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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
Sundareswaran K. S/o Sri. R. Krishna Iyer – Petitioner
Versus
State of Kerala Rep. by the Public Prosecutor, High Court of Kerala – Respondent
Crl. M.C. No. 4863 of 2019
Decided On : 09-02-2022
Criminal Procedure Code, 1973 – Section 482 – Penal Code, 1860 - Sections 420, 506 read with Section 34 – Kerala Municipal Act - 442 and 543 - Quash of Criminal proceedings – Inherent power of Court – When can be exercised – Criminal intimidation – Cheating - Manager and employees of Anderson Diagnostics and Labs, which is running without any Municipal licence, fraudulently collected the blood samples of the de facto complainant and his wife, and issued a faulty result – whether issuance of a faulty test result from an accredited Medical Laboratory will amount to cheating? cheating, there are two elements - Deception and dishonest inducement to do or omit to do something.
Finding of the Court:
To bring home the offence of cheating, it must be shown that, at the time of representation being made, it was not only false, but that the person who made such false representation, knew that it was false and with that knowledge, the accused made such representation and thereby induced the party deceived, to deliver the property - No materials are available to find that, the petitioners collected the blood sample with an intention of cheating and subsequently, issued an incorrect test result with a mens rea of cheating him. The FI statement of the de facto complainant is to the effect that, a false result was given by the petitioners after conducting his blood test - Allegation of want of licence under the Kerala Municipal Act also has to be enquired into during trial.
Result : Petition allowed in part.
ORDER :
1. This petition has been filed by accused Nos. 1 to 3 in Crime No. 1424 of 2018 of Thampanoor Police Station, for quashing the proceedings in C.C. No. 259 of 2019 on the files of Judicial First Class Magistrate Court-III, Thiruvananthapuram, invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C.
2. The allegation against the petitioners is that, they being the Manager and employees of Anderson Diagnostics and Labs, which is running without any Municipal licence, fraudulently collected the blood samples of the de facto complainant and his wife, and issued a faulty result, and when the de facto complainant questioned them, the 1st accused criminally intimidated him. Thus they are alleged to have committed the offences punishable under Sections 420, 506 read with Section 34 of IPC and Section 442 read with Section 543 of the Kerala Municipal Act.
3. According to the petitioners, they are the employees of the Thiruvananthapuram Branch of Anderson Diagnostics and Labs, having its registered office at Chennai. The doctor who was treating the de facto complainant and his wife for infertility referred them for blood test and the 2nd accused collected blood sample, and sent it for test to the Chennai Lab. Out of the five test results, one was found to be reactive and it was duly informed to the de facto complainant. The de facto complainant collected the test result on 25.08.2018 and as instructed by the petitioners and the doctor concerned, a confirmatory test was conducted in another lab. In that test, the result showed non-reactive. Due to that fact, the de facto complainant manhandled the petitioners on 31.08.2018 and demanded compensation for the mistake in the test result. Since they were not amenable, after a delay of about four weeks, he lodged a complaint before the Thampanoor Police Station on the basis of which, a crime was registered and investigated, and finally, final report was filed against the petitioners for the offences mentioned above.
4. According to the petitioners, an offence under Section 420 of IPC will not be attracted, as there was no fraudulent or dishonest intention on the part of the petitioners to deceive the de facto complainant. Since the demand for compensation was not heeded to by the petitioners, the de facto complainant lodged a false complaint against them. The owner of the Lab or the Doctors who conducted the blood investigation, were not arrayed as accused. The petitioners are only employees of the Thiruvananthapuram branch of Anderson Lab, based at Chennai. They have nothing to do with the blood investigation result issued by the Lab. They had no role other than collecting the sample and sending the same to the Lab at Chennai for the purpose of investigation by the Doctors there. The offence under Section 506 IPC and also under Section 442 read with Section 543 of Kerala Municipal Act, will not be attracted against the petitioners.
5. Learned counsel for the de facto complainant vehemently opposed this petition saying that, the Anderson Lab at Thiruvananthapuram was not having proper licence and it was functioning unauthorisedly, without employing qualified staff, and they induced the de facto complainant and his wife, to give their blood sample after collecting fees for the same, and issued a test result stating that, the de facto complainant was found reactive to Hepatitis B, causing so much of embarrassment and unnecessary treatment for the same, and thus, the petitioners cheated him.
6. Learned Public Prosecutor also opposed the petition stating that, the petitioners had no authority to run the Lab and they were not qualified to collect blood sample and that is why, the result was incorrect. So, according to him, an offence under Section 420 of IPC will be attracted.
7. Now the question to be considered is, whether issuance of a faulty test result from an accredited Medical Laboratory will amount to cheating?
8. The petitioners produced Annexure-A1 Certificate of Inco
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