Bangalore District Court
State By - Bharathi Nagara Police vs K.R.Vijaya Kumar S/O. Late on 8 September, 2016
IN THE COURT OF THE XI A.C.M.M., AT MAYO HALL UNIT.
Mahatma Gandhi Road, Bengaluru City.
Present: Sri. K.S.JYOTHISHREE, B.COM., LL.B.,
XI A.C.M.M., Bengaluru City.
Dated: This 8th day of September 2016.
C.C.No.24475/2011
COMPLAINANT :: State by - Bharathi Nagara Police
Station
(State represented by Sr.APP)
Vs.
ACCUSED :: 1. K.R.Vijaya Kumar S/o. Late.
K.N.Ramaiah Shetty, 59 years,
No.26/1, Vijay Nivas, Q No.3rd Street
Cross, Narayana Pillai Street,
Bharathi Nagara, Bengaluru.
2. Smt. Narmada W/o. K.R.Vijaya
Kumar, 50 years, No.26/1, Vijay
Nivas, Q No.3rd Street Cross,
Narayana Pillai Street, Bharathi
Nagara, Bengaluru.
3. K.V.Vinay Shreyas, S/o.
K.R.Vijaya Kumar, 26 years,
rd
No.26/1, Vijay Nivas, Q No.3 Street
Cross, Narayana Pillai Street,
Bharathi Nagara, Bengaluru.
(Accused Nos.1 to 3 represented by advocate Sri. Satish
Babu.A.S.)
*****
1. Date of commission of the offence :: 03-06-2010
2
C.C.NO.24475/2011
2. Date of report of offence :: 04-06-2010
3. Arrest of the accused:
a) Date of arrest of accused :: 05-06-2010
b) Release of accused on bail :: 08-06-2010
4. Name of the Complainant :: MURTHY
5. Date of recording evidence :: 11-10-2013
6. Date of closing evidence :: 12-04-2016
7. Offences complained of :: Ss. 379, 420,
447, 427 &
& 506 R/w. 34
of IPC
8. Opinion of the Judge :: Accused Nos.1 to
3 found not
guilty
XI A.C.M.M., Bengaluru.
/
JUDGEMENT
The PSI, of Bharathi Nagara Police Station has filed charge sheet against the accused Nos.1 to 3 for the offences punishable under Sections 379, 420, 447, 427 & 506-B R/w. 34 of I.P.C.
2. Brief facts of the prosecution case are as follows;
Judgement 3 C.C.NO.24475/2011 On 04-02-2009, the accused persons were executed a lease agreement in favour of CW-1 pertaining to their property situated at No.26/1, Q Street, Narayana Pillai Road, Bharathi Nagara, and permitted CW-1 to construct house at second floor. The accused persons were also received Rs.11,00,000/- from CW-1 as consideration. In terms of the lease agreement, CW-1 has constructed sheet house. On 31-05-2010, the accused persons with common intention trespassed the house constructed by CW-1, damaged the said house, caused loss of Rs.1, 50,000/- and also committed theft of sheet and door. The accused persons were cheated the complainant by receiving Rs.11, 00,000/- and demolished the house with an intention to grab the amount. As such the accused persons were committed the offences punishable U/s. 379, 420, 447, 427 & 506-B- R/w. 34 of IPC. Hence, complainant has filed the above complaint before the jurisdictional police.
Judgement 4 C.C.NO.24475/2011
3. On 05-06-2010 accused No.1 & 2 produced before this Court and later they were enlarged on bail. On 23- 07-2010 accused No.3 appeared before this court and later he was enlarged on bail. After filing of the charge sheet against the accused persons, cognizance of the offences was taken by this Court. Copies of the charge sheet and other prosecution papers were furnished to the accused persons as provided under Section 207 of Cr.P.C.
4. Charges were framed and read over and explained to the accused Nos.1 to 3. The accused Nos.1 to 3 pleaded not guilty. Hence, case was posted for trial.
5. To bring the guilt of the accused Nos.1 to 3, prosecution got examined CW-1, 3, 2, 9, 6, 5, 8, 4, 9 and 10 as PW-1 to 10 and got marked Ex.P-1 to 8. Even after several opportunities, the police were failed to secure the remaining material witnesses. The learned APP has sought adjournment, but the same has been rejected. The prosecution side is taken as closed.
Judgement 5 C.C.NO.24475/2011
6. Based on the evidence of PW-1 to 10s accused statements under Section 313 of Cr.P.C. was recorded. Accused Nos.1 to 3 has denied all the incriminating circumstances appearing against them in the evidence as false. Accused Nos.1 to 3 has not adduced any evidence before this Court.
7. Heard arguments.
8. After analyzing oral evidence and materials available on records, points for my determination are as follows;
1. Whether the prosecution proves beyond all reasonable doubt that on 04-02-2009, at house No.26/1, Q Street, Narayana Pillai Road, Bharathi Nagara, the accused persons with common intention executed lease agreement in favour of CW-1, received Rs.11 Lakh and failed to execute the sale deed and cheated CW-1 and thereby committed the offence punishable U/s. 420 R/w. 34 of IPC?
Judgement 6 C.C.NO.24475/2011
2. Whether the prosecution proves beyond all reasonable doubt that on 31-05-2010 and above place the accused persons with common intention trespassed the house constructed by CW-1 and thereby committed the offence punishable U/s. 447 R/w.34 of IPC ?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date and place the accused persons with common intention demolished the sheet house constructed by CW-1 and caused loss of Rs.1,50,000/- and thereby committed an offence punishable U/s. 427 R/w. 34 of IPC ?
4. Whether the prosecution proves beyond all reasonable doubt that on the above said date and place the accused persons with common intention committed theft of sheet and door belong to CW-1 and thereby committed the offence punishable U/s. 379 R/w. 34 of IPC ?
5. Whether the prosecution proves beyond all reasonable doubt that on the above said date and place the accused persons with Judgement 7 C.C.NO.24475/2011 common intention threatened the CW-1 & 2 with dire consequences and thereby committed an offence punishable U/s. 506- B R/w. 34 of IPC?
6. What order?
9. My answers to the above points are as follows;
POINT NOs-1 to 5:: In Negative
POINT NO-6 :: As per final order
for the following;
REASONS
10. POINT Nos-1 TO 5:: The burden is on the prosecution to prove that the accused persons were committed the offences punishable U/s. 379, 420, 447, 427 & 506-B R/w. 34 IPC.
11. The complainant has deposed as PW-1 and Ex.P-1 is complaint. He has reiterated the complaint averments. He stated that he has recorded the conversation with the accused person about payment of Rs.11 Lakh. The complainant has produced CD. The prosecution has failed to display the said CD before the court to know its contents. According to the complainant, he has handed Judgement 8 C.C.NO.24475/2011 over the said CD to the police at the time of lodging the complaint and the police were seized the said CD by conducting panchanama as per Ex.P-3. But, the prosecution has failed to display the C.D. to prove the same.
12. It is relevant to note that the complainant has not produced the alleged lease agreement to show that it was executed among himself and the accused persons. He has stated that the original lease agreement has been produced before civil court.
13. If at all the lease agreement is in existence, nothing prevented the complainant to produce the certified copy of the alleged lease agreement. The complainant has not attempted to get the certified copy from the civil court to prove the alleged transaction. 14. CW-1 has deposed that the accused Nos.1 to 3 were demolished the house constructed by him during May-2010 and committed the theft of window, door, Judgement 9 C.C.NO.24475/2011 sheets and 15-20 cement bags. It is important to note that CW-1 has not produced the documents to show that he has constructed the house at the property belong to the accused persons by obtaining license and approved plan. If at all he had constructed the house, there must be some document i.e., plan, license, quotation, purchase bills pertaining to the purchase of building materials etc., It appears that CW-1 has not at all constructed the building as contended by him.
15. During the cross-examination CW-1 has admitted the pendency of OS 25836/2010. The deposition has been marked as Ex.D-1. He has further admitted that in the said suit he deposed that he had paid 50% of Rs.11 Lakh by way of cash and the remaining amount by way of cheque. The said part has been marked as Ex.D-1(a). He has clearly admitted that he has not obtained approved plan or license from the corporation to construct building on terrace.
Judgement 10 C.C.NO.24475/2011
16. So, in this way the evidence of CW-1 does not help the prosecution to prove the case.
17. CW-2 is the wife of CW-1 and she deposed as PW-
3. Her evidence is replica of the oral evidence of CW-1. During the cross-examination she has stated that she is not a witness to lease agreement and does not know the name of the shop in which they purchased the building materials for the purpose of construction. According to CW-2, she does not personally aware that who had demolished the building. The evidence of CW-2 is no way helping the prosecution to prove the allegations against the accused persons.
18. It is relevant to note that nothing has been produced to show that the complainant has sustained loss of Rs.1 Lakh to Rs.1½ lakh and also the existence of building on the terrace.
19. CW-3 has been examined as PW-2 and he is own brother of CW-3. It means CW-1 to 3 is the relatives and Judgement 11 C.C.NO.24475/2011 interested witnesses. It is important to note that CW-3 had given his evidence in OS 25836/2010 and his deposition has been marked as Ex.D-2.
20. During the examination in chief, CW-3 has stated that on 31-05-2010, he personally saw the demolition of building by the accused No.1. But as per Ex.D-2 the very same witness had stated that one Elumalai had told him by way of phone that some body was demolished the building.
21. The above contradiction is more than sufficient to hold that CW-3 is not an eyewitness to the alleged incident.
22. CW-9 has been examined as PW-4. He is a police witness. According to his testimony, he has arrested the accused persons and reported the same to his higher authority.
23. CW-6 has deposed as PW-5 and his evidence disclose that he is only a hearsay witness.
Judgement 12 C.C.NO.24475/2011
24. The learned counsel for the accused persons has cross-examined CW-6 and during the course of cross- examination he has deposed ignorance to all the suggestion and admitted that CW-3 is his close friend.
25. CW-5 has been examined as PW-6 and he has deposed that he had been to the house of accused No.1 for plumbing work. Later the said house was not in existence and it was demolished. This witness has been treated as partially hostile. In the course of cross- examination, he has denied the suggestion that the accused persons were threatened CW-1 & 2 with dire consequences.
26. In the cross-examination by learned counsel for the accused persons, he has deposed his ignorance about the passing of consideration of Rs.11 Lakh. He has admitted that he came to know about demolition of the house through CW-3.
Judgement 13 C.C.NO.24475/2011
27. It appears that CW-5 & CW-6 does not know anything about the case and they helped the prosecution since they are close friends of CW-3.
28. CW-4 is a mahazar witness and he has been examined as PW-8. In the cross-examination he admitted that CW-3 is his close friend.
29. CW-10 is an IO. During the cross-examination, he has admitted that he has not collected license, plan etc., from CW-1 at the time of investigation. He has also admitted that he has not enquired to know whether CW-1 has purchased the building materials for construction.
30. The above evidence establishes that there was no cordial relationship between CW-1 and the accused persons. Nothing has been produced to show that the accused persons and CW-1 were entered into lease agreement on 04-02-2009 and accused persons were received Rs.11 Lakh from CW-1. Further the prosecution has not produced the cogent materials to establish that Judgement 14 C.C.NO.24475/2011 the accused persons were illegally trespassed to the house of CW-1 & 2, demolished the house, committed theft of building materials, cheated CW-1 & 2, caused loss of Rs.1,50,000/- and also threatened with dire consequences. So, without any hesitation I answered all the points in Negative.
31. POINT NO-7:: In the result, I proceed to pass the following;
ORDER Acting under Section 248(1) of Cr.P.C. accused Nos.1 to 3 are acquitted for the offence punishable under Sections 379, 420, 447, 427 & 506-B R/w. 34 of I.P.C.
Bail bonds and surety bonds of accused Nos.1 to 3 shall stand cancelled.
Property seized under PF No.46/10 is worthless. Hence ordered to be destroyed after appeal period is over.
(Dictated to the stenographer, transcribed by her, the transcription corrected and then pronounced by me in the open court on this 8thday of September 2016.) (K.S.JYOTHISHREE), XI A.C.M.M., Mayo Hall, Bengaluru.
Judgement 15 C.C.NO.24475/2011 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION ::
PW-1 :: R.Murthy
PW-2 :: G.L.Vijay Adithya
PW-3 :: Nandini
PW-4 :: Pushpa.B
PW-5 :: Ganesh
PW-6 :: Anand Kumar
PW-7 :: Krishnamurthy
PW-8 :: R.Balaji
PW-9 :: Bhyra
PW-10 :: Mohammed Rafeeq
DOCUMENTS EXHIBITED ON BEHALF OF THE
PROSECUTION ::
Ex.P-1 :: Complaint
Ex.P-1(a) :: Signature of PW-1
Ex.P-1(b) :: Signature of PW-9
Ex.P-2 :: Mahazar
Ex.P-2(a) :: Signature of PW-1
Ex.P-2(c) :: Signature of PW-9
Ex.P-3(a) :: Signature of PW-8
Ex.P-3 :: Statement of PW-2
Ex.P-3(a) :: Signature of PW-2
Ex.P-3(b) :: Signature of PW-8
Ex.P-3(c) :: Signature of PW-9
Judgement
16
C.C.NO.24475/2011
Ex.P-4 :: First Information Report
Ex.P-4(a) :: Signature of PW-9
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED ::
NIL DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED ::
Ex.D-1 :: Certified copy of deposition both chief & Cross in O S No.25836/2010 Ex.D-1(a) :: Related portion Ex.D-2 :: Certified copy of deposition both in O S No.25836/2010 Ex.D-2(a) :: Related portion Ex.D-2(b) :: Related portion of deposition dt.
3-6-2010 Ex.D-2(d) :: Related portion of deposition dt.
31-5-2010
Ex.D-3 :: Statement of PW-2
Ex.D-3(a) :: Related portion of statement Ex.D-4 :: Certified copy of Judgment in C C No.35428/2010 Ex.D-5 :: Certified copy of Deposition in C C No.35428/2010 Ex.D-6 :: Certified copy of complaint U/s.
138 of NI Act.
Ex.D-7 & 8 :: Certified copies of Judgment in C C No.40633/2010 & 40634/10 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION ::
NIL (K.S.JYOTHISHREE), XI A.C.M.M., Mayo Hall, Bengaluru.
Judgement 17 C.C.NO.24475/2011 Judgement