Bangalore District Court
Sheshadripuram Police Station vs 29.04.2014 on 24 February, 2020
IN THE COURT OF XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
PRESENT: SRI.HATTIKAL PRABHU.S.
M.A.,LL.B(Spl) LL.M.,
DATED THIS THE 24th DAY OF FEBRUARY 2020
Serial Number of the C.C.12727/2015
case
Name of the State by Police Sub Inspector,
complainant Sheshadripuram Police station
(Reptd. by Sr.Asst.Public
Prosecutor )
Name of the accused 1).Sri.Ayub Pasha,
person S/o.Late. Nawab Jan,
Aged about 45 years,
R/At.No.114, 6th Cross,
9th Main, Mysore Road,
Bangalore.
2).Sri.Ramesh,
S/o.Late.Raje gowda,
Aged about 29 years,
R/At.No.27, 6th Cross,
Bonemill, Chikkabanavara,
Bangalore.
3). Vishwa,
S/o.Somanna,
Aged about 28 years,
R/At.No.588, 3rd Main,
4th Cross, Kamalanagar,
Bangalore.
4). Satish.J,
S/o.Channashetty,
R/At.No.145/3, 3rd Main,
Venkataram Nagar,
2 C.C.12727//2015
Chamarajpete, Bangalore.
5). Subhan Pasha,
S/o.Dastagir Sab,
R/At.No.20, 2rd Main road,
Nanjundeshwara Nagar,
Nandini Layout, Bangalore.
(Reptd. by Sri.G.M...Adv.,
Date of 26.04.2014
commencement of
offence
Offences complained U/Secs.120(B), 420 r/w Sec. 34
of of the IPC and Sec. 26 of legal
metrology Act 2009.
Date of arrest of Accused no.1 to 3 arrested on
accused 29.04.2014,
accused no. 4 and 5 are not
arrested, they are on
anticipatory bail
Date of release of A1 to 3- 05.05.2014
accused on bail
Date of 28.11.2018
commencement of
recording evidence
Date of closure of 27.01.2020
recording evidence
Offences Proved Nil
Plea of the accused Not guilty
and his examination :
Final Order : Accused Not found guilty
3 C.C.12727//2015
Date of final order 24.02.2020
JUDGMENT
U/Sec.355 of the Cr.P.C., PSI of Sheshadripuram P.S. submitted this charge sheet against accused no.1 to 5 for the offences U/s 120B, 420 r/w Sec. 34 of the IPC and U/Sec. 26 of Legal Metrology Act 2009 in Cr.No.119/2014.
2. In brief, case of the prosecution runs thus:-
2(a). On 26.04.2014 at about 7.20P.M the C.W.1 Inspector of Legal Metroloy along with C.W.4 to 6 checked the autorickshaws near Mantri Mall.
b). C.W.1, 4 to 6 found that the meter fixed in two autorickshaws bearing No. KA-05- AC-0728 and No.KA-
02-AB-3812 were intermedled and thereby it was made to run the meters when the autorickshaw was in stationery condition.
c). On enquiry C.W1 found that the accused no.2 Ramesh was the driver of the autorickshaw bearing No. KA05-AC 0728 and accused no.4 is the owner of the said auto. Further C.W.1 found that accused no.3
-Vishwa was the driver of the autorickshaw No.KA02- 4 C.C.12727//2015 AB-3812 and accused no.5 Subhan Pasha was the owner of the said autorickshaw.
d). On enquiry C.W.1 and others came to know that accused no.1 to 5 by making conspiracy of 'cheating the public' misadjusted the pulse of the meters and accused no.1 to 5 committed the above said offences. Further more both said meters were defective meters.
3. After submitting the charge sheet cognizance of the alleged offence is taken and criminal case against the accused No.1 to 5 came to be registered. Pursuant to the summons the accused No.1 to 5 appeared and were enlarged on bail. Sec. 207 of Cr.P.C complied.
4. After hearing before charge, since this court finds sufficient reasons to proceed further, charge framed against accused no.1 to 5 and same is read over to accused no.1 to 5 . Accused no.1 to 5 pleaded not guilty and claimed to be tried. Hence matter is posted for recording evidence on behalf of prosecution.
5 C.C.12727//2015
5. On behalf of prosecution in all evidence of PW.1 to 5 adduced and the documents got marked at Ex.P1 to 6 and M.O.1 and 2 got marked.
6. After closure of the prosecution evidence the accused no.1 to 5 are examined U/s.313(1)(b) of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused are separately read over to the accused No.1 to 5. The accused no.1 to 5 denied all such circumstances as false. The accused no.1 to 5 did not choose to adduce defense evidence and got marked no document on their behalf.
7. Heard both sides.
8. Now the point that arises for the determination of this court is:
"Whether the prosecution proves beyond all reasonable doubt the alleged guilt of the accused no.1 to 5 for the offences punishable U/s 120B, 420 r/w Sec. 34 of the IPC and U/Sec. 26 of Legal Metrology Act 2009?
6 C.C.12727//2015 After considering the arguments submitted from both side and after careful appreciation of both the oral and documentary evidence placed on record, my finding on the above point is in the Negative for the following.....
REASONS
9. Point No.1: In support of case of the prosecution, C.W.1-Assistant Controller of Legal Metrology by name MalaKiran.S examined as P.W.1. P.W.1 in her evidence explained that when she was working as Inspector (autorickshaw and Taxi) Legal Metrology Department, Yeshwanthpur Branch, on 26.04.2014 at 7.20P.M, herself and C.W.2, 4 to 6 were checking the autorickshaws near Mantri Mall and when they checked the autorickshaw bearing No.KA05-AC- 0728 and autorickshaw bearing No.KA02 - AB-3812 they found that meters of the said autorickshaws were tampered and running of the pulse of the meters were misadjusted and further P.W.1 explained that accusedno.2 and 3 are drivers of the said autoriskshaws 7 C.C.12727//2015 and accused no.4 and 5 are the owners of the said autorickshaws.
10. Further P.W.1 explained that she handed over both drivers ie., accused no.2 and 3 with autorickshaws to the police and lodged complaint as per Ex.P.1. Further she deposed that I.O conducted mahazar on the spot as per Ex.P.2 on 27.04.2014.
11. C.W.2-Sri.Shekar examined as P.W.2 claiming to be independent seizure mahazar witnesses. According to the case of the prosecution on 27.04.2014, C.W.14- I.O seized the autorickshaw with meters in the police station under mahazar in the presence of C.W.2 and 3.
The further chief examination of P.W.2 was deferred for want of meters. Thereafter this P.W.2 did not turn up for further chief examination. Sufficient opportunity has been given to the prosecution to secure the witesses.
Repeatedly NBW was issued against this witness. Prosecution failed to secure P.W.2 and it is recorded that P.W.2 is not available for further chief examination and 8 C.C.12727//2015 evidence of P.W.2 came to be discarded. Hence evidence of P.W.2 is not helpful to the case of the prosecution.
12. C.W.5- Sri.Lokesh -Inspector of Legal Metrology examined as P.W.3 and this witness deposed as per say of P.W.1.
.13. C.W.12-Police constable who secured the accused no.3 and produced before I.O, examined as P.W.4. The evidence of this witness is not taking material role in deciding this matter.
14.C.W.14-I.O who registered the crime, completed investigation and submitted charge sheet is examined as P.W.5. This witness deposed explaining the investigation done by him.
15. It is reported that C.W.11-Police constable who secured the accused and produced before I.O is dead. Prosecution failed to secure C.W.3, 4, 6 to 10 and 13. Repeatedly NBW was issued against said witnesses. After giving sufficient opportunities also prosecution failed to secure the presence of these witnesses and 9 C.C.12727//2015 examine them. Considering the period of pendency and considering the opportunities given to the prosecution, by rejecting the prayer of Sr.Asst. Public Prosecutor to reissue NBW against the witnesses prosecution evidence is taken as closed.
16. During course of trial, defence of the accused is total denial of the case of the prosecution. Now the question which arises before court is whether the evidence placed on record is sufficient to establish the guilt of the accused. In this background on looking to the evidence , this court observed that as per say of P.W.1 on 26.04.2014 herself and C.W.4 to 6 took the accused no.2 and 3-drivers alongwith autorickshaws and produced before I.O alongwith meters. In the cross examination at para 14 page 5 this P.W.1 deposed that :
"M.O.1 and 2 -meters are not taken and sealed by the police. I have also not packed and sealed M.O.1 and 2. On the date of my checking M.O.1 and 2-
meters, not removed from the
autorickshaw. M.O.1 and 2 were
removed from the autorickshaw in the police station".
10 C.C.12727//2015
17. The P.W.2 in the cross examination at para 9 deposed that:
" I have removed the M.O.1 and 2 from the autorickshaw. I have not packed and sealed the meters. Police have also not packed and sealed M.O.1 and 2. I have not made any mark on M.O.1 and 2 to indicate the number of the autorickshaw"
18. The P.W.5 in the cross examination deposed that M.O.1 and 2-meters were not removed from the autorickshaws on 26.04.2014. Meters were removed from autorickshaw on 27.04.2014. Meters are not packed and sealed .
Further the P.W.5 deposed at para 11 that:
" I have not put any mark on M.O.1 and 2 after receiving the same."
19. After going through these statements of the witnesses it is crystal clear that the I.O not put any mark on the meters for the purpose of identification. It is also not undisputed fact that meters are not sent to FSL for examination as to misadjustment etc., 11 C.C.12727//2015
20. P.W.5 - I.O in his cross examination at para 13 deposed that C.W.1 secured the mahazar witnesses- C.W.2 and 3. The P.W.1(C.W.1) in the cross examination at para 12 deposed that police secured the mahazar witnesses.
21. As I have above stated serious doubt arises in believing that M.O.1 and 2 meters are pertaining to respective autorickshaws. Under these circumstances, non examination of mahazar witnesses creates a serious doubt . Apart from that the M.O.1 and 2-meters are not sent for expert's examination and report. This aspect also creates a doubt.
22. P.W1 in the cross examination at para 12 page 5 deposed as under:
" It is true that running of meter of autorickshaw when the auto was not running is also permitted when the auto is waiting. This system is for the purpose of charging the waiting charges. I made the autorickshaws to wait for 10-15 minutes on the spot.
12 C.C.12727//2015 Similar explanation is given by P.W.3-Inspector of Legal Metrology. This admission of P.W.1 and 3 creates a doubt in believing the case of the prosecution as to misadjustment made by accused no.1 to 5.
23. The P.W.1 in the cross examination at para 15 deposed that she has not used any instrument to check the meters. According to the case of the prosecution C.W.1 verified the documents of the autorickshaws and she came to know that details of the owner of the autorickshaw and accordingly she lodged the complaint. Contrary to the case of the prosecution, P.W1 in the cross examiantion at para 12 deposed that she has not verified the documents of the autorickshaws.
24. The P.W.5-I.O in the cross examinatio at para 12 deposed that he has not produced any documents to show relationship of accused no.1 with other accused. Absolutely no evidence is placed on record to explain the involvement of accused no.1 in making misadjustment of the meters. Apart from that after 13 C.C.12727//2015 going through the evidence it indicates that the accused no. 4 and i.e. owners of the autorickshaws are arrayed as accused in this case only for the reason that they are owner's of the said autorickshaws. Serious doubt remains unclarified whether the accused no.2 and 3 drivers misadjusted the pulse of the meters of the autorickshaws or whether the accused no.4 and 5-owner of the autorickshaws misadjusted the pulse of the meters. Apart from that absolutely no evidence is placed on record to establish the alleged criminal conspiracy of accused no.1 to 5.
25. Looking to the matter from any angle the evidence and circumstances not pointing out towards the guilt of the accused no.1 to 5 only. Apart from that evidence placed on record is not free from material contradictions. As I have above stated number of serious doubt arises in the mind of the court. Under these circumstances, the accused no.1 to 5 are as a matter of right entitled for benefit of doubt. With these observations, this court held that the prosecution failed to prove the guilt of the accused no.1 to 5 beyind 14 C.C.12727//2015 all reasonable doubt. Accordingly I answer point no.1 in the Negative and I proceed to pass the following ....
ORDER Acting U/s.248(1)) of Cr.P.C., I hereby acquit the accused No.1 to 5 for the offences punishable U/secs. U/s 120B, 420 r/w Sec. 34 of the IPC and U/Sec. 26 of Legal Metrology Act 2009.
Accused no.1 to 5 are set at liberty forthwith and the bail bond of the accused no.1 to 5 and that of surety stands canceled.
The interim order as to release of the autorickshaws seized in the case, are hereby made absolute.
M.O.1 and 2-meters are ordered to be confiscated to the State and I.O is directed to return the meters to the Inspector( Autorickshaw and Taxi) Legal Metrology Department Yeshwanthpur, Bengaluru for disposal in accordance with law.
(Judgment dictated to the Stenographer, typed by her computerized copy corrected and then pronounced by me in the open court on this the 24th day of February 2020).
(Hattikal Prabhu .S) XXXII Addl.C.M.M. Bangalore.
15 C.C.12727//2015 :ANNEXURE:
1.List of Witnesses examined on behalf of the prosecution:
P.W.1: Smt. Mala Kiran.S. Asst. Controller, P.W.2: Sri.Shekar.
P.W.3: Sri.T.Lokesh. Asst. Controller, P.W.4: Sri. Nagaraju.M.N. HC No.7615. P.W.5: Sri.Madhusudan.R. PSI,
2. List of Documents marked on behalf of the prosecution:-
Ex.P.1:-Complaint Ex.P.1(a): Signature Ex.P.2: :Mahazar Ex.P.2(a):Signature Ex.P.3 :FIR Ex.P.3(a):Signature Ex.P.4 :Report Ex.P.5&6 :B extract of RC of autorickshaws
3.:- List of witnesses and documents marked on behalf of the accused Nil
4. List of Material objects marked on behalf of the prosecution:
M.O.1 and 2-meters of the autorickshaws (Hattikal Prabhu.S) XXXII Addl.C.M.M. Bangalore.