Bangalore District Court
The State Through vs Anthony David Bitto on 16 September, 2022
KABC030269912021
Presented on : 16-04-2021
Registered on : 16-04-2021
Decided on : 16-09-2022
Duration : 1 years, 5 months, 0 days
IN THE COURT OF THE XXXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M,
Bengaluru
Dated this the 16th day of September, 2022
C.C. No . 1211/2019
Complainant : The State through
Police Inspector,
R.T.Nagar Police Station
( By Asst. Public Prosecutor )
--- V/s ---
Accused : Anthony David Bitto
S/o Dr. Lawrence Bitto,
Agedabout 42 years,
2 C.C.No.1211/2019
R/at PNT Quarters, Kavalbyasandra,
R.T.Nagara,Bengaluru city.
(By Sri. KCM Adv.,)
Date of commencement of : 01-01-2016 to 19-08-2018
offence.
Date of report of offence. : 19-08-2018
Arrest of the Accused. : ---
Name of the Informant : A.S.Umesh
Date of commencement of : 18.02.2020
recording evidence.
Date of closing of evidence. : 18.02.2020
Offence complained of : U/Secs.420 of IPC
Opinion of the Judge. : Accused is found not guilty
Date of Judgment : 16-09-2022
XXXII Addl.C.M.M
Bengaluru.
JUDGMENT
The Police Inspector of R.T. Nagar P.S has submitted the Charge Sheet against the accused for the offence punishable Under Sec. 420 of IPC .
3 C.C.No.1211/2019
2. The brief facts of the Prosecution case are as follows:
That the accused were acquainted with C.W-1 Sri A.S. Umesh and the accused in between 01-01-2016 on the pretext of getting a site for C.W-1.near Devanahalli Vijipura obtained a total sum of Rs. 16,90,000/- through cash and amount transfer through NEFT from CW1 A.S.Umesh and his brother CW-3 Santhosh Kumar and failed to get a site for CW-1 and did not repay the amount taken from the C.W-1. and 3. Thereby accused has committed the offence punishable U/Sec. 420 of IPC.
3. On the basis of the Statement of CW-1, the R.T. Nagar Police have registered a case under Crime No.246/2018 for the offences punishable U/s. 420 of IPC against the accused and submitted the FIR before the court. Thereafter investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused for the offence punishable U/Sec. 420 of IPC. On the receipt of the police report, this court has 4 C.C.No.1211/2019 taken cognizance for the said offence.
4. On the appearance of the accused, the accused were enlarged on bail. The copies of prosecution papers were furnished to the accused as contemplated U/Sec.207 of Cr.P.C. After hearing both the parties, the charge was framed against the accused and read over to him. Accused pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused, the prosecution has got examined five witnesses as PW-1 to 5, out of the total charge sheet witnesses as CW-1 to 6 and got marked six documents as Ex.P1 to 6. Learned A.P.P prayed for issuance of summons to C.W.6 in spite of giving sufficient opportunities to I.O to execute summons and NBW, the witnesses have not been secured. Hence, the evidence of C.W.6 is dropped by rejecting the prayer of the learned Assistant Public Prosecutor. After closure of prosecution evidence the accused is examined U/s 313(1)(b) Cr.P.C and each and every circumstance found in the evidence is read 5 C.C.No.1211/2019 over separately to the accused. The accused denied all such incriminating circumstances as false. Accused did not choose to explain anything during his examination. Accused did not choose to adduce defence evidence and no documents are got marked on behalf of accused.
6. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused.
7. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration :
POINTS 1. Whether the prosecution proves beyond all reasonable doubt that the C.W-1 Sri A.S. Umesh and the accused in between 01-01-2016 on the pretext of getting a site for C.W-
1.near Devanahalli Vijipura obtained a total sum of Rs. 16,90,000/-
through cash and amount tansfer through NEFT from CW1 A.S.Umesh 6 C.C.No.1211/2019 and his brother CW-3 Santhosh Kumar and failed to get a site for CW-
1 and did not repay the amount taken
from the C.W-1. and 3 and t hereby
the accused has committed the
offence punishable U/Sec. 420 of
IPC. ?
2. What Order ?
8. My findings to the above Points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
For the following: -
R EAS O N S
9. Point No.1:- It is the allegation that the accused has committed the offence punishable under Section 420 of the IPC.
10. It is the case of the prosecution that, the accused was acquainted with C.W-1 Sri A.S. Umesh and the accused in between 01-01-2016 on the pretext of getting a site for C.W1 near Devanahalli Vijipura obtained a total sum of Rs.16,90,000/- through cash and amount transfer through 7 C.C.No.1211/2019 NEFT from CW1 A.S.Umesh and his brother CW-3 Santhosh Kumar and failed to get a site for CW-1 and did not repay the amount taken from the C.W1. and 3. Thereby the accused has committed the offence punishable U/Sec. 420 of IPC.
11. In order to prove its case, the prosecution has got examined the informant of crime/C.W.1-A.S.Umesh as P.W.1, C.W.2- Smt. Viji.S as P.W-2, C.W.3-A.V.Ravikumar as P.W- 3, C.W-4 Mahesh Iyappa as P.W4, C.W.5 sathish kumar as P.W5.
12. Out of the documents marked for the prosecution Ex.P1 is the complaint, E.X. P2 is the mahazar, Ex.P.3 to 6 are the bank account extracts.
13. In order to constitute an offence of cheating it has to be shown by the prosecution that there was some inducement on the part of the accused person and that the said inducement was made fraudulently or dishonestly with a view to deceive the complainant. It has also to be shown by the prosecution that due to the deception practiced by the accused person, the person so deceived had delivered the 8 C.C.No.1211/2019 property to the accused person or had given consent that the accused persons shall retain the property. Hence the concept of deception should exist from the very start of the transaction. If that is wanting there would not be any criminal offence of cheating.
14. Now let us see with the available materials whether the prosecution would be able to prove the guilt of the accused beyond all reasonable doubt to say that the accused has deceived the complainant fraudulently.
15. In support of the case of prosecution C.W.1/P.W.1-A.S. Umesh in his evidence deposed that he knows the accused and the accused was middleman in the agreement of site and shown the site at Vijipura, Devanahalli and he entered into an agreement with one Manjuntath agreeing to purchase the site for Rs.8,00,000- in the name of his wife and he made all money transaction with the accused and he paid full amount and the accused took them to sub registrar office and completed the procedure and thereafter the accused failed to bring the documents and was not responding properly and 9 C.C.No.1211/2019 the accused avoid the PW2. Further deposed that he has given a sum of Rs. 2,20,000/- to the accused through cheque and on 10.2.2016, 11.02.2016 and on 12.02.2016 he has transferred Rs. 5,80,000/- through NEFT and he has paid Rs.45,000/- at shanthi sagar hotel R.T.Nagar by way of cash and his brother-CW-3 gave Rs.8,45,000/-to the accused and in total he has paid Rs. 16,90,000/- to the accused. The accused failed to give site to them and cheated them. He partially turned hostile. During the course of cross
-examination he denied the suggestion that on 20-08-2018 police visited Shanthi Sagar hotel in R.T.Nagar and drawn mahazar in his presence.
16. CW2-PW2 and CW3-PW3 in their evidence they deposed that they know the accused and the accused proposed to sell a site at Devanahalli and in the year 2016 the accused handed over the documents of the site and failed to respond to them and paid Rs.19,00,000/- to the accused and the accused failed to give site to them. Both of them are treated partially hostile.
10 C.C.No.1211/2019
17. PW4 in his evidence he deposed that he do not know the accused. Relating to the cheating to the C.W1 police have drawn the mahazar in the R.T.Nagar police station. He has signed on the mahazar in the R.T.Nagar Police Station. PW4 fully turned hostile and not supported the prosecution.
18. PW5 in his evidence he deposed that about 7-8 months back police have drawn the mahazar and he has signed the mahazar in the R.T.Nagara Police station. He also tuned fully hostile and not supported the prosecution.
19. The prosecution failed to secure Cw-6 the other witnesses inspite of giving sufficient opportunities.
20. During course of trial, the accused taken up defence of total denial of the case of the prosecution.
21. In the light of above evidence, the learned APP argued that although most of the witnesses have not supported the case of prosecution, yet there is evidence to believe that the act committed by the accused is nothing but cheating there is sufficient material on record to convict the accused. 11 C.C.No.1211/2019 Therefore, he prayed to convict the accused.
22. The learned advocate for accused argued that, the material witnesses to the case of prosecution have not supported the case. There is nothing on record to believe that accused has committed offence punishable U/s.420 of IPC. The prosecution has failed to prove the offence beyond reasonable doubt. Therefore, he prayed to acquit the accused.
23. I have carefully gone through the charges leveled against the accused and also the evidence relied by the prosecution. Pw1 to 3 during their examination-in-chief they have not deposed about the payment made to the accused. They have not deposed about the money transaction made by the complainant. Pw1 to 3 turned partially hostile during their cross examination by A.P.P. they deposed about the transaction between them. Furthermore, during the chief of PW1 he deposed that till today they did not see the accused Manjunath. The mahazar witnesses have completely turned hostile to the case of the prosecution and and denied that they have given statement before police regarding the mahazar conducted by the police. They have signed on the 12 C.C.No.1211/2019 mahazar in the police station.
24. In the decision reported in (2017) 11 SCC 195- Yogesh Singh Vs Mahabeer Singh and others ..At para 15 Hon'ble Supreme Court observed as under:
"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts".
Here, it is worthwhile to reproduce the observations made by Venkatachaliah, ., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:
"25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused 13 C.C.No.1211/2019 person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case".
Keeping the requirement of the above said provisions of law and law laid down in the above said decision in my mind I have carefully examined the evidence placed on record.
25. Looking to the weak type of evidence, there are two possibilities, one pointing towards the guilt of accused and another pointing towards the innocence of the accused. Therefore, looking to the entire material on record, I am of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the accused has committed the offence of cheating within the meaning of Sec 420 of Indian penal code.
26. Though in the Ex.P1- complaint, the complainant made reference about the word cheating and even all the 14 C.C.No.1211/2019 witnesses have uttered the word cheating in their evidence, but there is no any essentials ingredients to constitute an offence under cheating either in the complaint or in the evidence of P.W1 to P.W3.
27. Evidence of PW.1 to 3 does not inspire the confidence to believe their version in full. All these proved fatal to the case of prosecution. The prosecution failed to prove the guilt of accused beyond reasonable doubts and accused is entitled to benefit of doubts. Now on careful analyzing the materials available on record it can be said without hesitation that the prosecution has failed to prove the essential ingredients of section 420 of IPC
28. On careful appreciation of evidence led on behalf of prosecution, it reveals that, none of the witnesses have spoken to with regard to essential ingredients constituting offence for which allegations were made against the accused. Hence, on careful and meticulous appreciation of evidence and considering the totality of circumstances, the prosecution has failed to prove beyond all reasonable doubt that, the 15 C.C.No.1211/2019 charges leveled against the accused persons. Hence, considering the over all circumstances of the case I answer point No.1 in the Negative".
29. Point No.2: - In view of Negative findings on the above points, accused is entitled for acquittal on doubt benefit. Hence, I proceed to pass the following:
O RDE R Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offence punishable U/Sec.420 of the IPC.
Bail bonds of the accused and Surety
bonds shall stand canceled.
Section 437(A) of Cr.P.C. has been
complied.
(Judgment typed to my online dictation by the Stenographer, transcript corrected and signed by me, then pronounced by me in the Open Court on this the 16th day of September 2022).
(Latha. J) XXXII Addl.C.M.M, Bengaluru.16 C.C.No.1211/2019
ANNEXURE List of the Witnesses examined by the Prosecution:
PW-1 A.S.Umesh C.W.1 18.02.2020 PW-2 Viji .S. C.W.2 18.02.2020 PW-3 Santhosh Kumar .R C.W.3 18.02.2020 PW-4 Mahesh Iyappa C.W.4 18.02.2020 PW-5 Satish Kumar C.W.5 18.02.2020
List of the Documents exhibited for the Prosecution:
Ex.P1 : complaint Ex.P1(a) : signature of PW1 Ex.P2 : Mahazar Ex.P.3to 6 : Bank account extract
List of the MOs marked on behalf of the Prosecution:
--Nil--
List of the Witnesses examined for defence:
--Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
XXXII Addl.C.M.M, Bengaluru 17 C.C.No.1211/2019 18 C.C.No.1211/2019 Order pronounced in the open court (vide separate judgment) ORDER Acting U/Sec.248(1) of Cr.P.C.
accused is acquitted of the offence punishable U/Sec.420 of the IPC. Bail bonds of the accused and Surety bonds shall stand canceled. Section 437(A) of Cr.P.C. has been complied. (Latha. J) XXXII Addl.C.M.M., Bengaluru.