Bangalore District Court
The State By Vidhana Soudha vs Tubassum Sulthana on 19 January, 2022
IN THE COURT OF XXXIX ADDL.ACMM,
BENGALURU
Present : Sandesh Prabhu.B. BA(LAW), LL.B.
XXXIX ACMM, Bengaluru,
C.C.No.19946/2011
Dated : On this the 19th January, 2022
Complainant: The State by Vidhana Soudha
Police Station, Bengaluru
(By Assistant Public Prosecutor)
V/s
Accused: Tubassum Sulthana,
W/o Nasrulla Pasha,
r/at no.63, 1st cross,
K.H.Ranganath colony,
Mysore road, Bangalore
(By Sri.M.Girish advocate)
Date of Report of Offence : 04022010
Name of the Complainant : B.V.Rekhamma
Date of Commencement of
recording of Evidence : 08072015
Date of Closing of evidence : 23032021
Offences complained are : U/Secs 468, 471 &
420 of IPC
2 CC19946/2011
Opinion of the Judge : Accused found not
guilty
(Sandesh Prabhu B.)
XXXIX ACMM,
Bengaluru
:: JUDGEMENT ::
The PSI of Vidhana Soudha PS has filed charge
sheet against the accused for the offences
punishable u/s 468, 471 & 420 of IPC.
2. The case of the prosecution in nutshell is as
follows :
The accused in order to get the benefit of
subsidy loan amount from Karnataka Wakf
Foundation for Women Development Minority
Welfare Department, had produced the salary
certificate of complainant for the month of
June2007 and also created forged documents by
stating that the complainant had stood as surety to
the said loan and also created false project report
3 CC19946/2011
and also affidavit from Notary Public and obtained a
loan of Rs.80,000/ on 12072007 and misused
the public amount. Further it is the allegation
against the accused that when the complainant had
received the notice to repay the said loan amount
from Wakf Board, she came to know about the act
of the accused that she had produced the salary
certificate of complainant in order to obtain the
loan and thereby cheated the complainant.
3. On the basis of complaint given by
complainant, the Vidhana Soudha police have
registered a case against the accused in
Cr.no.05/2010 for the offences punishable u/s 468,
471 & 420 of IPC. After completion of the
investigation, the Investigating Officer has filed the
charge sheet against the accused for the aforesaid
offences.
4 CC19946/2011
4. After filing the charge sheet, cognizance was
taken for the offences punishable u/s 468, 471 &
420 of IPC. During the crime stage itself the accused
was appeared before the court and later she was
enlarged on bail. Thereafter the charge sheet copies
were furnished to the accused as contemplated u/s
207 of Cr.P.C. Thereafter heard about framing of
charge and since there were sufficient materials to
frame charge against the accused, this court had
framed charge against the accused for the offences
punishable u/s 468, 471 & 420 of IPC. Thereafter
the prosecution was given an opportunity to
establish the guilt of the accused.
5. The prosecution to establish the guilt of the
accused it got examined 8 witnesses as PW1 to 8
and got marked documentary evidence as per Ex.P1
to P25. The prosecution has failed to examine the
remaining cited witnesses and their evidence was
dropped by this court. Initially the accused counsel
5 CC19946/2011
did not cross examined Pw2 and when he was
recalled for his cross examination he did not turn up
before the court and therefore his evidence was
discarded by this court on 12062019.
6. Heard the arguments of Learned Senior
Assistant Public Prosecutor and also the counsel for
accused.
7. The points that arise for consideration of
this court are as under :
:: POINTS ::
1.Whether the prosecution proves beyond all reasonable doubt that the accused with an intention to obtain subsidy from Wakf Foundation for Women Development Authority had submitted pay slip of CW.1 for the month of June2007 before the said authority, forged the signature of CW.1's father and forged the project reports and attested the same before Notary Public with an intention to cheat the complainant and 6 CC19946/2011 thereby committed an offence p/u/s 468 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and during the same transaction, accused had forged the above said document in order to get loan and fraudulently or dishonestly used the said forged documents as genuine documents and thereby committed an offence p/u/s 471 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and during the same transaction, accused had forged the documents and obtained loan of Rs.80,000 from Wakf Board Foundation and misused the same to cheat the complainant and thereby committed an offence p/u/s 420 of IPC?
4. What Order?
8. The findings of this court on above points are as under: Point No.1 to 3: In Negative Point No.4 : As per the final order for the following: 7 CC19946/2011 REASONS
9. POINT No.1 to 3 : All these points are connected each other and in order to avoid the repetition of the facts and appreciation of the evidence, all these points are taken up together for common consideration.
10. It is the specific case of prosecution that the accused in order to get the benefit of subsidy loan amount from Karnataka Wakf Foundation for Women Development Minority Welfare Department, had produced the salary certificate of complainant for the month of June2007 and also created forged documents by stating that the complainant had stood as surety to the said loan and also created false project report and also affidavit from Notary Public and obtained a loan of Rs.80,000/ on 12072007 and misused the public amount. Further it is the allegation against the accused that when the complainant had received the notice to repay the said loan amount from Wakf Board, she came 8 CC19946/2011 to know about the act of the accused that she had produced the salary certificate of complainant in order to obtain the loan and thereby cheated the complainant.
11. The prosecution to establish the guilt of the accused it got examined 8 witnesses as PW1 to 8. The PW1 is the complainant. PW2 is the Deputy Secretary and Member Secretary of Karnataka Wakf Foundation who deposed about the loan obtained by the accused. PW3 is the FDA of Deputy Commission of police of Western Division who deposed about the issuance of salary certificate which belonged to the complainant. PW4 is the Tahsildar who issued the Caste Certificate as per as per Ex.P6. The PW5 is the PSI who registered the case against the accused and partly investigated the case. PW6 is the PSI who partly investigated the case and filed charge sheet after completion of the investigation. PW7 is the Notary Public who attested the EXP4 & 13. PW8 is the witness to the search mahazar conducted as per Ex.P5. Along with the oral evidence 9 CC19946/2011 the prosecution has produced and got marked documentary evidence as per Ex.P1 to P25. The relevancy of the said documents will be discussed at appropriate point of discussion.
12. Now it is necessary to analyse the oral evidence of prosecution witnesses. The PW1 is the complainant who deposed that she was working as police constable at Wilson Garden police station and on 02022010 she received a letter from Wakf Board Foundation by stating that accused became defaulter in payment of loan amount and she being the surety has to pay the loan. Further the witness further deposed that after receiving the said notice, she approached Minority Department and made enquiry stating that she did not stand as surety to pay the loan amount but the officials told her that she stood as surety and as such she should pay the loan amount. Thereafter she gave a letter stating that she did not stand as surety to the accused and she is not liable to pay any loan amount. 10 CC19946/2011 The witness further deposed that thereafter she filed complaint as per Ex.P1. The accused counsel subjected this witness for cross examination.
13. The prosecution further got examined PW2 who is the Deputy secretary of Karnataka Wakf Board for Women Development and Minority Welfare Department. The said witness in his oral evidence deposed that the accused had obtained a loan of Rs.44,647/ from the Karnataka State Womens Wakf foundation and to the said loan one Rachamma stood as surety. The witness further deposed that since the accused did not repay the said loan amount, she issued notice to the said surety by name Rachamma and since the accused had repaid the entire loan amount he wrote a letter to the Vidhana Soudha police as per Ex.P4. The witness further deposed about the documents submitted by the accused for obtaining said loan which are marked as Ex.P5 to Ex.P21. Initially the accused counsel did not cross examine this witness and when 11 CC19946/2011 this witness as recalled for his cross examination this witness did not turn up before this court and therefore this evidence was discarded by this court.
14. The prosecution further got examined PW3 who is the FDA of DCP West Zone and said witness in his oral evidence deposed that in the year 2010 the Vidhana Soudha Police had came to his office and asked by showing the salary certificate that whether the said salary certificate belonged to complainant and he told that the said Ex.P13 which is salary certificate was issued from his office. The witness further deposed that he thereafter came to know that the accused by submitting the said salary certificate had obtained loan from the Karnataka Wakf Board. The accused counsel subjected this witness for cross examination.
15. The prosecution further got examined PW4 who is the Tahsildar who issued Caste Certificate as per Ex.P6. The said witness in her oral evidence deposed 12 CC19946/2011 about issuance of Caste Certificate on 18062007 in favour of accused as per Ex.P6. The accused counsel did not cross examine this witness.
16. The PW5 who is the PSI who registered the case against the accused and partly investigated the case. The said witness in his oral evidence deposed about registering of FIR on the basis of complaint given by the complainant and thereafter receiving of the salary certificate of the complainant as per Ex.P3 and
13.
17. The prosecution further got examined PW6 who is the PSI who further investigated the case and filed charge sheet against the accused. The said witness in his oral evidence deposed that he after receiving the case file from earlier Investigating Officer received 24 documents from Karnataka Wakf Board. The witness further deposed about the obtaining of the statement of witnesses and also the voluntary statement of accused. 13 CC19946/2011 The witness further deposed about the search mahazar conducted in the house of the brother of the accused as per EX.P25 on 29072010. The witness further deposed that thereafter on completion of the investigation, he filed charge sheet before this court on 10062011. The accused counsel subjected this witness for cross examination.
18. The prosecution further got examined PW7 who is the Notary Public who attested the Ex.P4 & P14. The said witness in his oral evidence deposed about the attestation of the Ex.P4 & 14 which are the undertakings given by the present accused. The accused counsel subjected this witness for cross examination.
19. Lastly the prosecution got examined PW8 who is the witness to the seizure mahazar conducted in the house of the one Iiyas Pasha. The said witness in his oral evidence deposed about the search conducted by 14 CC19946/2011 the Investigating Officer in the house of Iliyas Pasha at Sheshadripuram on 2792010. The witness further deposed that no documents were found in the house of the said person. The accused counsel cross examined this witness.
20. On careful perusal of the material produced by the prosecution it is the specific allegation against the accused that she produced the salary certificate of the complainant before Karnataka Wakf Board and also forged and created documents before the Notary Public as per Ex.P4 & 14 and thereafter obtained the loan and thereby cheated the complainant. The burden heavily lies upon the prosecution to establish that the accused had obtained loan by producing the salary certificate of the complainant. As it is stated above the prosecution has produced and got marked the salary certificate which were alleged to have been produced by the accused as per Ex.P13. The complainant who is PW1 in her oral evidence deposed that the said salary certificate 15 CC19946/2011 belongs to her. The prosecution has produced the said salary certificate along with other documents by obtaining the same from Karnataka Wakf Board Foundation for Women Development and Minority Welfare Department. The PW3 who is the FDA who prepared the said salary certificate has deposed and identified that the said Ex.P13 is salary certificate of the complainant. Therefore the prosecution by producing the said Ex.P13 coupled with oral evidence of complainant and PW3 it has initially discharged its burden that some persons had produced the salary certificate of the complainant as a surety before Karnataka Wakf Board in order to obtain the loan.
21. The burden lies upon the prosecution to further establish that the accused herself produced the said salary certificate and also created the forged undertakings as per Ex.P4 & 14 and produced those documents before Karnataka Wakf Board and thereafter obtained the loan from said department. As it 16 CC19946/2011 is discussed above the prosecution has produced and got marked the relevant documents relating to the loan alleged to have been obtained by the accused as per Ex.P3 to P21 through PW2 who is the Member Secretary of Karnataka Wakf Foundation for Women Development and Minority Welfare Department. The prosecution has also marked the project report alleged to have been given by the accused, loan application, salary certificate of complainant, two undertakings attested before Notary Public, cheque receipts, sanction order, order passed by Social Welfare Department, proceedings of the Karnataka State Wakf Foundation, Caste Certificate issued by Tahsildar, notice issued by the Wakf Board to the accused and other relevant documents as per Ex.P3 to 21. On careful perusal of those documents it reveals that one Tabassum sultan by submitting all those document had obtained the loan of Rs.80,000/ from Karnataka Wakf Board.
17 CC19946/2011
22. On perusal of the defence of the accused, she has seriously disputed about the obtaining of the said loan and also disputed about the signature found in those documents which were alleged to have produced for obtaining loan. On careful perusal of the said Ex.P3 to 21, one thing is clear that some person had obtained loan from Wakf Board by submitting all those documents. Now the question to be considered is whether the prosecution is successful in establishing that whether the accused had submitted those documents and obtained the loan. The prosecution has produced Ex.P8 which is the cheque receipt for having been received the loan amount by the accused dated 30072007 as per Ex.P19. The accused has seriously disputed the signature found in said document. Further as it is stated above the accused has seriously disputed about the undertakings attested by the Notary Public which are marked as Ex.P4 & 14. The burden heavily lies upon the prosecution to establish that the accused herself created those documents and submitted the 18 CC19946/2011 same before Wakf Board in order to obtain the loan. On perusal of Ex.P4 & 14 which are the undertakings attested by Notary Public, large portion of the contents of the said undertakings are kept blank and Notary Public without ensuring that the contents were filled had attested the said two documents.
23. Now it is necessary to peruse the oral evidence of office bearers of said Wakf Board in order to conclude that whether the accused had produced those forged documents in order to obtain the loan. As it is discussed above the prosecution got examined the Deputy Secretary of Karnataka Wakf Foundation Department for Women and Minority Welfare as PW2. The said witness in his oral evidence deposed about obtaining of the loan by the accused by submitting the documents as per Ex.P3 to P27 but this witness did not turn up before the court for his cross examination and therefore his evidence was discarded by this court. So the evidence of PW2 is not helpful in any manner to the 19 CC19946/2011 prosecution to establish the guilt of the accused. The prosecution has also cited the Member Secretary Wakf Board as CW3 but it has failed to examine the said witness before this court. If the prosecution got examined CW3 and if the PW2 had turned up before the court for his cross examination then truth might have came out.
24. On careful perusal of the entire documents produced by the prosecution which are marked as Ex.P3 to P21 the signature of alleged borrower is found different from one document to another document which includes the loan application, undertakings, cheque receipt, Project report and the letter alleged to have been written by the accused to the Wakf Board about repayment of the borrowed loan amount. If really the accused had created those documents then signature in above referred documents might have similar if really the accused by putting her signature had created those documents.
20 CC19946/2011
25. The prosecution got examined the Notary Public who attested Ex.P4 & 14 as PW7 and the said witness during his cross examination admitted that the said documents which were attested by him are incomplete and Notary Public should not attest any document which is incomplete. By Considering the said deposition of PW7, he being responsible Notary Public had attested the incomplete documents which are Ex.P4 & 14. The PW6 who is Investigating Officer in his cross examination has categorically submitted that he did not make any enquiry with Notary Public about the reason for not filing the particulars in Ex.P4 & 14. Further the PW6 during the cross examination also deposed that he did not make any enquiry with the official of Wakf Board for sanctioning of said loan amount even though the documents submitted for obtaining of the loan were incomplete. The said deposition of the Investigating Officer also indicates that he has not propery conducted the Investigation about the involvement of the person who actually produced those documents and received 21 CC19946/2011 the loan amount. As it is discussed above the accused has seriously disputed about the signature found in loan application as well as loan amount receipt which is marked as Ex.P9 and P19. When the accused has seriously disputed about the signatures found in those documents then burden heavily lies upon the prosecution to establish those signatures belonged to the accused.
26. The counsel for accused has vehemently argued that the accused is able to put her signature only in Urdu Language and she is unable to put the signature in English language and counsel had drawn the attention of this court over the vakalath submitted by him. This court has perused the said vakalath as well as the signature put by the accused at the time of framing of charge and also of recording 313 Cr.P.C statement of the accused. The accused in all those documents had put her signature in Urdu Language. When the accused had seriously disputed about the 22 CC19946/2011 said signature found in those documents which were produced before Wakf Board then the Investigating Officer should have sent those documents for comparison of signature by obtaining the sample signature of the accused in order to conclude that whether she is able to put her signature in English Language. The IO has not taken away such pain in order to elicit truth before the court.
27. The prosecution has produced one letter alleged to have been written by the accused for having repaid the loan amount as per Ex.P21 and on perusal of the signature found in said document, the said signature is entirely different from signature found in loan application, loan amount receipt and undertakings which are marked as per Ex.P19, 9, 4 & 14. Therefore even though the prosecution has produced the said Ex.P21 in order to establish that the accused herself repaid the loan but the since the signature found in said Ex.P21 is entirely different from the signature 23 CC19946/2011 found in vakalath and charge framed by this court then it cannot be concluded that the said Ex.P21 is written by the present accused.
28. The Ex.P21 itself shows that some other persons had given said letter by stating that DD of Rs.44,667/ is enclosed with said letter for the repayment of borrowed loan amount. If really the accused had written the said letter as per Ex.P21 then the accused might have put her signature in Urdu language as signature of accused found in vakalath, charge form and signature found in statement of the accused recorded u/s 313 of Cr.P.C.
29. As per the case of the accused had availed a loan of Rs.80,000/ Wakf foundation and the said loan was disbursed to the accused by issuing cheque bearing no.246962 and the accused had received the cheque receipt document as per Ex.P19. When the prosecution itself stated that the said loan amount was 24 CC19946/2011 disbursed by issuing cheque no.246961 then IO might have produced the statement of bank account relating to the accused in order to establish that whether the accused had actually received the said cheque and encashed the said disbursed loan amount. The IO has not made any such prompt attempt in order to trace out actual culprit behind the said forgery and cheating. No doubt the prosecution has produced a letter of MLA of Magadi constituency as per Ex.P12 and in the said letter the name of the present accused has been stated but there is no sufficient materials that the accused herself submitted those forged documents and obtained the loan. The Principle Secretary and other office bearers of the Wakf Board themselves admitted that after due verification only loan will be sanctioned. When incomplete documents were submitted as per Ex.P4 & 14, then without involvement of some officials of Wakf Board, the board could not have sanctioned the loan on the basis of incomplete documents. Those incomplete documents and sanctioning of the loan based on 25 CC19946/2011 incomplete documents, itself shows about involvement of some powerful influenced persons had played role in obtaining the loan by submitting those incomplete documents.
30. The prosecution itself produced a letter written by Wakf Board that the loan amount is already paid and no action is required against the accused. The prosecution got marked the said letter as per Ex.P4. When th Wakf Board itself written the said letter as per Ex.P4 by stating that no action is required against the accused, then it clearly shows about the involvement of office bearers itself in the said offence. If the CW3 appeared before the court for giving evidence and if PW2 turned up before the court for his cross examination then truth might have came out about the involvement of office bearers in granting the said loan by submitting incomplete documents. The said incomplete documents produced as per Ex.P4 & 14 itself shows that some unknown persons had used their powers and got 26 CC19946/2011 sanctioned the loan and thereby misused the public fund.
31. On careful evaluation of entire materials available on record, there is no sufficient materials to show that the accused herself committed the said offence by submitting the alleged documents. The Investigating Officer also not investigated the case properly by sending those documents submitted before Wakf Board in order to compare the signatures found in those documents. This also shows that those who sanctioned the loan also tied the hands of IO for not conducting the investigation clearly. As it is discussed above the Ex.P21 clearly shows that when the complainant received the notice from Wakf Board to repayment of loan and when she made enquiry with the Wakf Board then some unknown person had repaid loan by giving DD for Rs.44,667/ and given the letter as per Ex.P21 to the Wakf Board. Even though the prosecution has produced and got marked the loan 27 CC19946/2011 application, sanction letter, loan receipt and loan repayment letter but the prosecution has failed to link those documents to the present accused.
32. On perusal of entire materials available on record the Investigating Officer has not made the investigation that how the said salary certificate went to the hands of the accused, if really she produced the said salary certificate before Wakf Board in order to obtain the loan. The PW3 who prepared the salary bill, himself admitted that there is no chance of giving salary certificate of any public servants to any third persons. There is no proper investigation on the part of the Investigating Officer that how the said salary certificate came to the hands of the accused if really she submitted the said salary certificate before the Wakf Board.
33. On careful evaluation of entire materials available on record there is no sufficient materials 28 CC19946/2011 produced by the prosecution to establish that the accused herself had committed the alleged offence. The documents produced by the prosecution itself indicates about the involvement of some other powerful person in commission of alleged offence. In a criminal case the prosecution has to prove the case against the accused beyond all reasonable doubt but in the present case the prosecution has miserably failed to prove the allegation made against the accused beyond all reasonable doubt. The accused is entitled for benefit of doubt.
34. It is the cardinal principle of criminal jurisprudence that no man shall be punished unless the guilt against him is proved beyond all reasonable doubt. The prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Therefore this court comes to conclusion that the prosecution has failed to establish that the accused has committed the offences punishable U/s 468, 471 & 420 of IPC beyond 29 CC19946/2011 all reasonable doubts. Therefore for the said reasons this court answers Point no.1 to 3 in Negative.
35. POINT No.4: In view of discussion held on above points, this court proceeds to pass the following:
:: ORDER :: Acting u/s 248 (1) of Cr.P.C., the accused is hereby acquitted for the offences punishable u/s 468, 471 & 420 of IPC.
The bail bond of the accused and surety shall stand canceled.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me and then pronounced in open Court on this the 19th day of January, 2022) (Sandesh Prabhu B.) XXXIX ACMM, Bengaluru ANNEXURE
1. Witnesses examined on behalf of Prosecution PW1 : Rekhamma.B.V. W/o Sathisha PW2 : Nisar Ahamed, S/o Abdul Rahim PW3 : Javid Ahamed, S/o Mohammed Hanif PW4 : V.R.Shilaja, W/o Anil kumar.S.K PW5 : Hareesh.N.P, S/o Puttaswamy PW6 : T.Ramachnadrayya, S/o Anjaneya 30 CC19946/2011 PW7 : G.B.Turamuri, S/o Basappa Turamuri PW8 : Amir Ahammed Khan, S/o Gapoora Khan
2. Documents exhibited on behalf of Prosecution Ex.P.1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P1(b) : Signature of PW5 Ex.P2 : Project report for cloth shop Ex.P3 : Letter from Member Secretary to PW1 Ex.P4 : Undertaking Ex.P4a : Signature of PW7 Ex.P4b : Signature of PW1 Ex.P 4 & 5 : Letter from from Member Secretary to PI ExP 4 & 5a : Signature of PW2 Ex.P6 : Form No.3 Ex.P7 : Identity Card Ex.P8 : Project report Ex.P9 : Loan Application Ex.P10 : Letter from Tahsildar to Member Secretary Ex.P11 : Letter of sanction of Financial Assistance to accused Ex.P12 : letter which shows the members to whom the loan amount to be sanctioned 31 CC19946/2011 Ex.P13 : Pay slip for the month of June 2007 Ex.P14 : Undertaking Ex.P14a : Signature of PW7 Ex.P14b : Signature of accused Ex.P15 : Project report Ex.P16 : Letter from accused to Member Secretary Ex.P17 : Loan amount sanctioned list Ex.P18 : Proceedings of Karnataka Wakf Foundation for women Development Ex.P19 : Cheque receipt Ex.P20 & 21 : Letter from Member Secretary to accused Ex.P22 : FIR Ex.P22a : Signature of PW5 Ex.P23 : Xerox copy of cheque Ex.P24 : Death certificate of accused brother Ex.P25 : Search list
3. Material objects exhibited on behalf of prosecution NIL
4. List of witnesses and documents on Defense side NIL (Sandesh Prabhu B.) XXXIX ACMM, Bengaluru