Bangalore District Court
State By Sadashivanagara Police vs Alleging That The Accused Has Committed ... on 22 July, 2016
IN THE COURT OF THE VII ADDL. C.M.M., BENGALURU.
Dated this the 22nd day of July 2016
Present: Sri. G.V.Chandrashekhar., B.E (Civil), LL.M., P.G.Dip. in
International Law and International Relations, New Delhi.,
VII ADDL. C.M.M., Bengaluru.
JUDGMENT U/S.355 OF Cr.P.C.:
1. CC NO. : 16019/2002
2. Date of offence : 5.10.2001
3. Complainant : State by Sadashivanagara Police
Station
4. Accused : N. Prabha W/o D. Parameshwar,
42 years, r/at 243, 15th Main Road,
RMV Extension, Sadashivanagara,
Bangalore.
5. Offences complained of : 420 IPC
6. Plea : Accused pleaded not guilty
7. Final order : Acting U/s. 248 (1) Accused is acquitted
The complainant police have filed the charge sheet against the
accused alleging that the accused has committed offence punishable under
Sec. 420 of IPC.
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2. The case of the prosecution is that on 19.2.2001 accused person
executed the agreement to sell the property No. 243, 15th Main Road,
Rajmahal Layout to C.W.1 and 2 Dr. R. Prabhakar and Sheela Prabhakar for
Rs 65,00,000/- and received advance of Rs 10,05,000/- and later C.W.1 and
2 came to know that there is litigation with regard to the above said property
and there is an statuesquo order against the accused person and by
concealing the same, the accused person cheated C.W.1 and 2 by only
paying Rs 1,50,000/- and not paid the remaining amount and thereby the
accused person has committed the aforesaid offence.
3. After filing of the charge sheet, accused is secured and released on
bail. Charge sheet copy is furnished to the accused. Charge framed and
read over to him. He pleaded not guilty and claimed to be tried. After that
prosecution examined 5 witnesses as P.W.1 to 5 and got marked 10
documents as Ex.P.1 to P.10. The accused was questioned under Sec. 313
of Cr.P.C. for the incriminating circumstances appeared against him. He
denied the same and not chosen to adduce evidence on his behalf.
4. Heard arguments from both sides.
5. The points that arise for my consideration are :
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(1) Whether the prosecution proves beyond reasonable doubt that
on 19.2.2001 accused person executed the agreement to sell the
property No. 243, 15th Main Road, Rajmahal Layout to C.W.1
and 2 Dr. R. Prabhakar and Sheela Prabhakar for Rs
65,00,000/- and received advance of Rs 10,05,000/- and later
C.W.1 and 2 came to know that there is litigation with regard to
the above said property and there is an statuesque order against
the accused person and by concealing the same, the accused
person cheated C.W.1 and 2 by only paying Rs 1,50,000/- and
not paid the remaining amount and thereby the accused person
has committed the aforesaid offence ?
(2) What order?
6. Having regard to the arguments heard and the materials placed on
record, my answer to the above points are :
Point No.1 : In the negative
Point No.2 : See final order, for the following :
REASONS
Point No.1 :
7. Out of the six witnesses cited by the prosecution, C.W.1 died and
the remaining 5 witnesses were examined by the prosecution. C.w.2/P.W.1,
the wife of the C.W.1 Smt. Sheela in her evidence has stated that in the year
2001 when they intended to purchase a site in Bangalore stating that they
came in acquaintance of the accused through C.W.3 and the accused was
residing in Sadashivanagar, 15th Main Road. P.W.1 admits that they
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themselves along with her husband had contacted the accused about the site
and that the accused had disclosed to them that she has succeeded to the
property in a Will and that they had agreed to purchase the said site. It is to
be noted that P.W.1 came in contact with one Janardhan, Advocate, P.W.3
and that they had verified the documents pertaining to the said site which
they intended to purchase and after satisfaction had given a token advance of
Rs 5,000/- and that on 22.1.2007 after a lapse of 6 years, they had given Rs
1,00,000/- to the accused vide a cheque and she has identified the said
cheque as Ex.P.1 and that thereafter they had executed a sale agreement with
respect to the said site for Rs 65,00,000/- wherein she had identified that she
has also signed the same and that the accused has also signed the agreement
of sale marked as Ex.P.2.
8. P.W.1 states that as per the agreement the accused had executed a
sale deed dated 30.6.2001 and get registered the same. That on 19.2.2007
vide Ex.P.2 they had given a cheque for Rs 9,00,000/- in favour of the
accused and that she identified the same marked as Ex.P.3. P.W.1 stated
that she had received a phone call on 15.5.2001 on her mobile that a civil
suit is pending in the Civil Court and prohibitory order is in existence with
respect to the said site after receiving the said information. P.W.1 states that
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she went to the accused and questioned her, but the accused did not answer
properly and therefore had deposed to the effect that the accused by not
complying as per Ex.P.2 and not registered the said site in their name and
had taken Rs 10,00,000/- and Rs 5,000/- from herself and late husband and
thereby cheated her and that her husband C.W.1 had given a complaint vide
Ex.P.4.
9. P.W.1 has also stated that the order in O.S. 8830/1997 is at Ex.p.5
and the order under order 39 Rule 1 marked as Ex.P.6, order sheet is at
Ex.P.7 and that she had given a statement to the Police.
10. When the P.W.1 has been cross-examined by the accused counsel,
P.W.1 admits that prior to contacting the accused, they had information
about the said site and that they had given paper publication and no
objection was received from the public. When they contacted the said
Janardhan, P.W.3, P.W.1 states that all the documents are correct and that
they were informed by the said Janardhan and they could continue regarding
the purchase. It is pertinent to note that P.W.1 has clearly admitted in her
cross-examination that prior to entering into agreement herself as well as her
late husband had gone through all the documents extensively and only after
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verification and being satisfied with respect to the said document deed, they
entered into the said agreement. She has also admitted that they had given
paper publication with respect to the agreement and that there was no
objection from the general public from anybody. She denies that they had
cancelled the agreement and had asked for the amount and also denies after
getting the agreement cancelled, she had filed a false suit. She has also
admitted that a Civil Suit has been decreed with respect to the said
agreement and that a decree has been passed to the effect that she was
entitled to Rs 7,00,000/- and out of that the accused returned back Rs
8,40,000/- through cheque and DD.
11. It is to be noted that P.W.1 herself admits that prior to the filing of
this case, the accused had given Rs 1,50,000/- lakhs to her and still interest
amount and balance principle is due from the accused and denies that only
Rs 2,60,000/- due to her from the accused.
12. P.W.2 is one Thyagaraja and he is the owner of the Ironing shop
and he is witness to the said document and he states that he knows the
accused as well as late C.W.1 and P.W.1 and that he had introduced C.W.1
and P.W.1 to the accused and the C.W.1 and 2 i.e. the husband and wife
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used to come to his cloth ironing shop regularly and were asking to get them
a house and since he is a friend of accused, Nagaraj used to come and he was
stating that the accused were intended to sell the property and therefore he
introduced C.W.1 and 2 to the accused.
13. P.W.2 states that after that they entered into the said agreement
and that he does not know the said transaction and he has not at all given any
statement to the Police. In the cross-examination he denies the suggestion
put to him.
14. P.W.3 is one Janardhan and he states that he knows the accused.
That the accused uncle was his client and that he himself in the year 1994
had approached him regarding the preparation of the Will. That he had
prepared and given it to the said Narayanachar i.e. the uncle. That he was
admitted to the hospital and there only the Registrar was taken and the Will
was registered and everybody signed in the said Will in the year 1994, but
cannot recollect the date and that as per the Will, the accused had succeeded
to the said property. That in the year 2001 C.W.1 had come to his office and
enquired about the Will and he had stated that the Will was executed by the
said Halesh Nayak and accordingly informed the said C.W.1.
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15. P.W. 4 Halesh Nayak who is the I.O. has spoken about the
complaint being filed vide Ex.P.4 and that he has conducted the
investigation, recorded the statement of C.W.2, 3 and 4, procured the
documents with respect to the said transaction and afterwards filed the
charge sheet against the accused. It is to be noted that in the cross-
examination P.w.4 admits about of civil dispute pending with respect to the
property.
16. P.W.5 Hanumantharaya is the SHO who has prepared the F.I.R.
and that he has transferred the file to P.W.4 for further investigation.
17. So, from the perusal of the above evidence, it is to be noted that
P.W.1 herself has clearly admitted that the accused herself had not
approached them regarding the said transaction and that on 16.7.2001 they
themselves had approached the accused regarding the property. That they
had come in contact with the accused as per Ex.P.1 from one Advocate
Janardhan ant that P.W.2 Thyagaraja in his evidence has stated that the
C.W.1 and 2 themselves had approached him regarding the purchase of the
property and that he had known the friend of the accused one Nagaraj and
thereafter the accused was contacted by the C.W.1. It is also to be noted that
P.w.3 has spoken about the property coming to the accused vide a Will and
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that he himself had drawn the said Will and got it registered. It is also
pertinent to note that C.W.1 had approached him regarding the said property
and enquired about the particulars. It is also pertinent to note that P.W.1
has clearly admitted in her cross-examination that they had verified the
papers and only after being satisfied with respect to the title, they had
proceeded with the said transaction and they had also given paper
publication regarding the said agreement and no objection from public came
in that regard. When such being the situation, in the light of the admission
of P.w.1 coupled with P.W.2 contending that he does not know anything
about the said transaction and the said transaction was conducted by the
parties themselves and he has also turned hostile. Though he being a
witness to the said document and there being different versions regarding the
said transaction of the property clearly casts a doubt regarding the
prosecution version that the accused intentionally cheated the complainant
and about the property and entered into a false agreement with them and
thereafter suppressing the real facts as to the state of affairs of the property.
18. It is pertinent to note that a suggestion has been put to P.W.1
regarding they cancelling the said agreement and having taken an amount
from the accused and her admission that prior to the filing of the case an
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amount of Rs 10,00,000/- was given by the accused and pending of civil
suit between the complainant and the accused clearly casts a doubt as to the
version of the prosecution regarding the cheating done by the accused.
Hence, I answer this point in the negative.
Point No. 2 :
19. In view of the reasons stated at point No.1, I proceed to pass the
following:
O R D E R:
Acting U/s. 248(1) of the Criminal Procedure code, the accused is acquitted for the offence punishable U/s. 420 of IPC.
Acting under Sec. 437-A of Cr.P.C., it is ordered that the personal bonds executed by the accused and surety bond executed by the surety for accused shall be in force for a further period of 6 months from this day.
(Dictated to the Stenographer directly on computer, transcript thereof is computerized and print out taken by him is verified, corrected & then pronounced by me in the Open Court dated this the 22nd day of July 2016) (G.V.CHANDRASHEKHAR), VII ACMM, BENGALURU.
11ANNEXURES:
List of witnesses examined on behalf of the Prosecution:
P.W.1 : Sheela P.W.2 : Thyagaraju P.W.3 : Janardhana P.W.4 : Halesh Nayaka P.W.5 : Hanumanthaiah
List of documents marked on behalf of the Prosecution:
Ex.P.1 : Cheque Ex.P.2 : Copy of agreement Ex.P.3 : Cheque Ex.P.4 : Complaint Ex.P.5 : Copy of order sheet in original suit Ex.P.6 : Injunction order Ex.P.7 : Copy of original suit Ex.P.8 : Statement of P.W.2 Ex.P.9 : Statement of accused Ex.P.10 : F.I.R.
List of Material Objects marked on behalf of the Prosecution:
Nil For defence: - NIL -
VII ACMM, BENGALURU. 12 13 14