CRL.MC No. 2142 of 2016 and connected matters (In the High Court of Kerala at Ernakulam)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 ``` ``` CRL.MC NO. 2142 OF 2016 ``` ``` [ARISING FROM ST.NO.6367/2010 ON THE FILE OF THE JUDICIAL FIRST ``` ``` CLASS MAGISTRATE, IRINJALAKUDA] ``` ## `PETITIONER/ACCUSED NO.1:` ``` JERRY MATHEW MANAGING DIRECTOR, LAN MARK SHOPS(1) PVT LTD, 7A,TOC-H RETREAT, TOC-H NAGAR, VYTTILA-682 019 BY ADV SRI.H.RAMANAN ``` ## `RESPONDENT/S:` ``` STATE OF KERALA, REP.BY INSPECTOR OF LEGAL METROLOGY, CIRCLE-1,IRINJALAKUDA ``` ``` BY C.S.HRITHWIK, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2023,ALONG WITH Crl.MC.77/2016, 2141/2016, THE COURT ON 14.09.2023 PASSED THE FOLLOWING: ``` CRL MC 2142/2016 & Con.cases 2 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 ``` ``` CRL.MC NO. 77 OF 2016 ``` ``` [ARISING FROM ST.NO.6367/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, IRINJALAKUDA] ``` ``` PETITIONERS/ACCUSED NOS.9 & 11 TO 14: ``` ``` 1KOCHOUSEPH CHITTILAPPILLY EX.MANAGING DIRECTOR (PRESENTLY CHAIRMAN), V-GUARD INDUSTRIES LTD, CHITTILAPPILLY HOUSE, BYE-PASS ROAD,KOCHI - 682 028. 2MITHUN CHITTILAPPILLY DIRECTOR, (PRESENTLY MANAGING DIRECTOR), V-GUARD INDUSTRIES LTD, CHITTILAPPILLY HOUSE, BYE-PASS ROAD KOCHI - 682 028. 3K. VIJAYAN EX. DIRECTOR, V-GUARD INDUSTRIES LTD, AIR HOUSE, 44/536, SASTHA TEMPLE ROAD, KALOOR, KOCHI - 682 036. 4R. KRISHNA IYER EX. DIRECTOR, V-GUARD INDUSTRIES LTD, "JYOTHI", 134, PANAMPILLY NAGAR, KOCHI - 682 036. 5C.J. GEORGE DIRECTOR, V-GUARD INDUSTRIES LTD, 12A, SKYLINE ELYSIUM GARDENS, STADIUM LINK ROAD, BEHIND NEHRU STADIUM, KALOOR, KOCHI - 682 017. BY ADVS. SRI.H.RAMANAN ``` ## `RESPONDENT/COMPLAINANT:` ``` INSPECTOR OF LEGAL METROLOGY CIRCLE-1, IRINJALAKUDA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 31. BY SMT.SEETHA S., SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2023 ALONG WITH Crl.MC.2142/2016 AND CONNECTED CASES, THE COURT ON 14.09.2023 PASSED THE FOLLOWING: ``` CRL MC 2142/2016 & Con.cases 3 # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 CRL.MC NO. 2141 OF 2016 ``` ``` [ARISING FROM ST.NO.6367/2010 ON THE FILE OF THE JUDICIAL FIRST ``` ``` CLASS MAGISTRATE, IRINJALAKUDA] ``` ## `PETITIONER/ACCUSED NO.8:` ``` R.VENKITARAMAN PROPRIETOR, V-TWO DISTRIBUTORS, LATHA, GANAPATHI AGRAHARAM, POONKUNNAM, THRISSUR BY ADV SRI.H.RAMANAN ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY INSPECTOR OF LEGAL METROLOGY, CIRCLE-1, IRINJALAKUDA ``` ``` OTHER PRESENT: ``` ``` BY SMT.SEETHA S., SENIOR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.09.2023, ALONG WITH Crl.MC.2142/2016 AND CONNECTED CASES, THE COURT ON 14.09.2023 PASSED THE FOLLOWING: ``` CRL MC 2142/2016 & Con.cases 4 ## `ORDER` ``` All these Crl.M.Cs. are arising from S.T.No.6367/2010 on the file of the Judicial First Class Magistrate Court, Irinjalakuda. Crl.M.C.2142/2016 was filed by the 1st accused, Crl.M.C.No.2141/2016 was filed by the 8th accused and Crl.M.C.No.77/2016 was filed by accused Nos.9 & 11 to 14. The aforesaid prosecution was initiated based on a complaint submitted by the respondent herein alleging violation of Rules 6(1A) read with Rules 4 and 23 of the standards of Weights and Measures(Packaged Commodities) Rules, 1977 and Section 39 of the Standards of Weights and Measures Act, 1976 read with Section 33(1) of the Standards of Weights and Measures (Enforcement) Act, 1985 and punishable under Rule 39 of Packaged Commodities Rules, 1977 and Section 51 of the Enforcement Act, 1985. ``` CRL MC 2142/2016 & Con.cases 5 ``` 2. The allegation in the complaint is that, on 18.7.2008, the Inspector of Legal Metrology, Circle-1, Irinjalakuda, conducted an inspection ``` ``` of the business premises of M/s. Lan Mark Shops (India) Private Limited (hereinafter referred ``` ``` to as ‘Lan Mark’) and seized three packages of V-Guard-branded electronic voltage stabilisers. Upon inspection, it was found that the said package did not contain the necessary details to be included in the statutory declarations as mandated by sub-rule (1A) of Rule 6 of the Packaged Commodities Rules, namely, Name, ``` ``` address, telephone number and e-mail address, if available of the person, who can be or the office, that can be, contacted, in case of ``` ``` consumer complaints. ``` ``` 3.Cognizance thereon was taken by the learned Magistrate, and these Crl.M.Cs. are filed challenging those proceedings. ``` CRL MC 2142/2016 & Con.cases 6 ``` 4. Heard Sri.H.Ramanan, the learned counsel for the petitioners and Sri.Hrithwik, the learned Public Prosecutor for the State. ``` ``` 5. The learned counsel for the petitioners submits that the entire proceedings initiated against the petitioners are clear abuse of the process of law mainly for two reasons. Firstly, ``` ``` it is pointed out that all the accused persons except the 8th accused were implicated as accused persons on account of their status as Directors of the respective companies against whom the violation of statutory provisions is alleged. It is pointed out that the proceedings were initiated against the accused in their capacities as Directors of the Companies, which were the Seller,Distributor and Manufacturer of the article, which was allegedly not conforming to the standards prescribed under the rules. It was contended by the learned counsel for the ``` CRL MC 2142/2016 & Con.cases 7 ``` petitioners that none of the aforesaid companies were made as accused persons in the complaint. Therefore,the prosecution against the directors of the companies in such circumstances is not at all legally sustainable.It is also contended that the petitioners cannot be roped in as accused persons merely because of the fact that they happened to be the directors of the company unless there are necessary pleadings to the effect that they were responsible for the conduct of the business of the company. In this case, no such pleadings are there with respect to the aforesaid accused persons and therefore, interference is required. The learned counsel places reliance on the decisions rendered by the Hon’ble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited [(2012)5 SCC 661], Orma Marble Palace (P)Ltd.(M/s.) and Others v. State of Kerala [2013(2)KLT SN 87(C.No.107) and Managing Director, Castrol ``` CRL MC 2142/2016 & Con.cases 8 ``` India Ltd. v. State of Karnataka and Another [(2018)17 SCC 275].It is further contended by the learned counsel for the petitioners that the complaint was submitted beyond the statutory period stipulated under section 468 of Cr.PC. According to him, as the offence is punishable with a fine only, the complaint ought to have been submitted within a period of six months from the date of detention, whereas this complaint was submitted much belatedly, to be precise, even though the detention was on 18.7.2008, the complaint is dated 15.11.2010. Therefore, the initiation of the proceedings is hopelessly barred. Reliance was also placed on State of Punjab v. Sarwan Singh [AIR 1981 SC 1054]. ``` ``` 6. In response to the aforesaid averments, the learned Public Prosecutor would raise a preliminary objection as to the maintainability ``` CRL MC 2142/2016 & Con.cases 9 ``` of these Crl.M.Cs. It is pointed out that, earlier, the petitioners have approached this Court challenging the aforesaid proceedings by filing WP© Nos.10917/2011,20384/2011,20387/2011 ``` ``` and Crl.M.C.Nos.951,1607,1608 of 2011. The aforesaid Writ Petitions and Crl.M.Cs. were ``` ``` filed raising various contentions challenging ``` ``` the sustainability of the prosecution initiated against the petitioners, and ultimately, all the said petitions were dismissed by this Court as per Annexure-4 common judgment. Even though ``` ``` the said common judgment was challenged before the Hon’ble Supreme Court by filing SLP Nos. 8674 to 8676/2013, as per Annexure-5 order, all those Special Leave Petitions were dismissed. Therefore, it is contended by the learned ``` ``` Public Prosecutor that the petitioners cannot now file fresh Crl.M.Cs. as they challenged the very same proceedings unsuccessfully, as ``` CRL MC 2142/2016 & Con.cases 10 ``` evidenced by Annexure 4. ``` ``` 7. In response to the aforesaid objection ``` ``` raised by the learned Public Prosecutor, the learned counsel for the petitioners submits that, in the proceedings which culminated in Annexure-4, the contentions with regard to the failure on the part of the complainant to include the companies as the accused and also the question of limitations were not raised and there was no occasion for this Court to ``` ``` consider the same. Therefore, it was contended ``` ``` that nothing would preclude the petitioners from raising such grounds. The learned counsel further pointed out that, in the Special Leave ``` ``` Petitions, an Interlocutory Application was ``` ``` submitted by the petitioners seeking permission ``` ``` to raise additional grounds and while ``` ``` dismissing the said SLPs., the Hon’ble Supreme Court observed that, as a sequel to the ``` CRL MC 2142/2016 & Con.cases 11 ``` dismissal, I.A. for permission to raise ``` ``` additional ground stands disposed of. In such ``` ``` circumstances, the learned counsel for the ``` ``` petitioners submits that the petitioners are ``` ``` entitled to raise additional grounds. It is ``` ``` also contended that the question of resjudicata ``` ``` and constructive resjudicata cannot be made ``` ``` applicable to criminal proceedings as the same ``` ``` can be applied only in respect of civil ``` ``` proceedings. ``` ``` 8. I have perused the records and heard the ``` ``` contentions of both parties. ``` ``` 9. Since the learned Public Prosecutor ``` ``` specifically raised the contentions as to the ``` ``` maintainability of the Crl.M.Cs., the aforesaid ``` ``` question has to be considered first before proceeding into the merits of the contentions raised by the learned counsel for the ``` ``` petitioners. It is an admitted fact that the ``` CRL MC 2142/2016 & Con.cases 12 ``` petitioners have earlier approached this Court by filing writ petitions and Crl.M.Cs. which were ultimately decided against them as evidenced by Annexure-4 with respect to the applicability of Rule 6(1A) of Standards of Weights Measures (Packaged Commodities)Rules, 1977to the facts of this case. In addition to the same, there was also a challenge against the rule-making power of the Central Government with regard to the incorporation of sub rule 1(A) of Rule 6 of theStandards of Weights Measures (Packaged Commodities)Rules, 1977.In the Annexure-4 judgment, those contentions were elaborately considered and rejected. As rightly pointed out by the learned counsel for the petitioners, the contentions raised in these Crl.M.Cs. are not seen raised before this Court in the proceedings culminated in Annexure-4 judgment. However, I am of the view that, ``` CRL MC 2142/2016 & Con.cases 13 ``` merely because of that reason, the petitioners cannot maintain the fresh Crl.M.Cs. once again by raising new grounds. The principles of constructive resjudicata would come into play in such circumstances. Even though the learned counsel for the petitioners contends that the principles of resjudicata and constructive resjudicata are not applicable to criminal proceedings, I am not inclined to accept the said contentions. This Court already considered the aforesaid question in Reghuthaman v. State of Kerala [2016(3)KLT 538].In the said ``` ``` decision after referring to the decision rendered by the Hon’ble Supreme Court in Bhagat Ram v. State of Rajasthan[(1972(2) SCC 466]and State of Rajasthan v. Tarachand Jain [1974(3) ``` ``` SCC 72], it was held that, the principles of resjudicata and constructive resjudicata are not confined to civil proceedings alone and are ``` CRL MC 2142/2016 & Con.cases 14 ``` also applicable to the criminal proceedings as well. The aforesaid decision was followed in the recent decision rendered by this Court in Sasikala Menon v. State of Kerala [2023(1)KLT SN 50 (C.No.45)SC].In the light of the principles laid down by the Hon’ble Supreme Court, which was followed by this Court in the decisions rendered above, the contention raised by the learned counsel for the petitioners in this regard cannot be accepted. Even while submitting the writ petitions and Crl.M.Cs. which culminated in Annexure-4 judgment, all the said contentions were available for the petitioners, but it appears that the same was not raised. Therefore, the principles of constructive resjudicata are applicable in this case, and I do not find that the petitioners can maintain Crl.MCs, in the light of Annexure- 4 judgment. The learned counsel for the ``` CRL MC 2142/2016 & Con.cases 15 ``` petitioners made an attempt to interpret the Annexure-5 order, passed by the Hon’ble Supreme Court in SLPs., as permission to raise additional grounds before this Court. The Hon’ble Supreme Court in Annexure-5 observed that,“I.A. for permission to raise additional grounds stands disposed of”. However, from the ``` ``` plain reading of the said observations itself, ``` ``` it can be seen that under no circumstances the same can be treated as permission to raise ``` ``` additional grounds to challenge the prosecution ``` ``` and to terminate the same prematurely. Merely because of the reason that the word ‘disposed of’ was used in Annexure-5 order, that cannot be treated as permission to file fresh Crl.MC ``` ``` with new grounds after the earlier proceedings resulted in an order adverse to the ``` ``` petitioners. In such circumstances, I find merits in the preliminary objection raised by ``` CRL MC 2142/2016 & Con.cases 16 ``` the learned Public Prosecutor and hold that the contentions raised in these Crl.M.Cs cannot be considered by this Court, and hence, I do find any justification in entertaining these ``` ``` Crl.M.Cs. ``` ``` 10. However, it is clarified that nothing ``` ``` would preclude the petitioners from raising the contentions referred to above before the trial court and seeking appropriate orders, and it shall be open for the trial court to consider the contentions raised by the petitioners on merits untrammelled by any of the observations made in this order. ``` ``` With the above observations, these Crl.M.Cs. are dismissed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A., JUDGE ``` ``` pkk ``` CRL MC 2142/2016 & Con.cases 17 ## `APPENDIX OF CRL.MC 77/2016` ``` PETITIONERS’ EXHIBITS ``` ``` ANNEXURE 1 - COMPLAINT IN ST NO.6367/2010 ON THE FILES OF JFCM IRINJALAKUDA (CERTIFIED COPY) ANNEXURE 2 - SHOW CAUSE NOTICE (TRUE COPY) ANNEXURE 3 - REPLY TO SHOW CAUSE NOTICE (TRUE COPY) ANNEXURE 4 - COMMON JUDGMENT OF THIS HON'BLE HIGH COURT IN WPC 10917/11 DATED 31.3.13 (TRUE COPY) ANNEXURE 5 - JUDGMENT OF THE HON'BLE SUPREME COURT IN SLP(CRL) 8674-8676/2013 (TRUE COPY. ``` CRL MC 2142/2016 & Con.cases 18 ## `APPENDIX OF CRL.MC 2141/2016` ``` PETITIONER’S EXHIBITS ANNEXURE A1COMPLAINT ST NO. 6367/2010 ON THE FILES OF JFCM, IRINJALAKUDA (CERTIFIED COPY) ANNEXURE A2SHOW CAUSE NOTICE (TRUE COPY) ANNEXURE A3REPLY TO SHOW CAUSE NOTICE(TRUE COPY) ANNEXURE A4COMMON JUDGMENT OF THIS HON'BLE HIGH COURT (TRUE COPY) ANNEXURE A5JUDGMENT OF THE HON'BLE SUPREME COURT IN SLP(CRL.) 8674-8676/2013 (TRUE COPY) ``` CRL MC 2142/2016 & Con.cases 19 ## `APPENDIX OF CRL.MC 2142/2016` ``` PETITIONER’S EXHIBITS ANNEXURE A1COMPLAINT IN ST NO 6367/2010 ON THE FILES OF JFCM,IRINJALAKUDA(CERTIFIED COPY) ANNEXURE A2SHOW CAUSE NOTICE(TRUE COPY) ANNEXURE A3REPLY TO SHOW CAUSE NOTICE(TRUE COPY) ANNEXURE A4COMMON JUDGMENT OF THIS HON'BLE HIGH COURT (TRUE COPY) ANNEXURE A5JUDGMENT OF THE HON'BLE SUPREME COURT IN SLP (CRL.) 8674-8676/2013 (TRUE COPY) ```