013 passed by the trial court as well as by the revisional court respectively are set aside. The matter is remitted to the trial court with a direction to consider the FR No. 161/2009, submitted by the police in FIR No. 164/2009 pertaining to Police Station, Beechhwal, District Bikaner, in the light of the above quoted report and thereafter pass a fresh order in accordance with law. Stay petition stands disposed of.