Bangalore District Court
Suresh vs B.N. Shivanna on 19 July, 2024
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C.C.No.8178/2002
KABC030025132002
Presented on : 12-08-2002
Registered on : 12-08-2002
Decided on : 19-07-2024
Duration : 21 years, 11 months, 7 days
IN THE COURT OF III ADDL. CHIEF JUDICIAL MAGISTRATE
AT BENGALURU CITY
Dated this Monday the 19th day of July, 2024
Present : Shreyansh Doddamani
III ADDL. C.M.M., BENGALURU.
C.C.No.8178/2002
State by : Jeevanbhimanagar Police Station,
Bengaluru
(Represented by Sr. APP)
V/s
Accused 1. Sri.B.N.Shivanna
S/o Nanjundaiah,
Aged about 31 years,
R/at No.8-6,
3rd Cross,
Muneshwaranagar,
Kadirenahalli,
Padmanabhanagar,
Bengaluru-70.
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C.C.No.8178/2002
2. Sri.Ramalingegowda @
RamegowdaAdv
S/o Chennegowda,
Aged about 42 years,
R/at No.3494, 6th 'A' Cross,
Gayathrinagar,
Bengaluru-21.
(PC No.6310 Sheshadripuram PS)
3. Smt.S.Gowri
W/o Nagaraj,
Aged about 42 years,
R/at No.145,
Ramavilas Road,
Mysuru.
4. Sri.D.Ramesh (Split up)
C/o B.N.Shivanna,
Aged about 29 years,
R/at No.8-6,
3rd Cross,
Kadirenahalli,
Padmanabhanagar,
Bengaluru-70.
5. Sri.N.Raghavendra Prasad
S/o Nagaraja,
Aged about 19 years,
R/at No.145,
Ramavilas Road,
Mysuru.
6. Sri.C.C.Narayana
S/o Cheluvaiah,
Hegganahalli,
Sanjeevininagar,
Bengaluru-91.
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C.C.No.8178/2002
7. Sri.Nanjundaswamy
S/o Nanjundaiah,
Aged about 35 years,
R/at No.49,
1st Cross,
Kadirenahalli,
Bengaluru-70.
(Represented by the accused No.1 in
person, the accused No.2 and 6
Miss.MGM Advocate, the accused
No.3, 5 and 7 Sri.K.N.S Advocate)
Complainant Name : Sri.Suresh Kannan S/o G.K.Kannan
on behalf of Advanta India Limited.
Offences punishable 409, 417, 419, 420, 466, 468, 471 of
under Section Indian Penal Code
Date of Evidence 16.10.2023
Commencing
Date of Evidence Ending 27.05.2024
Charge The Accused No.1, 2, 3, 5, 6 and 7 are
pleaded not guilty
Final Order Accused No.1 and 2 are
convicted and accused No.3, 5,
6 and 7 are acquitted.
Judgment Date 19.07.2024.
(Shreyansh Doddamani)
III Addl., Chief Judicial Magistrate.,
Bengaluru.
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C.C.No.8178/2002
:: J U D G M E N T ::
This Police Inspector of Jeevanbhimanagar Police Station arising out of their Police Station Crime No.58/2002 filed a charge sheet against the accused No.1 to 7 for their alleged commission of offences punishable under section 409, 417, 419, 420, 468, 471, 474 of Indian Penal Code (Herein after shortly called as IPC).
2. On the basis of Police report this Court having taken the cognizance of the aforesaid offences and registered the present case.
3. During the investigation the accused No.1, 3 arrested and brought before this Court, this Court rejected their bail applications and they have got released on bail from the Hon'ble District Court. The accused No.2, 5 to 7 got released on bail from this Court.
4. Soon after the registration of this case the accused No.4 remained absent, the investigating officer not arrested the accused No.4 by showing that he is absconding. In spite 5 C.C.No.8178/2002 of issuance of warrant against the accused No.4, returned unexecuted. The Court having felt that there is no possibility of securing the accused No.4 in near future and passed an order to split up the case against accused No.4. Accordingly, CC No.11533/2024 came to be registered against him.
5. Having supplied the prosecution papers to the accused No.1 to 3 and 5 to 7 and having heard both sides this Court framed the charges against the accused No.1 to 3 and 5 to 7 for the offences punishable under section 466, 468, 417, 419, 471, 420, 409 of IPC. Having understood the charges read over and explained by this court the accused persons pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the above offences has examined seventeen witnesses as PW-1 to PW- 17 out of 60 witnesses cited in the charge sheet. The prosecution has also relied on Ex.P-1 to Ex.P-435.
7. Incriminating circumstance has appeared against the accused persons in the prosecution evidence read over and explained to them. Having understood the same they 6 C.C.No.8178/2002 have given their statement under section 313 of Cr.PC and same has been duly recorded by this court. The accused No.1 examined himself as DW-1 and got marked the documents as per Ex.D-1 to Ex.D-8. The accused No.2, 3, 5 to 7 did not choose to lead defence evidence.
8. The Court has heard the arguments from both sides. The defacto-complainant has filed written arguments.
9. The following points arise for court's consideration, POINTS
1. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 being the legal officer of the complainant company i.e., Advanta India Limited colluding with accused No.2 to 7 with an intention to cheat the complainant's company, from September 2000 to December 2001 created Summons, Notices, Warrants against the complainant's company as pending 631 cases before various Judicial Magistrate First Class Courts in all over Karnataka filed by the Farmers and the said 7 C.C.No.8178/2002 Summons, Warrants served to the complainant's company through accused No.2 who was Police Constable of Vyalikaval Police Station buckle No.6310 and accused No.1 being the Legal Officer of complainant's company with an intention to cheat the complainant's company with the help of other accused persons created the order of Hon'ble High Court of Karnataka as if order passed by Hon'ble High Court of Karnataka as 318 criminal cases filed against the complainant's company had been quashed and thereby committed an offence punishable under section 466 and 468 of IPC?
2. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 along with accused No.2 to 7 with an common intention to cheat the complainant the accused No.1 appointed the accused No.4 and 5 as Advocates for proceeded the above created cases even the accused No.4 and 5 were not an Advocates. The accused No.4 and 5 were acted as Advocates and thereby 8 C.C.No.8178/2002 committed an offence punishable under section 419 of IPC?
3. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 to 7 with an common intention, the accused No.1 being legal officer of complainant's company stated that company had to pay Rs.1,000/- to Rs.3,000/- as an Advocates fees and Rs.10,000/- per case to quash the criminal cases which said to be pending against the complainant's company through criminal petition on the file of Hon'ble High Court of Karnataka and stated that the accused No.3 was the Stamp Vendor and collected the total amount of Rs.71,10,259/- from the complainant's company and thereby committed an offence punishable under section 417 of IPC?
4. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 to 7 during the period of September 2000 to December 2001 created the Summons, Warrants against the complainant's company as if the 9 C.C.No.8178/2002 criminal cases pending before various Judicial Magistrate First Class Courts in all over Karnataka filed by Farmers and also created or forged the order of Hon'ble High Court of Karnataka as if passed by Hon'ble High Court of Karnataka as 318 criminal cases had been quashed and used the said documents as genuine documents even they know that those documents are forged or created and thereby committed an offence punishable under section 471 of IPC?
5. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 to 7 with an common intention the accused No.1 got created the Summons, Warrants as criminal cases filed against complainant's company and created the orders of Hon'ble High Court of Karnataka as if order passed by Hon'ble High Court of Karnataka and having possession those documents known it to be forged and with intending the used of genuine and thereby committed an offence punishable under section 474 of IPC?
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C.C.No.8178/2002
6. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 to 7 with an common intention, the accused No.1 being the legal officer of complainant's company with an intention to cheat the complainant's company, created the orders of Hon'ble High Court of Karnataka as 318 cases had been quashed and collected cheques from complainant's company of Rs.71,10,259/- in the name of accused No.1, 3, 4 and 5 and opened their bank accounts at Vysya Bank Nyayamithra Co-
operative Bank, Saving Bank account in their name and encashed the said amount. The accused No.5 even not an Advocate colluding with accused No.1 and cooperated with accused No.1 and the accused No.6 who was junior Advocate of accused No.1 cooperated to the accused No.1 to commit the above offences and even no criminal cases had been pending against the complainant's company, created cases have been pending and collected total amount of 11 C.C.No.8178/2002 Rs.71,10,259/- through cheque from the complainant's company and thereby committed an offence punishable under section 420 of IPC?
7. Whether the prosecution, beyond reasonable doubts proves that, the accused No.1 colluding with other accused persons with common intention, being a Law Officer of the complainant's company misused his position, created false documents and by helping of other accused persons collected the amount from the complainant's company for the purpose of Court Fees and other fees and misappropriated the said money by purchasing the properties at Kunigal, Padmanabhanagar in his name and in the name of accused No.7 and thereby committed an offence punishable under section 409 of IPC?
10. The court's answer to the above points is as follows;
Point No.1 : Partly in the Affirmative.
Point No.2 : Partly in the Affirmative.
Point No.3 : Partly in the Affirmative.
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C.C.No.8178/2002 Point No.4 : Partly in the Affirmative.
Point No.5 : Partly in the Affirmative.
Point No.6 : Partly in the Affirmative.
Point No.7 : Partly in the Affirmative.
Point No.8 : As per final order for the following;
REASONS
11. It is the specific case of the complainant that Advanta India Limited was private company registered under the Companies Act, 1956 and it was engaged in agricultural business, it was producing and marketing hybrid seeds and was being supply to the Farmers through Distributors under work in Karnataka and across India. The complainant/informant was General Manager Finance and Companies Secretary in Advanta India Limited. The accused No.1 by name B.N.Shivanna was working in the company as Marketing Executive from April 1997 to September 1978. During the period he completed his Law Course and he was appointed as Legal Retainer in the same company from January 1999 to March 2001. Thereafter, he was appointed 13 C.C.No.8178/2002 as Legal Officer of the company. The accused No.1 was working in the Marketing Field as well as Law Retainer and Law Officer therefore he was fully aware about the nature of the business of the company and marketing as well as legal issues. During that period there was some issues in the seeds industry for supply of poor quality to the Farmers. Therefore, the Consumer Forum cases were pending. The accused No.1 had taken disadvantage of the same, on 25.09.2000 the accused No.2 by name Ramalingegowda came to the office along with 41 summons by stating that Hunasur Court issued summons against the company in respect of low quality seeds. The complainant company approached the accused No.1, he came to the office and stated that not accept the summons and he took the accused No.2 outside and came back alone and stated that summons had not been accepted time being and he paid some consideration to the Police by avoiding summons and he said that they had to file criminal petition before the Hon'ble High Court of Karnataka for quashing the criminal cases and fees was Rs.10,000/- per petition and it was required to be paid through Stamp Vendor 14 C.C.No.8178/2002 accused No.3. Accordingly, as per his advise the company made the complaint in the name of accused No.3, who is none other than the mother-in-law of the accused No.1, but he stated that she was Stamp Vendor and fees must be paid through her only. Accordingly, same repeatedly happened on 22.11.2000. The accused No.2 came with 36 summons stating that Hubli JMFC Court issued summons, On18.12.2000 the accused No.2 came with 59 summons stating that Rona, Navalagund and Gajendragad JMFC Courts issued the summons. On 21.12.2000 the accused No.1 gave a memo as complainant company had to pay stamp duty of Rs.44,000/- towards cases pending before the District Consumer Forum. Accordingly, the company issued said amount through cheque on 22.12.2000 in the name of accused No.3. On 29.01.2001 again the accused No.2 came with 23 summons by stating that Chitradurga JMFC Court issued summons. On 06.02.2001 accused No.2 came with 9 summons by stating that Chitradurga JMFC Court issued summons. On 20.02.2001 the accused No.2 came with 27 summons by stating that Bellary JMFC Court issued 15 C.C.No.8178/2002 summons, on 20.03.2001 the accused No.2 came with 44 summons by stating that Sandur Court issued summons. On 17.04.2001 the accused No.2 came with 44 summonses by stating that Mysore and Chitradurga JMFC Court issued summonses. On 01.05.2001 the accused No.2 came with 35 summonses by stating that Periyapattana JMFC Court issued summonses and on 25.06.2001 the accused No.2 came with 39 summonses. On 07.08.2001 the accused No.1 for purpose of recovery suit against Sriram Agro Agency accused No.1 collected Rs.1,27,259/- towards Court fees which actually came to Rs.59,235/-. On 23.08.2001 the accused No.2 came with 69 summons from Navalagund JMFC Court. On 09.10.2001 the accused No.2 came with 49 Warrants/ Summonses from Chitradurga and Raichur JMFC Court out of which he stated that 31 summonses from Chitradurga and 18 summonses from Raichur JMFC Court. On 22.10.2001 the accused No.2 came with 48 Summons/Warrants from Chitradurga and Raichur JMFC Courts out of which 16 summons from Chitradurga JMFC Court and 32 summons from Raichur JMFC Court. On 22.11.2001 the accused No.2 16 C.C.No.8178/2002 came with 39 Warrants/Summons from Hunnur and Naragund JMFC Courts out of 14 summons from Hunnur and 25 summons from Naragunda. On 28.12.2001 the accused No.2 came with 46 summons/warrants from Hunnur JMFC Court. On above dates whenever the accused No.2 came to the company for service of summons or warrants they called the accused No.1 who was legal officer of the company as per his direction on the same day or immediately next day issued cheque as the rate of Rs.10,000/- per case for quashing to file criminal petition, in the name of accused No.3. Totally the complainant company issued Rs.62,54,259/- through account payee cheque as Court fees in respect of 631 criminal cases which are really non in existence. The accused No.1 during that period represented that he had appointed one Mr.N.Raghavendra Prasad Advocate as to defend the cases in 89 cases at Hunnur, 59 cases at Hubli, Ron, 22 cases in Mysore, 75 cases in Piriyapattana and further stated that payment of professional charges for the advocates and as per his written memo on various dates, the accused took the cheques in the 17 C.C.No.8178/2002 name of advocates i.e., accused No.4 to 7 on different dates, accordingly 26.09.2000 took cheque of Rs.1 lakhs in the name of Mr.N.Raghavendra Prasad.
12. The accused No.1 stated to the complainant company that he engaged Advocate by name D.Ramesh accused No.4 for looking after the cases of Chitradurga and Bellary for which as professional charges company had to pay Rs.1,38,500/-. Accordingly, the company issued account payee cheque in the name of accused No.4 on 07.02.2001 and the accused No.1 received the said cheque. Thereafter, the accused No.1 stated name of accused No.6 and for professional charges said to issue cheque of Rs.60,000/-. Accordingly, the company issued cheque in the name of accused No.6 and accused No.1 received the said cheque. The accused on the whole deceived and cheated the complainant company for Rs.2,12,500/- for professional charges for purportedly defending the case in Hubli, Ron, Mysore, Chitradurga, Bellary, Sandur and Raichur. From September 2000 to December 2001 the company in total paid 18 C.C.No.8178/2002 Rs.72 lakhs towards court fee and Advocate fee as per direction of accused No.1. The accused No.1 intimated to the company that the Hon'ble High Court of Karnataka quashed the 318 criminal cases against the accused as per order dated 03.10.2001. If he submitted order copy along with goal setting work sheet to the company and on 12.12.2001 the company reported the same to higher authorities. Thereafter, again in December 2001 the accused No.2 came with some summons of Hunsur Court. Thereafter on suspicious the company officials approached another advocate. Thereafter, on inquired from another advocate it came to know that there was no cases were pending against the company and the order passed by the Hon'ble High Court of Karnataka was not passed the order it was created. With the help of another Advocate the company approached Commissioner of Stamp with respect to the validity of S.Gowri as a Stamp Vendor and they got in writing from the Commissioner of Stamps, there were no Stamp Vendor by name S.Gowri and registration number which mentioned in the receipt dated 27.04.2001 has not been to reached till date. After the investigation 19 C.C.No.8178/2002 reported by another Advocate the company understood that the accused No.1 involving the other accused persons cheated the company and misappropriated the amount of the company. He also came to know that he has also created the order of Hon'ble High Court of Karnataka as 318 criminal cases against the company were quashed as if Hon'ble Justice Sri.Patri Basavanagowda Judge, Hon'ble High Court of Karnataka passed the said order. They came to know that the accused No.4 and 7 were not the actual advocates and thereby the accused have committed the above offences.
13. The accused No.1 after commencement of Trial permission of this Court has been proceeded in person. The accused persons have denied the prosecution case and contended that everything was done by company secretary Sri.Suresh, he has opened the accounts in the name of accused No.3, 4 and in their name issued cheques and withdrawn the money in their name. The complainant/PW-1 colluding with an Advocate Sri.B.K.Sampath Kumar created all the documents and filed false case. Because, the 20 C.C.No.8178/2002 complainant company wanted to purchase a agricultural land which was fertile land and the company had not given proper price to the Farmers. Therefore, the accused No.1 stood with the Farmers against the company. Therefore, the complainant along with Sri.Rajiv Khanna created false documents and filed case.
14. During the arguments the accused No.1 vehemently argued that the complainant has filed private complaint in PCR No.264/2002 without exhausting remedy available under section 154 of Cr.PC. Therefore, as pr Section 154 and as per order of Hon'ble Supreme Court of India in the case of Priyanka Srivatsava And Another Vs. State Of Uttar Pradesh And Others Reported In (2015) 6 SCC 287 and subsequently orders of Hon'ble Supreme Court of India in the case of Babu Venkatesh and Others V/s State of Karnataka and Other, reported in (2002) 5 SCC 639, wherein it is held that prior to filing of the complaint the complainant has to approach the Police file first information statement as required under section 154(1) of Cr.PC. If jurisdictional 21 C.C.No.8178/2002 Police refused to receive the first information statement then the complainant had to approach the higher Police officer as required under section 154(3) of Cr.PC. Thereafter, if the Police had not taken any action, then the complainant along with an affidavit shall file complaint before the Magistrate. But, in the present case the complainant not complied the same. As per the order of Hon'ble Supreme Court of India in the decision of Babu Venkatesh and Others V/s State of Karnataka and Others, the law laid down by the Hon'ble Supreme Court of India in the case of Priyanka Srivatsava And Another Vs. State Of Uttara Pradesh And Others, is retrospective effect and it is mandatory in nature. Therefore, he prayed to dismiss the complaint on the said ground.
15. On the contrary the learned Senior Assistant Public Prosecutor argued that in this regard the accused No.1 already filed criminal petition No.8117/2019 before Hon'ble High Court of Karnataka and it was dismissed on 23.09.2022. The accused preferred SLP before Hon'ble Supreme Court of India SLP (Cri.) 3088/2023, which was 22 C.C.No.8178/2002 also dismissed on 03.03.2023. In Criminal Petition No.8117/2019 order dated 20.04.2023 the Hon'ble High Court of Karnataka had initiated su-moto contempt petition No.5/2023 against the accused No.1 and 5 herein. The accused No.2, 3, 5 to 7 had also filed discharge application before this Court on the same grounds but applications were dismissed. The accused No.1 had also filed discharge application before this Court on the same grounds and and same was dismissed on 19.05.2023. The accused in Criminal Petition No.5926/2022, 7448/2021, 9946/2022, 4582/2023, 5927/2023 and 10676/2023 filed and taken contention that in view of the Priyanka Srivastava and Another Vs State of UP and Others case the present case is not maintainable. But the above petitioner were dismissed. He has also relied on the decisions of Hon'ble Supreme Court of India and also Hon'ble High Court of Karnataka and submits above grounds is not applicable to the case on hand.
16. It is relevant to note here that the above issue raised by the accused person is question of law, therefore 23 C.C.No.8178/2002 before considering the Point No.1 to 7 it is necessary to consider the above point. Therefore, I have taken up the above issue first for consideration.
17. Initially the complainant has filed private complaint before this Hon'ble Court under section 200 of Cr.PC without filing the requisite affidavit and without approaching the jurisdictional Police under section 154(1) of Cr.PC and under section 154(3) of Cr.PC. Thereafter, this Court having heard referred the case to Upparpet Police Station for investigation in exercising power under section 156(3) of Cr.PC. On careful perusal of the complaint, it appears that the complainant has not prayed to refer the case for investigation under section 156(3) of Cr.PC. The complainant prayed to take the cognizance of the offences punishable under section 406, 408, 417, 418, 419, 420, 466, 467, 468, 472, 473, 474, 475, 476 and 484 of IPC and also submitted list of witnesses. It means the complainant has not prayed for investigation by the Police. But, the then Presiding Officer of this Court in exercising power under 24 C.C.No.8178/2002 section 156(3) of Cr.PC referred the matter for investigation. It is to be noted that the question arises whether the Judgment of Hon'ble Supreme Court of India in Priyanka Srivastava and Another Vs State of UP and Others having retrospective affect or operation unless it is stated to be prospective affect or operation. I have gone through the above decision, wherein the FIR was registered on the basis of order passed by the Magistrate in Cr.No.298/2011 with Police station Bailapur District, Varanashi, Uttarpradesh. The said order passed on the basis of application filed under section 156(3) of Cr.PC without compliance of section 154(1) and 154(3) of Cr.PC. Therefore, the Hon'ble Supreme Court of India looking at the growing tendency of invoking section 156(3) of Cr.PC in casual and routine manner that to harass the innocent public servants and to deter the persons acting and discharging the official duties or innocent persons laid down the law that the complainant invokes provision section 156(3) of Cr.PC must be supported by his affidavit and also he must exhausted remedy available under section 154(1) and 154(3) of Cr.PC. It was subjected to the FIR registered in 25 C.C.No.8178/2002 the year 2011 and decided on 19.03.2015 by Hon'ble Supreme Court of India. In the present case on hand the complainant presented the complaint under section 200 of Cr.PC the then Presiding Officer looking at nature of allegations and facts and circumstances of the case referred the matter to the investigation to the jurisdictional Police as provided under section 156(3) of Cr.PC as per vide order dated 19.02.2002. The investigating officer after the completion of investigation filed charge sheet on 01.07.2002. Thereafter, the accused have approached the Hon'ble High Court of Karnataka for quash the case proceedings but the Hon'ble High Court of Karnataka rejected the criminal petitions filed by the accused persons on the ground of the complainant not complied the decision of Hon'ble Supreme Court of India in Priyanka Srivatsava And Another Vs. State Of Uttara Pradesh And Others case is not applicable to this case and it is prospective in nature. They had also filed discharge applications before this Court and same had been rejected. Therefore, looking the section 2D, 200, 156, 154 and 173 and section 190 of Cr.PC and present the facts of 26 C.C.No.8178/2002 the case prior to the decision in Priyanka Srivatsava And Another Vs. State Of Uttara Pradesh And Others case, there is no conditions presented to approach the jurisdictional Police or higher Police officials as provided under section 154(1) and 154(3) of Cr.PC or filing affidavit in support of complaint. The said decision of Hon'ble Apex Court is prospective in nature. In the present case already trial has been completed and it is for Judgment. At this stage the said contention and arguments of the accused persons without prior to filing of complaint under section 200 of Cr.PC the complainant has not approached the jurisdictional Police or not filed affidavit in support of complainant because of this entire proceedings vitiated is not acceptable and holds no water. Hence, only on that grounds it cannot be dismissed at this stage.
18. In the decision of Mallinath Maharaj V/s State of Karnataka and another reported in 2017 (4) KCC 3345, Hon'ble High Court of Karnataka held that the complainant cannot be made to comply the principal laid down in 27 C.C.No.8178/2002 Priyanka Srivatsava And Another Vs. State Of Uttara Pradesh And Others retrospectively. In view of the above discussion this Court is to considered the opinion that the decision of Hon'ble Supreme Court of India in Priyanka Srivatsava And Another Vs. State Of Uttara Pradesh And Others is not applicable to the case on hand. Hence, this Court rejected the prayer of accused persons to dismiss the case that not maintainable as the complainant not complied section 154(1) and 154(3) of Cr.PC.
19. Point Nos.1 to 7 : These points are interlinked to each other, therefore this Court considered these points together for common discussions to avoid repetition of facts and circumstances of the case.
20. In order to bring home guilt of the accused persons the prosecution has examined 17 witnesses as PW-1 to 17 out of 60 witnesses cited in the charge sheet. The Learned Senior Assistant Public Prosecutor given up witnesses CW-5, 22, 25, 33, 40, 42, 48, 53 to 57. The CW-39, 44, 50, 51, 52 were reported died. In spite of issuance of summons bailable 28 C.C.No.8178/2002 warrant, NBW, Proclamation CW-3, 7, 11, 13, 19, 23, 24, 34 to 38, 43, 46, 59 have not been secured. Hence, they were dropped from the examination. And the prosecution relied on Ex.P1 to Ex.P-435.
21. The CW-1 Suresh Kannan S/o Late.G.K.Kannan, who was General Manager Finance and Company Secretary of Advanta India Limited, is the complainant in this case. He was examined as PW-1. He reproduced the case of prosecution in his chief examination. He identified the complaint and his signature on the complaint which is marked as Ex.P-1 and Ex.P-1(a). On the request of investigating officer he produced the documents to the investigating officer. He identified the 74 documents which he was produced. The investigating officer conducted Panchanama and seized the said documents, he witnessed to the Panchanama, he identified his signature on Panchanama, which is marked as Ex.P-2(a). He identified the appointment letter of accused No.1 which is marked as Ex.P-3. Out of 74 documents Exs.P-4, 6, 8, 11, 12, 15, 18, 21, 23, 25, 27, 29, 29 C.C.No.8178/2002 31, 33, 35, 37, 39, 42, 44, 47, 49, 53, 55, 57 are the letters issued by the accused No.1 to the Advanta India Limited time to time for payment of legal fees for filing criminal petitions before Hon'ble High Court of Karnataka in respect of quashing of the criminal proceedings which alleged to have filed against the complainant company by the Farmers. As per his request the company issued voucher for payment in the name of accused No.3 and in some time other accused persons including accused No.1. The Exs.P-5, 7, 10, 13, 14, 16, 17, 19, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 43, 45, 46, 48, 50, 51, 52, 54, 56, 58, 60 are the vouchers. The vouchers shows that the company paid the amount through account payee cheque in the name of accused No.3 and in the name of accused No.4 and 5 regarding cheque issued accused No.4 and 5 as per voucher Ex.P-28 and 29. Remaining of vouchers are concerned to issued the cheque in favour of accused No.3 only and Ex.P-58 is in concerned of issuance of cheque in the name of accused No.6. The PW-1 also produced letter with goal setting work issued by accused No.1 to reporting Rajiv Khanna regarding 318 cases had been 30 C.C.No.8178/2002 quashed which is marked as Ex.P-61. He also identified the documents summary of computer generated statement towards court fee paid to accused No.3, the accused No.1, 4 and 5 which marked as Ex.P-62. The witness identified the cheques issued by complainant's company Advanta India Limited in favour of accused persons which are marked as Ex.P-63 to 69 and 71 to 96. The witness identified his signature on the cheque Ex.P-63 to 68 and 24 cheques and witness identified the receipts issued by the accused No.3 for payment of 28,74,000/- which is marked as Ex.P-99. The letter issued by District Registrar to the company is marked as Ex.P-100. Ex.P-100 reveals that the accused No.3 was stamp vendor and license No.3809/2000 was not available in the office of registrar in the said name. Ex.P-101 is reveals that letter issued by Advocate Association, Bengaluru wherein clearly stated that the receipt of Rs.28,74,000/- issued by one S.Gowri stamp vendor is not belongs to the Advocate Association. They have not appointed any stamp vendor for sale the stamps in the premises of Advocate Association. The receipt is created one. Further submitted 31 C.C.No.8178/2002 that he has produced retainer ship terms of accused No.1 on 19.08.1999 which is marked as Ex.P-103 and retainer ship terms dated 03.02.2000 which is marked as Ex.P-104 and resume of accused No.1 which is marked as Ex.P-105, appointment letter of accused No.1 which is marked as Ex.P- 106 and along with letter to the investigating officer which is marked as Ex.P-107. He identified the said all documents. He also identified the copy of the Judgment of Hon'ble High Court of Karnataka which submitted by accused No.1 to the company i.e., (PW-1) by stating that the Hon'ble High Court of Karnataka quashed the cases against the company which is marked as Ex.P-108. In the cross examination of PW-1 denied the suggestions of the accused No.1 and advocate for other accused persons. He admitted the Ex.D-1 to 3 documents. Ex.D-1 is the pending cases list as on 30.11.1999. Ex.D-2 is the certified copy of Criminal Petition No.114/2001 which discloses that the accused No.1 B.N.Shivanna represented the company before the Hon'ble High Court of Karnataka. Ex.D-3 is the letter issued by accused No.1 to Rajiv Khanna wherein the PW-1 initialed 32 C.C.No.8178/2002 hence his signature i.e., initial is marked as Ex.D3(a), wherein the accused intimated the complainant company that the further proceedings in CC No.122/1997 file of JMFC Court Bellary was set aside. The said handwriting letter in Ex.D-3 and signature Ex.D3(a) and is admitted by the accused No.1.
22. The witness has admitted the Ex.D-4 to Ex.D-7. Ex.D-4 is the certified copy of Power of Attorney executed by one Sri.Deepak Mallick who was the Managing Director of complainant's company Advanta India Limited in favour of accused No.1 Sri.B.N.Shivanna for authorizing the accused No.1 to file suits, complaints and other legal proceedings on behalf of the company. Ex.D-5 and Ex.D-6 are the letters said to have been issued by PW-1 to accused No.1 for which PW-1 stated that the signature on Ex.D-5 and Ex.D-6 is belongs to him but contents of the letters which are in half green sheet have been typed by the accused No.1. When accused No.1 was legal retainer and later legal officer, he used to take his signature on blank legal green sheets for the 33 C.C.No.8178/2002 purpose of cases, he used to attend relating to Consumer Forum in Mysuru and other places, since Managing Director Deepak Mallick was having one side partial stroke related to health issue B.N.Shivanna used to take signature of him when he went to attend the cases on behalf of the company. So contents of letters which are in half green sheet on Ex.D-5 and Ex.D-6 had been typed by the accused No.1 only and he does not know the contents of Ex.D-5 and Ex.D-6. The accused No.1 misused his signature. He further deposed that before Hon'ble High Court of Karnataka also he deposed the same in the proceedings before Hon'ble High Court of Karnataka during the cross examination by advocate for accused No.1 by name Tomy Sebastian. He refused the contents on the letter in Ex.D-5 and Ex.D-6. Ex.D-7 is the certified copy of order sheet in OS No.258/2001 which filed by complainant company Advanta India Limited against Shriram Agro Service Centre.
23. CW-9 V.V.Satya Narayana S/o V.V.S Prakash who was Accounts Manager at Advanta India Limited was 34 C.C.No.8178/2002 examined as PW-2. He deposed that the accused No.1 was employee of Advanta India Limited. He (accused No.1) engaged as a legal officer. He heard that someone person came to the company as a Police Officer and informed about the cases at that time company engaged accused No.1 B.N.Shivanna as legal officer. The accused No.1 told to the management Rs.1,000/- to Rs.2,000/- each cases for payment of advocate fee and Rs.10,000/- per each case is required for quash the cases. Accordingly, the company informed to pay. The company had paid the said amount in different dates to one S.Gowri i.e., accused No.3, B.N.Shivanna i.e., accused No.1, Raghavendra Prasad i.e., accused No.5, D.Ramesh i.e., accused No.4 and Narayana i.e., accused No.6. He prepared the cheques and identified the cheque as per Ex.P-63 to Ex.P-96 and also identified the vouchers as per Ex.P-5, 7, 9, 10, 13, 14, 16, 17, 19, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 43, 45, 46, 48, 50, 51, 52, 54, 56, 58 and 60. He came to know that there were no cases against the company in the JMFC Courts, it was made with an intention to cheat the company. The cheque issued 35 C.C.No.8178/2002 to the accused persons were encashed. The accused No.1 also fabricated the order of Court as cases were quashed. In the cross examination he denied the suggestions.
24. CW-8 Srinivasa Rao S/o P.V.Murthy who was accounts officer of Advanta India Limited was examined as PW-3. He was being a accounts officer as per instructions of superior officers prepared cheque and accounts. Accordingly he prepared cheques as per the vouchers as per Ex.P-5, 9, 10, 13, 14, 16, 17, 19, 20, 22, 24, 26, 28, 30, 32, 34, 36, 41, 45 and 56. He identified the vouchers prepared by him.
25. One M.J.Vasudev Rao S/o Late.M.Jagannath Rao who was Senior Vice President Technology and Quality in M/s.Advanta India Limited was examined as PW-4. He deposed that there were four authorized signatories to signed the cheques. There were four people Managing Directors to the said company namely K.Suresh who was Company Secretary, Rajeev Khanna who was National Finance Manage and himself out of which two were two required to sign on the cheques to pass. Between November 2000 and May 2001 he 36 C.C.No.8178/2002 signed few cheques favouring B.N.Shivanna and others for approved the legal expenses. He came to know that the accused No.1 received Rs.71 lakhs towards legal expenses as appointing advocates in different places for quashing orders at High Court, court fees, miscellaneous expenses and cheated the company. He identified his signature on Ex.P- 74, 77, 78, 82, 89 and 95. Out which Ex.P-74, 77 and 78issued in favour of accused No.3 S.Gowri Ex.P-82, 95 issued in favour of accused No.1 and Ex.P-89 issued in favour of accused No.5.
26. CW-7 Mathew S/o Divyanathan who was Security Supervisor in Advanta India Limited was examined as PW-5. He deposed that his duty was in entrance gate, whenever visitors came he would ask purpose of their visit, then intimate the same receptionist and if receptionist permitted he was allow to go inside to the visitor. He identified the accused No.1 B.N.Shivanna who was working as legal advisor of complainant company. He also deposed that one person came to our company as a Police men i.e., accused No.2 and 37 C.C.No.8178/2002 they used to call accused No.1 then accused No.1 Police person went away along with after one hour the accused No.1 returned to office. The evidence of PW-5 corroborated to the evidence of PW-1 in respect of accused No.2 came to the company by stating that he was a Police and there were summons against the complainant's company from the JMFC Courts.
27. One Rajeev Khanna CW-2 who was Finance Manager and Assistant Company Secretary of Advanta India Limited examined as PW-6. He deposed that he know the accused No.1 but he does not know the accused No.2 to 7. He further deposed that the accused No.1 was in sales department subsequently he was taken as legal retainer. The accused No.1 said various Farmers filed criminal cases against the company and a person came with summons and they can quash the above case in the High Court of Karnataka for that he said the company had to pay Rs.10,000/- per case for quash as a court fee and also Rs.2,000/- each case to the Lawyers. Accordingly, the 38 C.C.No.8178/2002 company management took the note of this and started making payments by account payee cheques. During the audit they asked what was the out come for payment of said cases at that time the accused No.1 produced Hon'ble High Court Order copy as cases against the company had been quashed. Subsequently the accused No.1 requested to make payments. The management decided to what happen and found that order of Hon'ble High Court of Karnataka given by accused No.1 was fake. Then the company took the action Rs.71,00,259/- was released to the accused. He identified his signature on cheques as per Ex.P-63, 64, 66, 67, 68, 69, 71, 76, 79, 94 and 96. he also identified the letters issued by the accused No.1 which are marked as Ex.P-4, 6, 8, 11, 12, 15, 18, 21, 23, 27, 29, 31, 33, 35, 37, 39, 42, 47, 49, 53, 55 and 57. He also identified the vouchers which he signed Ex.P-24, 26, 38, 40, 46, 50 and 56. he also identified Ex.P108 copy of order of Hon'ble High Court of Karnataka which was given by accused No.1. He also identified the goal setting work sheet given by accused No.1, which is also marked as Ex.P-61. He also identified the Ex.P-99 39 C.C.No.8178/2002 documents which was submitted by accused No.1. i.e., receipt issued by accused No.3 S.Gowri but he stated that he has not seen said S.Gowri. In the cross examination the witness admitted the Ex.D1 to Ex.D-4 documents.
28. CW-10 P.M.Nanjappa who was Vice President, Human Resources in Advanta India Limited was examined as PW-7. He deposed that the accused No.1 was initially working as sales officer from April 1997 to September 1998 and then he was appointed as retainer for legal services from January 1999 to March 2001 said that there were 631 cases regarding to complaint on the company and its products. In this regard frequently the Police man used to come to the company with summons and warrants to the Managing Directors. Receptionist at the company used to inform the same to B.N.Shivanna, Suresh and Rajeev Khanna. Only the above all the cases B.N.Shivanna had requested Suresh and Rajeev Khanna to make payments to the advocates i.e., other accused persons of Rs.1,000/-, Rs.3,000/- each per cases and company had to file criminal petitioner before Hon'ble 40 C.C.No.8178/2002 High Court of Karnataka for quash and company had to pay Rs.10,000/- per case. Accordingly, the company totally paid Rs.71,00,259/-. The accused No.1 had produced High Court of Karnataka order dated 03.10.2001 stating that 318 cases have been quashed from the Hon'ble High Court of Karnataka by justice Patri Basavanagouda. Thereafter, it came to know that there were no cases were pending before any of the JMFC Court an also Hon'ble High Court of Karnataka order was produced by the B.N.Shivanna is not genuine. The accused persons have misappropriated the company money and breach of trust. He identified the Ex.P-3, 102, 103, 104 documents which are relating to the appointment of accused No.1 and also identified Ex.P-105, 106 and 108. Ex.P-107 is the letter of resignation dated 16.01.2002 from B.N.Shivanna. He identified the accused No.1. In the cross examination he denied the suggestions and admitted the Ex.P-103, 104 and 61.
29. CW-17 Prasanna S/o Ramegowda who was the Senior Assistant of Nyamithra Co-operative Bank, High Court 41 C.C.No.8178/2002 of Karnataka Branch, Bengaluru was examined as PW-8. He deposed that he knew the accused No.1 B.N.Shivanna. The Nyamithra Co-operative Bank, High Court of Karnataka Branch, Bengaluru started on 25.10.2000. The accused No.1 was having account in the said bank. In the year 2001 the accused No.1 came with his mother-in-law Gowri.S and his wife and opened the account in the name of Gowri.S i.e., accused No.3. One Leelavathi who was accountant of the said bank verified their application and submitted before Chief Manager Shivarudra. Thereafter, the account was opened. The Police asked him to provide statement of account of Smt.Gowri.S for which the then Chief Manager Shivarudra statement along with letter. He identified the said letter which is marked as Ex.P-109. They have also produced the statement of account of accused No.1. He identified the statement of account of accused No.1 and 3, which are marked as Ex.P-110 and Ex.P-111. Ex.P-12 is the explanation of amount from which account credited to the accused No.3 and to whom it was paid. The amount which deposited through cheque of Advanta India Limited 42 C.C.No.8178/2002 transaction are specifically marked after the identification as Ex.P-110(a) to Ex.P-110(j) for more explanation details is given below.
The amount credited to the accused No.1 Exhibits Date Cheque Amount Ex.P-110(a) 03.07.2001 LBC 643 Rs.12,000/- Ex.P-110(a) 03.07.2001 LBC 644 Rs.50,000/- Ex.P-110(c) 09.07.2001 LBC 689 Rs.64,532/- Ex.P-110(d) 11.07.2001 By Cheque Rs.12,000/- Ex.P-110(e) 13.07.2001 By Cheque Rs.5,000/- Ex.P-110(f) 18.07.2001 By Cheque Rs.5,000/- Ex.P-110(g) 23.07.2001 By Cheque Rs.10,000/- Ex.P-110(h) 01.08.2001 By Cheque Rs.14,235/- Ex.P-110(i) 06.08.2001 Through Rs.14,235/-
Cheque Ex.P-110(j) 16.08.2001 By Cheque Rs.15,000/- The amount credited to the accused No.3 Exhibits Date Cheque Amount Ex.P-111(a) 28.08.2001 By cheque Rs.6,90,000/- Ex.P-111(b) 12.10.2001 By cheque Rs.4,90,000/- Ex.P-111(c) 24.11.2001 By cheque Rs.3,90,000/- 43
C.C.No.8178/2002 After deduction of commission Rs.3,89,405/- which is marked as Ex.P-111(d).
30. The above cheques cleared from Vijaya Bank, Indiranagar Branch as per Ex.P63, 64, 65 and 69 and amount has been credited to the account of accused No.3 Gowri.S from Vijaya Bank. PW-8 in his cross examination stated that when they asked the photo of accused No.3 the accused No.1 stated that he will produce tomorrow. He very much new to him. Hence they have not taken photo. He further stated that the accused No.1 submitted the above cheques for clearance to the account of accused No.3 through challan. He identified the account opening forms of above accused persons.
31. The evidence of PW-8 clearly reveals that the accused No.1 well acquainted with PW-8 and the accused No.1 opened the account of accused No.3 and submitted cheques for clearance as stated above.
32. CW-9 Jayaram Hegde S/o Mahabala Hegde who was Assistant Branch Manager of Vijaya Bank, Residency 44 C.C.No.8178/2002 Road Branch examined as PW-9. He deposed that he was work as Assistant Branch Manager from 2001 to 2004 at Residency Road Branch, Vijaya Bank. On 03.04.2002 Jeevan Bhima Nagar Police visited to his branch and asked about the cheques related to the Advanta India Limited. Accordingly, CW-20 directed him to produce the said cheques. Therefore, he produced 22 cheques to the Police. The Police received the cheques and from 1.30 PM to 1.30 PM conducted panchanama and seized the said cheques. He identified the signature on the panchanama and panchanama which is marked as Ex.P113. The 22 cheques are marked as Ex.P-71 to 92.
33. CW-58 Jayaramaiah S/o Gangaiah who was an Advocate was examined as PW-10. He deposed that he was junior Advocate of one Advocate by name Sampath Kumar from 1995. One Advanta India Limited company Secretary by name Suresh came to office of his senior and inquired about 318 cases against the company quashed by High Court of Karnataka and shown the copy of order of High Court of 45 C.C.No.8178/2002 Karnataka which produced by accused No.1. His senior Advocate verified the High Court of Karnataka order and stated that it was forged. His senior called him and his colleague S.P.Sathish and stated that visit to Hubli, Rona, Navalagunda, Naragunda, Chitradurga, Davangere, Hunasuru, Piriyapattana and Mysuru Courts and inquired about whether the cases have been filed against Advanta India Limited. Accordingly, they visited to the said Courts and they came to know that there were no cases against company in the said JMFC Courts. They have verified the CC registers. He identified Ex.P-108 document. In the cross examination he denied the suggestions.
34. CW-18 Jayakara Shetty S/o Late.H.Ananada Shetty who was Branch manager of Vijaya Bank, Indiranagar Branch was examined as PW-11. He deposed that during his tenure Advanta India Limited company's cheques were came to their bank in the name of Gowri.S for clearance and they were encashed. In the month of 2002 Jeevan Bhima Nagar Police came to their bank and inquired about the above 46 C.C.No.8178/2002 cheques. He produced those cheques to the Police and Police seized the said cheques as per Ex.P-114 and he identified his signature on Ex.P-114(a). He also identified PF no.18/2002 which is marked as Ex.P-115. He also identified the cheques which are marked as per Ex.P-63 to 69. He also marked a letter issued by him through a Police which is marked as Ex.P-70.
35. CW-20 Venkappa Hegde S/o Vittal Hegde who was the Chief Manager of Vijaya Bank, Residency Road Branch was examined as PW-12. He deposed that the Police came to his bank on 06.04.2002 and inquired about the Advanta India Limited cheuqes. He produced 22 cheques and they have seized the said cheques as per Ex.P-113 and he identified the cheques which are marked as Ex.P-71 to 92 and he also produced for cheques separately which are marked as Ex.P-93 to 96. He identified the letter issued by him to Police which is marked as Ex.P-116.
36. CW-47 Lakkanna S/o Huchhagangaiah was examined as PW-13 he was official witness. As per the order 47 C.C.No.8178/2002 of PSI Upparpet Police Station he and another Police Constable Shivakumar took the accused No.1 and produced before the PSI. Accordingly, they have identified the accused No.1.
37. CW-41 Syed Asgar Imam who was Assistance Director of FSL Bengaluru was examined as PW-14. He examined the disputed hand writings on Ex.P-4, 6, 8, 11, 12, 15, 18, 21, 23, 25, 26, 29, 31, 33, 35, 37, 39, 42, 44, 47, 49, 53, 55 and 61 letters and the account opening form of Gowri.S i.e., accused No.3 of Vysya Bank i.e., Ex.P-196 and 2 documents annexed with Ex.P-196 are marked as Ex.P196(a) and Ex.P-196(b) and declaration is marked as Ex.P-198 to Ex.P-225 along with admitted signature of accused No.1. He marked the admitted signature and specimen signatures of accused No.1 B, B1 To B3, G, G1 to G3, G1(1), S1, S1(1), P1 to P6 (B.N.Shivanna) and disputed signature got marked as B4, C, C1, to C23, C12(1), C16(1), C18(1) J21(1), J25(1), J27(1), J31(1), J35(1) J37(1), J39(1), J44(1), J46(1) K(1) L20(1) L22(1) L23(1) and L25(1). He opined that who wrote 48 C.C.No.8178/2002 the specimen and admitted signatures also wrote question signatures. It clears that the documents i.e., letters Ex.P4, 6, 8, 11, 12, 15, 18, 21, 23, 25, 26, 29, 31, 33, 35, 37, 39, 42, 44, 47, 49, 53, 55, 61 and account opening form accused No.3 which is marked as Ex.P-196, 196(a), 196(b), Ex.P-197, 28 cheques and withdrawals i.e., Ex.P-198 to 225 were also written by accused No.1. He also verified 75 court summons which are marked as Ex.P-117 to 195. The question writing and signatures marked as D, D24 to D98 and M, M1 to M48, N, N1 to N25 and compared with admitted writings of accused No.1 and opined that for wants of extensive similar write it is as well as extensive contemporary admitted writings. He also verified admitted writings and signatures said to be of accused No.1 in account opening form, specimen signature card and member ship application form of Nyayamithra Co-operative Bank which are marked as F, F1, F2, G, G1 To G3, G1(1) by him and IO the account opening form marked as Ex,P-253 and challan is marked as Ex.P-254 and opined that the admitted signature 49 C.C.No.8178/2002 and disputed signature are belongs to one person i.e., accused No.1.
38. The PW-14 deposed par with the Ex.P-310, 344, 366 which are opined on scientific examination. It clearly reveals that the accused No.1 wrote the applications of account opening forms of accused No.3, the accused No.5 and 6 opened the SB accounts in their names and he had also withdrawn the amount from the account of accused No.3, 5 and 6.
39. CW-60, CW-45 and CW-49 were official witnesses, the investigation officers in this case. They were examined as PW-15, 16 and 17 respectively. They deposed by narrating the manner of conducting investigation and submitted final report.
40. On the contrary after statement of accused persons under section 313 of Cr.PC, the accused No.1 examined as DW-1. In the chief examination he deposed that there were criminal and civil cases before the JMFC Courts in Piriyapattana, Hunasur, Naragunda and they were handled 50 C.C.No.8178/2002 by local Advocates. One P.D.Medappa and Nagaraja and their colleagues were appeared on behalf of company he gave evidence before Civil Courts and Criminal Courts on behalf of company filed by Formers and Department of Agriculture germination cities. In the year 1997 Maja-PAC - 174 DCH 32 Dharwad, Cotton, Hybrid Seeds failed in germination Tebatian peoples at Hunasur, Piriyapattna, Gurupur, Bayalukoppa, Wadiyar Palya made gerav to the office. Then Agricultural Minister Byregowda Joint Director Mallappa and Commissioner of Mysore Police seized the Espaka Agro Distributors Raghavan and sales officer i.e., accused along with one Prabha and Swamy had been taken to custody. Originally sales manager came to Mysore and they compensated the Formers by replacing seeds, fertilizers, labour cost. But also criminal cases filed against them he has also filed NI Act cases, recovers suits on behalf of company for which the company made payment. The above all documents created by K.Suresh and filed this false case etc. In the cross examination he denied the suggestions. 51
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41. The Learned Sr.APP argued that the accused No.1 being the legal officer of Advanta India limited Company created the summons, warrants and served same by accused No.2 as if the various JMFC Courts of Hunasur, Piriyapattana, Mysore, Chitradurga, Hubli, Naragunda, Navalagunda, Rona, Ballary, Raichur and whenever the accused No.2 came to serve the summons or warrants to the office of PW-1, they informed the same to accused No.1, was legal officer. The accused No.1 rush to the office and went with Police i.e., accused No.1 without serving the summons and after few minutes the accused No.1 return to the office and said that he sent back the accused No.2 with small consideration and he advised that they have to file criminal petition for quashing the criminal cases. He further stated that for which the company had to pay Advocate fee Rs.1,000/- to Rs.3,000/- each case and Court Fee of Rs.10,000/- per case for quash. Accordingly the company paid the amount to the accused No.3 as per the advise of accused No.1. The company issued cheques in the name of accused No.3, as a stamp vendor and the advocate fee in the 52 C.C.No.8178/2002 name of accused No.4 to 7. One fine day the accused came to the office and produced the copy of order of Hon'ble High Court of Karnataka as 318 cases have been quashed. Thereafter, it came to know that the accused created the said order of Hon'ble High Court of Karnataka as if the order passed by justice Sri.Patri Basavanagowda Judge, High Court of Karnataka as per Ex.P-108. They further came to CC NO 8178-2002 - 19.07.2024 - JUDGMENT - B.N.Shivanna- FINALknow that they were no cases pending against the company but the accused created the cases and dishonestly received the money in the name of other accused persons and committed the above offences. The concerned Courts have issued the letter to the investigating officer as there were no cases against the complainant's company in their respective courts which are marked as exhibits. As per Ex.P-310, 344, 366 it clearly reveals that the accused opened the accounts in the name of accused No.1, 5 and 6 and submitted the cheques issued by the complainant's company in the name of respective accused persons and withdrawn the money. Totally the accused colluding with other accused persons 53 C.C.No.8178/2002 dishonestly misappropriated an amount of Rs.70 lakhs. The all prosecution witnesses supported to the case and there are documentary evidences which are clearly reveals that the accused have committed the above offences. Hence he sought for convict the accused.
42. The accused No.1 argued that everything was made by PW-1 K.Suresh with the instruction of Advocate B.K.Sampathakumar and Rajeev Khanna. They have opened the accounts in the name of accused No.3, 5, 6 and 7 and withdrawn the money filed false cases by creating the documents. Hence, he sought for acquittal.
43. On careful perusal of the materials on record and prosecution evidence it is an admitted fact that the accused No.1 was appointed as marketing executive initially and he completed his law graduation at evening college and thereafter appointed as legal retainer and thereafter he appointed as law officer. It is also admitted fact that the accused No.3 is none other than the mother-in-law of accused No.1. It is also admitted fact that the accused No.5 54 C.C.No.8178/2002 is the son-in-law of accused No.1 and son of accused No.3. It is also admitted fact that the accused No.7 is the own brother of accused No.1. It is alleged that the accused No.1 created the summons and warrants as if the Farmers filed cases against the Managing Director and Company Secretary of Advanta India Limited and others, the accused No.2 who was Police official, came with summons or warrants to the complainant's company for service, the concerned company officials called the accused No.1 who was law officer, the accused No.1 came to the company advised to the officials that they would not received the summons, he went with accused No.2 and after sometime returned to the company stated that he sent back the accused No.2 Police without receiving the summons or warrants by small consideration. He advised that they had to file criminal petition for quash the said summons. It is repeatedly happened by stating that there were summons of different courts. Out of which Ex.P- 117 to 195 are the created summons. The accused No.1 stated that he appointed the advocates the company had to pay Rs.10,000/- each case for quash and Rs.2,000/- to 55 C.C.No.8178/2002 Rs.3,000/- each case to for advocate fee. He further stated that the amount has to be paid through stamp vendor i.e., accused No.3. Accordingly, the accused No.1 submitted letters as per Ex.P-4, 6, 8, 11, 12, 15, 18, 21, 23, 27, 29, 31, 33, 35, 37, 39, 42, 44, 47, 49, 53, 55 and 57. The company accordingly issued vouchers as per Ex.P-5, 7, 9, 10, 13, 14, 16, 17, 19, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 43, 45, 46, 48, 50, 51, 52, 53 and 56 general vouchers and after issuing of vouchers the concerned officials issued account payee cheques as per Ex.P-63 to 69, Ex.P-71 to 96 in the name of accused No.3, 1, 4, 5, 6. It is relevant to note her that the accused No.1 totally received cheque of Rs.71,10,259/- in the name of other accused persons. The accused No.1 denied the handwriting on letters Ex.P-3, 4, 6, 8, 11, 12, 15, 18, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 42, 44, 47, 49, 53, 55, 57. But the said letters were sent to the FSL for verification of the handwriting and signature of the accused No.1 along with his admitted signatures. The FSL report i.e., Ex.P-310 clearly reveals that the handwriting and signature on above letters and admitted handwriting of 56 C.C.No.8178/2002 accused No.1 have been written by same person. It clears that the handwriting and signature on the above letters are belongs to accused No.1 B.N.Shivanna. The above letters clearly reveals that the accused No.1 wrote a letter to the company for requesting to pay court fee to the 3rd accused and provisional charges to himself and accused No.4, accused No.5, accused No.6 to defend the criminal cases and for filing of criminal petition before Hon'ble High Court of Karnataka to quash the criminal cases supposed to have been filed against the company by Formers across the State of Karnataka. The evidence of PW-14 corroborates Ex.P-310. The issuance of vouchers as per Ex.P-5, 7, 9, 10, 13, 14, 16, 17, 19, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 43, 45, 46, 48, 50, 51, 52, 54 and 56 is not disputed. The issuance of cheque as per Ex.P-63 to 69 and 71 to 96 is also not disputed. The accused No.1 had produced his goal setting work sheet in the year 2001-02 dated 23.09.200 wherein he mentioned that 318 cases had been decided in favour of the company and Hon'ble High Court of Karnataka quashed the cases. The said goal setting work sheet was marked as Ex.P- 57
C.C.No.8178/2002
361. Ex.P-61 also send to the FSL report and which clearly reveals that the handwriting on Ex.P-361 and signature are marked as Ex.P-361(b) is belongs to the accused No.1. Ex.P- 117 to 195 are the summons alleged to have created by the accused No.1 and served by the accused No.2. Ex.P-367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377 are the letters issued by the Hon'ble JMFC Court-1 Hubli, Hon'ble JMFC Court-2 Hubli, Hon'ble JMFC Rona, Hon'ble JMFC Hunasur, Hon'ble JMFC Piriyapattana, Hon'ble JMFC Naragunda, Hon'ble JMFC Navalagunda, Hon'ble JMFC Chitradurga, Hon'ble JMFC Davangere which are clearly reveals that no cases had been existed against or in the name of complainant's company from Managing Director of Advanta India Limited etc. It clearly reveals that Ex.P-117 to 195 summons are fake documents and created documents.
44. The accused No.2 was processing fake summons and warrants against the Managing Director and CEO and other executive of the complainant's company i,e., Advanta India Limited. On the advise of accused No.1 the 58 C.C.No.8178/2002 complainant company issued account payee cheques as suggested by the accused No.1 time to time, for clarification the details given below.
Exhibits Name mentioned Bank Name Cheque Date Amount
in the cheque No.
Ex.P-63 S.Gowri Vijaya Bank 769879 28.12.2001 4,60,000=00
Ex.P-64 S.Gowri Vijaya Bank 769400 22.11.2001 3,90,000=00
Ex.P-65 S.Gowri Vijaya Bank 769180 10.10.2001 4,90,000=00
Ex.P-66 S.Gowri Vijaya Bank 769223 22.10.2001 4,80,000=00
Ex.P-67 C.C.Narayana Vijaya Bank 466824 06.09.2001 52,195=00
Ex.P-68 S.Gowri Vijaya Bank 766672 07.08.2001 1,27,259=00
Ex.P-69 S.Gowri Vijaya Bank 766726 24.08.2001 6,90,000=00
Ex.P-71 S.Gowri Vijaya Bank 139607 07.02.2001 90,000=00
Ex.P-72 S.Gowri Vijaya Bank 139678 20.02.2001 2,70,000=00
Ex.P-73 S.Gowri Vijaya Bank 139543 31.01.2001 2,30,000=00
Ex.P-74 S.Gowri Vijaya Bank 130888 29.11.2000 3,60,000=00
Ex.P-75 S.Gowri Vijaya Bank 090868 25.06.2001 3,90,000=00
Ex.P-76 S.Gowri Vijaya Bank 139813 20.03.2001 4,40,000=00
Ex.P-77 S.Gowri Vijaya Bank 137866 22.12.2000 44,000=00
Ex.P-78 S.Gowri Vijaya Bank 103773 22.05.2001 3,50,000=00
Ex.P-79 S.Gowri Vijaya Bank 137825 18.12.2000 5,90,000=00
Ex.P-80 S.Gowri Vijaya Bank 140720 19.04.2001 4,40,000=00
Ex.P-81 S.Gowri Vijaya Bank 119198 26.09.2000 4,10,000=00
Ex.P-82 B.N.Shivanna Vijaya Bank 130889 29.11.2000 36,000=00
Ex.P-83 B.N.Shivanna Vijaya Bank 139544 31.01.2001 19,500=00
Ex.P-84 B.N.Shivanna Vijaya Bank 139824 21.03.2001 40,000=00
Ex.P-85 B.N.Shivanna Vijaya Bank 130864 23.11.2000 21,000=00
Ex.P-86 B.N.Shivanna Vijaya Bank 139679 20.02.2001 20,000=00
Ex.P-87 B.N.Shivanna Vijaya Bank 137824 18.02.2000 59,000=00
Ex.P-88 N.Raghavendra Vijaya Bank 140785 07.05.2001 66,430=00
Prasad
Ex.P-89 N.Raghavendra Vijaya Bank 103776 22.05.2001 47450=00
Prasad
Ex.P-90 D.Ramesh Vijaya Bank 139579 27.02.2001 38,272=00
Ex.P-91 D.Ramesh Vijaya Bank 140651 06.04.2001 47,250=00
Ex.P-92 D.Ramesh Vijaya Bank 139615 07.02.2001 45,360=00
Ex.P-93 Your self G ForVijaya Bank 11997 26.09.2000 6,15,873=00
DDS
Ex.P-94 N.Raghavendra Vijaya Bank 103933 20.06.2001 47,450=00
Prasad
Ex.P-95 B.N.Shivanna Vijaya Bank 137867 22.12.2000 6,000=00
Ex.P-96 Your self For DDS Vijaya Bank 137950 03.01.2001 1,63,485=00
59
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45. The accused No.1 was opened accounts in various banks by doing the KYC where the companies cheque were deposited and amounts withdrawn by the accused No.1. Ex.P-196 is the account opening form of accused No.3 in Vysya Bank and Ex.P-226 is the account opening form of accused No.3 in Nyaya Mithra Co-Operative Bank. Ex.P-250 is the account opening form of accused No.1 B.N.Shivanna in Vysya Bank and Ex.P-253 is the account opening form of accused No.1 in Nyaya Mithra Co-operative Bank. Ex.P-311 is the account opening form of accused No.5 in Vysya Bank. Ex.P-345 is the account opening form of C.C.Narayan i.e., accused No.6 in Nyaya Mithra Co-Operative Bank. The investigation officer had taken the hand writings of accused No.1 and send to FSL along with disputed handwriting signatures of account opening forms, declaration etc., of accused No.1, 3, 5 and 6. As per the FSL report Ex.P-344 and Ex.P-366 are clearly reveals that the accused No.1 was written the said account opening forms and declaration. It clears that the accused No.1 was opened the bank account in the name of accused No.3, 5, 6 and in the name of accused 60 C.C.No.8178/2002 No.1 himself also. The evidence of PW-14, 15 and 8 corroborated with the above documents. Ex.P-198 to Ex.P- 225 are the withdrawals those documents clearly reveals that cheques issued in the name of accused No.3 withdrawn at Vysya bank from the account of accused No.3 and Ex.P-28 to 249 are the withdrawals of cheques issued in the name of S.Gowri at Nyayamithra Co-operative Bank. The handwriting of accused No.3 and handwriting of accused No.1 sent to FSL for expert's opinion in respect of disputed hand writings on above withdrawals. As per the report Ex.P-310 it clearly reveals that the accused No.1 withdraw the amount in the name of accused No.3. The handwriting expert's in his report Ex.P-310 clearly stated as under.
1. The person who wrote the admitted and specimen signatures marked as B, B1 to B3, G.G.1 to G.3, G1(1), S1,S1(1), P1 to P6 (B.N.Shivanna) also wrote the questioned signatures marked as B4, C, C1 to C23, C12(1), C16(1), C18(1), J3(1), J5(1) 61 C.C.No.8178/2002 J11(1), J21(1) J25(1), J27(1), J31(1), J35(1), J37(1), J39(1), J44(1), J46(1), K(1), L20(1), L22(1), L23(1), L25(1).
2. The person who wrote the specimen and admitted signatures and writing marked as Y1 to Y12 and V1 to V6 (S.Gowri), didn't write the questioned signatures marked as J, J1 to J48, L, L1, L(1), L1 to L40.
That above opinion clearly reveals that the accused No.1 withdraw the amount from the account of accused No.3.
46. Accordingly, the handwriting of account opening form, declaration of accused No.1 Ex.P-250, 251, 252 specimen signature card as per Ex.P-251 at Vysya Bank and account opening form and challan of Nyaya Mithra Co- operative Bank Ex.P-253 and 254 also sent to FSL for investigating officer for the opinion of handwriting expert's accordingly the PW-14 as per Ex.P310 submitted report as under.
62
C.C.No.8178/2002 The person who wrote the admitted and specimen writings marked as R19 to R24, F, F1, F2, S1, S4, S91, S92, (B.N.Shivanna) also wrote the questioned writings marked as J, J1 to J48, L, L1, (1), L1 to L40.
It clearly reveals that in the name of himself also the accused opened account and withdrawn the money.
47. Accordingly, the investigating officer the account opening form of accused No.5 i.e., Raghavendra Prasad, is nothing other than the son in law of accused No.1 and pay slips, specimen signature card i.e., 7 withdrawals as per Ex.P-311 to 323 along with specimen handwriting signature of Raghavendra Prasad in Ex.P-324 to 334 12 sheets and specimen handwriting and signature of accused No.1 B.N.Shivanna Ex.P335 to 344 sent to FSL. The PW-14 examined and issued opinion as per Ex.P-344 as under.
1. The person who wrote the specimen writings marked as CD-1 to 63 C.C.No.8178/2002 CD-5, AB-1 to AB-6 (Raghavendra Prasad) didn't write the questioned writings marked as EF-1 to EF-14, EF-13(1), EC-1 to EC-17.
2. The person who wrote the specimen and admitted writings marked as AC-1 to AC-6, AE-1 to AE-
5 (B.N.Shivanna) also wrote the questioned writings marked as EC-1 to EC-17.
3. The person who wrote the admitted and specimen signatures marked as AE-6 to AE-10 (B.N.Shivanna) also wrote the questioned signatures marked as EC-
13(1), EC-14(1), EF13(2).
It clearly reveals that the accused No.1 only opened the account in the name of accused No.5 and withdraw the amount from the account of accused No.5. 64
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48. As per Ex.P-366 it clearly reveals that the accused No.6 C.C.Narayana opened account in his name and he withdraw the amount whenever cheques issued in his name. The above documents clearly reveals that the accused No.1 in the name of accused No.3 and 5 opened the account at Nyaya Mithra Co-operative Bank and Vysya Bank and withdraw the amount by using withdrawals as per the cheques issued by the complainant's company in their names. It is admitted fact that the accused No.5 was not an Advocate. At the time of opening of account in the name of accused No.5 he was not attained the age of majority. But the accused No.1 showed his name as an Advocate and received cheque in his name as Advocate fee and withdrawn in his name. It clearly reveals that the accused No.1 created the summons of various Courts and used the accused No.2 for service of summons, warrants and even there were no criminal cases were pending against the complainant's company in any Courts I..e, Hunasur, Piriyapattana, Davangere, Chitradurga, Mysuru, Hubli, Rona, Navalagunda, Naragunda, Bellary and Raichur etc but the accused No.1 created the documents 65 C.C.No.8178/2002 accused No.3 stamp vendor and accused No.4 and 5 were Advocates and received cheque in their names as stated above and withdraw the amount in their name.
49. Apart from that the accused created and counterfeited officials seal of the Hon'ble High Court of Karnataka in Ex.P-108. The accused No.1 created order of Hon'ble High Court of Karnataka as per Ex.P-108 as if the order passed by the Hon'ble Justice Sri.G.Patri Basavanagowda, Judge, High Court of Karnataka as all the non existing 318 criminal cases had been quashed. It clearly shows that the deliberate and fraudulent intention of the accused No.1. It is a serious offence. The accused tampering and created the order of Hon'ble High Court of Karnataka. Admittedly, in this regard Hon'ble High Court of Karnataka registered CCC (Crl) No.12/2002 and the complainant also filed contempt to petition in CCC (Crl) No.7/2002 wherein the accused was convicted with simple imprisonment for a period of six months along with fine amount. The evidence of prosecution i.e., oral evidence of PW-1 to 17 corroborated 66 C.C.No.8178/2002 with documentary evidence Ex.P-1 to 435. The above documents are clearly reveals that the accused No.1 with an intention to cheat the complainant's company created the summons even there were no criminal cases existed against the complainant's company and used the accused No.2 as service of summons and opened the account in the name of accused No.3 and 5 and by requesting the letters by misguiding the complainant's company received total amount of Rs.72,10,259/-. The accused No.1 withdraw the money and purchased the property in his name and in his brother name. There was no specific allegation against the accused No.3 to 7. During the arguments it came to know that the accused No.5 was minor during the commission of offence. The accused No.5's date of birth is 23.06.1983. The accused No.1 issued a letter as per Ex.P-6 and 35 requesting the payments to accused No.5 for non existence of cases as he was an Advocate even he was minor. The accused No.1 opened account in the name of accused No.5 at Vysya Bank, Nyaya Mithra Co-operative Bank and as per Ex.P-314, 320, 322 and 323 the accused No.1 withdraw the amount in the 67 C.C.No.8178/2002 name of accused No.5. The accused No.5 admittedly being a major on the date of above offences and same being a continuing offences and the accused No.5 from 2001 to till 2024 no claimed as he was juvenile and split the case against him and continued before the Juvenile Justice Board. The accused No.5 had filed application during the end of case in the year 2024 i.e., application under section 9 of Juvenile Justice Court and Production of Children Act, 2015, and not processed the said application on 23.02.2004, he unconditionally not pressed. But again during the arguments he raised the same question. Admittedly the accused No.5 was minor and attained majority on 22.06.2001 i.e., during the continuation of offences. In the account opening form the accused No.5 mentioned his date of birth as 28.09.2000 as per Ex.P-311. Even it considered as he was minor he attained majority on 23.06.2001 which the offence continued till 23.09.2002. In this regard the Learned Sr. APP relied decision of Vikas Choudhary V/s State of NCT of Delhi reported in 2010 (8) SCC 508 and Joginder @ Mintu V/s State of Government of NCT of Delhi reported in LAWS (DLH) 68 C.C.No.8178/2002 2018 (10) 395 Division Bench and Abhay Singh Thakure Vs State of Chhattisgarh reported in 2022 Criminal Law Branch 1961, wherein the Hon'ble Apex Court and High Court of Delhi observed that for determining the age of accused with regard to Juvenile the entire period of commencing of offences is relevant and in terms of section 472 of the Code of Criminal Procedure, when any offence is committed by Juvenile during the continuation of the offences, the Juvenile becomes major, he cannot claim the benefit of Juvenile and never major comes into play. He further argued that the offence committed by the accused No.5 having continued even after he attained majority he cannot claim any of the ground that he was juvenile. It is relevant to note here that the law laid down in the above decisions applicable to the case on hand and in the present case also the accused No.5 during the commission of offences attained majority and he has not claimed Juvenile. But there is no evidence against the accused No.5 to show that he was directly involved in the case. As per the prosecution evidence and documents the accused No.1 did everything in the name of accused No.5 and 69 C.C.No.8178/2002
3. The accused No.3 being a mother-in-law of accused No.1, was innocent lady signed as per direction of accused No.1. Accordingly the accused No.5 who is none other than the son-in-law of accused No.1, the accused No.1 used his name opened account in his name and withdrawn the amount himself in the name of accused No.5. Therefore, there was no evidence against the accused No.3 and 5 for a commission of above offences.
50. In order to establish section 409 of IPC the prosecution must be established the accused was entrusted with property dominion over the property for the following capacities.
1. Public servant, the accused holds a position as public servant was
2. The accused was engaged in the business of banking or the accused was engaged in the business of buying and sale of goods or 70 C.C.No.8178/2002
3. the factor i.e., agent entrusted with managing of property or act behalf of company or
4. broker i.e., accused act as a broker facilitating transactions between the progress or
5. Attorney, the accused is a attorney proceeded with property or agent the accused acts as a agent representing the interest of another party i.e., complainant company and with an intention to committed criminal breach of trust misused the property dishonestly.
In the present case on hand the accused No.1 being an employee i.e., Law Officer of the complainant's company misused his position committed with an intention to cheat the company created documents and received cheques in the name of other accused persons and himself and withdrawn the amount and misappropriated the said money. Admittedly 71 C.C.No.8178/2002 the accused No.1 was entrusted with management of cases on behalf of complainant's company. Whether the question arises whether the Law Officer or Law Retainer is coming under the meaning of public servant or banker or merchant or factor or broker or attorney or agent. The accused not coming under the meaning of public servant or merchant or factor or broker. But as per Ex.D-4 the accused was attorney holder of the complainant company and filed case on behalf of company and also given evidence on behalf of company, when he was law retainer as well as law officer. But in the present case the accused was being a legal officer entrusted with management of entire work related to law, to appear on behalf of company and in any cases and to file cases on behalf of company, to appear in the case which filed against the company by any other persons and he was also entrusted to appoint any advocate to appear on behalf of company in any case. But the accused misused the position and created the documents and dishonestly the funds of the company for his own benefit but section 409 of IPC is not attracted, section 408 of IPC is attracted to the case on hand. But no 72 C.C.No.8178/2002 charge was framed for the offence punishable under section 408 of IPC. It is relevant to note here that a charge under the Code of Criminal Procedure is required to be framed to given a clear notices to the accused persons about the definite charges under which he is going to be tried by the Court. When the charges was framed in the present case against the accused on 14.07.2023, admittedly it was framed only for the offences punishable under sections 409, 466, 468, 417, 419, 471, 474, 420 of IPC. The section 409 of IPC is criminal breach of trust by public servant or by banker, merchant or attorney holder or agent committed breach of trust. Section 408 of IPC criminal breach of trust by clerk or servant or any of the employee committed breach of trust. The section 409 of IPC is punishable with imprisonment for life or with imprisonment of either description for term it may extend up to 10 years and shall also liable to fine but section 408 of IPC is punishable with imprisonment of either description for term which extended to 7 years and shall also liable to fine. As such section 409 of IPC is major section 408 of IPC is minor section. Now we have to consider as what is the effect 73 C.C.No.8178/2002 of omission of frame the charge? In order to see the same, it is just and proper to refer the section 464 of Cr.P.C which reads as under;
464 of Cr.PC: Effect of omission to frame, or absence of, or error in, charge,-
1. No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
2. If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may 74 C.C.No.8178/2002 A. in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. B. in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit;
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
51. On careful perusal of the above provision, mere non framing of the charge would not vitiate the entire case and even without framing the charge of minor offences the court can convict the accused with minor offences if a frame charge of major offences. Therefore, in the present case on hand even charge was not framed for the offences punishable 75 C.C.No.8178/2002 under section 408 of IPC the accused can be convicted for the offences punishable under section 408 of IPC because the charge was framed for offences punishable under section 409 of IPC which is major one.
52. Section 408 of IPC or 409 of IPC are not attracted to the accused No.3 to 7. The accused No.2 is concerned admittedly the accused No.2 was Police official, he was constable but even there were no cases against the complainant's company accused No.2 on the direction of accused No.1 came to the office of complainant for service of summons and warrants as if there were summons and warrants against the complainant's company by misusing his position of Police and he committed the offence punishable under section 417 of IPC.
53. The accused No.2 with direction of accused No.1 intentionally even there were no cases against the complainant's company came up with created summons with fraudulent or dishonest intention even he know that no cases were pending against the complainant's company and 76 C.C.No.8178/2002 thereby help to accused No.1 to deceive fraudulently and dishonest intention the amount of Rs.72,10,259/- in the name of other accused persons and thereby committed the offence punishable under section 417 of IPC.
54. There were no oral either documentary evidence against the accused No.3 to 7. Even the major amount has been issued in the name of accused No.3, the accused No.1 received the said amount in the name of accused No.3. Either prosecution witnessed identified the accused No.3 to
7.
55. In order to establish for the offences punishable under section 420 of IPC, the prosecution has to established the following ingredients.
(i) Fraudulent or dishonest inducement by the person deceiving and to deliver the property.
(ii) Decide to cause the inducement some one.
(iii) The inducement so caused was intentional. 77
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(iv) The person induced, committed or omitted to do something that they would not have done otherwise.
(v) The act or omission either caused or was likely to cause damage or harm to the person induced in their body, mind, reputation or property.
56. In order to comply Section 420 of IPC, namely cheating and dishonestly inducing delivery of property, ingredients of Section 415 of IPC have to be satisfied. To constitute an offence of cheating under section 415 of IPC, a person should be induced, either in fraudulently or dishonestly, to delivery any property to any person, or concerned that any person shall retain any property. Thus, the sign quo non of Section 415 of IPC is "Fraudulent", "Dishonestly", or "Intentionally Inducement", and absence of these elements would debase the offence of cheating.
57. In the present case the accused No.1 with an intention to cheat the company crated summons, created orders of Hon'ble High Court of Karnataka as per Ex.P-108 78 C.C.No.8178/2002 and opened the account in the name of accused No.3, 5 and received cheques from complainant's company and withdrawn the amount by making false representation. Thereby committed the offences punishable under section 420 of IPC.
58. The prosecution in order to established the offence punishable under section 466 of IPC, has to established, the accused forges documents related to the Court of justice or purporting to be record or proceedings of in a court of justice, or register of birth, marriage, burial, register kept by public servant or certificate or documents purporting to be made by a public servant in his official capacity or any authority to institute by defenders suits or to take any proceedings there in or to confess Judgment or Power of Attorney etc. In the present case on hand as already discussed above the accused No.1 created summons as per Ex.P-117 to 195 even there were no criminal cases pending against the complainant company. The accused No.1 forged the above documents as if there were summons or warrants against the complainant's 79 C.C.No.8178/2002 company. Apart from that the accused also created order of Hon'ble High Court of Karnataka as if Hon'ble Justice Sri.G.Patri Basavanagowda Judge, High Court of Karnataka passed an order as per Ex.P-108 as 318 cases against the complainant's company were quashed. Thereby the accused No.1 committed the offence punishable under section 466 of IPC.
59. The prosecution in order to established the offence punishable under section 468 of IPC has to established the following ingredients ;
The document or electronic record is forged. The accused forged the document or electronic record intending to the forged document would be used for purpose of cheating.
60. The accused by creating Ex.P-117 to Ex.P-195 documents and also opened the accounts in the name of accused No.3, 5 and with draw the amount from their 80 C.C.No.8178/2002 account as if the accused No.3 and 5 withdraw the amount and thereby committed the offence punishable under section 468 of IPC.
61. The accused No.1 having possession of the said alleged order of Ex.P-108 and summons Ex.P-117 to 195 committed the offences even knowing that the said documents were forged documents and intending that to use the said documents fraudulently or dishonestly as a genuine and thereby committed offence punishable under section 474 of IPC. The accused No.1 used the said Ex.P-108 and 117 to 195 as a genuine and thereby committed offence punishable under section 471 of IPC.
62. Regarding accused No.6 is concerned he was an Advocate and he appeared in OS No.6508/2001 on behalf of Advanta India Limited Vs Sri Ram Agro for which he had received fees. There were no specific allegation against the accused No.6 as he was directly involved in the above offences with accused no.1. On careful perusal of the prosecution evidence and documentary evidence no specific 81 C.C.No.8178/2002 allegation against the accused No.6 and there is no role of this accused in the above commission of offences.
63. Regarding accused No.7 is concerned he is none other than the own brother of accused No.1 and the accused No.1 purchased the properties in the name of himself and accused No.7. Except that allegation no other allegation against the accused No.7. Even property purchased in the name of accused No.7 by the accused No.1 it is not an offence and there is no documents and no evidence to show that the accused No.7 was involved in the above commission of offences.
64. On consideration of facts and circumstances, oral and documentary evidence, the prosecution established chain of events against the accused No.1. The oral evidence corroborated with documentary evidence. It clearly reveals that intention of the accused No.1 beginning from the transaction and accused No.1 committed offence punishable under section 408, 419, 417, 420, 468, 466, 471, 474 of IPC. The accused No.2 committed the offences punishable under 82 C.C.No.8178/2002 section 417 of IPC. The prosecution beyond reasonable doubts proves that the accused No.1 committed the offences 408, 419, 420, 468, 466, 471, 474 of IPC and accused No.2 committed the offences punishable under section 417 of IPC. There is no evidence against the accused No.3, 5 to 7 for the above commission of offences. The facts and circumstances of the case there is no evidence of involvement of accused No.3, 5 to 7.
65. The prosecution has failed to establish common object of accused No.3, 5 to 7 along with accused No.1, but established above offences against accused No.1 and 2.
66. The evidence of prosecution witnesses and documentary evidence is sufficient to believe the prosecution case. The prosecution has proved guilt of the accused person No.1 and 2 beyond reasonable doubt. Therefore, this Court has answered Point No.1 to 7 partly in the affirmative.
67. Point No.8: In the result, I proceed to pass the following:
83
C.C.No.8178/2002 ::ORDER::
In exercising the powers conferred under Section 248(2) of the Criminal Procedure Code the accused No.1 is found guilty for the offences punishable under section 408, 419, 420, 466, 468, 471, 474 of Indian Penal Code. In exercising the powers conferred under Section 248(2) of the Criminal Procedure Code the accused No.2 is found guilty for the offences punishable under section 417 of Indian Penal Code.
In exercising the powers conferred under Section 248(1) of the Criminal Procedure Code the accused No.2 is hereby acquitted for the offences punishable under section 408, 419, 420, 466, 468, 471, 474 of Indian Penal Code. 84
C.C.No.8178/2002 In exercising the powers conferred under Section 248(1) of the Criminal Procedure Code the accused No.3, 5 to 7 are hereby acquitted for the offences punishable under section 408, 417, 418, 419, 420, 466, 468, 471, 474 of Indian Penal Code.
The personal bonds and surety bonds of accused No.3, 5 to 7 are hereby stand canceled. They are set at liberty. They are directed to comply section 437 (A) of Cr.P.C.
Hearing on sentence of accused No.1 and 2.
(Dictated to the stenographer, transcribed by him on computer, corrected, then signed and pronounced by me in the open court on this the 19th Day of July, 2024).
(Shreyansh Doddamani) III Addl., Chief Judicial Magistrate., Bengaluru.85
C.C.No.8178/2002 ::ANNEXURE::
1. List of witnesses examined for the prosecution:
PW-1 : Sri.Suresh Kannan;
PW-2: Sri.V.V.Satya Narayana; PW-3: Sri.Srinivasa Rao;
PW-4: Sri.M.J.Vasudev Rao;
PW-5: Sri.Mathew;
PW-6: Sri.Rajiv Khanna;
PW-7: Sri.P.M.Nanjappa;
PW-8: Sri.Prasanna;
PW-9: Sri.Jayaram Hegde;
PW-10: Sri.Jayaramaiah;
PW-11: Sri.Jayakara Shetty;
PW-12: Sri.Venkappa Hegde;
PW-13: Sri.Lakkanna;
PW-14: Sri.Syed Asgar Imam;
PW-15: Sri.Meer Arif Ali;
PW-16: Sri.K.Nanjunde Gowda; PW-17: Sri.Jayaram.H .
2. List of documents marked for the prosecution: 86
C.C.No.8178/2002 Ex.P-1: Private Complaint dated 18.02.2002.
Ex.P-2: Panchaname Ex.P-2(a to c): Signatures Ex.P-3 : Letter dated 03.02.2000 to Mr.B.N.Shivanna issued by Advanta India Limited; Ex.P-4: Handwritten letter dated 25.09.2000 to Company Secretary Ex.P-5: Journal Voucher of Advanta India Limited dated 26.09.2000 Ex.P-6: Handwritten letter dated 23.09.2002 to Company Secretary Ex.P-7: Journal Voucher of Advanta India Limited dated 26.09.2000 Ex.P-8: Letter dated 29.11.2000 to Company Secretary issued by B.N.Shivanna Ex.P-9: Journal Voucher of Advanta India Limited dated 29.11.2000 Ex.P-10: Journal Voucher of Advanta India Limited dated 29.11.2000 Ex.P-11 and 12: Handwritten letter dated 18.12.2000 Ex.P-13 and 14: Journal Voucher of Advanta India Limited dated 18.12.2000 87 C.C.No.8178/2002 Ex.P-15: Handwritten letter dated 21.12.2000 Ex.P-16 and 17: Journal Voucher of Advanta India Limited dated 22.12.2000 Ex.P-18 : Handwritten letter dated 29.01.2000 Ex.P-19 and 20: Journal Voucher of Advanta India Limited dated 31.01.2001 Ex.P-21 : Handwritten letter dated 23.09.2002 Ex.P-22: Journal Voucher of Advanta India Limited dated 07.02.2001 Ex.P-23 : Handwritten letter dated 08.02.2001 Ex.P-24: Journal Voucher of Advanta India Limited dated 07.02.2001 Ex.P-25 : Handwritten letter dated 23.09.2002 Ex.P-26: Journal Voucher of Advanta India Limited dated 20.03.2001 Ex.P-27 : Handwritten letter dated 27.03.2001 Ex.P-28: Journal Voucher of Advanta India Limited dated 04.04.2001 Ex.P-29 : Handwritten letter dated 23.09.2002 Ex.P-30: Journal Voucher of Advanta India Limited dated 19.04.2001 88 C.C.No.8178/2002 Ex.P-31 : Handwritten letter dated 23.09.2002 Ex.P-32: Journal Voucher of Advanta India Limited dated 07.05.2001;
Ex.P-33 : Handwritten letter dated 23.09.2002 Ex.P-34: Journal Voucher of Advanta India Limited dated 22.05.2001 Ex.P-35 : Handwritten letter dated 23.09.2002 Ex.P-36: Journal Voucher of Advanta India Limited dated 22.05.2001 Ex.P-37 : Handwritten letter dated 31.05.2001 Ex.P-38: Cash Payment Voucher of Advanta India Limited dated 15.06.2001 Ex.P-39 : Handwritten letter dated 23.09.2002 Ex.P-40: Cash Payment Voucher of Advanta India Limited dated 18.06.2001 Ex.P-41 : Journal Voucher of Advanta India Limited dated 25.06.2001 Ex.P-42: Handwritten letter dated 23.09.2002 Ex.P-43 : Journal Voucher of Advanta India Limited dated 07.08.2001 Ex.P-44: Handwritten letter dated 24.08.2001 89 C.C.No.8178/2002 Ex.P-45 : Bank Payment Voucher of Advanta India Limited dated 24.08.2001 Ex.P-46: Cash Payment Voucher of Advanta India Limited dated 24.08.2001 Ex.P-47 : Handwritten letter dated 09.10.2001 Ex.P-48: Bank Payment Voucher of Advanta India Limited dated 10.10.2001 Ex.P-49 : Handwritten letter dated 22.10.2001 Ex.P-50: Bank Payment Voucher of Advanta India Limited dated 22.10.2001 Ex.P-51 : Cash Payment Voucher of Advanta India Limited dated 22.10.2001 Ex.P-52: Cash Payment Voucher of Advanta India Limited dated 22.11.2001 Ex.P-53 : Handwritten letter dated 23.11.2001 Ex.P-54: Bank Payment Voucher of Advanta India Limited dated 23.11.2001 Ex.P-55 : Handwritten letter dated 28.12.2001 Ex.P-56: Journal Voucher of Advanta India Limited dated 28.12.2001 Ex.P-57 : Handwritten letter dated 18.8.2001 90 C.C.No.8178/2002 Ex.P-58: Cash Payment Voucher of Advanta India Limited dated 27.08.2001 Ex.P-59 : Receipt dated 06.09.2001 issued by C.C.Narayana Ex.P-60: Journal Voucher of Advanta India Limited dated 06.09.2001 Ex.P-61 : Goal Setting Work Sheet of B.N.Shivanna Ex.P-62: List of Payments made to S.Gowri Ex.P-63 to 69: Vijaya Bank cheques Ex.P-63(a) to 69(a):Signatures Ex.P-70: Letter dated 27.03.2002 to Jeevan Bhimanagar PS issued by Vijaya Bank Ex.P-70(a) : Signature Ex.P-71 to 93: Vijaya Bank cheques Ex.P-71(a) to 93(a):Signatures Ex.P-94 to 96 : Vijaya Bank cheques Ex.P-94(a) to 96(a) : Signatures Ex.P-97 : Letter to Vijaya Bank dated 26.09.2000 issued by complainant's company Ex.P-98 : Letter to Vijaya Bank dated 03.01.2001 issued by complainant's company 91 C.C.No.8178/2002 Ex.P-99: Receipt dated 27.04.2001 Ex.P-100: Registration and Stamp Department endorsement dated 12.02.2002; Ex.P-101: Advocate Association letter dated 11.02.2002; Ex.P-102: Shivanna's Salary and Loan Particulars Ex.P-103: Advanta India Limited issued a letter to B.N.Shivanna dated 19.08.1999 Ex.P-104: Advanta India Limited issued a letter to B.N.Shivanna dated 03.02.2000 Ex.P-105: Resume of B.N.Shivanna Ex.P-106: Advanta India Limited issued a letter to B.N.Shivanna dated 04.04.2001; Ex.P-107: Advanta India Limited issued a letter to the Investigating Officer, Jeevanbeema Nagar PS dated 28.06.2002;
Ex.P-107(a): Signature Ex.P-108: Copy of order of 318 cases before Hon'ble High Court of Karnataka;
Ex.P-109: Nyamitra Sahakara Bank Niyamita letter dated 28.02.2002 to Sri.K.Nanjundegowda, Upparpet PS;
Ex.P-109(a & b): Signatures 92 C.C.No.8178/2002 Ex.P-110: Statement of accounts of Shivanna B.N. of Nyamitra Sahakara Bank Niyamita Ex.P-111: Statement of accounts of Gowri.S of Nyamitra Sahakara Bank Niyamita Ex.P-111(a to d): Signatures Ex.P-112: Copy of statement of withdrawals of Smt.S.Gowri Nyamitra Sahakara Bank Niyamita Ex.P-113:Mahazar report to Government Ex.P-114(a) to (c): Signatures Ex.P-114:Mahazar Ex.P-114(a) and (b): Signatures Ex.P-115:PF No.18/2002 of JB Nagar PS Ex.P-115(a): Signature Ex.P-116:Letter dated 18.04.2003 issued by Vijaya Bank to JB Nagar PS Ex.P-116(a): Signature Exs.P-117 to 195 : Summons.
Ex.P-196: Account opening form of Gowri The ING Vysya Bank Limited 93 C.C.No.8178/2002 Ex.P-196(a & b) : Specimen Signature Card of ING Vysya Bank Limited of Gowri Ex.P-197: Form 60 of Gowri The ING Vysya Bank Limited Ex.P-198 to 225 : Cheques Ex.P-226 : Account opening form of Nyamitra Sahakara Bank Niyamita of Gowri.S Ex.P-227: Specimen signature card of Gowri.S of Nyamitra Sahakara Bank Niyamita Ex.P-228 to 249 : Cheques of Nyamitra Sahakara Bank Niyamita Ex.P-250: Account opening form of Shivanna The ING Vysya Bank Limited Ex.P-251: The ING Vysya Bank Limited Specimen Signature Card.
Ex.P-252: Form No.60 of Shivanna Ex.P-252(a) : Signature Ex.P-253: Account opening form of Nyamitra Sahakara Bank Niyamita of B.N.Shivanna Ex.P-253(a) : Specimen Signature card of B.N.Shivanna Ex.P-254: Membership Application Form of Nyamitra Sahakara Bank Niyamita of B.N.Shivanna 94 C.C.No.8178/2002 Ex.P-255 : 2001 Advocates Co-operative Society Ltd., Diary Ex.P-256 to 297 : Specimen signatures and handwriting of B.N.Shivanna Ex.P-298 to 303 : Specimen Signature of S.Gowri Ex.P-304 to 309 : Specimen handwriting of S.Gowri Ex.P-310 : Questioned Document Examination Certificate of Forensic Science Laboratory Ex.P-310(a) : Signature Ex.P-311: The Vysya Bank Limited application form of N.Raghavendra Prasad. Ex.P-312: Specimen signature Card of Raghavendra Prasad Ex.P-313: Form No.60 of N.Raghavendra Prasad. Ex.P-314 to 323: Pay in Slips Ex.P-324 to 330: Specimen handwriting of N.Raghavendra Prasad;
Ex.P-324(a) to 330(a): Signature Ex.P-331 to 334 : Specimen signatures of N.Raghavendra Prasad;
Ex.P-335 to 337: Specimen letters to complainant company 95 C.C.No.8178/2002 Ex.P-338: Application form of the payment of gratuity (Central) Rules 1972 -Form-F of B.N.Shivanna Ex.P-339 to 343 : Specimen signature of N.Raghavendra Prasad;
Ex.P-344: Forensic Science Laboratory report dated 11.06.2023 Ex.P-344(a and b) Signature Ex.P-345: Nyamitra Sahakara Bank Niyamita Account opening form of C.C.Nagaraja Ex.P-346 : Credit slip dated 11.09.2001 of C.C.Nagaraja of Nyamitra Sahakara Bank Niyamita;
Ex.P-347 to 354 : Chequs of Nyamitra Sahakara Bank Niyamita Ex.P-355 to 360 : Specimen signatures of C.C.Satyanarayana Ex.P-361 to 365: Specimen writing of C.C.Satyanarayana Ex.P-366: Forensic Science Laboratory report dated 02.07.2002 Ex.P-366(a) : Reasons for opinion Ex.P-367:Letter dated 27.03.2002 to JB Nagar PS issued by JMFC 1st Court, Hubli, 96 C.C.No.8178/2002 Ex.P-368:Letter dated 05.06.2002 to JB Nagar PS issued by JMFC 1st Court, Hubli, Ex.P-369:Letter dated 28.03.2002 to JB Nagar PS issued by JMFC 1st Court, Hubli, Ex.P-370: List of Criminal cases filed and disposed off in the 2nd JMFC Court of Hubli Ex.P-371:Letter dated 28.03.2002 to JB Nagar PS issued by Rona Court.
Ex.P-372: Letter to JB PS issued by Hunasur Court, Ex.P-373:Letter to JB PS issued by Hunasur Court, Ex.P-374:Letter to JB PS issued by P.Patna Court, Ex.P-375:Memo dated 08.05.2002 Ex.P-376:Memo dated 09.05.2002 Ex.P-377:Report dated 10.05.2002 Ex.P-378: Submission of JB Nagar PS Ex.P-379: Submission of JB Nagar PS Ex.P-380: Submission of JB Nagar PS Ex.P-381: Submission of JB Nagar PS dated 28.03.2002 Ex.P-382: Submission of JB Nagar PS dated 29.03.2002 Ex.P-382(a): Signature 97 C.C.No.8178/2002 Ex.P-383: Voluntary statement of Smt.S.Gowri Ex.P-383(a) and (b): Signatures Ex.P-383(c): Voluntary restatement of Smt.S.Gowri Ex.P-384: Voluntary statement of Raghavendra Prasad Ex.P-384(a) and (b): Signatures Ex.P-384(c): Voluntary restatement of Raghavendra Prasad Ex.P-385:Panchanama Ex.P-385(a) : Signature Ex.P-386 : College Note Book of Raghavendra Prasad N Ex.P-387 : Admission Ticket of Ex.P-388 :Mahazar report to Government Ex.P-388(a) : Signature Ex.P-389: Voluntary statement of Ramalingegowda dated 06.05.2002 Ex.P-389(a) and (b) : Signatures Ex.P-390: Voluntary statement of C.C.Narayana dated 13.06.2002 Ex.P-390(a) and (b) : Signatures Ex.P-391: Voluntary restatement of Nanjundaswamy 98 C.C.No.8178/2002 Ex.P-391(a) and (b) : Signatures Ex.P-392: Voluntary restatement of Nanjundaswamy Ex.P-392(a) and (b) : Signatures Ex.P-393 : Letter dated 07.04.2002 to Jeevan Bhimanagar PS issued by Sheshadripuram PS Ex.P-394 to 399: Submissions of JB Nagar PS Ex.P-400 to 406:Form No.15 Ex.P-407:FIR No.58/2002 Ex.P-407(a) : Signature Ex.P-408: Private complaint U/s 200 of Cr.PC Ex.P-408(a) : Signature Ex.P-409:FIR No.170/2002 Ex.P-409(a) : Signature Ex.P-410: Voluntary statement dated 23.02.2002 of B.N.Shivanna Ex.P-410(a) and (b) : Signatures Ex.P-411:PF No.63/2002 of Upparpet PS Ex.P-411(a) and (b) : Signatures Ex.P-412: Purchase of land Agreement dated 22.02.2000 99 C.C.No.8178/2002 Ex.P-413: Certificate of S.Gowri issued by Shramik Vidyapeeth Mysore Ex.P-414: Register of B.N.Nanjundaswamy; Ex.P-415: PF No.64/2002 of Upparpet PS Ex.P-415(a): Signature Ex.P-416: Half Long Deluxe Note Book Ex.P-417: Statement of Advanta India Limited -
Bangalore Ex.P-418 : Legal cases filed against the company in City Civil Court as at 31.08.1999;
Ex.P-419: List of cases pending in High Court as on 23.03.2001;
Ex.P-420 : Diary of B.N.Shivanna Ex.P-421: 1999 Diary of B.N.Shivanna Ex.P-422 : Voluntary restatement of B.N.Shivanna dated 27.02.2002 Ex.P-422(a) and (b): Signatures Ex.P-423 : PF No.65/2002 of Upparpet PS Ex.P-424: Copy of ING Vysya Bank statement of S.Gowri Ex.P-425: Copy of ING Vysya Bank statement of Shivanna 100 C.C.No.8178/2002 Ex.P-426: Letter dated 15.03.2002 to Sri.Nanjunde Gowda;
Ex.P-427:PF No.67/2002 of Upparpet PS Ex.P- 428: Voluntary restatement of B.N.Shivanna dated 27.02.2002 dated 04.03.2002 Ex.P-428(a) and (b): Signatures Ex.P-429:PF of Upparpet PS of FIR No.170/2002 Ex.P-429(a) and (b): Signatures Ex.P-430: Letter dated 10.03.2002 to IV ACMM issued by Upparpet PS Ex.P-431: Certified copy of Crl.R.P.No.866 of 2015 Ex.P-432:Digitally signed copy of Crl.R.P.No.867/2015 Ex.P-433: Certified copy of charge sheet Vidhana Soudha PS in Cr.No.0073/2022 Ex.P-434: Certified copy of Judgment in Cr.A.Nos.1038- 1039 of 2004 Ex.P-435: Certified copy of order OS No.1575/2002 before Hon'ble City Civil Court, Bengaluru.
3. List of witnesses examined for the defence:
DW-1: Sri.B.N.Shivanna.
4. List of documents marked for the defence: 101
C.C.No.8178/2002 Ex.D-1: Copy of Pending Legal Cases filed against the company in Consumer Forum as at 30.11.1999;
Ex.D-2: Certified copy of order of Crl.P.No.1142/2001 Ex.D-3: Letter to Mr.Rajiv Khanna, Ex.D-3(a) : Signature Ex.D-4: Power of Attorney dated 29.05.2001 Ex.D-5: Letter dated 10.09.2000 Ex.D-6: Letter dated 15.01.2002 and Memo dated 30.10.2002 Ex.D-7: Order sheet in OS No.258/2001 Ex.D-8: Certified copy of Crl.CCC No.16/2005 Ex.D-9: Certified copy of Contempt Petition No.16/2005
6. List of Material Objects on the side of the defence:
-Nil-
(Shreyansh Doddamani) III Addl., Chief Judicial Magistrate., Bengaluru.102
C.C.No.8178/2002 ORDER ON SENTENCE PRONOUNCED IN THE OPEN COURT Heard the learned Senior Assistant Public Prosecutor and advocate for accused No.2 and accused No.1 on quantum of sentence.
The learned Senior Assistant Public Prosecutor has submitted that the accused persons committed the offence punishable 408, 417, 418, 419, 420, 466, 468, 471, 474 of IPC. The above offence are economic offences and against the society. The offence committed by the accused persons are serious in nature and it is having huge impact on the society. After registering of this case they have delay tracticed. Moreover no leniency should be shown to the accused persons, as the accused persons having full knowledge regarding the consequences of the acts, have committed the same. The accused No.1 being 103 C.C.No.8178/2002 the Advocate fully aware and consequences of offences committed offences. The accused No.2 being a Police Constable fully aware of consequences of the offence and committed the offence. Therefore, he prayed to the Hon'ble Court to impose maximum punishment with rigorous imprisonment. On the other hand the accused No.1 in person argued that, he is an Advocate and having reputation in the society. He has old age Mother, Wife and Children. They are depending on him. He is responsible person and come from reputed family in the society. Therefore, he prayed to extend lenient view and punished with fine amount only. The advocate for accused No.2 argued that the accused No.2 is retired person and senior citizen and his family is depending on his pension only. If he send to the jail the family 104 C.C.No.8178/2002 members will surviving for starvation. He come from reputed family and it is his first offence. Hence, he prayed to extend lenient view and punished with minimum sentence. This Court has come to the conclusion that the accused No.1 has committed an offence punishable under section 408, 418, 419, 420, 466, 468, 471, 474 of IPC, and the accused No.2 committed an offence punishable under section 417 of IPC. The above offences are against the society and are serious in nature. The accused No.1 being the Advocate and having knowledge about consequences of the offences committed above offences and after filing of charge sheet he practiced delay tractice by filing one or another application etc. The accused No.1 created the summons as if JMFC Courts have issued summons and also created order of Hon'ble High Court of 105 C.C.No.8178/2002 Karnataka as if Hon'ble High Court passed order and quashed the non existing criminal cases and using the name of accused No.3 who is none other than `Mother-in-law of accused No.1 and accused No.5 who is none other than Son-in-law of accused No.1 and misappropriated the funds of complainant's company and caused loss to the company. The accused No.2 being a Constable and having knowledge about consequences involved in the offences with accused No.1. Therefore, the benefit of P.O. Act, can not be extended to the accused No.1 and 2. If released the accused No.1 and 2 on P.O. Act, the wrong message will goes to the society. Therefore, after considering the mitigating and aggravating factors, this court is of the opinion that the accused No.1 and 2 shall get appropriate punishment in view of the nature 106 C.C.No.8178/2002 of the offences and it's impact on the society. Though accused No.1 and 2 were held guilt, if they be awarded with lesser punishment, then the wrong massage will goes to society and there will not be any respect to the law and faith on the system. Hence, this court proceed to pass the following:
ORDER Accused No.1 is sentenced to undergo Rigorous imprisonment for six years and fine amount of Rs.10,000/- for the offence punishable under section 408 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 3 months. Accused No.1 is sentenced to undergo Rigorous imprisonment for three years and fine amount of Rs.5,000/- for the offence punishable under section 418 and 419 of Indian Penal Code. In default of fine accused 107 C.C.No.8178/2002 shall undergo Simple Imprisonment for 2 months.
Accused No.1 is sentenced to undergo Rigorous imprisonment for six years and fine amount of Rs.10,000/- for the offence punishable under section 420 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 3 months. Accused No.1 is sentenced to undergo Rigorous imprisonment for five years and fine amount of Rs.10,000/- for the offence punishable under section 466 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for 3 months. Accused No.1 is sentenced to undergo Rigorous imprisonment for two years and fine amount of Rs.5,000/- for the offence punishable under section 468 of Indian Penal 108 C.C.No.8178/2002 Code. In default of fine accused shall undergo Simple Imprisonment for two months. Accused No.1 is sentenced to undergo Rigorous imprisonment for two years and fine amount of Rs.5,000/- for the offence punishable under section 471 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for two months. Accused No.1 is sentenced to undergo Rigorous imprisonment for three years and fine amount of Rs.5,000/- for the offence punishable under section 474 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for two months. The above sentences are run concurrently. Accused No.2 is sentenced to undergo Rigorous imprisonment for one year and fine amount of Rs.10,000/- for the offence 109 C.C.No.8178/2002 punishable under section 417 of Indian Penal Code. In default of fine accused shall undergo Simple Imprisonment for three months. The bail bond and personal bond of accused No.1 and 2 stands canceled.
Office is directed to Supply copy of Judgment to the accused No.1 and 2 with free of cost.
If the accused No.1 was in judicial custody during the investigation and trial the period shall be set off in the main sentence. (Dictated to the stenographer, transcribed by him on computer, corrected, then signed and pronounced by me in the open court on this the 19th Day of July, 2024).
(Shreyansh Doddamani) III Addl., Chief Judicial Magistrate., Bengaluru.