Bangalore District Court
State By High Grounds Ps vs No.1 And 2 Showed The Farm Houses And ... on 5 January, 2022
IN THE COURT OF THE IV ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated this the 5th day of January 2022
Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bengaluru.
JUDGMENT UNDER SECTION 355 OF CODE OF
CRIMINAL PROCEDURE
1. Sl. No. of the case : CC No. 2124/2016
(Crime No.261/2014)
2. The date of commission
of the offence : 21.02.2014 to 06.09.2014
3. Name of the complainant : State by High Grounds PS,
Bengaluru.
4. Name of the accused : A1: G.Manivachagam, 61 Yrs.,
R/a. No.2021, 3rd main,
L.N. Reddy Colony,
East of Vijnana Nagara,
Near Adarsha Vista, Bengaluru.
A2: Bala Kanwaljith Singh,
S/o Late S.S. Bala,
R/a.No.145/1, Sector45A,
Chandigarh.
5. The offences complained : U/Ss.406, 420, 120B of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 05.01.2022
2 CC.NO.2124/2016
The PI, High Grounds Police Station filed Charge Sheet
against the accused No.1 and 2 for the offence punishable under
Sections 406, 420 and 120B of Indian Penal Code (hereinafter
referred as IPC).
2. The brief facts of the prosecution case are as under :
It is alleged that, accused No.1 - G.Manivachagam and CW1
Dr.Christian Chandramohan are friends and accused No.1
approached CW1 to invest money with his old friend accused No.2
- Bala Kanwaljith Singh promising high returns in a short period
of time. CW1 and accused No.1 met accused No.2 at Chandigarh
in the month of February 2014 and accused explained the entire
process regarding the investment of the amount and accused No.2
stated that he had inherited lot of money through his family and
he had to pay processing charges for release his property.
Accused No.1 and 2 showed the farm houses and houses of
accused No.2 at Chandigarh. Accused No.1 and 2 convinced CW1
about the genuinity of case. Thereafter accused No.1 and 2 and
CW1 met at Ashoka Hotel, Bengaluru to finalise the deal on
21.02.2014. As per deal CW1 through his HDFC Bank,
Indiranagar Branch on 21.02.2014 Rs.62,30,000/, on
09.04.2014 Rs.30,000/ and Rs.24,00,000/ transferred to
IndusInd Bank, Chandigarh account of accused No.1. It is also
stated that Rs.42,00,000/ transferred by the CW1 from his said
account to the said account of accused No.2. Hence, the CW1 in
all transferred and paid Rs.1,58,30,000/ to accused No.1 and 2
3 CC.NO.2124/2016
and both accused No.1 and 2 assured with high returns of
Rs.3,50,00,000/ within six working days. But accused as
assured by them even after investment of such huge amount they
failed to return the invested amount of Rs.1,58,30,000/ or
Rs.3,50,00,000/ as assured by them. CW1 contacted through
phone and sent messages and emails to accused No.1 and 2 even
then they failed to return the amount even after lapse of seven
months and they did not reply to CW1. Hence, on 06.08.2014
CW1 filed written first information statement before the High
Ground Police alleging that accused No.1 and 2 assured for high
returns of Rs.3,50,00,000/ within six working days for the
invested amount of Rs.1,58,30,000/ even after expiry of said
period they failed to return the invested amount or invested
amount with high returns and thereby accused persons by
criminal conspiracy cheated and committed criminal breach of
trust.
3. The High Grounds PS registered the case in their station
Crime No.261/2014 for the offence punishable under Sections
406 and 420 of IPC and issued first information report.
4. The Investigating Officer during pending investigation
arrested accused No.2 and produced. Accused No.2 appeared
through his counsel, filed bail application and it was rejected.
Then accused No.2 was released on bail as per order in Crl.P.
No.288/2015.
4 CC.NO.2124/2016
5. The Investigating Officer conducted the investigation and
filed Charge Sheet against accused No.1 and 2 for the offence
punishable under Sections 406, 420 and 120B of IPC. My
predecessor in office had taken the cognizance for the said offence
and registered the case in Criminal Case Register No.III and
issued summons to accused No.2 and NBW to accused No.1.
6. Accused No.2 appeared through his counsel. Accused No.1
appeared through his counsel and released on bail.
7. The charge Sheet copy furnished to accused No.1 and 2 as
per Section 207 of Code of Criminal Procedure (hereinafter
referred as Cr.P.C.)
8. Charge was framed against accused No.1 and 2 for the said
offence and read over and explained in language known to them
and they did not plead guilty and claimed for trial.
9. The prosecution in order to prove its case examined PW1 to
PW6 and got marked documents at Ex.P.1 to Ex.P.15.
10. As sufficient materials available on record, statement of
accused No.1 and 2 under Section 313 of Cr.P.C. was recorded
and read over and explained all the incriminatory evidence and
statements available against them in language known to them and
accused denied the same and did not lead defence evidence.
5 CC.NO.2124/2016
11. The prosecution examined CW4 as PW2, CW8 as PW4, CW9
as PW1, CW10 as PW3. The prosecution also examined the
Manager, IndusInd Bank, M.G.Road, Bengaluru and Manager,
HDFC Bank, Indiranagar, Bengaluru as PW5 and PW6
respectively. The prosecution got marked Ex.P.1 first
information statement, Ex.P.2 - First Information Report, Ex.P.3 -
spot panchanama, Ex.P.4 - seizure panchanama, Ex.P.5
photograph, Ex.P.6 - statement of account of IndusInd Bank,
Chandigarh, Ex.P.7 - voluntary statement of accused No.2 dated
30.12.2014, Ex.P.7A - arrest memo cum intimation, Ex.P.8 -
transit warrant, Ex.P.9 statement of CW1, Ex.P.10 - bond /
letter of undertaking, Ex.P.11 to Ex.P.14 - cheque of IndusInd
Bank, Chandigarh Branch, Ex.P.11(a), Ex.P.12(a), Ex.P.13(a) and
Ex.P.14(a) memos and Ex.P.15 - letter of IndusInd Bank,
M.G.Road Branch, Bengaluru.
12. Accused No.2 in the crossexamination of PW3 got marked
RTGS form as Ex.D.1.
13. Special PP argued that in order to attract Section 420 of IPC
accused persons must induce the victim to deliver the property.
In the present case accused No.1 approached CW1 to invest
money with his old friend accused No.2 assuring that high returns
in a short period. Accused had taken the CW1 to the house of
CW1 and shown the assets. Accordingly believing accused No.1
and 2 CW1 invested and paid Rs.1,58,30,000/ through four
cheque and Bank transfer to accused No.2 and accused No.1
6 CC.NO.2124/2016
and 2 assured that they would return Rs.3,50,00,000/ within six
working days and the same is mentioned at Ex.P.1 first
information statement. Hence, on the basis of Ex.P.1, Ex.P.2 first
information report registered against accused No.1 and 2. The
voluntary statement of accused No.2 is recorded. The prosecution
examined totally six witnesses as PW1 to PW6 and got marked
Ex.P.1 to Ex.P.15. As CW1 is at Switzerland and his prayer to
record his evidence through Video Conferencing was rejected.
PW1 spoke about the Ex.P.1 and Ex.P.2 and he conducted spot
panchanama as per Ex.P.3. Hence, he spoke about the contents
of Ex.P.1 to Ex.P.3. PW2 is a witness to Ex.P.4 seizure
panchanama and supported the case of prosecution. PW3 is the
Investigating Officer and filed the charge sheet against accused
No.1 and 2. In the evidence of PW3 prosecution got marked
Ex.P.4 to Ex.P.14. The nexus between accused No.1 and 2 stated
at Ex.P.1 - first information statement and PW1 and PW3 deposed
how the incident took place. Here, accused No.1 and 2 induced
CW1 to pay the money and invest with accused No.2. Accused
No.2 had taken CW1 to the Chandigarh and both accused
convinced CW1 to invest the money assuring to pay
Rs.3,50,00,000/ within six working days. But accused No.1 and
2 did not make payment. Ex.P.10 is the agreement between
accused No.2 and CW1. But accused No.2 issued Ex.P.11 to
Ex.P.14 cheque but they dishonored. Accused No.2 at the time of
recording of statement under Section 313 of Cr.P.C. admitted that
he received only Rs.1,04,00,000/. Accused No.2 stated that he
7 CC.NO.2124/2016
repaid the said amount to CW1 by cash but accused No.2 has not
produced any of the material evidence on record to show that he
repaid Rs.1,04,00,000/ to CW1. But in fact as per evidence of
PW1 and PW3 and Ex.P.1 - first information statement, Ex.P.6
statement of accounts, Ex.P.10 - bond / letter of undertaking and
Ex.P.11 to Ex.P.14 cheque show that CW1 paid Rs.1,58,30,000/
to accused No.1 and 2. Accused No.1 and 2 admitted about the
receipt of Rs.1,04,00,000/ but it is also implied that he received
remaining Rs.54,00,000/ from CW1. Hence, accused No.2 as per
his voluntary statement admitted the facts and the same are
proved as per evidence of PW3. As per Section 27 of Evidence Act
the facts stated in his voluntary statement come within the
meaning of discovery of facts. Hence, accused No.1 and 2 have
not disputed about their friendship and friendship with CW1.
Hence, as per Section 106 of Evidence Act the burden is on the
accused No.2 to prove that he repaid the Rs.1,04,00,000/ to
CW1. But absolutely accused No.2 has not brought materials on
record to show the same. Hence, accused have not lead their
evidence. They did not dispute contents, writing and signature of
CW1 at Ex.P.1 - first information statement and Ex.P.2 - first
information report including other documents. Hence, the present
case is not relating to offence punishable under Section 302 of IPC
to explain the delay but the present case is relating to
misappropriation and cheating and based on documents and the
delay is explained. Hence, prosecution proved its case through
PW1 to PW6 and mere non examination of CW1 is not fatal to the
8 CC.NO.2124/2016
case of prosecution. Hence, accused No.1 not appeared before the
I.O. Hence prays to convict accused with maximum sentence and
direct the accused No.1 to pay Rs.54,00,000/ and accused No.2
to pay Rs.1,04,00,000/ to CW1.
14. Sri.D.K. advocate for accused No.1 argued that, prosecution
wants to convict accused on the basis of evidence of Investigating
Officer and prosecution relies on the evidence of Investigating
Officer. As per Section 103 of Evidence Act burden of proof is on
the prosecution to prove its case beyond all reasonable doubt.
This court issued summons, NBW and even the proclamation at
the request of Special Public Prosecutor against CW1 but even
then the prosecution failed to secure the presence of CW1. CW1
was not appeared before this court because he is a absconded
accused. The prosecution argued that, its application to record
the evidence of CW1 through video conference was rejected. This
court after appreciation of facts and the judgment in CC
No.20700/2015 and as other cases are pending against CW1 in
CC No.11676/2020, CC No.11704/2020 and then rejected the
application of CW1. Here, CW1 is a absconded accused and
residing in somewhere and escaping from the laws of India.
Hence, mere rejection of his application would not prevented CW1
to appear before this court till today and to give his evidence.
Hence, the prosecution cannot take shelter of evidence of
Investigating Officer to prove its case. The Investigating Officer
has a right to freeze and recover the amount from accused but in
9 CC.NO.2124/2016
the present case the Investigating Officer has not freezed or
recovered the amount from accused as accused have not
committed any of the alleged offence. Hence, to prove the
conspiracy the prosecution has to prove meeting of the mind of
accused persons. But at Ex.P.1 - first information statement or in
the evidence of PW1, PW3 and PW4 prosecution has not proved
the essential ingredients of Section 120B of IPC including other
sections. It is alleged that meeting was held on 21.02.2014 at
Ashoka Hotel, but on 21.02.2014 CW1 was not present at Ashoka
Hotel but he was at Chandigarh as per Ex.D.1. Hence, the
Chandigarh is situated far away from Bengaluru and it is not
possible for any human being to present at Ashoka Hotel on the
same day. It is alleged that accused assured to return his amount
with profits within six working days but CW1 in Ex.P.1 or the
prosecution in its evidence has not brought any of the materials
on record to show that why CW1 waited for six months as he
could have filed the complaint immediately after completion of
sixth working day. Accused No.2 is not knowing Kannada
language and it is alleged that he gave voluntary statements and
mentioned in that accused No.2 refused to sign. Hence, CW1 is a
proclaimed offender and the court has to see the character of
witness. Here, CW1 filed false case against accused persons and
failed to prove his case. Hence, CW1 is to be punished and prays
to impose fine on the CW1. Accused No.1 at the time of recording
of his statement under Section 313 of Cr.P.C. specifically deposed
that he is not aware about the facts of transfer of amount
10 CC.NO.2124/2016
between CW1 and accused No.2. Hence, the prosecution
absolutely failed to prove its case beyond all reasonable doubt and
prays to acquit accused No.1.
15. Sri.BS, advocate for accused No.2 contended and argued
that, there was a delay in filing the first information report.
Accused No.2 was not present at Ashoka Hotel as alleged by the
prosecution at Ex.P.1. The prosecution want to rely the evidence
of PW1 to PW6 without examining the CW1. Hence, under such
circumstance evidence of PW1 to PW6 cannot be relied to convict
accused No.2. PW1 to PW6 are not having personal knowledge
about the transactions between CW1 and accused No.2 and they
all are hearsay witnesses. Hence, in the evidence of prosecution
witnesses there is a inconsistency and delay in lodging the case.
The CW1 misused the cheque which had given to him for the
purpose of security. Accused No.2 returned Rs.1,04,00,000/ to
CW1. The prosecution has to prove its case beyond all reasonable
doubt. Hence, the present case is not a civil case to prove it on
the evidence of other witnesses. Hence, mere marking of
documents is not proof of documents. Hence, non examination of
CW1 is fatal to the case of prosecution and the PW1 and other
witnesses are hearsay witnesses. The prosecution has not proved
the charges framed against accused No.2. As per charge only
three payments are mentioned but prosecution has not proved the
same and there is a discrepancies in the Ex.P.6 - account
statements and in the evidence of witnesses of prosecution as to
11 CC.NO.2124/2016
the mode of payment, date of payment and amount of payment to
accused. As per prosecution story the incident took place at
Ashoka Hotel, Bengaluru. But PW3 in the crossexamination
admitted that the Bank of accused No.2 is situated at Chandigarh.
CW1 is resident of Indiranagar and his HDFC Bank is also
situated at Indiranagar. But High Ground Police registered the
case against the accused persons alleging that the incident took
place Ashoka Hotel. But on the alleged date of incident i.e.
21.02.2014 accused No.2 was not at Ashoka Hotel but at
Chandigarh and the same is proved as per Ex.D.1 - RTGS form.
Hence, the High Ground police without jurisdiction registered the
case against accused and filed the false charge sheet. Hence, in
support of arguments relied on Thulia Kali Vs. State of
Tamilnadu, (1972) 3 SCC 393, Bhugdomal Gangaram and
others Vs. State of Gujarath (1984) 1 SCC 319 and Miran Bux
Vs. Lalu, 1993 Supp. (3) SCC 379 and argued that non
examination of CW1 is fatal to the case of prosecution and the
entire case of prosecution is to be disbelieved if CW1 is not
examined. It is also argued that prosecution has to bring best
evidence before the court and as per Section 60 of Evidence Act
testimony of hearsay witness cannot be believed where it is
possible to prove the case of prosecution on best evidence. It is
also argued that, there is a inordinate delay in lodging the first
information statement and first information statement is filed on
06.08.2014 but FIR is registered on 06.09.2014. Hence, there is a
12 CC.NO.2124/2016
difference of one month i.e. 30 days between Ex.P.1 and Ex.P.2
and the prosecution has not explained the delay in lodging the
Ex.P.1 first information statement and then registering the case
after delay of 30 days. Hence, under these circumstances the case
of prosecution cannot be believed. It is alleged that prosecution
recorded the voluntary statements of accused No.2 but there is no
signature of accused No.2 on alleged voluntary statements. The
prosecution has created the voluntary statements of accused and
adopted in the charge sheet. PW3 in his crossexamination at
paragraph No.22 and 32 specifically stated that he has not taken
the signature of accused No.2 and nothing prevented the PW3 to
record the voluntary statement of accused through audio video
mode as he himself admitted that there is a handy cam in the
station. Hence, prosecution has not proved Ex.P.1 - first
information statement and Ex.P.3 - spot mahazar as it has not
examined its witnesses. Hence, when two views are possible then
the court has to lean towards accused. Hence, in the present case
as prosecution failed to prove its case beyond all reasonable doubt
and the charges levelled against accused and prays to acquit
accused No.2.
16. Section 3 of Evidence Act defines the word "Evidence".
Hence, as per definition of evidence it includes both oral and
documentary evidence. Here, as per Section 3 the prosecution
has to bring and produce best evidence to prove its case beyond
all reasonable doubt and Section 3 and other sections of Indian
13 CC.NO.2124/2016
Evidence Act based on the principle of "Best evidence rule". Here,
it is the case of prosecution that accused No.1 and 2 induced CW1
to invest money with accused No.2 and then they will pay good
returns within six working days. Accordingly it is alleged that
CW1 and accused No.1 and 2 had meeting at Ashoka Hotel,
Bengaluru on 21.02.2014 and finalised the investment amount
and then CW1 invested and paid Rs.1,58,30,000/ to accused
No.2 through Bank transfers and accused No.1 and 2 assured to
return Rs.3,50,00,000/ within six working days. It is also alleged
that accused No.1 and 2 did not return the invested amount or
invested amount with its returns to CW1 within six working days.
It is alleged that CW1 contacted accused No.1 and 2 at several
times but they did not respond and then CW1 lodged the Ex.P.1
first information statement on 06.08.2014. It is alleged that
accused No.1 and 2 conspired together and induced to pay
Rs.1,58,30,000/ to them and thereby they misappropriated the
amount and cheated CW1.
17. Here, this court issued summons, non bailable warrants and
then proclamation at the request of Special Public Prosecutor to
secure the CW1 but CW1 had not attended the court and lead his
evidence. Learned Spl. PP argued that, his application to record
the evidence of CW1 through video conferencing was rejected and
CW1 was not lead his evidence. Here, this court on 30.08.2021
rejected the application filed under Section 275 of Cr.P.C. to
record the evidence of CW1 through video conferencing mode. But
14 CC.NO.2124/2016
nothing prevented the prosecution to secure and lead evidence of
CW1. It is also important to note that even after rejection of said
application this court issued Non Bailable Warrant and then
proclamation at the request of learned Spl. PP but even after
issuance of non bailable warrant and proclamation prosecution
failed to secure CW1 and lead his evidence. Hence, the
prosecution failed to prove the contents of Ex.P.1 - first
information statement through the best evidence i.e. through the
evidence of CW1.
18. Here, the PW2 is a witness to Ex.P.4 - seizure panchanama.
PW2 in his examinationinchief itself deposed that High Ground
police had called him inside the police station and then he saw
one mobile phone and black book. He identified the mobile phone
and black book at Ex.P.5 - photograph. In the entire evidence of
PW2 prosecution failed to elicit the contents of Ex.P.4 - seizure
panchanama. In the crossexamination PW2 admitted that he did
not know the contents of Ex.P.4 panchanama and he signed to it
at the request of police. The prosecution has not secured and
examined the CW5 who is witness to Ex.P.4 - seizure
panchanama.
19. PW4 as per direction of PW3 went to the Garida Police
Station and arrested accused No.2 on 26.12.2014 at 11.00 a.m.
and intimated the same to the wife of accused No.2. Hence, PW4
identified the Ex.P.7A - arrest memo cum arrest intimation.
15 CC.NO.2124/2016
Then PW4 produced accused No.2 before the Hon'ble Addl. Chief
Judicial Magistrate, Amritsar, Punjab and requested for issuance
of Transit warrant and received Ex.P.8 Transit Warrant and then
produced before PW3 on 27.12.2014.
20. Advocate for accused No.2 crossexamined the PW4 but in
order to disprove the fact that PW4 arrested the accused No.2 and
produced before the Hon'ble Addl. Chief Judicial Magistrate,
Amritsar, Punjab and received Ex.P.8 - transit warrant and then
came to Bengaluru on 27.12.2014 and produced before the PW3
nothing is elicited. Hence, in the entire evidence of PW4 it is
brought on record that he arrested accused No.2 and then
produced him before the PW3.
21. PW1 in his evidence deposed that on 06.09.2014 CW1
appeared before him and lodged the Ex.P.1 first information
statement at 2.30 p.m. He also deposed that as per contents of
Ex.P.1 accused received Rs.1,58,30,000/ from CW1 assuring to
return Rs.3,50,00,000/ within six working days but accused did
not return the same and on the basis of Ex.P.1 registered the
Ex.P.2 first information report. Here, PW1 also deposed that, on
the same day he went to Ashoka Hotel, Bengaluru and conducted
Ex.P.3 - spot panchanama in the presence of CW1 to CW3 and
CW1 had shown the place of incident inside the Ashoka Hotel and
then conducted Ex.P.3 - spot panchanama. He also deposed that,
CW1 to CW3 signed the Ex.P.3 in his presence and he identified
the signatures of CW1 to CW3 at Ex.P.3(b) to Ex.P.3(d).
16 CC.NO.2124/2016
22. Sri.DK, advocate for accused No.1 and Sri.BS, advocate for
accused No.2 crossexamined the PW1 and denied the entire
examinationinchief of PW1. Here, looking at the evidence of PW1
it is clear that PW1 deposed on the basis of Ex.P.1 that accused
induced to invest CW1 Rs.1,58,30,000/ assuring for high returns
of Rs.3,50,00,000/ to CW1 within six working days. Here, PW1
is not the author of Ex.P.1 first information statement or the
victim of the crime. Like that, the PW1 is only an Investigating
Officer who registered the Ex.P.2 first information report and
started investigation. Thereafter it is alleged that PW1 visited the
Ashoka Hotel on 06.09.2014 and conducted the Ex.P.3 - spot
panchanama. But prosecution in order to prove the contents of
Ex.P.3 - spot panchanama it failed to secure and examine the
CW1 first informant and CW2 and CW3 who are witnesses to it.
Hence, PW1 is a Investigating Officer and to support his evidence
and to prove the contents of Ex.P.3 it is mandatory to secure and
examine CW1 who alleged that incident took place in the Ashoka
Hotel and CW2 and CW3 who are witnesses to it. It is also
brought on record in the crossexamination PW1 that he has not
made and cited any of officials of Ashoka Hotel as a witness to
Ex.P.3 spot panchanama. PW1 also not seized and produced any
of photographs, receipt, CCTV footage to show that the incident
took place in the Ashoka Hotel and conducted Ex.P.3 - spot
panchanama. Hence, prosecution absolutely failed to prove the
contents of Ex.P.3 - spot panchanama and Ex.P.1 - first
information statement through the independent witnesses.
17 CC.NO.2124/2016
23. PW3 is Investigating Officer who conducted further
investigation after transfer of PW1. PW3 in his evidence deposed
that he deputed PW4 and directed him to go to Garida Police
Station and produce accused No.2 as he was detained by the
Garida police. Accordingly on 27.12.2014 PW4 produced accused
No.2 before him at 7.00 p.m. Then he conducted the Ex.P.4 -
seizure panchanama in the presence of PW2 and CW5 and seized
passport and mobile phone from the possession of accused No.2.
He also deposed that, accused No.2 gave voluntary statement. He
received Ex.P.6 - statement of account of accused No.2 from the
IndusInd Bank, Bengaluru. He also deposed that, CW1 gave
documents relating to the case and recorded his statements.
Accused No.2 gave his further voluntary statement as per Ex.P.7.
CW1 gave his further voluntary statement as per Ex.P.9 stating
that he would produce the documents in the court. CW1 also
produced photocopy of letter of undertaking and four cheques.
PW3 deposed that he completed the investigation and filed the
charge sheet against accused No.1 and 2. He also deposed that, if
he can see accused No.2 he can identify him. The prosecution in
the evidence of PW3 produced the Ex.P.10 - letter of
undertaking / agreement, Ex.P.11 to Ex.P.14 cheques and
Ex.P.11(a), Ex.P.12(a), Ex.P.13(a) and Ex.P.14(a) Bank memos.
24. Sri.DK, advocate for accused No.1 and Sri.BS, advocate for
accused No.2 crossexamined the PW3 and denied his entire
examinationinchief and took defence that though the accused
18 CC.NO.2124/2016
No.1 and 2 have not committed any of the offences filed false
charge sheet against them.
25. Though PW3 deposed that in the presence of PW2 and CW5
conducted Ex.P.4 seizure panchanama and seized passport and
mobile phone from the possession of accused No.2 but
prosecution had not elicited the contents of Ex.P.4 seizure
panchanama from the mouth of PW2. In the crossexamination
PW2 stated that as per direction of police he signed to Ex.P.4 -
seizure panchanama and he did not know the contents of Ex.P.4.
The prosecution also not secured and examined CW5 who is
witness to it and failed to prove the contents of Ex.P.4 - seizure
panchanama.
26. PW3 is the Investigating Officer but not the first informant or
victim in the present case. PW3 stated that accused No.2 gave his
voluntary statement before him and PW3 in his examinationin
chief deposed about the contents of voluntary statement of
accused No.2 which is recorded on 28.12.2014. In the cross
examination of PW3 it is specifically put the question that accused
No.2 did not sign to voluntary statement dated 28.12.2014 as it
was not stated by him. In the crossexamination PW3 deposed
that he did not know who wrote at voluntary statement of accused
No.2 dated 28.12.2014 as "ಆರರರಪ ಸಹ ಮಡಲಲ ನರಕರಸರಲತತರ"... ಇದನಲ
ನ
ನ ಯರಲ ಬರದದರ ಎಎದಲ ನನಗ ಈಗ ನನಪ ಬರಲತತಲಲ.
ನನನ ಸಮಕಮ ಬರದದರ. ಅದನಲ
Accused No.1 took the defence that on the alleged date of incident
19 CC.NO.2124/2016
dated 21.02.2014 accused No.1 was not at Bengaluru and he did
not meet CW1 at Ashoka Hotel. Here, it is also brought on record
that the alleged voluntary statement of accused No.1 dated
28.12.2014 and Ex.P.7 - voluntary statement of accused No.2
dated 30.12.2014 recorded when accused No.2 was in police
custody. Hence, alleged voluntary statement of accused No.2
dated 28.12.2014 and 30.12.2014 recorded when accused No.2
was in police custody and to the said voluntary statements the
signature or thumb mark of accused No.2 was not present. It is
also brought on record that the said alleged voluntary statements
of accused No.2 recorded in Kannada language and who
translated and read over to accused No.2 is not mentioned in both
statements. It is also important to note that the prosecution got
marked the voluntary statement of accused No.2 dated
30.12.2014 as Ex.P.7 on the ground that the new facts were
discovered and accused No.2 paid Rs.50,00,000/ to accused No.1
and the remaining amount to the wife of accused No.2 by name
Sneemar Kour. But the prosecution in furtherance of said alleged
voluntary statement of accused No.2 in order to prove the fact that
accused No.2 paid Rs.50,00,000/ to accused No.1 and remaining
amount to Sneemer Kour absolutely produced nothing on record
and the prosecution not proved the said facts.
27. In the crossexamination of PW3 stated that during the
investigation CW1 has not produced any receipt, bill or
photographs showing that accused No.1 and 2 and CW1 visited
20 CC.NO.2124/2016
the Ashoka Hotel. PW3 also stated that along with the charge
sheet he had not produced any documents to show that CW1 and
accused No.1 and 2 visited the Ashoka Hotel or examined any of
its employees or produced the CCTV footages to show the same.
PW3 also stated that he has not produced call detail record of
CW1 and accused No.2 in order to show the locations of accused
No.2 and CW1. PW3 also stated that CW1 is having account in
HDFC Bank, Indiranagar. Accused No.2 is having account in
IndusInd Bank, Chandigarh Branch. PW3 admitted that Ex.P.10
- letter of undertaking / bond is of Chandigarh and it was signed
on 21.02.2014. In the crossexamination of PW3 accused No.2
got marked RTGS customer acknowledgement copy as Ex.D.1.
PW3 deposed that Ex.D.1 belong to HDFC Bank Limited,
Chandigarh and it was dated 21.02.2014 at 12.51 p.m. PW3
denied the suggestion that on 21.02.2014 accused No.2 and CW1
at Chandigarh. Here, PW3 admitted that he has not produced any
CCTV footages and call location details of CW1 and accused No.2
in order to show that both of them at Bengaluru. PW3 also stated
that he had not investigated from the account of accused No.2
the alleged amount was transferred to whose account. PW3 also
stated that he had not issued notice to CW1 or the concerned
police to produce Ex.P.10 - letter of undertaking / agreement,
Ex.P.11 to Ex.P.14 cheques and Ex.P.11(a), Ex.P.12(a), Ex.P.13(a)
and Ex.P.14(a) Bank memos. Hence, looking at the evidence of
PW3 along with evidence of PW1 it is the specific defence of
accused that on 21.02.2014 accused No.1 and 2 and CW1 were
21 CC.NO.2124/2016
not present at Ashoka Hotel and only to create jurisdiction to the
High Grounds police it is mentioned in the Ex.P.1 that the alleged
incident took place at Ashoka Hortel. But the prosecution in
order to prove the fact that the alleged incident took place at
Ashoka Hotel it had not secured and examined the CW1 - first
informant and victim and CW2 and 3 the witnesses to the Ex.P.3
- spot panchanama. It is also important to note that the
prosecution has not proved the contents of Ex.P.1 - first
information statement and Ex.P.3 - spot panchanama by
examining CW1 to CW3. It is also important to note that the
prosecution has not produced any of the materials on record to
show that the alleged incident took place at Ashoka Hotel as
alleged in the Ex.P.1 - first information statement or Ex.P.3 - spot
panchanama. Hence, it is brought on record that CW1 is the
resident of Indiranagar and he is having account at HDFC Bank,
Indiranagar and accused No.2 is resident of Chandigarh and he is
having account at IndusInd Bank, Chandigarh. Hence, looking at
these facts and evidence of PW1 and PW3 it prima facie appears
that the High Ground police have no territorial jurisdiction to
register the case and file the charge sheet against accused No.1
and 2.
28. Apart from the said opinion it is also important to note that
the prosecution has not examined the CW1 - first informant and
victim in the case to prove the contents of Ex.P.1 - first
information statement. Here, learned Special PP relied on the
22 CC.NO.2124/2016
evidence of PW1 and PW3 and argued that PW1 and PW3 deposed
how the incident took place and the prosecution produced Ex.P.6
- statement of account and Ex.P.10 to 14 and also in the
statement recorded under Section 313 of Cr.P.C. accused No.2
admitted about the receipt of Rs.1,04,00,000/ from CW1. Hence,
accused No.2 though stated that he returned Rs.1,04,00,000/ to
the CW1 but to show the same he has not produced any of
materials on record as per Section 106 of Evidence Act. Here, it is
also argued that mere non examination of CW1 is not fatal to the
case of prosecution but on the basis of materials on record
accused No.1 and 2 be convicted and in support of his arguments
relied on Krishna Mochi and others Vs. State of Bihar (2002) 6
SCC 81, Deepak Joshi Vs., State of Karnataka, Crl.R.P.
No.471/2011 dated 17.12.2020 and Syed Aneer @ Syed Vs.
State by Arakere PS Crl.R.P. No.852/2010 dated 26.08.2020. I
went through the said decisions. The said decisions are not
applicable to the present facts and circumstances of the case.
Because in the present case is it is alleged that accused No.1
and 2 committed the offence punishable under Sections 406, 420
and 120B of IPC. Hence, to prove the ingredients of criminal
breach of trust and cheating and dishonestly inducing to deliver
the amount the CW1 - first informant or victim is the best
witness. But the decisions relied in support of prosecution is of
offences relating to the Terrorist and Destructive Activities
(Prevention) Act 1987, Section 302 read with Section 149 of IPC. I
23 CC.NO.2124/2016
went through Thulia Kali Vs. State of Tamilnadu, (1972) 3 SCC
393, Bhugdomal Gangaram and others Vs. State of Gujarath
(1984) 1 SCC 319 and Miran Bux Vs. Lalu, 1993 Supp. (3) SCC
379 and ratio laid down in these decisions are applicable to the
present facts of the case because in the present case in order to
prove the case of prosecution is the best witness is CW1 himself
and the prosecution has not examined him even after granting
sufficient opportunity. Hence, under such circumstance the very
non examination of first informant in the present case looking at
the facts and circumstances of the case is fatal to the case of
prosecution. Hence, in the cases like this the court cannot rely on
circumstantial evidence or evidence of Investigating Officer i.e.
PW1 and PW3 to come to the conclusion that accused No.1 and 2
committed the said offences. Hence, under all these
circumstances the decisions relied by the learned Special Public
Prosecutor are not applicable to the present facts and
circumstance of the case and nature of offence and nature of
offence and facts and circumstances of the said decisions are
entirely different from the present case. Here, the prosecution
first of all must prove its case beyond all reasonable doubt and
burden to prove its case is on the prosecution as per Sections 101
to 103 of Evidence Act. Hence, in the present case the
prosecution has not secured and examined CW1 and proved the
fact that accused No.1 and 2 had the meeting of mind and
conspired together in order to commit criminal breach of trust and
24 CC.NO.2124/2016
cheating with dishonest intention received Rs.1,58,30,000/.
Hence, the present case is registered for the offences punishable
under Sections 406, 420 and 120B of IPC and the prosecution
has to prove the facts in issue and ingredients of said Sections but
the prosecution failed to prove the facts in issue and ingredients of
said Sections. Hence, under such circumstance merely stating by
accused No.2 that he received Rs.1,04,00,000/ from CW1 that
itself will not sufficient to prove the facts in issue and ingredients
of said offence and claim for direction to accused No.2 to repay
Rs.1,04,00,000/ and accused No.1 to pay Rs.50,00,000/ to the
CW1 in the present case.
29. It is also brought on record that PW1 and PW3 had no
personal knowledge about the alleged transactions between the
CW1 and accused No.1 and 2. Like that, PW5 and PW6 are
Managers of IndusInd Bank, M.G.Road, Bengaluru and HDFC
Bank, Indiranagar, Bengaluru and they are also not having any
personal knowledge about the transactions between CW1 and
accused No.1 and 2. Hence, the evidence of PW5 and PW6 in no
way helpful to the prosecution to prove the facts in issue and
ingredients of said Sections in the present case. Hence, looking
at the materials placed on record absolutely there is no evidence
available on record to come to the conclusion that accused No.1
and 2 have committed the alleged offence. Hence, prosecution
failed to prove beyond reasonable doubt the charges levelled
against the accused No.1 and 2. Hence, for the above stated facts,
25 CC.NO.2124/2016
circumstances, evidence and reasons I proceed to pass the
following:
ORDER
Acting under Section 248(1) of Code of Criminal Procedure Accused No.1 and 2 are acquitted for the offence punishable under Sections 406, 420 and 120B of Indian Penal Code.
The bail bonds and surety bonds of accused No.1 and 2 shall stand cancelled. (Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 5th day of January 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution: PW.1 : Sridhar PW.2 : N. Obalesh PW.3 : Sirajuddin E.I. PW.4 : Ajay Sarathi PW.5 : Pradesh Damodaran PW.6 : Vijayakumar List of exhibits marked for prosecution: Ex.P.1 : First information statement Ex.P.1(a) Signature of PW1 26 CC.NO.2124/2016 Ex.P.2 : First information report Ex.P.2(a) Signature of PW1 Ex.P.2(b) Signature of first informant Ex.P.3 : Spot panchanama Ex.P.3(a) Signature of PW1 Ex.P.3(b) Signature of first informant Ex.P.3(c) Signature of Mahendra Palwa Ex.P.3(d) Dilip Ex.P.4 : Seizure panchanama Ex.P.4(a) Signature of PW2 Ex.P.4(b) Signature of PW3 Ex.P.5 : Photograph Ex.P.5(a) Picture of passport and mobile Ex.P.6 : Statement of account of IndusInd Bank, Chandigarh Ex.P.7 : Voluntary statement of accused No.2 dated 30.12.2014 Ex.P.7A : Arrest memo cum intimation Ex.P.8 : Transit warrant Ex.P.9 : Statement of CW1 Ex.P.9(a) Signature of PW3 Ex.P.10 : Bond / letter of undertaking Ex.P.11 to Ex.P.14 : Cheque of IndusInd Bank, Chandigarh Branch. Ex.P.11(a) to Ex.P.14(a) : Memos Ex.P.15 : Letter of IndusInd Bank, M.G.Road, Bengaluru.
List of M.Os marked for prosecution: Nil List of witnesses examined on behalf of accused : Nil 27 CC.NO.2124/2016 List of exhibits marked on behalf of the accused: Ex.D.1 : RTGS form (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
28 CC.NO.2124/201605.01.2022 ORDER (Pronounced in open court vide separate order) Acting under Section 248(1) of Code of Criminal Procedure Accused No.1 and 2 are acquitted for the offence punishable under Sections 406, 420 and 120B of Indian Penal Code.
29 CC.NO.2124/2016The bail bonds and surety bonds of accused No.1 and 2 shall stand cancelled.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.