Bangalore District Court
The State Of Karnataka vs No.1 : Nagendra Reddy on 24 September, 2016
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 24th day of September 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 705/2008
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Thilaknagar Police Station,
(SE, COD),
Bengaluru.
(By Spl. Public Prosecutor)
Vs.
Accused No.1 : Nagendra Reddy,
S/o. Late Nanjunda Reddy,
Aged about 45 years,
Real-Estate Business,
C/o. Y.B.Shivashankara Reddy,
Yamare Grama, Sarjapura Hobli,
Bommasandra Post, Anekal Taluk,
Bengaluru Rural District - 562 106.
Accused No.2 : Afrose @ Afrose Babu,
S/o. Sultansaab,
Aged about 40 years,
Real-Estate Business,
R/a. No.44/7B, 8th Main,
Old Gurappanapalya,
Bengaluru - 560 076.
(By Sri M.R.C.Manohar, Advocate,
for A.1 & A.2)
1 Date of commission of offence 11.07.2006
2 Date of report of offence 14.07.2006
2 SC No.705/2008
3 Date of arrest of the accused 26.08.2006 = A.1
28.07.2006 = A.2
4 Date of release of accused on bail 28.08.2006 = A.1
29.08.2006 = A.2
5 Date of commencement of 05.02.2011
evidence
6 Date of closing of evidence 06.02.2015
7 Name of the complainant M.G. Shanthakumar
8 Offences complained of Sections 342, 346, 347,
364, 368, 384, 392, 420,
465, 467, 468, 506 &
201 r/w Section 34 of
IPC
9 Date of pronouncement of 24.09.2016
judgment
10 Opinion of the Judge Guilt of the accused
No's.1 & 2 not proved
11 Order of Sentence As per final-order
JUDGMENT
This is a charge-sheet filed by the Police Inspector of Thilaknagar Police Station, (SE, COD), Bengaluru. leveling the charges against the above said accused-persons for the commission of the offences punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC in the committal I ACMM Court, Bengaluru City, in it's CC No.28725/2007 in connection with the Thilaknagar P.S. Cr.No.174/2006.
2. The epitomized contents of the allegations that are leveled against the above said accused-persons in the charge-sheet run thus:
The informant/CW.1/M.G.Shanthakumar, aged of 72 years, non-practicing advocate residing in Bengaluru, is having about 22 3 SC No.705/2008 acres 26 guntas of landed-properties within the limit of Hebbagodi Village of Anekal Taluk, Bengaluru Rural District. The accused No.1/Nagendra Reddy being an Estate-Agent by profession, having got motivated to grab the said properties fraudulently designed a plot and gained the confidence of the informant/CW.1 by visiting him often time and again in the guise of inquiring the properties intended to sell and got the copies of the documents pertaining to the said properties of the informant/CW.1 and published a notification inviting the objections from any interested-persons, in purchasing the said properties by the said accused, by disclosing his intention to purchase the same; But, thereafter, the accused No.1 kept-mum and unspoken on the said issue. Therefore, the informant/CW.1 inclined to approach one M/s. Magna Warehousing and Distribution Pvt. Ltd., with the mediation of one M/s. Colliers International (India) Property Services Pvt. Ltd., with an intention to sell his property, whereby the said M/s. Magna Warehousing and Distribution Pvt. Ltd., agreed to purchase the said lands and intimated to execute the Memorandum of Understanding by fixing the total sale-consideration of Rs.83 Crores. In view of the same, the said M/s. Magna Warehousing and Distribution Pvt. Ltd., published a public-notice in the newspaper calling-upon the objections from the public, if any, in purchasing the said property of the informant/CW.1. At that time, the accused No.1 interfered and stated that he is an intended purchaser of the said property. 4 SC No.705/2008 Therefore, the Advocates' firm AZB and Partners representing the said M/s. Magna Warehousing and Distribution Pvt. Ltd., caused a notice calling-upon the accused No.1 and his advocate Sri. Manjunath to produce the documentary-proof showing the right and interest in the said properties, if any he has. But, as there were no any deals or proof in the contentions of the accused No.1, he did-not approach the said M/s. Magna Warehousing and Distribution Pvt. Ltd. but, when the business-deal with the M/s. Colliers International (India) Property Services Pvt. Ltd., was progressed, the accused No.1 got prepared a fake sale-deed for the properties without the notice and knowledge of the informant/CW.1.
On 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No.1/Nagendra Reddy and accused No.2/Afroz @ Afroz Babu S/o Sulthan Sab in furtherance of unlawful common-
intention to grab the property of the informant/CW.1/M.G.Shanthakumar, secured him near Adiga's Hotel situated at 12th Main Road, 4th Block, Jayanagar, Bengaluru, through an Estate-Dealer CW.2/Yebi George and the accused No.1 forcibly took the CW.1 and abducted him in a white-color Lancer Car bearing No.KA-05-MN-9559 belonging to his wife and avoided the CWs.1 & 2 from alighting from the said car and thereby confined them unlawfully and thereafter abducted the CW.1/informant and took him to the Sub-Registrar's Office, and on the way the accused- persons stopped their car near Anekal Bhuvaneshwari Kalyana 5 SC No.705/2008 Mantapa Road and opened the documents which were earlier prepared and forced the CW.1/informant to put his signature, whereby on reading the said document stated to be as the sale-deed, the CW.1 told that unless he is paid Rs.80 Crores, he would not sign thereon, during which time the accused No.1 gave one duplicate demand-draft for Rs.63 Crores and 5 cheques for Rs.17 Crores of Central Bank of India and forced to the CW.1 to sign on it, during which time the accused No.2/Afroz @ Afroz Babu possessing a dummy-revolver unlawfully obtained the signature of the CW.1/informant on the said sale-deed at the gun-point by threatening to his life with dire-consequences and extorted and thereafter in view of the office-time of the Sub-Registrar was over on that day by the time they reached the said office, again the accused- persons brought-back the said CW.1/informant who was then unlawfully confined in the house of the accused No.1 "Amar Canopy'" secretly with an intention to extort his property and also cheated the CW.1/informant and then on the very next-day morning again the CW.1/informant was forcibly taken by the accused- persons to the Sub-Registrar's Office at Anekal and got created the sale-deed which remained as pending for registration in view of non- production of the relevant-pahani in Kannada language and also during the time of the registration-process of the said sale-deed, the accused put the whitener on the sale-deed at Page No.5 from 8th sentence to 12th sentence and forged the said document of valuable- 6 SC No.705/2008 security for the purpose of cheating the CW.1/informant and also committed the robbery and also caused the disappearance of the evidence of the offence committed by the accused by taking-back the said fake demand-draft of Rs.63 Crores and 5 cheques worth of Rs.17 Crores of Central Bank of India from the CW.1/informant and destroyed the same to screen themselves from the offences committed by them and thereby the accused No's.1 & 2 committed the offences punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC was taken by I ACMM Court, Bengaluru City.
In response to the process issued against the accused No's.1 & 2, they have put-in their appearance before the committal court, through their learned counsel.
On moving for bail, earlier itself the accused No.1 has been released on bail, as per the order dated 28.08.2006 in the committal court and the accused No.2 has been released on bail, as per the order dated 24.08.2006 in Crl.Misc.No.2588/2006 of the then FTC - VI, Bengaluru.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused-persons by the I ACMM Court, Bengaluru City, in contemplation with the 7 SC No.705/2008 provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After committing the case to this court by the I ACMM Court, Bengaluru City, the process were issued to the accused No's.1 & 2 and secured the presence of accused No's.1 & 2 before this court.
After hearing both-sides, charges and additional-charges for the offences punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC were framed, and the same were read-over, and explained to the accused-persons in the vernacular best-known to them.
The accused-persons have denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused-persons, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 36, and placed it's reliance-on the documents marked at Exs.P.1 to P.67, P.12(a), P.13(a), P.14(a), P.16(a) to P.16(p), P.17(a), P.17(b), P.18(a) to P.18(c), P.19(a) to P.19(c), P.27(a), P.28(a), P.28(b), P.29(a), P.30(a), P.31(a), P.32(a), P.34(a) to P.34(d), P.35(a), P.36(a), P.37(a), P.39(a), P.40(a), P.41(a), P.42(a) to P.45(a), P.46(a), P.47(a), P.48(a), P.49(a), P.50(a) to P.52(a), P.53(a), P.54(a), P.55(a) to P.55(d), P.56(a), P.63(a) & P.67(a), and the material- objects marked on behalf of the prosecution are at MO No's.1 & 2. 8 SC No.705/2008
5. After the prosecution's-evidence was closed, as the incriminating circumstances were arising-out of the evidence of the prosecution-witnesses, the statements of the accused-persons under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Spl. Public Prosecutor for the State as-well-as the learned counsel for the accused-persons.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No's.1 & 2, in furtherance of common-
unlawful-intention to grab the property of the informant/CW.1/M.G.Shanthakumar, forced him to put his signature on the sale-deed belonging to his properties bearing Sy.No's.53/1, 53/2(b), 55/1, 55/2, 55/3, 55/4, 56, 57/2 & 58/2 totally measuring 22 acres 26 guntas of land, in connection with which the accused No.1 having contacted the informant/CW.1 through the CW.2/Yebi George and secured the CW.1 near Adiga's Hotel situated at 12th Main Road, 4th Block, Jayanagar, Bengaluru, where- at the accused No.1 along-with accused No.2 and two others forcibly took the CW.1 and abducted in his Lancer Car bearing No.KA-05-MN-9559 without allowing both the CWs.1 & 2 to go out of the said car wrongfully confined them and after obtaining the signature of the CW.1/informant on the sale-deed when reached the Sub-Registrar Office in the 9 SC No.705/2008 evening it being after office-time, the registration of the sale-deed could not be made and therefore, the accused-persons along-with their henchmen unlawfully-confined the CW.1 in the house of the accused No.1 situated at Amar Canopy Apartment, No.F-102, BTM Layout, Bengaluru, secretly and thereby the accused No's.1 & 2 committed the offences punishable U/Secs.342 & 346 r/w Section 34 of IPC?
(2) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 2, in furtherance of common-unlawful-
intention, took the CWs.1 & 2 to Anekal Sub-
Registrar's Office and while on the way, they stopped the car near Anekal Bhuvaneshwari Kalyana Mantapa Road and forced the CW.1/informant to put his signature, during which time the CW.1/informant on reading the same stated that he would not sign thereon unless Rs.80 Crores is being paid to him, wherefore, the accused No.1 gave one duplicate demand-draft for Rs.63 Crores along-with 5 cheques for Rs.17 Crores of Central Bank of India and forced him to sign on the said sale-deed at the gun-point of the accused No.2 by threatening to the life of the CW.1 with dire-consequences for the purpose of extorting the said properties and obtained his signature on the sale-deed and accordingly extorted and robbed the properties and valuable- securities and thereby the accused No's.1 & 2 committed the offences punishable U/Secs.347, 384 & 392 r/w Section 34 of IPC?
10 SC No.705/2008(3) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 2 in furtherance of common-unlawful-intention carried-off the CW.1/informant illegally by force and disruption by means of inducing him through one Yebi George for the purpose of obtaining his signatures forcibly and get registered the disputed sale-deed in the Sub-Registrar's Office at Anekal and thereby the accused No's.1 & 2 committed the offence punishable U/Sec.364 r/w Section 34 of IPC?
(4) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 2 in furtherance of common-unlawful-
intention wrongfully concealed and kept the abducted CW.1/informant and confined in the house of the accused No.1 situated at Amar Canopy Apartment, No.F-102, BTM Layout, Bengaluru, and thereby the accused No's.1 & 2 committed the offence punishable U/Sec.368 r/w Section 34 of IPC? (5) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused No's.1 & 2, in furtherance of common-unlawful-intention, obtained the signature of the CW.1/informant on the sale-deed by dishonestly inducing him to deliver his properties to the accused No.1, by giving the duplicate demand-draft for Rs.63 Crores and 5 cheques for Rs.17 Crores to the CW.1 and thereafter when the Sub-Registrar refused to register the sale- deed produced by the accused No.1 as the pahani 11 SC No.705/2008 was not correct, later-on he took the CW.1/informant to his residence and extorted-back the said duplicate demand-draft and 5 cheques from the CW.1 at gun-
point of the accused No.2 and obtained the signatures of the CW.1/informant forcibly on the blank-papers of the land selling commission and on the same-day night, the CW.1 was freed from their confinement and thereby the accused No's.1 & 2 cheated the CW.1/informant by dishonestly inducing him to put his signature on the sale-deed and etc., and thereby the accused No's.1 & 2 committed the offence punishable U/Sec.420 r/w Section 34 of IPC?
(6) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, when the CW.1/informant refused to sell for the price shown in the sale-deed as for Rs.63 Crores by way of demand-draft and Rs.7 Crores by cash, the accused No.1 along-with accused No.2 in furtherance of common-unlawful-intention, induced the CW.1 to accept the said fake demand-draft for Rs.63 Crores which was in-fact purchased for Rs.63/- only and manipulated as for Rs.63 Crores and 5 cheques drawn on Central Bank of India for Rs.17 Crores, as the sale-consideration amount and wrote the DD number and date at Page No.5 of the sale-deed and attested the handwritten- portion by signing besides it and later put the whitener thereon the consideration clause at Page No.5, Para(b) 8th sentence to 12th sentence at the time of registration and forged the said documents purporting to be a valuable-security with an intention to cause the 12 SC No.705/2008 damage to the CW.1/informant to part with his property and also forged the said documents for the purpose of cheating him and thereby the accused No's.1 & 2 committed the offences punishable U/Secs.465, 467 & 468 r/w Section 34 of IPC?
(7) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, in furtherance of common-unlawful-intention, the accused No's.1 & 2 threatened the CW.1/informant by criminally intimidating to his life with dire-consequences and forcibly obtained his signature on the fabricated- document by using the criminal-force and thereby the accused No's.1 & 2 committed the offence punishable U/Sec.506 r/w Section 34 of IPC?
(8) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, in furtherance of common-unlawful-intention, the accused No's.1 & 2 though given the fabricated demand-draft of Rs.63 Crores and 5 cheques of Rs.17 Crores, drawn on Central Bank of India, on 11.07.2006 after getting the registered sale-deed by putting the CW.1 at gun- point through the accused No.2, they snatched-
away/took-away the said fabricated demand-draft and 5 cheques and destroyed and also the accused No.1 has fabricated the sale-deed by putting the whitener on the contents of the para containing the sale-consideration, with an intention to cause the disappearance of the evidence of the offence committed by them to screen themselves from their illegal-act and thereby the accused No's.1 & 2 13 SC No.705/2008 committed the offence punishable U/Sec.201 r/w Section 34 of IPC?
(9) Whether the accused No's.1 & 2 are liable to be convicted?
(10) What order?
8. The findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. In the Negative.
Point No.4 .. In the Negative.
Point No.5 .. In the Negative.
Point No.6 .. In the Negative.
Point No.7 .. In the Negative.
Point No.8 .. In the Negative.
Point No.9 .. In the Negative.
Point No.10 .. As per the final-order,
for the following:
REASONS
9. It is the specific-tale of the prosecution that, the informant/CW.1/M.G.Shanthakumar, aged of 72 years, non- practicing advocate residing in Bengaluru, is having about 22 acres 26 guntas of landed-properties within the limit of Hebbagodi Village of Anekal Taluk, Bengaluru Rural District. The accused No.1/Nagendra Reddy being an Estate-Agent by profession, having got motivated to grab the said properties fraudulently designed a plot and gained the confidence of the informant/CW.1 by visiting him often time and again in the guise of inquiring the properties intended to sell and got the copies of the documents pertaining to the said properties of the informant/CW.1 and published a notification inviting the objections from any interested-persons, in 14 SC No.705/2008 purchasing the said properties by the said accused, by disclosing his intention to purchase the same; But, thereafter, the accused No.1 kept-mum and unspoken on the said issue. Therefore, the informant/CW.1 inclined to approach one M/s. Magna Warehousing and Distribution Pvt. Ltd., with the mediation of one M/s. Colliers International (India) Property Services Pvt. Ltd., with an intention to sell his property, whereby the said M/s. Magna Warehousing and Distribution Pvt. Ltd., agreed to purchase the said lands and intimated to execute the Memorandum of Understanding by fixing the total sale-consideration of Rs.83 Crores. In view of the same, the said M/s. Magna Warehousing and Distribution Pvt. Ltd., published a public-notice in the newspaper calling-upon the objections from the public, if any, in purchasing the said property of the informant/CW.1. At that time, the accused No.1 interfered and stated that he is an intended purchaser of the said property. Therefore, the Advocates' firm AZB and Partners representing the said M/s. Magna Warehousing and Distribution Pvt. Ltd., caused a notice calling-upon the accused No.1 and his advocate Sri. Manjunath to produce the documentary-proof showing the right and interest in the said properties, if any he has. But, as there were no any deals or proof in the contentions of the accused No.1, he did-not approach the said M/s. Magna Warehousing and Distribution Pvt. Ltd, but, when the business-deal with the M/s. Colliers International (India) 15 SC No.705/2008 Property Services Pvt. Ltd., was progressed, the accused No.1 got prepared a fake sale-deed for the properties without the notice and knowledge of the informant/CW.1.
On 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No.1/Nagendra Reddy and accused No.2/Afroz @ Afroz Babu S/o Sulthan Sab in furtherance of unlawful-common-
intention to grab the property of the informant/CW.1/M.G.Shanthakumar, secured him near Adiga's Hotel situated at 12th Main Road, 4th Block, Jayanagar, Bengaluru, through an Estate-Dealer CW.2/Yebi George and the accused No.1 forcibly took the CW.1 and abducted him in a white-color Lancer Car bearing No.KA-05-MN-9559 belonging to his wife and avoided the CWs.1 & 2 from alighting from the said car and thereby confined them unlawfully and thereafter abducted the CW.1/informant and took him to the Sub-Registrar's Office, and on the way the accused-persons stopped their car near Anekal Bhuvaneshwari Kalyana Mantapa Road and opened the documents which were earlier prepared and forced the CW.1/informant to put his signature, whereby on reading the said document stated to be as the sale-deed, the CW.1 told that unless he is paid Rs.80 Crores, he would not sign thereon, during which time the accused No.1 gave one duplicate demand-draft for Rs.63 Crores and 5 cheques for Rs.17 Crores of Central Bank of India and forced to the CW.1 to sign on it, during which time the accused No.2/Afroz @ 16 SC No.705/2008 Afroz Babu possessing a dummy-revolver unlawfully obtained the signature of the CW.1/informant on the said sale-deed at the gun- point by threatening to his life with dire-consequences and extorted and thereafter in view of the office-time of the Sub- Registrar was over on that day by the time they reached the said office, again the accused-persons brought-back the said CW.1/informant who was then unlawfully confined in the house of the accused No.1 "Amar Canopy'" secretly with an intention to extort his property and also cheated the CW.1/informant and then on the very next-day morning again the CW.1/informant was forcibly taken by the accused-persons to the Sub-Registrar's Office at Anekal and got created the sale-deed which remained as pending for registration in view of non-production of the relevant- pahani in Kannada language and also during the time of the registration-process of the said sale-deed, the accused put the whitener on the sale-deed at Page No.5 from 8th sentence to 12th sentence and forged the said document of valuable-security for the purpose of cheating the CW.1/informant and also committed the robbery and also caused the disappearance of the evidence of the offence committed by the accused by taking-back the said fake demand-draft of Rs.63 Crores and 5 cheques worth of Rs.17 Crores of Central Bank of India from the CW.1/informant and destroyed the same to screen themselves from the offences committed by them and thereby, the accused-persons committed the offences 17 SC No.705/2008 punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC.
10. At the very outset, the absolute burden of proving the alleged imputations against the accused-persons is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
11. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 to 36, in which CW.1 is examined as P.W.1 who is the complainant as-well-as the victim, CW.2 is examined as PW.4 who is the partial-eyewitness and mediator of the sale-transaction, CW.3 is examined as PW.5 who is the agent in Sub-Registrar's Office at Anekal, CW.4 is examined as PW.6 who is the maid-servant as-well-as the circumstantial- witness, CW.5 is examined as PW.8 who is the advocate stated to have drafted the sale-deed, CW.6 is examined as PW.7 who is also the advocate stated to have assisted in drafting the sale-deed and got registered the same, CW.7 is examined as PW.9 who is the circumstantial-witness being present during registration-process, CW.8 is examined as PW.10 who is also the circumstantial-witness present during the registration-process of the said sale-deed, CW.9 is examined as PW.3 who is the younger-brother of the PW.1, hearsay-witness as-well-as the partial-eyewitness, CW.10 is examined as PW.2 who is also the younger-brother of the PW.1 and CW.9/PW.3 as-well-as the hearsay-witness, CW.11 is examined as 18 SC No.705/2008 PW.29 who is the circumstantial-witness as-well-as the nearest- relative of the accused No.1 and cousin-brother of the PW.8 (CW.5) having financially assisted the accused No.1 for the purpose of stamp-duty, CW.12 is examined as PW.30 who is also the circumstantial-witness having financially helped the accused No.1, CW.18 is examined as PW.31 who is the sister-in-law of the accused No.1 and circumstantial-witness, CW.19 is examined as PW.32 who is the wife of the accused No.1 and circumstantial- witness, CW.21 is examined as PW.11 who is the son of the younger-brother of the PW.1 as-well-as the spot-mahazar-witness, CW.23 is examined as PW.12 who is the spot of abduction- mahazar-witness as-well-as the spot of building where the PW.1 was confined-mahazar-witness as-well-as the seizure of hard-disc mahazar-witness, CW.26 is examined as PW.13 who is the Sub- Registrar of Anekal as-well-as the circumstantial-witness, CW.27 is examined as PW.14 who is the Manager in Sub-Registrar's Office at Anekal as-well-as the circumstantial-witness, CW.28 is examined as PW.15 who is the Computer-Operator in the Sub-Registrar's Office at Anekal as-well-as the circumstantial-witness, CW.29 is examined as PW.16 who is the SBM Manager as-well-as the circumstantial-witness, CW.31 is examined as PW.17 who is the handwriting-expert, FSL, Bengaluru, CWs.32 & 33 are examined as PWs.18 & 19 respectively, who are the police-constables having accompanied the PSI for arresting the accused No.2 and the 19 SC No.705/2008 circumstantial-witness, CW.34 is examined as PW.20 who is the police-constable having escorted the accused No.2 to produce from court to jail as-well-as the circumstantial-witness, CW.36 is examined as PW.21 who is the PSI having assisted the investigating-officer (CW.40) and also carried the documents to FSL as-well-as the circumstantial-witness, CW.37 is examined as PW.24 who is also the PSI having assisted the investigating-officer as-well-as the circumstantial-witness, CW.38 is examined as PW.22 who is the PSI having seized the white-color Lancer Car and produced before the investigating-officer, CW.39 is examined as PW.25 who is the partial investigating-officer having conducted the initial-portion of the investigation, CW.40 is examined as PW.23 who is the Dy.SP, COD as-well-as the partial investigating-officer, CW.42 is examined as PW.36 who is the Scientific-Officer, FSL, having examined the bank-challan, CW.41 is examined as PW.33 who is also the partial investigating-officer having filed the charge- sheet, CW.44 is examined as PW.27 who is also partial investigating-officer having submitted the additional-charge-sheet to the court, additional-witness is examined as PW.28 who is the Nodal-Officer having produced the summoned-document as-well- as the circumstantial-witness, another additional-witness is examined as PW.34 who is the Bank-Manager having produced the document marked at Ex.P.63 as-well-as the circumstantial- witness, another additional-witness is examined as PW.35 who is 20 SC No.705/2008 the computer/software-scientist having examined and analyzed the hard-disc CPU and etc., as-well-as the circumstantial-witness and another additional-witness is examined as PW.36 who is the Executive-Director of CDAC having countersigned on Ex.P.55/report as-well-as the circumstantial-witness, and thereby, the prosecution has placed it's reliance-on the documentations marked at Exs.P.1 to P.67, in which Exs.P.1 & P.2 are the memorandums of notice/memo dated 19.05.2003, Exs.P.3 to P.11 are the RTC extracts, Ex.P.12 is the copy of newspaper, Ex.P.12(a) is the portion of the publication, Ex.P.13 is the copy of newspaper, Ex.P.13(a) is the portion of the publication, Ex.P.14 is the commitment-letter/deed dated 15.05.2006, Ex.P.14(a) is the signature of the PW.1, Ex.P.15 is the letter dated 19.05.2006, Ex.P.16 is the registered sale-deed dated 06.07.2006 executed by one M.G.Shanthakumar (CW.1/PW.1) in favour of one Nagendra Reddy (accused No.1), Exs.P.16(a) to P.16(j) are the signatures of the PW.1, Ex.P.16(k) is the erased/obliterated portion with the application of whitener, Ex.P.16(l) is the signature of the PW.7, Ex.P.16(m) is the signature of the PW.9, Ex.P.16(n) is the signature of the PW.10, Exs.P.16(o) & P.16(p) are the portions of the PW.13, Ex.P.17 is the complaint of CW.1/PW.1, Ex.P.17(a) is the signature of the PW.1, Ex.P.17(b) is the signature of the PW.25, Ex.P.18 is the spot-mahazar, Ex.P.18(a) is the signature of the PW.1, Ex.18(b) is the signature of the PW.11, Ex.P.18(c) is the signature of the 21 SC No.705/2008 PW.25, Ex.P.19 is the seizure-mahazar, Ex.P.19(a) is the signature of the PW.1, Ex.P.19(b) is the signature of the PW.4, Ex.P.19(c) is the signature of the PW.25, Exs.P.20 & P.21 are the photographs of the car, Ex.P.22 is the statement of the PW.4 dated 15.07.2006, Ex.P.23 is the additional-statement of the PW.4 dated 16.10.2007, Ex.P.24 is the statement of the PW.5 dated 14.08.2007, Ex.P.25 is the statement of the PW.9 dated 19.12.2006, Ex.P.26 is the statement of the PW.10 dated 19.12.2006, Ex.P.27 is the spot- mahazar, Ex.P.27(a) is the signature of the PW.12, Ex.P.28 is the spot-mahazar, Ex.P.28(a) is the signature of the PW.12, Ex.P.28(b) is the signature of the PW.33, Ex.P.29 is the spot-mahazar, Ex.P.29(a) is the signature of the PW.12, Ex.P.30 is the Letter from the Office of the Sub-Registrar, Anekal, dated 15.07.2006, Ex.P.30(a) is the signature of the PW.13, Ex.P.31 is the affidavit dated 10.07.2006, Ex.P.31(a) is the signature of the PW.13, Ex.P.32 is the affidavit dated 12.07.2006, Ex.P.32(a) is the signature of the PW.13, Ex.P.33 is the DD challan, Ex.P.34 is the FSL opinion, Ex.P.34(a) is the signature of the PW.17, Ex.P.34(b) is the reasons, Ex.P.34(c) is the signature of the PW.17, Ex.P.34(d) is the signature of the PW.23, Ex.P.35 is the deciphered-contents, Ex.P.35(a) is the signature of the PW.17, Ex.P.36 is one small- print, Ex.P.36(a) is the signature of the PW.17, Ex.P.37 is the sample-seal, Ex.P.37(a) is the signature of the PW.17, Ex.P.38 is the report of the PW.22, Ex.P.39 is the police-notice dated 22 SC No.705/2008 17.07.2006, Ex.P.39(a) is the signature of the PW.22, Ex.P.40 is the report of the PW.22, Ex.P.40(a) is the signature of the PW.22, Ex.P.41 is the ING Vysya Bank letter dated 21.11.2006Ex.P.41(a) is the signature of the PW.23, Exs.P.42 to P.45 is the list of particulars of the mobile-calls, Exs.P.42(a) to P.45(a) are the signatures of the PW.23, Ex.P.46 is the report of PW.24, Ex.P.46(a) is the signature of the PW.24, Ex.P.47 is the First Information Report, Ex.P.47(a) is the signature of the PW.25, Ex.P.48 is the mahazar, Ex.P.48(a) is the signature of the PW.25, Ex.P.49 is the voluntary-statement of the accused No.2, Ex.P.49(a) is the signature of the PW.25, Exs.P.50 to P.52 are the letters of ING Vysya Bank, Exs.P.50(a) to P.52(a) are the signatures of the PW.25, Ex.P.53 is the letter of State Bank of Mysore, Ex.P.53(a) is the signature of the PW.25, Ex.P.54 is the FSL opinion, Ex.P.54(a) is the signature of the PW.26, Ex.P.55 is the analysis-report, Ex.P.55(a) is the Annexure-II Item No.1 of PW.35, Ex.P.55(b) is the Annexure-II Item No.2 of PW.35, Ex.P.55(c) is the signature of the PW.35, Ex.P.55(d) is the signature of the PW.36, Ex.P.56 is the document/letter dated 14.05.2012 of PW.28, Ex.P.56(a) is the signature of the PW.28, Ex.P.57 is the statement of the PW.29, Ex.P.58 is the additional-statement of the PW.29, Ex.P.59 is the statement of the PW.30, Ex.P.60 is the statement of the PW.31, Ex.P.61 is the Bank-Account-Statement of the Central Bank of India, BTM Layout, Bengaluru, Ex.P.62 is the letter dated 23 SC No.705/2008 07.08.2007 addressed to the Office of the Director General of Police, Bengaluru, by the Central Bank of India, BTM Layout, Bengaluru, Ex.P.63 is the letter dated 12.06.2012 addressed to the Sheristedar, Civil Court, Bengaluru, by the Central Bank of India, BTM Layout, Bengaluru, Ex.P.63(a) is the signature of the PW.34, Ex.P.64 is the additional-statement of B.V.Ravi S/o Vishwanathappa, Ex.P.65 is the statement of Prasannakumar S/o M. Thimmareddy, Ex.P.66 is the additional-statement of B.T. Prasannakumar S/o M. Thimmareddy, Ex.P.67 is the copy of complaint dated 12.07.2006 addressed to the Inspector of Police, Thilaknagar police station, Bengaluru, by M.G. Shanthakumar, along-with an endorsement and Ex.P.67(a) is the signature of the PW.25, and the material-objects marked on behalf of the prosecution are at MO No's.1 & 2, in which MO No.1 is the Lancer Car bearing No.KA-05-MN-9559 and MO No.2 is the hard-disc from computer CPU.
12. It would be appropriate at this point of juncture to focus on the highlights of the contents of the chief-examinations of the PWs.1 to 36, for better convenience in discussing the alleged offences herein after. Therefore, on perusal of the entire depositions of the PWs.1 to 36, it is clear that the PW.1 being the complainant as-well-as the victim by name M.G.Shanthakumar S/o M.L.Gopalashetty, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he originally 24 SC No.705/2008 hailing from Chikmagalur, is residing at Bengaluru at House No.199, 1st 'C' Main Road, 7th Block, Jayanagar, Bengaluru City, having the agriculture by profession with Coffee-plantation in Chikmagalur and owns the agricultural landed-properties to the extent of 22 acres 26 guntas in Sy.No's.53/1, 53/2(b), 55/1, 55/2, 55/3, 55/4, 56, 57/1, 57/2 & 58/2 situated at Hebbagodi in Anekal Taluk, Bengaluru District; Out of which, 20 guntas is a kharab-land, in addition to which 26470 sq. ft. is for the purpose of non-agriculture. The said properties were purchased by him in the year 1974-1975 from about 10-12 persons under disjunctive sale-deeds and now all the properties having amalgamated and formed a single-block, thereafter, the said dry-landed-properties were developed by drilling a bore-well and converted-into the irrigated-lands and started to grow the grapes and vegetables. But, due to sink of the water in the said bore-well, he was compelled to stop the agriculture and also he having undergone Hernia-surgery, he entrusted the agriculture landed-properties to his brothers Dattatreya and Ramesh; But, later-on, they having re- drilled the bore-well and developed the irrigation-facility to the same, cultivated by growing the Coffee, Pepper and also planted the silver-oak-trees for the purpose of shadow. It is further stated by the PW.1 that, out of the Sy.No.60/7 he got converted 3 acres of land into industrial purpose and retaining 26470 sq. ft. space therein, he sold-out the remaining land since he was aged and 25 SC No.705/2008 thereafter started the share-business and then he put the agricultural-land and said open-site for sale. In view of the same, in the middle of the year 2005, the accused No.1/Nagendra Reddy came in contact with him and developed intimacy, whereby the accused No.1 had proposed to purchase the said landed-properties at the rate of Rs.650/- per sq. ft. and therefore prior to the agreement of sale, he (PW.1) claimed/demanded the pan-card from the accused No.1 and also the documents as to whether the accused No.1 is capable to pay the huge-amount of consideration. At that time, the accused No.1 in the month of November 2005 published the public-notice in the daily Vijaya Karnataka newspaper calling-upon the objections from the public, if any, in case any-one has the right and interest in the said landed- properties. Exs.P.1 & P.2 are the conversion-orders of Sy.No.60/7 into NA land in 2 times. The 9 RTC extracts of the said survey- numbers are as per Exs.P.3 to P.11. The public-notice published in the newspaper is as per Ex.P.12(a) and the entire newspaper is as per Ex.P.12. No final-transaction was made in respect of the said property with regard to it's value between the accused No's.1 & 2 themselves, wherefore, he gave the deadline to the accused No.1 to decide and arrive-at a conclusion regarding the value of the said properties by 31.12.2005. But, the accused No.1 did-not come to him and discuss. Therefore, he approached the M/s. Colliers International (India) Property Services Pvt. Ltd., for selling 26 SC No.705/2008 his properties, whereby the said M/s. Colliers International (India) Property Services Pvt. Ltd., introduced one Yebi George who was already known to him since he was a businessman earlier when he (PW.1) was doing the share-business. The said M/s. Colliers International (India) Property Services Pvt. Ltd., ultimately settled the sale-transaction of his properties in favour of M/s. Magna Warehousing and Distribution Pvt. Ltd., at the rate of Rs.820 sq. ft. and demanded the papers for verification and also for publishing the public-notice in the newspapers through their legal-advisors i.e., AZB and Partners, Advocates & Solicitors, to whom he gave the permission to issue the public-notice in the Times of India daily newspaper as per Ex.P.13 and the said public-notice is as per Ex.P.13(a). Thereafter, the accused No.1/Nagendra Reddy as against the said public-notice published in the Times of India daily newspaper, he objected the said M/s. Magna Warehousing and Distribution Pvt. Ltd., over phone, wherefore, their Advocates AZB Partners, Advocates & Solicitors wrote a letter to the accused No.1 calling-upon him to produce any documents if he possess in connection with any transaction if he has made with him (PW.1), as per Ex.P.15. But, the accused No.1 has not produced any document in response to the said Ex.P.15, to the said M/s. Magna Warehousing and Distribution Pvt. Ltd. Even, there was a commitment-letter in respect of the said transaction between M/s. Magna Warehousing and Distribution Pvt. Ltd., and himself (PW.1) 27 SC No.705/2008 by mentioning the settled value of the property at Rs.825/- per sq. ft., as per Ex.P.14, on which his signature is as per Ex.P.14(a). But, in view of the accused No.1 having raised the objections, the M/s. Magna Warehousing and Distribution Pvt. Ltd., has postponed the said transaction. On 10.07.2006 the accused No.1 called him on phone and stated that, he intends to speak with him regarding the said transaction and similarly the Manager of Sales Business by name Yebi George also called him over phone to discuss regarding the said transaction and both of them had called him on phone about 1.30 p.m. in the afternoon one-after-the- another, wherefore, he went to the office of Yebi George at 2.30 p.m. in the afternoon, which is situated at 4th Block, Jayanagar, Bengaluru City; but, Yebi George was not present and therefore, he (PW.1) left the message to the staff of the said office of Yebi George to intimate the said Yebi George on phone regarding his (PW.1) visit to their office. Thereafter, Yebi George again called him on phone and asked him to come near Adiga's Hotel in Jayanagar, which is very near to the said office of the Yebi George, whereby he went to the said spot, but Yebi George was not there. But, Yebi George again phoned him and asked him to come to 12th Main Road, whereby he went there-at. In the said 12th Main Road, a white Lancer Car of the accused No.1 was being parked, in which the accused No.1 and Yebi George were sitting in front-seats and he sat inside the said car by opening the back-door, but he does- 28 SC No.705/2008 not remember the car-number. At the same-time, two-persons came near the said car and sat on both the sides of himself, during which time he got frightened and tried to alight but they threatened him and did-not allow him to alight from the said car. Similarly, even the said Yebi George though tried to alight from the said car, the accused No.1 threatened him also, wherefore, the said Yebi George did-not alight from the said car. The accused No.2/Afroz having a revolver in his hand was sitting besides him (PW.1), during which time though he shouted for help, none came to his help. The said car started moving towards Anekal Sub- Registrar's Office and at about ½ kilometer before the said Sub- Registrar's Office where there was no density of public, the said car was parked. But, at that time, the accused No.1 gave the sale- deed and demanded him to sign thereon stating that he will be signing as he is selling his properties. When he denied for signing on the sale-deed, the accused No.2 holding the revolver in his hand threatened him, during which time the accused No.1 gave the demand-draft of State Bank of Mysore, Hosur Branch, having written thereon as for Rs.63 Crores, along-with 5 cheques worth of Rs.17 Crores of Central Bank of India, BTM Layout Branch, Bengaluru. The said demand-draft being too old, he suspected the same and the demand-draft number was also left blank in the said sale-deed, wherefore, he mentioned the demand-draft number in the sale-deed in his own-handwritings along-with the date of 29 SC No.705/2008 demand-draft in the sale-deed and also wrote the said demand- draft as subject to it's realization and then he signed on the said sale-deed due to the undue-force under a threat to his life. He does-not remember the phone-numbers of Yebi George and Nagendra Reddy, but his own mobile-phone-number was 9343867490. The said sale-deed on which he has put his signatures to each-page totally 10 signatures, is marked as per Ex.P.16 and his signatures are as per Exs.P.16(a) to P.16(j). He does-not know as to when and who has signed besides his signatures. He having written as subject to realization and signed along-with the demand-draft number and it's date, in Page No.5 of the said sale-deed/Ex.P.16, the said portion of his writings have been erased which can be seen even if it is held to the light-rays and the said erased-portion is marked as per Ex.P.16(k). Thereafter, they threatened him (PW.1) stating that if the hue and cry is raised, he would be killed and thereby took him to the Sub- Registrar's Office where-at a known-person by name Sada was present, during which time though he hugged him and stated in a lower-tune to help him (PW.1) since he was pale and nervous due to the lack of sufficient food, the said Sada could not listen or hear his utterings. At the same-time, the accused No.2 and others again dragged him towards the said car, during which time he had no tune/voice to raise the hue and cry and when he went near the said car, Yebi George was not present and he was not along-with 30 SC No.705/2008 them when they went to Sub-Registrar's Office. Thereafter, the accused No's.1 & 2 along-with another-person took him in the same car to the house of the accused No.1 situated at BTM Layout in Bengaluru City and confined him there-at in the night, during which time his daughter, his wife and wife's sister along-with accused No.2 and another were also in the same house. His mobile was taken-away by them. On the next-day i.e., on 11.07.2006, again they took him to the Sub-Registrar's Office at Anekal, during which time the said Yebi George did-not come but the younger-sister of the wife of the accused No.1 had come in the said car in lieu of Yebi George. The same white Lancer Car bearing No.9558 was used to take him again to the said Sub-Registrar's Office at Anekal and parked on the same-place, on which the said car was parked on the earlier-day and thereafter, he was made to sit in the said car for 4 hours and thereafter, he was taken to the Sub-Registrar's Office, during which time the accused No's.1 & 2 along-with 5-6 persons whose names are not known to him, were present. After getting clicked his photo in the Sub-Registrar's Office, the accused No.1 along-with accused No.2 who was holding the revolver in his hand, and others again threatened him to co- operate to take his photo through the computer in the Sub- Registrar's Office and accordingly, under their threat, he tendered himself for taking his photo through the computer. On that day, in view of no food having given to him from morning till evening, he 31 SC No.705/2008 was very weak and nervous and also due to acidity he being nervous, he could not speak. When he sat before the computer, the Sub-Registrar was sitting on his seat simply lying-down his head. But, the said Sub-Registrar did-not inquire and speak with him, though a lady-advocate was sitting in front of him. After taking his photo and finger-print, again he was taken to the said car which was parked in the compound of the Sub-Registrar's Office and again obtained his signature besides his finger-print in the said car and thereafter, they brought him in the same-car to the same-house and confined there-at. Later-on, he came to know the said car was standing in the name of the wife of the accused No.1. Even, his signatures were obtained on few-documents again when he was confined in the house of the accused No.1. Thereafter, at about 11.30 p.m. in the night, they dropped him near his car which was parked at 13th Main Road, 4th Block, Jayanagar, and thereafter, within 15-20 minutes, he returned- back to his own-house in his own-car. Since he was so tired and nervous, he drank the water and slept in his house. On 12th morning at about 7.30 a.m. when his younger-sister/Rukmini called him from Chennai on phone to know regarding the details of his properties, he could not respond to her properly in view of he suffering from nervousness. Therefore, she having sent her younger-brother/Nagendra bringing to his notice regarding his weak-response to her, the said Nagendra came to his house at 32 SC No.705/2008 about 12.00 in the afternoon to inquire, during which time he explained the events which have taken place on 10th & 11th. At that time, the accused No's.1 & 2, along-with the wife of the accused No.1 and few-others came to their house. At that time, there was an oral-tussle between his younger-brother/Nagendra and accused No.1, during which time the accused No.2 assaulted Nagendra, whereby Nagendra raised the hue and cry stating in Kannada language as "thieves, thieves", (PÀ¼ÀîgÀÄ PÀ¼ÀîgÀÄ) during which time the surrounding/neighboring residents came-out and started looking towards them. Therefore, immediately the accused No's.1 & 2 and others went-away there-from. At that time, his younger- brother/Nagendra took him to Jayanagar police station and when he tried to lodge the police-complaint, the police did-not receive the same stating that the instant case comes within the jurisdiction of Thilaknagar police station, whereby he went to Thilaknagar police station who again sent him back to Jayanagar police station stating that the said incident has taken place within the jurisdiction of Jayanagar police station. At that time in the said Thilaknagar police station, he has given a typed-complaint, in respect of which they have given an endorsement without registering the same but kept pending on the issue of jurisdiction and the said complaint is as per Ex.P.17, on which his signature is as per Ex.P.17(a). But, however, on the said complaint, the police having got registered the said case on 14.07.2006 have sent the 33 SC No.705/2008 First Information Report to the court. Thereafter, on 14.07.2006 he took the police to the spot i.e., 12th Main Road which is existing between 3rd & 4th Blocks of Jayanagar from where he was abducted and accordingly the police drawn the spot-mahazar as per Ex.P.18, on which his signature is as per Ex.P.18(a). Prior to registering the said case, on 13.07.2006 himself and his younger- brother/Nagendra together had been to Sub-Registrar's Office at Anekal and the copy of the complaint which was given to the police on 12.07.2006 along-with a written-complaint requesting not to register the said disputed sale-deed, were given as it was not yet registered till then. On 15.07.2006 the police seized the said disputed sale-deed from the Sub-Registrar's Office, which was handed-over by the Sub-Registrar by giving a pending-number to it. Thereafter, the police recorded his (PW.1) statements. Even, the police have seized the said white Lancer Car which was parked in front of the police station under the seizure-mahazar as per Ex.P.19, on which his signature is as per Ex.P.19(a) and thereafter, it was released tentatively in favour of the wife of the accused No.1. Thereafter, he went along-with the police and shown the another- spot of incident which is at about ½ kilometer from the Sub- Registrar's Office and accordingly, the police drawn the mahazar there also. He has identified the said white Lancer Car brought before this court bearing it's registration No.KA-05-MN-9559 as it was produced by the wife of the accused No.1 and accordingly, it is 34 SC No.705/2008 marked as MO No.1. The accused No.1 having made the sale- transaction by fixing the total sale-consideration amount of Rs.80 Crores, had given 5 cheques worth of Rs.17 Crores pertaining to Central Bank of India and a demand-draft of Rs.63 Crores of State Bank of Mysore and later-on by threatening to his life with dire- consequences taken-away the said 5 cheques and a demand-draft without giving any amount to him, wherefore, he does-not know what has happened with the said 5 cheques and the demand-draft.
13. Further, the PW.4/Yebi George S/o George M.T. being the eyewitness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, earlier since 1994 he was doing the share-business and thereafter since 2009 he is doing the share-business consultant work by opening the office in the name and style of 'Way to Wealth' which is situated in 3rd Block, Jayanagar, Bengaluru City. The informant- M.G.Shanthakumar-PW.1 is known to him since 2004 while he (PW.4) was working in IL & FS, during which time the said PW.1 use to visit his company often to make the investments. Since the PW.1 had sustained huge-loss in the shares during the year 2005- 2006, he had expressed before him (PW.4) that it was very difficult for him to invest the money and therefore, he would invest the money by selling his land situated on Huskur Road and in connection with the same, the PW.1 use to visit him and request to see a customer for purchasing his property. The said property 35 SC No.705/2008 being situated on Huskur Road measures about 22 acres and in view of the request of the PW.1, he had introduced few International Real-Estate Brokers with whom the PW.1 had maintained the direct-contact. Thereafter, the PW.1 came to him and stated that about 2-3 clients/customers had come in contact with him and thereby asked him to sell the said property by mediating, in respect of which the PW.1 assured that he would pay some-amount to him. In the year 2006 he had been to the house of the informant in connection with some other work related to his company. At that time, the informant/PW.1 introduced the accused No.1/Nagendra, stating that he had come for purchasing his lands and the said Nagendra Reddy himself is the accused No.1. Thereafter, about one-week, the PW.1 along-with accused No.1/Nagendra Reddy came to his office to discuss about the sale of his properties and later-on also for about 2-3 times, they had come to his office, during which time he stated that it would not be appropriate to speak in his office and therefore proposed to go outside and have the sale-talks. Thereafter, one-day they took him (PW.4) to a hotel situated at 4th Block, Jayanagar, and made the sale-talks. He does-not know the name of the said hotel. After the sale-talks, the accused No.1 and the informant both went to their respective houses. During the sale-talks in the said hotel, the PW.1 had asked the accused No.1 to discuss with him (PW.4) for any further inquiries and in view of the same, after about one-week 36 SC No.705/2008 the accused No.1 called him on mobile-phone and asked him to fix a meeting to discuss with the informant/PW.1 with regard to the said sale-transaction and thereby the accused No.1 asked him to come to him besides Adiga's Hotel in Jayanagar. Accordingly, on 10.07.2006 at the instance of the accused No.1 at about 12.00 - 1.00 in the afternoon, he went besides Hotel Adiga's. But, the accused No.1 was not there though he had stated that he was there-at. Again he called the accused No.1 on phone and inquired, whereby the accused No.1 stated that he is in a car and asked him to the car itself. Accordingly, he went to the car which was parked besides Adiga's Hotel, where-at the accused No.1 stated that he had finalized the transaction in connection with the said landed- property. Thereafter, at the say of the accused No.1, he called the informant/PW.1 on phone and asked him to come to the said car, during which time the PW.1 stated that he being in court, he needs about 1-2 hours. Thereafter, the accused No.1/Nagendra Reddy stated him that he would speak with Shanthakumar and finalize the transaction. Thereafter about one-hour, the informant- Shanthakumar came near the car and asked and phoned as to where they are?, for which he replied that he is in the car of the accused No.1. Even, the accused No.1 also rang to the PW.1 and asked to come to his car. Thereafter, himself, the informant and the accused No.1 together sat inside the said car of the accused No.1 and both the informant as-well-as the accused No.1 stated 37 SC No.705/2008 that they have finalized the transaction. Thereafter, two-persons came near the car of the accused No.1 and sat on both-sides of the informant inside the said car. After about 10-15 minutes having the discussion, he (PW.4) went outside for nature-call. Within 5 minutes, the informant, accused No.1 and others sitting in the car went-away. Therefore, later-on, he called the informant on phone and inquired as to where were they?, for which the informant stated that he was going to Anekal for registration purpose. Therefore, he asked the informant as to whether he should come?, for which the informant stated that if he is interested he may come. Thereafter, when he expressed his interest to come, the informant asked him to come near a temple and accordingly, he went there-at and thereafter they went in their car towards Anekal. Even, while going in the said car when he (PW.4) asked the informant/Shanthakumar twice on the way as to what did he do, he stated that he is on the way to Anekal for registration purpose. Thereafter, the accused No.1 and the informant spoke each-other for 10 minutes and asked him to be outside of the said car for sometime. Thereafter, again the accused No.1 and the informant proceeded in the said car towards Anekal Sub-Registrar's Office, during which time also he asked the informant/Shanthakumar as to whether everything is okay and how, for which Shanthakumar stated that everything is okay. Even, at 5.30 p.m. in the evening he being near the car outside, the accused No.1 and the informant 38 SC No.705/2008 did-not return, wherefore, he called the informant/Shanthakumar on phone and questioned as to where he was? and asked as whether he should go?, for which Shanthakumar stated that, yet he has to go to Sub-Registrar's Office and asked him to go. Accordingly, he came to his house from Anekal in a bus and when he called in the evening at about 6.00 p.m. on phone, the informant stated that he was still in the Sub-Registrar's Office. On the very next-day at about 9 - 10 a.m. in the morning when he called Shanthakumar again and inquired, the PW.1 stated that not yet registered and it will be registered today. He does-not know as to who was the person sitting besides the said Shanthakumar (PW.1). He cannot identify the said person and say as to whether he is present in the open-court or otherwise, on the day on which he has deposed. The said car belonging to the accused No.1 was silver-color Lancer Car, but he does-not know the number of the same. He has identified the said car through the photographs marked as per Exs.P.20 & P.21. When he called the said Shanthakumar (PW.1), his mobile-number was 9845950551; but he does-not remember the mobile-number of the said PW.1/Shanthakumar. Except the same, he does-not know as to what total consideration-amount the said sale-transaction has been finalized. He has seen the said car when the police had called him. He has never seen again the persons who had boarded the said car. Thereafter, the PW.1/Shanthakumar told him that the 39 SC No.705/2008 said transaction did-not finalize since he did-not receive any amount, wherefore, he did-not execute the registered sale-deed. Thereafter, the PW.1/Shanthakumar lodged a complaint before the Thilaknagar police station. After about 2 days, the police informed him regarding the said lodging of the complaint and therefore, he stated what has happened in presence of him. Thereafter when he was called by the COD police, he has stated the same what he has stated above; and thereby turned hostile-partly to the prosecution.
14. Further, the PW.5/Sadashiva S/o Nanjappa being an agent in Sub-Registrar's Office and Taluk Office at Anekal, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, he informed the informant/Shanthakumar since he use to visit the Anekal Sub- Registrar's Office. About 4 years back, the PW.1/Shanthakumar had come to Sub-Registrar's Office, Anekal, along-with 4-5 persons. The PW.1 spoke to him by holding his hand and thereafter went inside the Sub-Registrar's Office. He does-not know as to whether the registration took place inside the office or otherwise. But, on the next day he came to know there were some- problem regarding the said registration. The PW.1 did-not say anything to him when he met him (PW.5). He has not seen the accused No's.1 & 2 on that day. He did-not find any difference in the behavior and on the face of the PW.1 except regarding his old- age. He has stated the same before the police when he was 40 SC No.705/2008 inquired. He does-not know anything except as stated above; and thereby turned hostile-partly to the prosecution.
15. Further, the PW.6/Smt. Vasantha W/o Babu being a maid-servant in the house of the PW.1 as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, since last 4 years she is working as maid-servant in the house of the PW.1. Everyday she use to go for work at about 7.00 a.m. in the morning and use to return by 8.30 a.m. in the morning itself after her completion of work in the house of the PW.1. On 11.07.2006 she went to the house of the PW.1 at 7.00 a.m. in the morning as usual, and pressed the button of calling-bell but the door did-not open. She waited for 10 minutes and thereafter returned-back. On the very next-day, she again went to PW.1's house at about 7.00 a.m. in the morning and pressed the button of calling-bell, whereby the PW.1 opened the door. Thereafter, she completed her work in his house and later-on asked as to where he had been on the last-day (yesterday). The PW.1 stated her that since he was tired little-bit, he was in the house itself. Therefore, she did-not ask anything-more to the PW.1. She has stated the same before the police; and thereby turned hostile-partly to the prosecution.
16. Further, the PW.8/Prasannakumar S/o M. Thimmareddy being an Advocate stated to have drafted the disputed sale-deed, has endeavored to depose in favour of the prosecution in his chief- 41 SC No.705/2008 examination to the effect that, the PW.7/B.V.Ravi, Advocate, is his colleague and he knows the accused No.1/Nagendra Reddy since 2004, as he is from Mutthanallur village in Surjapur Hobli of Anekal Taluk. The accused No.1 was his client in one cheque- bounce case in the year 2002. In the month of December 2005 the accused No.1/Nagendra Reddy had brought the documents stating that he intended to purchase the property. On verifying the said documents, he found that the said landed-property measuring 18 acres was situated within the jurisdiction of Hebbugodi village and advised him to get rectified certain things and the said property was standing in the name of the PW.1/M.G.Shanthakumar. Thereafter about 10-15 days, the said accused No.1 came to him and stated that he has applied for the rectification of RTC extract before the appropriate-authorities and also stated that on inquiring in the Sub-Registrar's Office, it is informed that if the mutation is correct, then the registration can be made. Thereafter, the accused No.1 asked him to draft and prepare a sale-deed basing-on which, himself and CW.6 prepared a draft of the sale-deed in the year 2006. On 10.07.2006 the accused No.1/Nagendra Reddy called him on phone and stated that, himself and the informant (PW.1) were on the way to Anekal for registration and therefore asked him to come there-at, for which he stated that he would send the CW.6 for registration purpose. But, since it was too-late, the registration could not be made on that and therefore, the Sub-Registrar asked 42 SC No.705/2008 them to come on the very next-day. Accordingly, the CW.6 (PW.7) went on the very next-day to the Sub-Registrar's Office at Anekal and got made the pending registration and informed him. Thereafter on the very next-day, the accused No.1/Nagendra Reddy came to his office and asked for getting the said document released, for which he stated that if the recent RTC and it's translation-copy is provided, he would get released the said document. On 14.07.2006 the sister-in-law of the accused No.1 being an Advocate brought a document and gave to him. In respect of releasing the said document, he drafted a letter and gave to the accused No.1/Nagendra Reddy which was carried by the sister-in- law of the accused No.1 on 15.07.2006. Thereafter, neither Nagendra Reddy nor anybody has come to his office. Even, he does-not know as to whether the said document is released thereafter or otherwise. At that time, the market-value of the said property was Rs.7 Crores. The said draft as per Ex.P.16 is prepared by him, in which the consideration-amount was left as blank. He does-not remember as to who has taken-out the print of the said draft sale-deed. The registration work of Ex.P.16 has been made by the PW.7/B.V.Ravi. He has not learnt anything about what has happened at the time of registration-process of Ex.P.16. The said draft was prepared through the computer. He does-not remember regarding the police having demanded the computer hard-disc from his office and also he does-not know where it is 43 SC No.705/2008 now?. He cannot identify the MO No.2/hard-disc. He has not given any statements before the police; and thereby turned hostile- partly to the prosecution.
17. Further, the PW.7/B.V.Ravi S/o B.M.Vishwanath being an Advocate stated to have drafted the sale-deed and got registered, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he knows the accused- persons and also he had seen the informant/Shanthakumar at the time of registration in the Sub-Registrar's Office, Anekal. Prior to 10.07.2006 about 3 months, the accused No.1/Nagendra Reddy had come to their office stating that he was intending to purchase the landed-property of the PW.1/Shanthakumar and handed-over some-documents relating to the said landed-property for verification. On going through the said documents, it was found that the said property was measuring 22 acres coming within the limits of Hebbugodi village in Anekal Taluk, but he does-not remember the survey-number of the said property. The accused No.1 had given the original sale-deed of the PW.1/Shanthakumar along-with the RTC extract and mutation. On verifying the same, he stated that the RTC needs to be rectified and therefore he advised him to get it rectified and come. Thereafter in the month of May 2006, again the accused No.1/Nagendra Reddy came to him and stated that he has already discussed with the registering- authorities and therefore asked him to prepare the sale-deed, 44 SC No.705/2008 wherefore, himself and the PW.8 together drafted the said sale- deed. On 10.07.2006 at about 12.00 - 12.30 in the afternoon while he was in City Civil Court Complex, the accused No.1/Nagendra Reddy called him on phone and stated that everyone is coming today and thereby asked him to bring the sale- deed to Anekal. Accordingly when he went to the Sub-Registrar's Office, Anekal, it was 4.00 p.m. in the evening and since the computer use to get locked by 5.00 p.m. in the evening, the Sub- Registrar's Office Authorities did-not take the said draft sale-deed and asked to come by 10.00 a.m. in the morning on the next-day, wherefore, he returned-back to Bengaluru on that day. On 11.07.2006 at about 11.00 a.m. he went to Anekal in a private-car, whereby the accused No.1 and others had already been to Anekal. When he asked the accused-persons and PW.1/Shanthakumar to sign on the draft sale-deed, they stated to wait for sometime since there was some rectification to be made, wherefore, he handed- over the said draft sale-deed to them. They rectified the unwanted- things for them written therein by using the whitener. In respect of having put the whitener when he informed the Sub-Registrar, the Sub-Registrar asked both the parties were asked to put their signatures on both the extreme-ends of the space where the whitener is put. At the same-time, the informant-Shanthakumar was returning the cheque worth of Rs.63 Crores (wrongly typed in the deposition as Rs.63 Lakhs as per the submissions of the 45 SC No.705/2008 learned Spl. Public Prosecutor in the open court during his advancement of arguments on merits). He does-not know as to for what reason and in connection with which transaction the said cheque was being returned by Shanthakumar to accused No.1, but the said cheque was belonging to the accused No.1/Nagendra Reddy. Thereafter, he gave the sale-deed in the Sub-Registrar's Office. The Sub-Registrar's Office Authorities took the photos of both the parties and thereafter at about 4.00 - 5.00 p.m. in the evening they took for registration. But, the RTC was not in the name of the purchaser. The RTC which was brought by the accused No.1 was in Tamil language, wherefore, the Sub-Registrar asked him to bring the translation-copy of the said Tamil RTC and thereby kept the said registration as pending. The Office of the Sub-Registrar gave an acknowledgement for having submitted the said sale-deed for registration and the said acknowledgement is given to the accused No.1/Nagendra Reddy by him and stated the accused No.1 that if the correct RTC is brought and given to the Sub-Registrar Office, immediately the registered sale-deed will be issued and thereafter he received his fees and then returned-back to Bengaluru. One Banuprakash and another Reddy have signed on the said sale-deed. He does-not know as to whether the CW.5/Prasannakumar had been at the time of registration or otherwise. Neither the sale-talks nor any giving and taking of money/amount-transactions have been taken place between the 46 SC No.705/2008 informant/Shanthakumar and accused No.1/Nagendra Reddy in presence of him. He has only got it registered and came-back. He does-not know what was the market-value of the said landed- property at that time and he cannot say even the approximate market-value also. He has identified the said drafted sale-deed in favour of the accused No.1 as per Ex.P.16 and his signature thereon is as per Ex.P.16(l) and the portion erased with the whitener as per Ex.P.16(k). Ex.P.16 having been drafted in his office, it's print-out is also taken-out from his office. Out of the two computer-screens, one had become dummy. Before presenting the said Ex.P.16/sale-deed before the Sub-Registrar at Anekal, in the portion marked at Ex.P.16(k) the whitener was not yet put and now he does-not remember what was typed in the said Ex.P.16(k) portion. The COD/investigating-officer has recorded his statements but he has not given any statement or additional-statement in connection with the details of the typing made in the portion marked at Ex.P.16(k); and thereby turned hostile-partly to the prosecution.
18. Further, the PW.9/Krishna Reddy Y.R. S/o V. Ramareddy being the circumstantial-witness stated to be present during the time of registration-process/transactions, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, he knows the accused-persons and informant/Shanthakumar and also the CW.8/Banuprakash, as 47 SC No.705/2008 the accused-persons are from his Taluk. There was the sale-talks taken place in the month of March 2006 in connection with the landed-properties of Shanthakumar measuring 22 acres 24 guntas in connection with which the accused has given Rs.2 Crores to the informant and when the informant demanded the amount thereafter, again the accused-persons gave Rs.5 Crores to the informant in the month of June 2006. In the month of July, they had been to Sub-Registrar's Office, Anekal, for registration purpose, during which time the informant issued a receipt to the accused-persons for having received a cheque for Rs.5 Crores and also in respect of the amount received by him. The said transaction has taken place in presence of him. At the time of registration, himself, accused No.1/Nagendra Reddy, CW.8/Banuprakash and the informant/Shanthakumar were present. Shanthakumar stated that everything is correct. He has also signed on the said Ex.P.16/sale-deed, as per Ex.P.16(m). On the date of execution of the said sale-deed, the informant/Shanthakumar was normal in nature as usual; and thereby turned hostile-partly to the prosecution.
19. Further, the PW.10/Banuprathap S/o Venkataramana Reddy being the circumstantial-witness stated to be present at the time of registration of the said sale-deed, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he knows the accused-persons and the 48 SC No.705/2008 informant/Shanthakumar along-with the CW.7/Krishna Reddy. Himself and the CW.7 (PW.9) together do the Real-Estate business. They had been to the Sub-Registrar's Office, Anekal, at 11.00 a.m. in the morning in the month of July 2006, in connection with the registration of the sale-deed of the landed-property measuring 22 acres 24 guntas belonging to Shanthakumar, as the accused No.1/Nagendra Reddy had taken them. At that time, the accused No.1/Nagendra Reddy, PW.1/Shanthakumar, Ravi and Prasanna (Advocate) were present in the Sub-Registrar's Office. On the same day at about 4.00 - 5.00 p.m. the work was over. After taking- back the agreement by Shanthakumar after registration, Shanthakumar issued a receipt to the accused No.1/Nagendra Reddy for worth of Rs.7 Crores. Thereafter on the same-day, they went to the landed-property and the PW.1 handed-over the possession of the said property to the accused No.1/Nagendra Reddy. The said agreement of sale was taken place in the month of March 2006, during which time the accused No.1/Nagendra Reddy had given Rs.2 Crores to the PW.1/Shanthakumar. In the month of June, the accused No.1/Nagendra Reddy gave Rs.5 Crores to the PW.1/Shanthakumar, in respect of which the PW.1 had issued a receipt. Accordingly, he has given the statement before the police also. His signature on the said sale-deed/Ex.P.16 is as per Ex.P.16(n); and thereby turned hostile-partly to the prosecution. 49 SC No.705/2008
20. Further, the PW.3/M.G.Nagendra S/o M.L.Gopala Shetty being younger-brother of the PW.1, partial-eyewitness as-well-as hearsay-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, in the year 1957 he has come to Bengaluru from his native Chikmagalur and the PW.1/Shanthakumar being his elder-brother is residing at 7th Block, Jayanagar in Bengaluru and his younger-
brother/PW.2/Dattatreya is residing in 2nd Block, Jayanagar in Bengaluru City, and he knows the accused-persons. On 12.07.2006 in the morning in view of his younger-sister by name Rukmini having called him on phone from Chennai and stated that when she rang to the PW.1/Shanthakumar in the morning on that day, he could not speak properly, whereas, his tune/voice was very low and thereby asked him to visit him and inquire, he accordingly went to the house of the PW.1 at about 1.30 p.m. in the afternoon, where-at the PW.1 was alone there-at and when he saw the PW.1, he was very pale, nervous and depressed with weak voice/tune, for which he felt very bad. When he inquired the PW.1, the PW.1 stated that the accused No.1/Nagendra Reddy with the assistance of two-goondas by showing a pistol to him took to Anekal and by threatening at the gun-point, obtained his signatures on the document and also taken his photo without giving any amount. Immediately, he informed the said matter to the CW.10/M.G.Dattatreya (PW.2), whereby the PW.2 stated that he 50 SC No.705/2008 would come within a very short-span of time. Thereafter, within a short-period the accused No.1/Nagendra Reddy, along-with his wife, accused No.2/Afroz and their driver came to the house of the PW.1. The said accused No.2 is identified by the PW.3 in the open- court. When he (PW.3) inquired the accused No.1/Nagendra Reddy in the house of the PW.1 regarding getting executed the registered sale-deed from his elder-brother/PW.1 without paying the amount, the accused No.1 responded rashly stating that "it is none of your business, it is in between me and your brother/Shanthakumar and you need not interfere". In addition to the same, the accused No.1 showing the accused No.2/Afroz Babu stated that "you do-not know who he is? If he is asked, then he will make you into piece- piece" and thereby threatened. Immediately, he went outside the house to intimate his brother CW.10/Dattatreya by phone but he could not get connection with the CW.10. The accused No's.1 & 2 had come in two different cars and their car-numbers were noted by him and kept in his valet. The same being observed by the driver of the accused No.1/Nagendra Reddy, after some-time the said driver came to him and stated that "Anna is calling inside", whereby he went inside and at that time the accused No.1 questioned regarding the noting of car-number and by showing the accused No.2/Afroz stated that "if he is told, he will make into piece-piece" and thereby again threatened him. Thereafter, the wife of the accused No.1/Nagendra Reddy asked the accused 51 SC No.705/2008 No.2/Afroz to snatch-away his purse/valet and accordingly the accused No.2 snatched-away his valet from his shirt-pocket and took-away the chit in which car-numbers were noted by him. At that time, the accused No.2 was holding his neck, wherefore, he asked the accused No.1 in a louder-voice to let him free and his younger-brother is coming along-with the people and police and warned him to "get-out". At that time, the accused No.1, his wife and accused No.2 started to go outside the house of the PW.1 one after another, during which time the PW.1 and himself also followed them till the doors. At that time, the accused No.2 tried to push him by holding his neck, during which time he shouting as "thief-thief, he is strangulating his throat". Listening the said hue and cry, the surrounding/neighboring-persons started looking-into the house through window and door, wherefore, the accused- persons went-away there-from. At that time, Amar, PW.2 and Indhumouli came. Thereafter, altogether phoned to the Police- Commissioner's Office. He has given the statements before the Thilaknagar police, Jayanagar police and COD police, in respect of the same. After giving the statements before the Thilaknagar police, one-weak later again the police had called him and shown the accused No.2, where-at he has identified him. At that time, the accused No.2 was having a gun with small and big-swords. The police have seized the cars which had come there-at. He is capable of identifying the said cars and also the gun/pistol which was not 52 SC No.705/2008 the real-pistol, whereas it was a mere cigar-lighter and even the Police-Inspector showing the said pistol stated that it was not a real-gun, it was a mere lighter.
21. Further, the PW.2/M.G.Dattatreya S/o M.L.Gopala Shetty being the younger-brother of the PW.1/CW.1 and PW.3/CW.9 as-well-as the hearsay-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, they came from Chickmagalur to Bengaluru in the year 1957 for the purpose of doing agriculture and business. They have purchased the landed-properties at Hebbugodi and Bannerghatta villages. Himself and his elder-brothers are residing separately. The informant/Shanthakumar being a bachelor, is residing alone in a house bearing No.199, 1st 'C' 7th Block. His younger- brother/CW.9/Nagendra is residing in the house No.9, 15th Cross, 5th Stage, J.P.Nagar, Bengaluru. PW.1 being old-aged has undergone the medico-surgery twice and he is suffering from bronchitis and therefore, his health is not in a proper-condition. PW.1/Shanthakumar is owning more-than 22 acres of land at Hebbugodi village in addition to the Sy.No.60/7 which includes NA converted-land. On 12.07.2006 in the afternoon while he was working in his land at about 1.00 p.m., his elder- brother/Nagendra (CW.9) called him on phone from the house of the PW.1/Shanthakumar and asked him to come there-at immediately, wherefore, he immediately in-turn informed the 53 SC No.705/2008 CW.21/Amar and Vinay who are the sons of his one of the elder- brothers to come to the said house of the PW.1 immediately. When he went to the house of the informant/Shanthakumar, the CW.9/Nagendra, CW.21/Amar and Vinay were present. The PW.1/Shanthakumar apparently pale, very-nervous and depressed, in respect of which on inquiring him, he could not whisper anything-else due to his nervousness and depressedness, wherefore, the CW.9/Nagendra told regarding the entire-incident. The CW.9/PW.3 stated that the PW.1 has told him regarding the incident to the effect that, on 10.07.2006 in the afternoon at about 2.30 p.m. the accused No.1 secured the informant/Shanthakumar by calling him through the phone, near Adiga's Hotel at 4th Block, Jayanagar, Bengaluru, stating that he was intending to speak with regard to the sale-transaction of the landed-properties and when the PW.1 went there-at, the accused No.1 forcibly took the informant/Shanthakumar in his car towards Anekal and thereafter, on the way the car was stopped amidst and at the gun- point obtained the signature of the PW.1 on the sale-deed and thereafter tried to get registered the said sale-deed by going to the office of the Sub-Registrar at Anekal, but it could not be registered on the same day, wherefore, the accused-persons brought the PW.1 returned in the same car to the house of the accused No.1 situated at BTM Layout and on the next-day morning, the accused No.1 took the informant to the Sub-Registrar's Office but the 54 SC No.705/2008 registration could not be completed on that day also. All the attempts were made by the accused-persons by showing the gun to the PW.1 to threaten to his life with dire-consequence. Thereafter, the accused No.1 took-back the demand-draft and cheques which were given by him to the PW.1. Thereafter, the PW.1 was left by the accused-persons in the midnight in the middle of the city and thereafter, the PW.1 came to his house from the city. It is further deposed by the PW.2 that, on 12.07.2006 he came to know that prior to his arrival to the house of the PW.1/Shanthakumar, the accused No.1, his wife with the driver had been to the house of the PW.1 along-with the accused No.2/Afroz Babu and another and tried to strangulate the throat of the CW.9/Nagendra. When he had been to the house of the PW.1, no accused were there. He has not seen the accused-persons earlier. After the incident, he had seen the accused-persons only in the police station and the court. He had also accompanied the informant to the police station to lodge the complaint. He has given the statements before the COD police on inquiring him. He has identified the accused-persons as- well-as the wife of the accused No.1 who was present in the open- court.
22. Further, PW.29/Aravind Reddy S/o Basappa Reddy being the nearest-relative of the accused No.1 from same native and cousin-brother of the CW.5/PW.8 and circumstantial-witness having financially assisted the accused No.1 for the purpose of 55 SC No.705/2008 stamp-duty, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on approaching him by the accused No.1/Nagendra Reddy stating that he was intending to purchase the property from the PW.1/Shanthakumar, for which he needs the financial assistance from his father, they have gave 4 demand-drafts, in respect of which he has stated before the police when he was inquired, but he does-not know what the police have recorded in the statement; and thereby turned hostile-partly to the prosecution.
23. Further, the PW.30/Basappa Reddy S/o Munireddy being the father of the PW.29/CW.11 stated to have financially helped the accused No.1 and circumstantial-witness has stated in his chief-examination to the effect that, in the year 2005-2006 the accused No.1 had contacted him seeking the financial help for the purpose of purchasing the property, but he has not given any statement before the police; and thereby absolutely turned hostile to the prosecution.
24. Further, the PW.31/Kum. Asha D/o Shivashankara Reddy being the sister-in-law of the accused No.1 as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, the accused No.1 is her brother-in-law and on 11.07.2006 in view of her elder- sister/CW.19 (PW.32) having asked her to go to Anekal Sub- Registrar's Office on phone, accordingly, she had been there-at 56 SC No.705/2008 about 10.30 a.m. in the morning when the accused No.1, the informant/PW.1 and others had already come there-at. At that time, the accused No.1 introduced the PW.1/Shanthakumar to her. But, she does-not know as to who other 3-4 persons who were accompanying the said accused No.1 and PW.1/Shanthakumar. The accused No.2/Afroz who was present before the court was not present in the said Sub-Registrar's Office on that day. She has not seen as to whether the said registration has taken place or otherwise and she does-not know anything-else except the same.
25. Further, the PW.32/Smt. Shashikala W/o Nagendra Reddy being the circumstantial-witness, has endeavored to depose in her chief-examination to the effect that, earlier her husband was running a software-company and thereafter doing the Real-Estate business. On 09.07.2006 & 10.07.2006 she was in Amar Canopy Apartment itself. On 10.07.2006 & 11.07.2006 her husband/accused No.1 had been to Sub-Registrar's Office, Anekal; but, she had never given any statement before the police and thereby absolutely turned hostile to the prosecution.
26. Further, the PW.11 being the son of younger-brother of the PW.1/Shanthakumar as-well-as the spot-mahazar-witness, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 14.07.2006 he had been near 12th Main, besides Adiga's Hotel situated at 4th Block, Jayanagar, 57 SC No.705/2008 along-with his senior-paternal-uncle, as the COD police taken them and the said COD police by visiting the said place at about 11.00-11.30 a.m. in the morning, prepared the spot-mahazar as per Ex.P.18, on which his signature is as per Ex.P.18(b).
27. Further, the PW.12/Suresh S/o Mutthu being the spot- mahazar as-well-as the seizure of hard-disc mahazar-witness, has endeavored to depose in his chief-examination to the effect that, about 3 years-back when he had been to the police station, the police have obtained his signatures on 3 papers. He has stated that, he can identify his signature on the panchanama drawn in the afternoon from 12.15 p.m. to 1.00 p.m. on 16.04.2007 which is as per Ex.P.27 and his signature is as per Ex.P.27(a). Similarly, he has stated that, he identifies the another-panchanama drawn from 12.30 p.m. to 1.30 p.m. in the afternoon on 16.04.2007 as per Ex.P.28, on which his signature is as per Ex.P.28(a). Similarly he has further stated that, he identifies the another-panchanama drawn from 4.30 p.m. to 5.00 p.m. in the evening on 13.11.2007 as per Ex.P.29, on which his signature is as per Ex.P.29(a) and thereby absolutely turned hostile to the prosecution.
28. Further, the PW.13/H.M.Venkatesh S/o M. Thimmaiah being the Sub-Registrar, Anekal, as-well-as the circumstantial- witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 11.07.2006 the informant/Shanthakumar and the purchaser-accused 58 SC No.705/2008 No.1/Nagendra Reddy had come along-with an Advocate by name Ravi who had prepared the draft-sale-deed and placed before him and therefore, he sent them to the CW.27/Srinivas who is the Manager of the Sub-Registrar's Office, for verification. On verifying the same by the CW.27, again it was placed before him, whereby he found that the purchaser-accused No.1 had no RTC extract, in respect of which he inquired the informant/Shanthakumar and thereafter, the accused No.1/Nagendra Reddy produced the RTC extract in Tamil language, wherefore, he asked him to bring the Kannada translation of the said Tamil RTC. But, the accused No.1/Nagendra Reddy sought-for sometime to get it translated. Therefore, he kept the said document under suspension and completed the process of registration. On 15.07.2006 the Police- Inspector of Thilaknagar police station visited him and sought-for producing the original disputed sale-deed No.7130/2006-2007 and accordingly, he has produced before him under a vide covering- letter as per Ex.P.30, on which his signature is as per Ex.P.30(a), along-with the receipt-book, finger-print register, affidavit and original RTC extract and the same are as per Exs.P.31 & P.32, on which his signatures are as per Exs.P.31(a) & P.32(a). On 12.07.2006 the accused No.1/Nagendra Reddy did-not come to him; but on Ex.P.32 it is written the date as 12.07.2006 and he has identified the said sale-deed handed-over to the police as per Ex.P.16. Before registering the sale-deed, he inquires the seller 59 SC No.705/2008 and purchaser and obtains their signatures and also inquires the consideration-amount in respect of such sale-transaction and also mentioning of the same in the sale-deed and also in connection with the stamp-duty and registration-fees to be paid thereon. In Ex.P.16 it is written that, on 12.06.2007 Rs.7 Crores are paid to the seller of the said property and the same is taken-into consideration as the sale-transaction amount and also he has got confirmed through the attesting-witnesses; and thereby partly turned hostile to the prosecution.
29. Further, the PW.14/M. Srinivas S/o Muniyappa being the Manager of Sub-Registrar's Office, Anekal, as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he verifies the consideration-amount and the stamp-duty with the registration-fees regarding the sale-deed and then places before the Sub-Registrar. On 11.07.2006 the Sub-Registrar having sent the sale-deed for verification which is as per Ex.P.16 but, there is no specific mentioning of the consideration-amount therein. None had come to him regarding the said sale-deed. When he saw and verified the said Ex.P.16/sale-deed, he found there was a portion erased with the whitener and thereafter, he having verified the signature therein, he sent-back the same to the Sub-Registrar. But, he does-not know anything regarding the whitener having put thereon. On 15.07.2006 the police came to their office and taken- 60 SC No.705/2008 back the documents which were required to them and when Ex.P.16 was with him, he found the signatures of everyone thereon.
30. Further, the PW.15/Smt. Bharathi W/o Nataraj being the Computer-Operator in the Sub-Registrar's Office, Anekal, as- well-as the circumstantial-witness, has deposed to the effect that, whenever a document comes to the Sub-Registrar's Office for registration purpose, she prepares the schedule, takes the photo and obtains the thumb-impression and does the registration-work, for which the entire-process she requires 40 minutes time to complete the registration.
31. Further, the PW.16/Nagendra Raju S/o H.Dayakararaju being the Manager of the State Bank of Mysuru as-well-as the circumstantial-witness, has deposed to the effect that, on 05.12.2005 someone had come to his SBM Bank, Hosuru Branch, and purchased the demand-draft for Rs.63/-; But, he does-not know as to who and he does-not know the name of the person who has taken the same and also he does-not know the said person, but the place is written as Hosuru and he has identified the challan submitted by the said person as Ex.P.33 with DD No.551036, which has been obtained by some-person in the name M.G.Shanthakumar.
32. Further, the PW.17/Syed Asgar Imam S/o Syed Khalimuddin being the handwriting-expert, FSL, Bengaluru, has 61 SC No.705/2008 endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 23.11.2006 he having received a stamp-paper from Thilaknagar police relating to it's Crime No.174/2006, for the purpose of examining and finding-out the contents concealed therein, he having identified the same as Ex.P.16, he has shown the concealed/erased portion therein with the letters Q-1. The said Q-1 portion having been examined and analyzed through Video Spectral Compiler - 5000, he found with the writings as under:
"1) THE PURCHASER has paid a sum of Rs.63,00,00,000/- (Rupees Sixty-Three Crores only) by way of D.D. bearing No.551036, dated 15.06.2006, drawn on State Bank of Mysore, Hosur Branch in favour of the Vendor towards partial sale-consideration subject to realization of the above D.D.
2) In the above mentioned deciphered-contents, the figures "551036" and 15 of the date and the words subject to realization of the above D.D. are handwritten and the rest of the contents are electronically typed".
In respect of the same, he has issued his opinion as per Ex.P.34, on which his signature is as per Ex.P.34(a) and the reasons as per Ex.P.34(b) and his signature is as per Ex.P.34(c). He has produced the deciphered-contents and also to show as to what are the contents concealed/erased in Ex.P.16 and the said deciphered- contents is marked as per Ex.P.35, on which his signature is as per Ex.P.35(a). The small-print of Ex.P.35 is as per Ex.P.36, on which his signature is as per Ex.P.36(a) and he has produced the 62 SC No.705/2008 FSL model-seal as per Ex.P.37 and his signature thereon is as per Ex.P.37(a) and thereafter sent his opinion to the Dy.S.P., COD, Bengaluru. While writing his opinion in Ex.P.34 through typographical mistake, the said demand-draft number is written as 561036 in lieu of 551036.
33. Further, the PW.18/Mahadevappa S/o B.Madaiah and PW.19/Shivananda S/o P.C.Channegowda being the police- constables having accompanied the PSI for arresting the accused No.2/Afroz as-well-as the circumstantial-witnesses, have endeavored to speak accordingly in their respective chief- examinations.
34. PW.20/Srinivasa S/o Munivenkataiah being the police- constable, has endeavored to depose in favour of the prosecution regarding he having escorted the accused No.2 to produce him from court to jail.
35. Further, the PW.21/H.L.Krishnappa S/o K.H.Lingaiah being the PSI and the circumstantial-witness, has endeavored to depose in favour of the prosecution regarding he having assisted the CW.40/investigating-officer in the investigation and also in writing the statements as per the dictation of the CW.40 and also carried the seized-documents to the FSL.
36. Further, the PW.24/G.Thimmabohi S/o Guruvabohi being another PSI as-well-as the circumstantial-witness, has also endeavored to depose in favour of the prosecution in respect of he 63 SC No.705/2008 having assisted the investigating-officer and obtained the documents from the Sub-Registrar's Office, Anekal, and also registered the statements of the Sub-
Registrar/H.M.Venkatesh/CW.26 and also arrested the accused No.2/Afroz Babu and produced before the investigating-officer under a vide report as per Ex.P.46, on which his signature is as per Ex.P.46(a).
37. Further, the PW.22/Janardhana Rao S/o Siddoji Rao being the PSI, has endeavored to depose in favour of the prosecution in respect of he having seized the Lancer Car by issuing a notice to it's owner as per Ex.P.39 as the memo was given to him (PW.22) as per Ex.P.38 and his signature on Ex.P.39 is as per Ex.P.39(a) and the report submitted by him before the investigating-officer is as per Ex.P.40, on which his signature is as per Ex.P.40(a).
38. Further, the PW.25/Abdul Sattar S/o Nabi Sab being the partial investigating-officer in respect of the initial-investigation, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, while he was working as Police- Inspector in Thilaknagar police station from June 2006 to August 2008, on 14.07.2006 at about 10.30 a.m. in the morning while he was in the police station, the informant appeared before him and produced a typed-complaint, basing-on which he registered the Cr.No.174/2006 and sent the original-complaint as per Ex.P.17 64 SC No.705/2008 and the original-FIR as per Ex.P.47 to the concerned court along- with the copies of the same to his higher-authorities for their information and his signatures thereon are as per Exs.P.17(b) & P.47(a) respectively. Thereafter, he went to the spot along-with the informant and then secured the mahazar-witness by name Amaranag and drawn the spot-mahazar as per Ex.P.18 at the behest of the informant and his signature thereon as per Ex.P.18(c). Thereafter, he recorded the additional-statements of the informant in the police station and then he deputed the CW.38/Janardhan to visit Sub-Registrar's Office, Anekal, to bring the disputed sale-deed, along-with a memo. Thereafter, the informant having stated before him that the accused No.1 had wrongfully confined him, he went to BTM Layout and MICO Layout along-with the informant and he searched for the same, in which the PW.1 was unlawfully confined but he could not find-out the said house. Similarly, the CW.38 returned-back from Anekal and submitted a report to him stating that the Sub-Registrar was not available as he had been for some official-meeting. On 15.07.2006 again he sent the PW.24/Thimmabohi to Anekal to bring the disputed sale-deed from the Sub-Registrar's Office, with a memo and also to record the statements of the concerned and accordingly, the PW.34 visited the Sub-Registrar's Office, Anekal, and obtained the documents along-with the statements of 3 persons and produced before him. Thereafter, he got mentioned 65 SC No.705/2008 the said documents in the Cr.No.83/2006. On the same-day, he recorded the statements of one Yebi George and Nagendra and though tried to search-out the vehicles involved in the case, he could not trace-out the same. On 17.07.2006 he secured the details of the Lancer Car bearing No.KA-05-MN-9559 through PSI/Janardhan, whereby he came to know that the said Lancer Car involved in this case was standing in the name of one Shashikala and even the said PSI/Janardhan having produced the same Lancer Car before him, he called the informant and Yebi George to the police station and got identified the same through them and drawn the seizure-mahazar as per Ex.P.19 by seizing the said Lancer Car and his signature thereon is as per Ex.P.19(c) and thereafter, he got converted the said seized Lancer Car into PF No.86/2006 and thereafter recorded the additional-statements of the informant regarding he having identified the said Lancer Car. He has identified the photographs of the said seized Lancer Car as per Exs.P.20 & P.21. Since he verified the said seized sale-deed by holding to the rays of light, he found in the portion of whitener applied/put that the writings as Rs.63 Crores and SBM, Hosur Branch, were appearing, and therefore to secure the details of the same, he sent ASI/Basavaraju with a requisition to the said bank for furnishing the details of the said demand-draft. Thereafter, he tried to secure the call-details-register pertaining to the mobiles of both the accused-persons. On 27.07.2006 as per his directions, 66 SC No.705/2008 the PW.24 and the police-staff brought the accused No.2 along- with his Maruthi 800 Car and produced before him, wherefore, he arrested the accused No.2 and recorded his self-voluntary- statements as per Ex.P.49, on which his signature is as per Ex.P.49(a). The accused No.2 produced the car, a dummy-pistol with dummy-bullets and one long, stating that he had used the same at the time of the incident, wherefore, he (PW.25) seized the same under the seizure-mahazar as per Ex.P.48, on which his signature is as per Ex.P.48(a). Thereafter, he visited the shop of one Lalith from whom the accused No.2 had purchased the dummy-revolver and recorded his statements as the said Lalith identified the accused No.2/Afroz Babu having purchased the said revolver from his shop. On 28.07.2006 he inquired regarding the car seized from the accused No.2 and at that time he recorded the statement of one Yerriswamy and on the same-day, he produced the accused No.2 before the concerned court with a remand- application. On 04.08.2006 he secured the details in 3 letters from ING Vysya Bank, Kasturba Road Branch, with regard to the demand-drafts for Rs.7,00,000/- and Rs.59,78,000/-, as per Exs.P.50 to P.52, on which his signatures are as per Exs.P.50(a) to P.52(a). On 29.08.2006 Smt. Shashikala got released the said seized Lancer Car in favour of her in pursuance with the orders of the II ACMM Court. At that time, he has recorded the statements of the said Shashikala. On 31.08.2006 when he had been to the 67 SC No.705/2008 house of the accused No.1 for the inquiry, his advocate was also present and therefore, he requested the accused No.1 to co-operate for the inquiry. On 02.09.2006 he having come to know that Aravind B. Reddy had taken 2 demand-drafts from ING Vysya Bank, he visited Aravind B. Reddy and recorded his statements. On 06.09.2006 the accused No.1 having appeared before him in the police station with the anticipatory-bail order, he arrested the accused No.1 symbolically and then released him by recording his statements. On 07.09.2006 he recorded the statements of the Advocate/Prasannakumar, who has drafted Ex.P.16. On 26.09.2006 he having received the direction from the Commissioner's Office to hand-over the case-file for further investigation to COD, on 10.10.2006 he has handed-over the entire case-file to the CW.40, accordingly. A letter sent by him seeking for the details in connection with Rs.63 Crores amount, to Hosuru Branch, SBM, is as per Ex.P.53, on which his signature is as per Ex.P.53(a) and the covering-letter of the documents sent by the Sub-Registrar, is as per Ex.P.30, on which his signature is as per Ex.P.30(b) and the portion of the Ex.P.16/sale-deed erased with the whitener is as per Ex.P.16(k).
39. Further, the PW.23/B.L.Asode S/o Lakshman Asode being the partial investigating-officer, has endeavored to depose in favour of the prosecution in respect of he having conducted the investigation to the effect that, on 10.10.2006 he having received 68 SC No.705/2008 the case-file from the PW.25/CW.39/Abdul Sattar in pursuance with the orders of the DCP, on 06.11.2006 he secured the informant/Shanthakumar to the COD office and inquired him in detail and got it reduced into writing. On 10.11.2006 he visited the Sub-Registrar's Office, Anekal, and inquired the Sub- Registrar/CW.26 (Venkatesh) and collected the details. He secured the concerned incomplete-documents from the said Sub-Registrar and on the same-day, he visited the SBM, Hosuru Branch, and inquired regarding the challan pertaining to Rs.63/-, where-at the Deputy manager (CW.29) verifying the challan stated that he cannot say the name of the person who has taken the said demand-draft since the name was lacking. In respect of the same, he recorded the statement of the CW.29. On 16.11.2006 he recorded the statements of M.G.Nagendra and on the same-day, he visited the ING Vysya Bank, Kasturba Road Branch, and requested to furnish the details of the S.B.Account No.6501100376 and also regarding the demand-drafts worth of Rs.59,78,000/- and Rs.7,00,000/- having obtained on 28.06.2006 to the said S.B.Account and etc., and in respect of the same, he submitted a requisition to the said bank. On the same-day, he wrote to the concerned official seeking-for the call-detail-registers in connection with the PW.1's mobile No.9343867490 and the CW.2/Yebi George's mobile No.9845950511 and the accused No.2's mobile No.9845085485. On the same-day, he sent the said seized 69 SC No.705/2008 disputed sale-deed to the FSL for examining and analysis. Thereafter, on 18.11.2006 he recorded the statements of Yebi George and M.G.Dattatreya. On 12.12.2006 he secured the CDR details of the mobile No.9343867490 for the period from 01.07.2006 to 09.11.2006 and got converted as part of the case-file and on the same-day, he secured the CDR of CW.2's mobile No.9845950511 for the period from 07.01.2006 to 01.11.2006 and got converted as part of the case-file. Similarly, he secured the CDR of the mobile No.9845085485 of the accused No.2/Afroz Babu and got converted into the part of the case-file. Thereafter, he wrote a letter to the General Manager, Hutch Mobile Company, requesting to furnish the CDR details of the mobile No's.9886375749, 9986207617, 9886941395 & 9886160522 for the period from 07.01.2006 to 01.11.2006. Thereafter, on 13.12.2006 though endeavored to secure the accused No.2, he was not available. On 14.12.2006 he recorded the statements of the CWs.26 & 27. On 15.12.2006 he recorded the statements of the PW.6/B.V.Ravi. On 16.12.2006 he recorded the statements of the CWs.11 & 12. On 18.12.2006 he recorded the statements of the CW.13. On 19.12.2006 he recorded the statements of the CW.8/Banuprathap and CW.7/Y.R.Krishna Reddy. On 20.12.2006 he recorded the statements of the CW.5. On 08.01.2007 he secured the accused No.1 to his COD office and tried to collect the details; but since nothing could be availed properly from him, he 70 SC No.705/2008 wrote to his higher-authorities seeking permission for tendering the accused for polygraphy-test. Again though tried to secure the accused No.2, he was not available. On 11.01.2007 suggesting the accused No.1 for tendering polygraphy-test, received a letter from FSL. On 09.02.2007 he received an opinion from FSL in connection with Ex.P.16 and therefore, he converted the same into his case- file. Thereafter, on 12.04.2007 he handed-over the entire case-file with all the documents concerned to the CW.41 for further investigation. The details furnished by the ING Vysya Bank are as per Ex.P.41, on which his signature is as per Ex.P.41(a). The CDRs of the mobile No.9886375749 pertaining to the accused No.1/Nagendra Reddy, mobile No.9845085485 pertaining to the accused No.2/Afroz Babu, mobile No.9343867490 pertaining to the informant/Shanthakumar and mobile No.9845950511 belonging to Yebi George are marked as per Exs.P.42 to P.45 subject to the objections raised by the learned counsel for the accused and his (PW.23) signatures thereon, are as per Exs.P.42(a) to P.45(a), respectively, and the opinion-report of the FSL is as per Ex.P.34, on which his signature is as per Ex.P.34(d).
40. Further, the PW.33/K.C.Prakash S/o Channaiah being the partial investigating-officer having filed the charge-sheet, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, while he was working as Police- Inspector in COD Spl. Inquiry Section during the period from April 71 SC No.705/2008 2007 to April 2008, on 12.04.2007 as per the orders of the Superintendent of Police, he took the charge of investigating the case from the CW.40/B.L.Asode and on 16.04.2007 he visited the house No.102, Amar Canopy Apartment, where the informant was wrongly confined at the behest of the informant and drew the spot- mahazar as per Ex.P.28 from 12.30 p.m. to 1.30 p.m. in the afternoon, on which his signature is as per Ex.P.28(b) and on the same-day, he recorded the additional-statement of the informant/PW.1. On 17.05.2007 he recorded the statement of the PW.6/Smt. Vasantha W/o Babu. On 03.07.2007 he recorded the statement of B.V.Ravi. On 26.07.2007 he visited the Tahsildar's Office at Anekal, and obtained the declaration in connection with Sy.No's.53 & 53/2. On 27.07.2007 he took the information regarding non-drawing of the demand-draft amount of Rs.63/- by visiting to the SBM, Shivajinagar Branch. On 31.07.2007 he obtained the handwritings of the accused No.1 in presence of the panchas by name Mahesh and Krishnaiah. On 01.08.2007 he visited the Deputy Commissioner's Office, Bengaluru, and obtained the NA conversion-orders in connection with the Sy.No.60/7, as per Exs.P.1 & P.2. On the same-day, he visited the SBM of Hosuru Branch in Tamil Nadu, and recorded the statement of the Manager/S.B.Dakshinamurthy. On 09.08.2007 he seized the cheque-leaf of the accused No.1 connected to his SB Account No.5039 of Central Bank of India in presence of one Venkatesh S/o 72 SC No.705/2008 Munivenkatappa. He obtained the specimen-signature cards of the accused No.1/Nagendra Reddy in connection with his SB Account No.5039, dated 17.12.2001 & 26.03.2003. He seized the same from 5.30 p.m. to 6.30 p.m. in the evening and thereafter got it converted into PF No.5/2007 and informed before the court. On 14.08.2007 he recorded the statement of Sadanandappa S/o Nanjappa. On 10.09.2007 he seized the publishment made in the Vijaya Karnataka Daily Newspaper, a letter of commission and condition issued by M/s. Colliers International (India) Property Services Pvt. Ltd., the public-notice published in the Times of India Daily Newspaper by AZB Advocates, a letter of commitment given by M/s. Colliers International (India) Property Services Pvt. Ltd., admitting the value of the property at the rate of Rs.825/- per sq. ft., a copy of the complaint lodged by the PW.1/Shanthakumar before the Thilaknagar police and a complaint written to the Sub- Registrar's Office by the PW.1/Shanthakumar for not registering the sale-deed in connection with the Sy.No's53, 53/2, 55/1 & 56/1, produced by the PW.1/Shanthakumar and the same were seized and got converted them into PF No.7/2007. On 14.09.2007 he has obtained the electricity-bill from KEB office in connection with the Flat No.102 of Amar Canopy Apartment. On 16.09.2007 he obtained the copies of the Driving-Licence, passport, Form No.29 of Car No.CKE 5956, Sale-register, transfer of insurance pertaining to the accused No.2 and got converted as part of the 73 SC No.705/2008 case-file. On 20.09.2007 he obtained the copies of the Driving- Licence, the documents with insurance-policy pertaining to the Car No.KA-05-MN-9559 and got converted as part of the case-file. On 24.09.2007 he recorded the statement of Beeranna M. Gowri. On 01.10.2007 he recorded the statement of the CW.17/Gurucharan Mohanth. On 09.10.2007 he obtained the letter regarding the validity of the Driving-Licence of the accused from RTO, Jayanagar. On 10.10.2007 he recorded the statement of Prathika Gowri. On 16.10.2007 he recorded the statements of Asha D/o Shivashankara Reddy and Shashikala W/o Nagendra Reddy and additional-statements of Bhanuprakash, Y.N.Krishna Reddy and Yebi George. On 18.10.2007 he obtained the information from Thilaknagar police that the accused No.2 had no Arms-licence. On 26.10.2007 he obtained the copy of public-notice issued through the Vijaya Karnataka Daily Newspaper in connection with the land of the informant. On 24.10.2007 he obtained the sale-deed regarding Amar Canopy house from Prathika B. Kowri. On 06.11.2007 he obtained the accounts-statement of SB Account No.160010046018 to the informant/Shanthakumar from ING Vysya Bank. On 07.08.2007 he obtained the accounts-statement of SB Account No.5039 of the accused No.1/Nagendra Reddy from CBI, as per Ex.P.61 under a vide-letter as per Ex.P.62. On 30.10.2007 he obtained the information from Deputy Commissioner, Bengaluru, that the accused No.1 does-not possess 74 SC No.705/2008 any Arms-licence. He obtained the duplicate-copy of the public- notice which was maintained by the Times of India Group in connection with the publishment of the said public-advertisement regarding the sale of the property of the informant. On 13.11.2007 at the behest of V.T.Prasannakumar in Sudamnagar seized the hard-disc which was removed and given by Technical- Expert/Mallikarjunaiah, which was quantum fire-ball LCT - 1035 Series No.872008639688, in presence of the panchas Suresh S/o Mutthu and Udayraj S/o Selvaraj, by sealing the same in a white- paper with 'RMN' letters and thereafter got converted into PF No.10/2007. The said hard-disc is as per MO No.2 and the seizure-mahazar is as per Ex.P.29, on which his signature is as per Ex.P.29(b). The CW.19 has given the statement before him, as per Ex.P.60. On 12.12.2007 he has submitted the charge-sheet to the court against the accused-persons.
41. Further, the PW.26/Shankrappa Murali S/o Shivalingappa being the Scientific-Officer, FSL, Bengaluru, has endeavored to depose in favour of the prosecution in his chief- examination with regard to he having examined the bank-challan to the effect that, on 24.11.2008 the COD police, Bengaluru, having sent the documents in a sealed-cover in connection with the Thilaknagar police station Cr.No.174/2006 and on verifying the sample-seals with the seals available on the said seal-cover, they were tallying. On opening the said sealed-cover, it was 75 SC No.705/2008 containing a demand-draft application-form dated 05.12.2005 of SBM, Hosuru Branch, with the disputed-writings and signatures thereon. It was in the name of M.G.Shanthakumar and the signatures were already marked by the investigating-officer as Q1 - Q10. The investigating-officer had sent the admitted-signatures stated to be pertaining to the accused No.1/Nagendra Reddy on the specimen-signatures-card available at Central Bank of India dated 26.03.2003 & 17.12.1995, along-with the said disputed- documents for the comparative-analysis. The admitted-signatures were marked by the investigating-officer himself as S1 - S11. Another cheque-leaf of Central Bank of India, BTM Layout Branch, dated 03.06.2007 stated to be pertaining to the said accused No.1 related to GMAC Financial Service India Ltd., was also sent, on which the admitted-signatures of the accused No.1 were already marked by the investigating-officer as S12 - S15. Similarly, another admitted-document i.e., a letter written to Central Bank of India, BTM Layout, Bengaluru, by the accused No.1 was also sent, on which the signatures of the accused No.1 were already marked by the investigating-officer as S16 - S22. Similarly, the investigating-officer had sent the specimen-signatures of the accused No.1/Nagendra Reddy in 12 papers and 6 withdrawal- forms by marking them as RW.1 - RW.12 and RS1 - RS6. On verifying and analyzing scientifically the said disputed-writings and signatures with the admitted-writings and signatures, he found the 76 SC No.705/2008 person written and signed in the disputed-documents is different from the person written and signed in the admitted-documents and accordingly, he has issued the detailed-opinion as per Ex.P.54, on which his signature is as per Ex.P.54(a). Even, he has sent the photographs taken while attesting the said documents scientifically, along-with a certification in a sealed-cover to the Dy.SP., Spl. Inquiry, COD, on 02.04.2009. At the time of scientific- examination, he has examined even the challan as per Ex.P.33.
42. Further, the PW.27/Smt. R. Susheela W/o R. Raghupathy being the partial-investigating-officer having submitted the additional-charge-sheet to the court, has endeavored to depose in favour of the prosecution in her chief- examination to the effect that, while she was working as Police- Inspector in Special Inquiry Section of CID, Bengaluru, from March 2007 to November 2009, on 18.12.2008 she took the charge of the instant-case along-with the case-file and on 17.03.2009 she secured a report CDAC as per Ex.P.55 (marked subject to objections raised by the learned counsel for the accused) and on completion of the further investigation, she has submitted the charge-sheet before the concerned court and she has identified the hard-disc which were produced by her and marked as MO No.2, along-with Ex.P.55 having produced the same on the same-day before this court.
77 SC No.705/2008
43. Further, the PW.28/S.Murthy S/o Shivagangaiah being the additional-witness and circumstantial-witness i.e., Nodal- Officer, has endeavored to depose in favour of the prosecution regarding he having produced a summoned-document as per Ex.P.56, on which his signature is as per Ex.P.56(a).
44. Further, the additional-witness/PW.34/S.Selvaraj S/o Sangili being the Bank-Manager having produced the summoned- document as per Ex.P.63, on which his signature is as per Ex.P.63(a), has deposed that the said Ex.P.63 has been provided by taking the information from the computer-server which was stored. Since the system is maintained for the period of 2004 - 2005 and from the year 2007 the information prior to the said period is not available since it was maintained manually. Ex.P.61 is issued from his bank. The cheque-book will be of 10 or 20 leaves. He had issued a cheque-book to the accused No.1/Nagendra Reddy bearing cheque-leaves No's.495821 - 495840. The cheque No.495821 for Rs.8.500/- has been encashed on 19.05.2005. The cheque No.495827 for Rs.21,00,000/- is encashed on 23.08.2006. The cheque No.495828 for Rs.22,00,000/- is encashed on 23.08.2006. The cheque No.495826 for Rs.22,00,000/- is encashed on 23.08.2006. The cheque No.495830 for Rs.45,000/- is encashed on 02.09.2006. The cheque No.495829 for Rs.1,00,000/- is encashed on 05.09.2006. The cheques issued need to be encashed within 6 months. The 78 SC No.705/2008 cheque No's.495822, 495837 & 495838 are not encashed. As per Ex.P.61 also, the said cheques are not encashed.
45. Further, the additiona-witness/PW.35/K.Sathish Kumar S/o Karunakara Kurup being the computer/software-scientist has been examined stated to have analyzed the hard-disc of CPU as- well-as the circumstantial-witness, has deposed in favour of prosecution that, during the year 2007 - 2008 he was working as a Scientist in Centre for Development of Advanced Computing (CDAC) being in-charge of Cyber Forensic Lab there-at and he being a B-Tech Graduate in Computer-Science. He was working there-at from 2001 to March 2013 and in the year 2002 the Ministry of Information & Technology gave a project to CDAC to develop the computer forensic tools, whereby he having been associated with the said project from 2002 onwards, after development of forensic tools, they started supporting flaw enforcement agencies in analyzing digital-evidence and to give better-support, they developed a lab in CDAC with the help of Government of India. In case of computer hard-disc if any data is deleted, the same could be retrieved, if the data is not overwritten, whereas, in order to retrieve the data, they use the tools which they have developed and also use some of the tools developed in USA. On receiving the papers with the material-objects i.e., the computer CPU containing the hard-disc on 07.01.2008 from COD, it is found that they had asked the following 5 questions. 79 SC No.705/2008
(1) Whether there is any information relating to the drafting of sale-deed in question in the seized hard-disc?
(2) The date and time of drafting of sale-deed?
(3) The contents of sale-deed in question find reference in seized hard-disc?
(4) Any other information relating to the crime? (5) Whether the contents of page No.5, para No.8 is present in the hard-disc in the questioned sale-deed?
They took the hash-value of the bit-stream copy and that hash- value is mentioned in the forensic-report. The keywords used in the analysis are mentioned in the page No.5 of the report. After feeding the keywords, they analyzed the search-hit and identified the fragments of the contents almost similar to the sale-deed in the unallocated area of the bit-stream copy and the same is attached as Annexure-II - Item-1 which is marked as per Ex.P.55, and the relevant-portion is as per Ex.P.55(a). They found some-other sale- deed also relating to the contents from the unallocated area and attached as Annexure-II (Item No's.2 to 4), running into 7 pages which are marked as per Ex.P.55(b). After examining the hard- disc, he has furnished his opinion and report with the conclusion that they have identified the fragments of the contents similar to the sale-deed in the unallocated area of bit-stream of the hard-disc which is attached as annexure and his signature thereon, is marked as per Ex.P.55(c) and the said report is countersigned by the Addl. Director/B.Ramani and the information sought-for by the 80 SC No.705/2008 police were found partially in the said hard-disc which is marked as per MO No.2.
46. Further, the additional-witness/PW.36/B.Ramani S/o Bhoothalingam being the circumstantial-witness and Executive- Director of CDAC having countersigned on Ex.P.55/report, has endeavored to depose in favour of the prosecution regarding the same in his chief-examination and also identified his signature as per Ex.P.55(d) on the said Ex.P.55.
47. Now, prior to harping-upon the discussion with respect to the appreciation of the documents placed on record by the prosecution's-side, it would be appropriate to make it clear regarding certain aspects which are still pending to be adjudicated, more-particularly, the aspect that during the time of trial, the learned Spl. Public Prosecutor had filed an application U/Sec.294 of Cr.P.C. seeking permission to file certified-copy of the deposition of one M.G.Shanthakumar S/o Gopala Shetty as PW.1 in O.S.No.2237/2006 on the file of Civil Judge (Sr.Dvn) & JMFC Court at Anekal, along-with the certified-copy of the judgment to consider the same for the purpose of recording the statements of the accused-persons. However, the said application has been taken-into consideration by this court on 20.10.2015 on merits by hearing on both the sides and disposed-of the same by specifically keeping-open the liberty to both the sides to argue on the point of considering the material placed on record under the said 81 SC No.705/2008 application, for the purpose of deciding the instant case on merits, at the time of arguing on merits of the case.
48. In pursuance of the same, the arguments have been addressed by both the sides, during which period the learned Spl. Public Prosecutor has urged vehemently that the material placed on record in connection with the civil-proceedings relating to the same-properties between the PW.1 and the accused No.1, in which the CW.2/Yebi George was one of the defendants, be considered as the material-documents, more-particularly, as part of the deposition of the PW.1 in the absence of his cross-examination.
49. Admittedly, the entire chief-examination of the PW.1 came to an end as on 01.04.2011 in this case on hand, during which time, the then learned counsel for the accused filed an application U/Sec.231(2) of Cr.P.C. seeking permission to cross- examine the said CW.1 (PW.1) after examining the said CWs.9 & 10 which came to be considered by this court and in view of the same after lapse of about hardly 4 months, it is reported that the said PW.1/informant/M.G.Shanthakumar has been brutally murdered in front of the Sub-Registrar's Office, Anekal. Consequent-upon the same, the very PW.1 could not be made available for cross-examination by the learned counsel for the accused's-side.
50. Therefore, in view of the same, now the crucial-point which emanated before this court is that, whether the said 82 SC No.705/2008 deposition of the PW.1/M.G.Shanthakumar, more-particularly, only chief-examination can be taken-into consideration for further adjudication of the instant-case on merits?. With respect to the same, the learned Spl. Public Prosecutor as stated herein before supra, having submitted the documents relating to the said civil- suit, the liberty is already kept-open by the instant-court itself to contend regarding the same at the time of canvassing their respective arguments on merits of the case.
51. Accordingly, now at this stage having addressed the arguments vehemently by both the sides, the learned Spl. Public Prosecutor has vehemently urged that the said civil-documents placed on record under an application filed U/Sec.294 of Cr.P.C. can be taken-into consideration since the entire-matter involved in question, has been dealt with and cross-examined in the civil-suit and therefore, there is no wrong in taking the cross-examination of PW.1 in the said O.S.No.2237/2006 on the file of the Civil Judge (Sr.Dvn) & JMFC Court, Anekal, as the cross-examination of the PW.1 in the instant-case on hand.
52. In relation to the same, the learned Spl. Public Prosecutor has endeavored to place his reliance-on a well-settled principle of law, reported in AIR 1974 SC 1797 in a case between Tarlok Singh and Others Vs. State of Punjab and Gurdial Singh Vs. State of Punjab, which reads thus:
"Case Note: Criminal - defects in evidence - Sections 34, 148, 149, 201, 302, 307 and 364 of 83 SC No.705/2008 Indian Penal code, 1860, Sections 33 and 288 of Criminal Procedure code, 1898 and Section 33 of Indian Evidence Act, 1872 - appeal against judgment of High Court convicting second appellant under Sections 302/34 and first appellant under Sections 307 and other five were under Sections 307/149 - two appeal preferred - statement of witnesses not particularizing whether one or two or all accused picked up injured-deceased and put him on tractor -
evidence supporting that all accused except one did-not go on tractor with deceased - no evidence as to what happened after injured was taken-away on tractor and who gave blows which killed him and who disposed dead-body and who decapitated his head - in view of serious defects in prosecution evidence accused cannot be held guilty under Sections 307/149 and nor under Sections 364/201 but they were guilty of offence under Section 148 - conviction under Sections 302/34 also set-aside - but conviction of first appellant under Sections 307, 364 and 148 confirmed - appeal partly allowed.
Para-11. .......... The evidence of Labh Singh could not be recorded by the Sessions Judge because by that time he was dead. His evidence in the Committal Court as PW.4, however, was treated as evidence, though, in our view, the High Court seems to have incorrectly thought that it could be so treated under Section 288 of the Cr.P.C. The evidence of eye-witnesses duly recorded in the presence of the accused under Ch. XVIII of the CrPC can be treated, in the discretion of the Presiding Judge, as evidence in the case if such witness is produced and examined at the trial. As such it could not be marked under Section 288 of the CrPC as Labh Singh's evidence which was subjected to cross-examination however could be treated as evidence under Section 33 of the Indian Evidence Act. Accordingly the evidence of Labh Singh was also considered as eye-witness' evidence. In any case, there is sufficient eye- witnesses' evidence in this case for sustaining the conviction of the accused Tarlok Singh of the offence under Section 307 IPC."84 SC No.705/2008
53. On plain-perusal of this particular settled principle of law, it is clear that in case if the witness could not be subjected to cross-examine, still could be treated as evidence under Section 33 of the Indian Evidence Act, 1872.
54. In addition to the same, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in AIR 1953 Rajasthan 66 in a case between The State Vs. Gajraj, in which the ratio decidendi is "prosecution shall prove it's case beyond all reasonable doubt for conviction of accused."
"Para-10. .......... We are therefore of opinion that the accused had both the right and opportunity to cross-examine Ruggha, and therefore when he became incapable of giving evidence at a later stage when he was to be cross-examined after the charge, his statement is admissible under Section 33 of the Indian Evidence Act."
55. On plain-perusal of this particular settled principle of law, again it has been held in this case also that when the witness became incapable of giving evidence at a later-stage when he was to be cross-examined after the charge, his statement is admissible under Section 33 of the Indian Evidence Act, 1872.
56. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 1998 Cri.L.J. 3494 in a case between Food Inspector Vs. James N.T. and Another, in which it is held that, "The evidence of a witness who could not be subjected to cross-examination due to his death 85 SC No.705/2008 before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend-upon the facts and circumstances of the case."
57. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 2000 Cri.L.J. 1803 in a case between The Matter of Nirmal Singh Vs. State of Haryana, which reads thus:
"Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure. When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable.86 SC No.705/2008
On a mere perusal of Section 299 of the Code of Criminal Procedure as-well-as Section 33 of the Evidence Act, there is no hesitation to come to the conclusion that the pre-conditions in both the Sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299, Cr.P.C. before the arrest of the accused can be utilized in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established."
58. On meticulous perusal of this particular settled principle of law, it is in relation to the procedure in a case followed adopting the provisions of Section 299 of Cr.P.C., wherefore, with due respect to the Hon'ble Supreme Court of India, the said citation does-not aptly applicable to the case in favour of the prosecution's urge and tale.
59. Apart from the same, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in AIR 1996 SC 109 in a case between V.M.Mathew Vs. V.S.Sharma and others, which reads thus:
"Case Note: Evidence - Evidence given in the previous proceedings Admissibility - 'Adverse Party' - Indian Evidence Act, 1872 - S.33, Second Proviso - 'Adverse Party' mentioned in the Second proviso to S.33, Evidence Act, 1872, is that party against whom the witness was produced, and who had the right and opportunity to cross-examine that witness. It is not the party which produced the witness and examined him. Since Kurian was produced against the present Appellant in the earlier proceedings and the present Appellant had the right and opportunity to cross-examine him, and since the witness is 87 SC No.705/2008 now dead, his evidence is admissible in the present proceedings."
60. On meticulous perusal of this particular settled principle of law, it is held that since the witness was produced against the appellant in the earlier-proceedings, who had the right and opportunity to cross-examine him and since the witness demised thereafter, his evidence is admissible in the present-proceedings. It is pertinent to note that, the instant-citation is absolutely in connection with the civil-proceedings, wherein no criminal- proceedings are involved. However, it is held that U/Sec.33 of the Evidence Act, 1872, the said evidence of the deceased witness is admissible in the subsequent-proceedings.
61. On overall consideration of the very intrinsic connotation of the afore-culled-out rulings relied-upon by the learned Spl. Public Prosecutor, in case if the witness dies without subjecting himself for the cross-examination, then the evidence given by him needs to be taken-into consideration in pursuance with the provisions of Section 33 of the Indian Evidence Act,1872.
62. It is appropriate to take note-of as to what exactly Section 33 of the Indian Evidence Act speaks-out. The said Section 33 of the Indian Evidence Act, 1872, deals with regard to the relevancy of certain evidence for proving, in subsequent- proceeding, the truth of facts therein stated. It jets-out that the evidence given by a witness in a judicial-proceeding, or before any 88 SC No.705/2008 person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial-proceeding, or in a later-stage of the same judicial-proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or incapable of giving evidence, or is kept-out of the way by the adverse party, under the circumstances of the case, the court considers unreasonable, provided that the proceeding was between the same parties or their representatives in interest; the adverse party in the first- proceeding had the right and opportunity to cross-examine; and the questions in issue were substantially the same in the first as in the second-proceeding.
63. On overall, the principle which is the outcome of the said Section 33 of the Indian Evidence Act, 1872, is that the evidence given by a witness in a judicial-proceeding is relevant for the purpose of proving a particular fact in a later-stage of the same judicial-proceeding when the witness cannot be found or witness is dead.
64. In the instant-case in hand, admittedly, the PW.1/informant by name M.G.Shanthakumar is no-more and he was not available for the cross-examination by the learned counsel for the accused, whereby the only chief-examination is on record. Though according to Section 33 of the Indian Evidence Act, 1872, the very chief-examination can be admitted, still it need to be scrutinized from the point of the other settled principle of law as to 89 SC No.705/2008 whether the evidence adduced in civil-proceedings can be considered in the criminal-proceedings and vice-versa because, the learned counsel for the accused resisting and counter-blasting the urge taken by the learned Spl. Public Prosecutor and also the citations relied-upon by him, he (counsel for the accused) has placed his reliance-on a well-settled principle of law, reported in (2012) 2 Supreme Court Cases 584 (D) in a case between Mohd. Hussain alias Zulfikar Ali Vs. State (Government of NCT of Delhi), which reads thus:
"D. Criminal Trial - Examination - Cross-
examination - Right to cross-examine, held per Dattu, J., encompasses confronting witnesses on facts and also to discredit them as to their truthfulness and impartiality - Held, per Prasad, J. (concurring), cross-examination is an acid test to determine veracity of a witness - Failure to afford opportunity to cross-examine prosecution witnesses through defence counsel -
Consequences - Trial held (per curiam), vitiated, vitiated - Evidence Act, 1872, S.137."
65. On meticulous perusal of this particular settled principle of law, it is clear that the cross-examination is an acid-test to determine veracity of a witness and in case of failure to afford opportunity to cross-examine the prosecution-witnesses through defence-counsel, then the consequences of the trial would be as vitiated, as the right to cross-examine encompasses confronting witnesses on facts and also to discredit them as to their truthfulness and impartiality.
90 SC No.705/2008
66. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in (2009) 7 Supreme Court Cases 104 (A) in a case between Jayendra Vishnu Thakur Vs. State of Maharashtra and Another, which reads thus:
"A. Terrorist and Disruptive Activities (Prevention) Act, 1987 - S.14(5) - Recording of evidence in absence of accused - Procedural safeguards - Compliance with - Extreme importance of - Necessity of recording reasons - Procedural safeguards of the nature of just manner and approach and mandatory duty of court/prosecution in establishing the existence of the jurisdictional fact i.e. fact of absconding, stressed - The accused's right of cross-
examination being a valuable right, it's deprivation, held, is an exception which should be for just causes - The approach should be judicious with total application of mind - The duty of court/prosecution should be to prove and establish by way of leading and appreciating evidence, respectively, regarding existence of the jurisdictional fact i.e. the fact of absconding - And the final imperative duty of court should be to record the evidence and rationale requiring the urgency involved in such deprivation - Criminal Procedure Code, 1973 - S.299 - Evidence Act, 1872 - S.33 - Applicability - Earlier statements of witnesses (presently dead) not cross-examined - When may be relevant in a proceedings under TADA - Condition precedent, manner and approach of proof and procedural safeguards for the accused - Criminal Trial - Cross-examination
- When may be dispensed with - Constitution of India, Arts.21, 22 and 14."
67. On plain-perusal of this particular settled principle of law, it is clear that the right of the accused to cross-examine being a valuable right, it's deprivation is an exception which should be 91 SC No.705/2008 for just causes and therefore, the approach should be judicious with total application of mind.
68. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1989 SC 1141 (From : Rajasthan) (A) in a case between Gopal Saran Vs. Satyanarayan, which reads thus:
"(A) Evidence Act (1872), Ss.137 and 138 -
Party not subjecting himself to cross-examination in spite of order of Court - It is not safe to rely on examination-in-chief. (Para 5)"
69. On plain-perusal of this particular settled principle of law, it is not safe to rely-on the examination-in-chief in case if the party does-not subject himself to the cross-examination in-spite of order of the court.
70. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of unreported law, in Crl.Appeal No.376/2007 of the Hon'ble High Court of Karnataka, Bengaluru, in a case between M/s. Cheminova India Ltd., Vs. M/s. Jajee Pesticides and others, in which it has been held in Para No.20 that, "..........it has to be noticed complainant had filed an application under Section 311 Cr.P.C. after the evidence of PW.1 was closed and though that application was being allowed, again PW.1 failed to appear for cross-examination. Consequently, he was legally discharged. The consequence flowing from such order is, the evidence tendered by him (PW.1) in examination-in-chief through sworn-statement in the affidavit is of no avail."
92 SC No.705/2008
25. Conspectus of the provisions of Sections 135 to 139 in Chapter X of the Evidence Act deals with the situation like in the instance case. Section 135 prescribes:
"The order in which witnesses are produced and examined. It shall be regulated by law and practice for the time-being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court."
Section 136 deals with admissibility of evidence which confers on the judge special power. It reads thus:
S.136. Judge to decide as to admissibility of evidence: 'When either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the fudge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.' It clarifies that every statement by a witness even given on oath before the court is not evidence in law unless the court admits such evidence.
30. In fact, this issue was incidentally considered by this court while referring to Section 319, Cr.P.C.
in the case of SANNAREVANAPPA BHARAMAJAPPA KALAL VS. STATE OF KARNATAKA (ILR 1990 KAR 1205) where this court observed thus:
'Complete evidence calls-for cross-
examination not examination-in-chief alone if witness does-not submit to cross-examination after examination-in-chief Court precluded from acting on such incomplete evidence.' The statement of a witness to be called 'evidence' must be capable of being tested in cross-
examination, otherwise it will certainly not be legal- evidence. The complainant has to blame itself for the predicament in which it has landed by not tendering PW.1 for cross-examination. From the appellant there is no statement why PW.1 had refused to tender himself for cross-examination. Merely because he had left the company (complaint) was no justification to keep him away from cross-93 SC No.705/2008
examination. Taking the extreme case, if he had developed adverse animus to the complainant, even then his presence could have been secured by issuing coercive process provided under the Cr.P.C."
33. Now we have to see what is the resultant effect. As the statement of PW.1 in examination-in-
chief was not tested in cross-examination due to his own default, it remained merely a statement and had not transformed into S legally acceptable evidence. Besides as PW.2 who entered-into the witness-box spoke nothing of the facts in issue, it was no evidence. This could be found in Section 136 of the Evidence Act which envisages:
1.36. Judge to decide as to admissibility of evidence - when either party proposes to give evidence of any fact, the judge may ask the party proposing to give evidence in what manner the alleged fact, W proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given & the fact first-mentioned, unless the party undertakes to give proof of such fact, and the court is satisfied with such undertaking.
If the relevancy of any alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
34. That means, examination of a person before court on oath or otherwise as provided by the Code will not make his statement as evidence admissible in the proceeding unless court admits it. I"
71. On plain-perusal of this particular settled principle of law, it is clear that though it is in connection with Section 311 of 94 SC No.705/2008 Cr.P.C., it focuses the light on the concept of complete-evidence and it's relevance and also observed that complete-evidence calls- for the cross-examination but not examination-in-chief alone and in case if the witness does-not submit to cross-examine after the examination-in-chief, the court is precluded from acting on such incomplete-evidence and also the state of a witness to be called as an evidence must be capable of being tested in the cross- examination, otherwise it will certainly not be legal-evidence and the chief-examination being not tested in the cross-examination, it stands remained merely as the statement without transforming it into legally acceptable evidence, wherefore, it never amounts to an evidence and the examination of a person before the court on oath or otherwise as provided by the Code will not make his statement as evidence admissible in the proceeding unless if court admits it.
72. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in 2001 Cri.L.J. 1288 (B) (Delhi High Court) in a case between Ripen Kumar Vs. Department of Customs, which reads thus:
"(B) Evidence Act (1 of 1872), S.3 - Evidence -
Meaning of - Evidence means the examination-in- chief and cross-examination - Witness not permitted to be cross-examined - His statement cannot be termed as an evidence nor can it be read in evidence.
The words "all statements" in S.3 of Evidence Act (1872) include the examination-in-chief as-well-as the cross-examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross-examined that the credibility of 95 SC No.705/2008 the witness can be looked-into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross-examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination- in-chief and cross-examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine prosecution-witness thereby dislodge his testimony. Hence incomplete statement of prosecution-witness in the absence of cross-examination could not be treated as evidence nor the same could be relied-upon. (Para 9)"
73. On meticulous perusal of this particular settled principle of law, it is clear that according to Section 3 of the Evidence Act, evidence means the examination-in-chief and cross-examination, wherefore, the witness if not permitted to cross-examine his statement cannot be termed as an evidence nor can it be read in evidence, whereas, it is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked- into and the incomplete-statement of the prosecution-witness in the absence of cross-examination cannot be treated as evidence nor the same could be relied-upon.
74. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in ILR 1990 96 SC No.705/2008 KAR 1205 in a case between Sannarevanappa Bharamajappa Kalal Vs. State of Karnataka, which reads thus:
"CRIMINAL PROCEDURE CODE, 1973 (Central Act No.2 of 1974) - Section 319 - Complete 'evidence' calls for cross-examination not examination-in-chief alone - If witness does-not submit to cross-examination after examination- in-chief Court precluded from acting on such incomplete evidence.
HELD:
Unless the witness is cross-examined, it cannot be said that there is complete "evidence"
as contemplated under Section 319 Cr.P.C.
inasmuch as examination-in-chief alone cannot be considered as evidence. By analogy it may stated that if the witness does-not submit to cross-examination after he is examined-in-chief, the Court would be precluded from acting on such incomplete evidence as it cannot be said that there is "evidence" against the accused-person only from the examination-in-chief.
(Para-4)"
75. On meticulous perusal of this precedent law, it is clear that if witness does-not submit to cross-examine after examination-in-chief, the court is precluded from acting on such incomplete-evidence as the complete-evidence calls-for cross- examination but not examination-in-chief alone.
76. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1966 Mysore 154 (a) in a case between Neminath Appayya Hanamannanavar Vs. Jamboorao Satappa Kocheri, which reads thus:97 SC No.705/2008
"(a) Evidence Act (1872), S.138 - Failure to give opportunity to cross-examine witness - His evidence must be excluded from consideration."
77. On overall consideration of the basic principle laid-down in the said citations relied-upon by the learned counsel for the accused is that, to call as an evidence complete evidence, not only the chief-examination suffices, but mandatorily it requires the cross-examination by the other-side and in case if the witness has not tendered for the cross-examination, then mere chief- examination of such witness cannot be construed as an evidence and thereby it cannot be taken-into consideration at-all, unless it is admitted by the court of law in the evidence by application of judicious mind basing-on the facts and circumstances.
78. Now, on meticulous consideration of the rival-citations relied-upon by the respective learned Spl. Public Prosecutor as- well-as the learned counsel for the accused, it is incumbent-upon this court to pull-out the minute-string of legal-position which is aptly applicable to the instant-case in hand and then sort-out the issue in question as to whether the mere chief-examination of the PW.1/informant/M.G.Shanthakumar can be taken-into consideration in favour of the prosecution's case as an evidence or otherwise.
79. In view of that matter, it would be appropriate to make it clear as to what exactly the term-evidence mean as per the Indian Evidence Act, 1872, for better understanding and appreciating the 98 SC No.705/2008 point in dispute. According to the definition of the term-evidence as provided U/Sec.3 of the Indian Evidence Act, 1872, it means and includes all the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral-evidence; and all documents including electronic-records produced for the inspection of the court, such documents are called documentary- evidence.
80. On plain-perusal of the said definition, in overall, it implies definitely that it comprises of both oral as-well-as documentary-evidence. Keeping-in-mind this particular aspect, now it is incumbent-upon this court to delve-into the crucial-point of the discover as to whether the civil-documents produced by the learned Spl. Public Prosecutor can be taken-into consideration as the part of the deposition of the PW.1 in lieu of the cross- examination of the PW.1 as he could not subject to the cross- examination by the learned counsel for the accused, in the instant case on hand.
81. It is significant to note that, there is no dispute in respect of the fact that the said civil-dispute at O.S.No.2237/2006 on the file of the Civil Judge (Sr.Dvn) & JMFC Court, Anekal, came to be decreed in favour of the PW.1/Shanthakumar, which was against the instant accused No.1 and also CW.2/Yebi George and etc. It is no doubt that there are rival-contentions taken by both 99 SC No.705/2008 the sides with respect to the merits and non-merits of passing the said judgment. But, one aspect is clear from the rival-submissions that the accused's-side have preferred the appeal before the Hon'ble High Court of Karnataka as against the judgment and decree passed in the said civil-dispute at O.S.No.2237/2006 on the file of the Civil Judge (Sr.Dvn) & JMFC Court, Anekal, which is still pending for inquiry and disposal on merits. Under such circumstances, as rightly put-forth by the learned counsel for the accused that in view of no proper proceedings were being conducted before the pronouncement of the said civil-judgment, and also having not reached and adhered-with the doctrine of finality, any documents or material connected to the said civil- proceedings cannot be relied-upon, the same would not be safe to rely-upon by this court.
82. It is very significant to note at this point of juncture that, the learned counsel for the accused has placed his reliance-on a well-settled principle of precedent law, reported in (2005) 4 Supreme Court Cases 370 (F) in a case between Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, which reads thus:
"F. Evidence Act, 1872 - S.3 - Appreciation of evidence - Civil and criminal proceedings - Standard of proof required in - Distinction - Findings given in one proceeding - Binding nature of, in the other - Held, civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond 100 SC No.705/2008 reasonable doubt has to be given - Findings recorded in one proceeding may not be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubts has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S.Sheriff Vs. State of Madras give a complete answer to the problem posed:
(AIR p.399, paras 15-16) "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence.
There is some difference of opinion in the High Court of India on this point. No hard-and-fast rule can be laid down but we do-not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The new envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should 101 SC No.705/2008 be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule.
Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near it's end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
34. In the present case, the Will has been produced in the court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect of the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.
35. The appeal is, accordingly, dismissed."
83. On meticulous perusal of this particular well-settled principle of precedent law by way of judicial-dictum rendered by 102 SC No.705/2008 the Hon'ble Constitutional Bench comprising of 5 Judges of the Hon'ble Apex Court of India, while appreciating the evidence in civil as-well-as criminal-proceedings, the standing proof is required to be looked-into with respect to the binding-nature of the findings given in one-proceeding on other-proceeding, wherefore, civil-cases are decided on the basis of preponderance of evidence while in criminal-case the entire burden lies-on the prosecution and proof beyond the reasonable doubt has to be given. Therefore, the findings recorded in one-proceeding may not be treated as final or binding in the other as both the cases have to be decided on the basis of evidence adduced therein.
84. In the light of the said well-settled principle of precedent law, the only eyewitness available on record in this case is PW.4 (CW.2) by name Yebi George, who has endeavored to depose in favour of the prosecution in an otherwise-manner giving go-bye to the very-case of the prosecution as-well-as the very-versions of the PW.1 in his chief-examination and thereby the PW.4 has partly turned hostile and nothing substantial worth relying material could be elicited and extracted through his mouth by the learned Spl. Public Prosecutor in favour of the prosecution's-case, wherefore, all those contradictory versions coming through the mouth of the PW.4 need to be overlooked and over-rided by the prosecution with the assistance of the substantial-evidence of other-witnesses. This particular vital exercise could be made by the 103 SC No.705/2008 prosecution only through the mouth of the PW.1; but, unfortunately, he could not be made available for subjecting him for cross-examination by the learned counsel for the accused. To put-into simple-terms, all those contradictory-versions coming-out through the mouth of the PW.4/Yebi George, need to be testified through the mouth of the PW.1 by way of cross-examining the PW.1 by the learned counsel for the accused. But, this major aspect could not be bring-into existence during the trial in view of the demise of the PW.1, wherefore, the incredible right of the accused's-side has stood in the position of the deprivation of the accused from cross-examining the PW.1 to elicit the truthfulness through the mouth of the PW.1 by cross-examining him in detail.
85. Under these circumstances, it is crystal clear that the citations relied-upon by the learned counsel for the accused are more attractable to the defence taken by the learned counsel for the accused in connection with the status of the deposition/chief- examination of the PW.1, rather-than the citations relied-upon by the learned Spl. Public Prosecutor. Therefore, in the instant-case in hand, viewing from any angle, the said deposition more- particularly only the chief-examination of the PW.1, under the peculiar circumstances prevailing herein does-not fall intra-vires the ambit of the defence of the complete-evidence as provided under the well-settled principle of law as culled-out herein before supra relied-upon by the learned counsel for the accused. When 104 SC No.705/2008 that is so, the deposition of the PW.1 tantamounting to be as an incomplete-one, it has neither any value in the eye of law nor it deserves to be taken-into consideration nor can be read in evidence in any manner for any purpose in the instant-case on hand, but it stands in the position of non-est.
86. In addition to the same, in the light of the settled principle of law ruled by the Hon'ble Constitutional Bench of the Hon'ble Apex Court of India, as culled-out herein before supra (reported in (2005) Supreme Court Cases 370 (F), the findings in the civil-proceedings in O.S.No.2237/2006 on the file of the Civil Judge (Sr.Dvn) & JMFC, Anekal, cannot be made binding precedent either on the instant-case or on the accused's-side in relation to the deposition of the PW.1, as the said civil-dispute is based-on the preponderance of evidence, whereas, in the instant criminal-case on hand, the entire burden is admittedly on the shoulders of the prosecution and the proof needs to be given by the prosecution beyond the reasonable doubt, admittedly, as even it is held in the settled principle of law, reported in AIR 1953 Rajasthan 63 in a case between The State Vs. Gajaraj, as culled-out herein before supra, on which the learned Spl. Public Prosecutor himself has placed his reliance.
87. Therefore, to sum-up, for the reasons stated herein before supra, the very-deposition i.e., mere chief-examination of the PW.1 being not a complete-evidence within it's meaning, 105 SC No.705/2008 cannot be read and taken-into consideration in any manner for any purpose in the instant-case on hand and also the said civil- documents endeavored to rely-upon by the learned Spl. Public Prosecutor in lieu of the cross-examination of the PW.1, produced under an application U/Sec.294 of Cr.P.C. do-not deserve to be considered with the binding-force in the instant-case on hand in the light of the well-settled principle of precedent of law, as culled- out herein before supra, relying more-importantly, on the citation reported in (2005) 4 Supreme Court Cases 370 (F) in a case between Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, which is rendered by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court of India comprising of 5 Judges, as it prevails over all other-citations culled-out herein before supra relied-upon by the learned Spl. Public Prosecutor, wherefore, the said deposition of the PW.1 stands as non-est and the civil-documents endeavored to rely-upon by the learned Spl. Public Prosecutor hereby stand as of no use, aid and assistance either to the prosecution or to the instant-court in adjudication of the instant-case on hand.
88. With these particular observations and clarifications, it would be appropriate to make it clear at this point of juncture itself that, the PW.30/Basappa Reddy S/o Munireddy being the circumstantial-witness stated to have helped financially to the accused No.1, the PW.32/Shashikala W/o Nagendra Reddy 106 SC No.705/2008 (accused No.1) being the circumstantial-witness and PW.11/Amaranaga S/o Chandrashekar who is the younger- brother of PW.12/Suresh S/o Mutthu being the mahazar-witness of the spot of abduction of the PW.1, the spot of the wrongful- confinement of the PW.1 made in a building as-well-as the seizure- mahazar of the MO No.2/hard-disc, having turned hostile to the prosecution by exhibiting their animus of hostility, for which the learned Spl. Public Prosecutor was inclined to cross-examine them; but, no worth relying material having been elicited and extracted through their mouths, the prosecution has utterly and miserably failed to establish the Exs.P.27 to P.29, P.59 & P.60, respectively, and accordingly, the very-depositions of the PWs.30, 32 & 12 are of no aid and assistance with any consequence in favour of the prosecution.
89. With these better clarifications in the background, now it would be appropriate to marshal on merits of the case in pursuance with the points raised for determination as under:
90. Point No's.1, 3 & 4:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1, 3 & 4 together admixingly for discussion.
91. According to the case of the prosecution, on 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No's.1 & 2 in furtherance of common-unlawful-intention of grabbing the 107 SC No.705/2008 property of the PW.1/informant/M.G.Shanthakumar secured him through the CW.2/PW.4/Yebi George near Adiga's Hotel, 12th Main Road, 4th Block, Jayanagar, Bengaluru City, and forcibly made him to sit and abducted in the white Lancer Car belonging to the accused No.1/Nagendra Reddy bearing No.KA-05-MN-9559 and moved towards the Sub-Registrar's Office, Anekal, and on the way in the middle, the said car was stopped and forcefully obtained the signatures of the PW.1 on the sale-deed at the gun-point of the accused No.2, belonging the properties of the PW.1 bearing Sy.No's.53/1, 53/2(b), 55/1, 55/2, 55/3, 55/4, 56, 57/2 & 58/2 totally measuring 22 acres 26 guntas of land and also the CW.2 (PW.4) was also made to sit in the said car and accordingly, both the PWs.1 & 4 were wrongfully-confined in the said car and also after obtaining the signatures of the PW.1 on the said sale-deed, when they reached the Sub-Registrar's Office in the evening, due to office-time was over the registration of the said sale-deed could not take-place and at that time, the accused No's.1 & 2 along-with other-persons wrongfully confined the PW.1 whole-night in the house of the accused No.1 bearing Flat No.102, Amar Canopy Apartment, BTM Layout, Bengaluru, secretly and thereby, the accused No.1 has committed the offences punishable U/Secs.342, 346, 364 & 368 of IPC.
92. In connection with the same, it is mandatory on the part of the prosecution to establish the essential ingredients of 108 SC No.705/2008 wrongful-confinement of the PW.1 secretly and also the PW.4 (CW.2) for the purpose of extorting the property, or a valuable- security-document, or constraining the doing of any illegal-thing without allowing them to proceed beyond certain circumscribing limits. In so-far-as the alleged abduction is concerned, it is for the prosecution to establish that the said accused-persons compelled the PW.1 to come from spot where he was allegedly stated to have come near the Adiga's Hotel and also compelled him by means of a force or inducement to him to do so by deceitful means and the PW.1 was abducted or that he might be murdered or so disposed- of as to be put-in danger of being murdered.
93. In the light of the said ingredients of the said alleged offences punishable U/Secs.342, 346, 364 & 368 of IPC, it is incumbent-upon this court to marshal on the oral-evidence of the witnesses.
94. Therefore, on meticulous perusal of the very-deposition of the PW.1, undoubtedly, he has endeavored to depose in accordance with the prosecution's case in his chief-examination. But, unfortunately, he having not been tendered for the cross- examination by the learned counsel for the accused, his deposition comprising of only chief-examination being incomplete-one, does- not come within the purview of meaning of the complete-evidence as per the settled principle of law and therefore, in view of the settled proposition of law, his deposition has been already held to 109 SC No.705/2008 be as non-est for the reasons discussed at much-length herein before supra, basing-on the status of the basic-law coupled-with the settled principles of precedent laws. Therefore, nothing could be read and looked-into from the very-deposition of the PW.1 treating it as not in existence at-all.
95. The only resort left to the instant-court is to look-into the very-deposition of the PW.4 (CW.2), who is none-other than Yebi George stated to be a person having intimacy and convergence with the PW.1/Shanthakumar. Therefore, on meticulous perusal of the deposition of the PW.4, he has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, earlier since 1994 he was doing the share-business and thereafter since 2009 he is doing the share-business consultant work by opening the office in the name and style of 'Way to Wealth' which is situated in 3rd Block, Jayanagar, Bengaluru City. The informant- M.G.Shanthakumar-PW.1 is known to him since 2004 while he (PW.4) was working in IL & FS, during which time the said PW.1 use to visit his company often to make the investments. Since the PW.1 had sustained huge-loss in the shares during the year 2005- 2006, he had expressed before him (PW.4) that it was very difficult for him to invest the money and therefore, he would invest the money by selling his lands situated on Huskur Road and in connection with the same, the PW.1 use to visit him and request to see a customer for purchasing his property. The said property 110 SC No.705/2008 being situated on Huskur Road measures about 22 acres and in view of the request of the PW.1, he had introduced few International Real-Estate Brokers with whom the PW.1 had maintained the direct-contact. Thereafter, the PW.1 came to him and stated that about 2-3 clients/customers had come in contact with him and thereby asked him to sell the said property by mediating, in respect of which the PW.1 assured that he would pay some-amount to him. In the year 2006 he had been to the house of the informant in connection with some-other work related to his company. At that time, the informant/PW.1 introduced the accused No.1/Nagendra, stating that he had come for purchasing his lands and the said Nagendra Reddy himself is the accused No.1. Thereafter, about one-week, the PW.1 along-with accused No.1/Nagendra Reddy came to his office to discuss about the sale of his properties and later-on also for about 2-3 times, they had come to his office, during which time he stated that it would not be appropriate to speak in his office and therefore proposed to go outside and have the sale-talks. Thereafter, one-day they took him (PW.4) to a hotel situated at 4th Block, Jayanagar, and made the sale-talks. He does-not know the name of the said hotel. After the sale-talks, the accused No.1 and the informant both went to their respective houses. During the sale-talks in the said hotel, the PW.1 had asked the accused No.1 to discuss with him (PW.4) for any further inquiries and in view of the same, after about one-week 111 SC No.705/2008 the accused No.1 called him on mobile-phone and asked him to fix a meeting to discuss with the informant/PW.1 with regard to the said sale-transaction and thereby the accused No.1 asked him to come to him besides Adiga's Hotel in Jayanagar. Accordingly, on 10.07.2006 at the instance of the accused No.1 at about 12.00 - 1.00 in the afternoon, he went besides Hotel Adiga's. But, the accused No.1 was not there though he had stated that he was there-at. Again he called the accused No.1 on phone and inquired, whereby the accused No.1 stated that he is in a car and asked him to the car itself. Accordingly, he went to the car which was parked besides Adiga's Hotel, where-at the accused No.1 stated that he had finalized the transaction in connection with the said landed- property. Thereafter, at the say of the accused No.1, he called the informant/PW.1 on phone and asked him to come to the said car, during which time the PW.1 stated that he being in court, he needs about 1-2 hours. Thereafter, the accused No.1/Nagendra Reddy stated him that he would speak with Shanthakumar and finalize the transaction. Thereafter about one-hour, the informant- Shanthakumar came near the car and asked and phoned as to where they are?, for which he replied that he is in the car of the accused No.1. Even, the accused No.1 also rang to the PW.1 and asked to come to his car. Thereafter, himself, the informant and the accused No.1 together sat inside the said car of the accused No.1 and both the informant as-well-as the accused No.1 stated 112 SC No.705/2008 that they have finalized the transaction. Thereafter, two-persons came near the car of the accused No.1 and sat on both-sides of the informant inside the said car. After about 10-15 minutes having the discussion, he (PW.4) went outside for nature-call. Within 5 minutes, the informant, accused No.1 and others sitting in the car went-away. Therefore, later-on, he called the informant on phone and inquired as to where were they?, for which the informant stated that he was going to Anekal for registration purpose. Therefore, he asked the informant as to whether he should come?, for which the informant stated that if he is interested he may come. Thereafter, when he expressed his interest to come, the informant asked him to come near a temple and accordingly, he went there-at and thereafter they went in their car towards Anekal. Even, while going in the said car when he (PW.4) asked the informant/Shanthakumar twice on the way as to what did he do, he stated that he is on the way to Anekal for registration purpose. Thereafter, the accused No.1 and the informant spoke each-other for 10 minutes and asked him to be outside of the said car for sometime. Thereafter, again the accused No.1 and the informant proceeded in the said car towards Anekal Sub-Registrar's Office, during which time also he asked the informant/Shanthakumar as to whether everything is okay and how, for which Shanthakumar stated that everything is okay. Even, at 5.30 p.m. in the evening he being near the car outside, the accused No.1 and the informant 113 SC No.705/2008 did-not return, wherefore, he called the informant/Shanthakumar on phone and questioned as to where he was? and asked as whether he should go?, for which Shanthakumar stated that, yet he has to go to Sub-Registrar's Office and asked him to go. Accordingly, he came to his house from Anekal in a bus and when he called in the evening at about 6.00 p.m. on phone, the informant stated that he was still in the Sub-Registrar's Office. On the very next-day at about 9 - 10 a.m. in the morning when he called Shanthakumar again and inquired, the PW.1 stated that not yet registered and it will be registered today. He does-not know as to who was the person sitting besides the said Shanthakumar (PW.1). He cannot identify the said person and say as to whether he is present in the open-court or otherwise, on the day on which he has deposed.
96. Therefore, the learned Spl. Public Prosecutor was inclined to treat the PW.4 as hostile-witness in view of he having exhibited his animus of hostility and cross-examined him at much- length; But, nothing could be extracted and elicited through the mouth of the PW.4 regarding the substantial material to establish the essential ingredients to hold the commission of the offences punishable U/Secs.342, 346, 364 & 368 of IPC by the accused- persons because, in no way, the PW.4 has whispered anything regarding the infliction of force either on the PW.1 or on him to sit in the Lancer Car of the accused No.1 or regarding their forcible 114 SC No.705/2008 confinement therein, in order to bringing the alleged force on the PW.1 under a gun-point by the accused No.2 along-with the accused No.1 and other-persons. But, he has clearly stated that, after sometime in view of having not returned the PW.1 and the accused No.1 and others from the Sub-Registrar's Office, Anekal, he returned-back to his house in a bus at 5.30 p.m. in the evening only after intimating the PW.1 on phone, who permitted him to go- back. In respect of the same, the learned counsel for the accused has elicited in the cross-examination by way of admission through the mouth of the PW.4 that, since the PW.1/M.G.Shanthakumar was his friend, he had been to the Sub-Registrar's Office, Anekal, and there is no role of himself as mediator in between the transaction of the PW.1 and the accused No.1 and he returned- back to his house in a bus as he had his personal-work and since it was likely to be late at the Sub-Registrar's Office, Anekal.
97. It is also significant to note that though the alleged wrongful-confinement of the PW.1 is suggested to the PW.4 in the cross-examination by the learned Spl. Public Prosecutor, the PW.4 has went-on fatally denying and also exhibited his animus of no knowledge regarding the further alleged wrongful-confinement by the accused-persons and others in the house of the accused No.1. Therefore, in-overall, it can be safely stated that so-far-as the abduction and unlawful-confinement of either himself or the PW.1 by the accused-persons and others at the gun-point forcibly, the 115 SC No.705/2008 prosecution has utterly failed to establish the same through the mouth of the PW.4.
98. But, however, the prosecution has endeavored to place it's reliance-on the deposition of the PW.3 who is none-other than the younger-brother of the PW.1 and hearsay-witness who has endeavored to depose in favour of the prosecution in respect of he having heard the alleged incident taken place on 10th & 11th of July 2006 with the PW.1, his evidence cannot be independently relied-upon as he tantamount to be as hearsay-witness, though the PW.3 has endeavored to depose in his chief-examination to the effect that, in the year 1957 he has come to Bengaluru from his native Chikmagalur and the PW.1/Shanthakumar being his elder- brother is residing at 7th Block, Jayanagar in Bengaluru and his younger-brother/PW.2/Dattatreya is residing in 2nd Block, Jayanagar in Bengaluru City, and he knows the accused-persons. On 12.07.2006 in the morning in view of his younger-sister by name Rukmini having called him on phone from Chennai and stated that when she rang to the PW.1/Shanthakumar in the morning on that day, he could not speak properly, whereas, his tune/voice was very low and thereby asked him to visit him and inquire, he accordingly went to the house of the PW.1 at about 1.30 p.m. in the afternoon, where-at the PW.1 was alone there-at and when he saw the PW.1, he was very pale, nervous and depressed with weak voice/tune, for which he felt very bad. When 116 SC No.705/2008 he inquired the PW.1, the PW.1 stated that the accused No.1/Nagendra Reddy with the assistance of two-goondas by showing a pistol to him took to Anekal and by threatening at the gun-point, obtained his signatures on the document and also taken his photo without giving any amount. Immediately, he informed the said matter to the CW.10/M.G.Dattatreya (PW.2), whereby the PW.2 stated that he would come within a very short- span of time. Thereafter, within a short-period the accused No.1/Nagendra Reddy, along-with his wife, accused No.2/Afroz and their driver came to the house of the PW.1. The said accused No.2 is identified by the PW.3 in the open-court. When he (PW.3) inquired the accused No.1/Nagendra Reddy in the house of the PW.1 regarding getting executed the registered sale-deed from his elder-brother/PW.1 without paying the amount, the accused No.1 responded rashly stating that "it is none of your business, it is in between me and your brother/Shanthakumar and you need not interfere". In addition to the same, the accused No.1 showing the accused No.2/Afroz Babu stated that "you do-not know who he is? If he is asked, then he will make you into piece-piece" and thereby threatened. Immediately, he went outside the house to intimate his brother CW.10/Dattatreya by phone but he could not get connection with the CW.10. The accused No's.1 & 2 had come in two different cars and their car-numbers were noted by him and kept in his valet. The same being observed by the driver of the 117 SC No.705/2008 accused No.1/Nagendra Reddy, after some-time the said driver came to him and stated that "Anna is calling inside", whereby he went inside and at that time the accused No.1 questioned regarding the noting of car-number and by showing the accused No.2/Afroz stated that "if he is told, he will make into piece-piece"
and thereby again threatened him. Thereafter, the wife of the accused No.1/Nagendra Reddy asked the accused No.2/Afroz to snatch-away his purse/valet and accordingly the accused No.2 snatched-away his valet from his shirt-pocket and took-away the chit in which car-numbers were noted by him. At that time, the accused No.2 was holding his neck, wherefore, he asked the accused No.1 in a louder-voice to let him free and his younger- brother is coming along-with the people and police and warned him to "get-out". At that time, the accused No.1, his wife and accused No.2 started to go outside the house of the PW.1 one after another, during which time the PW.1 and himself also followed them till the doors. At that time, the accused No.2 tried to push him by holding his neck, during which time he shouting as "thief- thief, he is strangulating his throat". Listening the said hue and cry, the surrounding/neighboring-persons started looking-into the house through window and door, wherefore, the accused-persons went-away there-from. At that time, Amar, PW.2 and Indhumouli came. Thereafter, altogether phoned to the Police-Commissioner's Office. He has given the statements before the Thilaknagar police, 118 SC No.705/2008 Jayanagar police and COD police, in respect of the same. After giving the statements before the Thilaknagar police, one-weak later again the police had called him and shown the accused No.2, where-at he has identified him. At that time, the accused No.2 was having a gun with small and big-swords. The police have seized the cars which had come there-at. He is capable of identifying the said cars and also the gun/pistol which was not the real-pistol, whereas it was a mere cigar-lighter and even the Police-Inspector showing the said pistol stated that it was not a real-gun, it was a mere lighter.
99. Therefore, even, on perusal of the deposition of the PW.2 who is also one of the younger-brothers of the PWs.1 & 2 as-well- as hearsay-witness, has endeavored to depose in favour of the prosecution in his chief-examination, he has also not supported the prosecution's case in his cross-examination by admitting that he has not given any statement before the police. It is pertinent to note that, in the chief-examination the PW.2 has fatally stated that he came to know regarding the alleged incident only through the PW.2. But, in the cross-examination he has tried to improve his version to the effect that, even the PW.1/M.G.Shanthakumar also told him. It is significant to note that, the PW.2 himself has stated in his chief-examination that when he visited the house of the PW.1 and tried to speak with the PW.1, he was not in a position to tell him or speak with him anything-else due to he having 119 SC No.705/2008 undergone the nervousness and depression. Apart from the same, the PW.3 has also stated in the chief-examination itself that, when he went to the PW.1's house on 12.07.2006, the said PW.1 was very pale, nervous and depressed with a very low-tune/voice. When that is so, it creates a fatal-doubt in the mind of this court regarding the reiteration or repetition of the alleged incident with the PW.1, before the PW.2 who had come belatedly thereafter the PW.3 before whom PW.1 had already stated once during the time of suffering with the nervousness and etc., by the PW.1.
100. Apart from the same, the PW.6 being the maid-servant in the house of the PW.1 as-well-as the circumstantial-witness, has endeavored to depose in her chief-examination to the effect that, since last 4 years she is working as maid-servant in the house of the PW.1. Everyday she use to go for work at about 7.00 a.m. in the morning and use to return by 8.30 a.m. in the morning itself after her completion of work in the house of the PW.1. On 11.07.2006 she went to the house of the PW.1 at 7.00 a.m. in the morning as usual, and pressed the button of calling-bell but the door did-not open. She waited for 10 minutes and thereafter returned-back. On the very next-day, she again went to PW.1's house at about 7.00 a.m. in the morning and pressed the button of calling-bell, whereby the PW.1 opened the door. Thereafter, she completed her work in his house and later-on asked as to where he had been on the last-day (yesterday). The PW.1 stated her that 120 SC No.705/2008 since he was tired little-bit, he was in the house itself. Therefore, she did-not ask anything-more to the PW.1.
101. It is significant to note that, as per her version in the chief-examination, when she had been to the house of the PW.1 at about 7.00 a.m. in the morning on 11.07.2006 though she rang the bell and waited for 10 minutes, the door of the house of the PW.1 did-not open and therefore, on the very next-day when she went to the work in the house of the PW.1 in the as usual manner, after completion of her work she asked the PW.1 as to where he had been yesterday?, for which the PW.1 stated her that since he was suffering from little tiredness, he was in the house itself. But, the PW.6 having turned hostile to the prosecution partly, when the learned Spl. Public Prosecutor has suggested her regarding the PW.1 having stated before her that the accused No.1/Nagendra Reddy and others had abducted him forcibly and taken him to the Sub-Registrar's Office, Anekal, she has fatally denied the said suggestion. Therefore, as per the very-version of the PW.6 in her chief-examination itself, the PW.1 had told her on 12.07.2006 in the morning at about 7.00 a.m. when she had been to the work in his house in the as usual manner, that he was in the house itself on the earlier-day i.e., on 11.07.2006 and he could not open the door due to his tiredness. Therefore, by virtue of this particular version of the PW.6, the case of the prosecution stands falsified with respect to the alleged factum of abducting the PW.1 and his 121 SC No.705/2008 wrongful-confinement secretly in the house of the accused No.1 by the accused-persons along-with the other-persons. Though during the second-occasion of the further cross-examination by the learned Spl. Public Prosecutor, the PW.6 has given certain admissions in favour of the prosecution, she has even stated contradictorily in the cross-examination by the learned counsel for the accused. In addition to the same, she has also clearly stated in the cross-examination by the learned counsel for the accused that, she has not stated before anybody-else and also before the police regarding the alleged abduction of the PW.1/M.G.Shanthakumar by the accused-persons and other-persons. Therefore, it is clear on the record that the very alleged statement stated to have recorded by the investigating-officer pertaining to the PW.6 stands absolutely falsified and not proved the case of the prosecution in pursuance with the said alleged statement of the PW.6.
102. Apart from the same, even the PW.32 being the wife of the accused No.1 as-well-as the circumstantial-witness, has absolutely turned hostile to the prosecution, wherefore, it has utterly failed to establish the Ex.P.60 through her mouth.
103. Except the depositions of these particular PWs.2, 3, 4, 6 & 32, no iota of evidentiary material is forthcoming on record to establish the alleged offences punishable U/Secs.342, 346, 364 & 368 of IPC. Therefore, in the lack of substantial chunk of material to fulfill the essential ingredients of the said offences, the 122 SC No.705/2008 prosecution has utterly failed to establish the alleged wrongful- confinement of the PW.1 and also the PW.4 and the said wrongful- confinement of the PW.1 secretly by abducting him forcibly at the gun-point and etc. Hence, this court is inclined to answer the Point No's.1, 3 & 4 in the 'Negative'.
104. Point No's.5 & 6:- It is the specific case of the prosecution that, on 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No's.1 & 2 along-with others in furtherance of common-unlawful-intention after securing the PW.1/informant/Shanthakumar on the way to Anekal Sub- Registrar's Office, obtained his signatures on a disputed-document by inducing him that he would give a demand-draft of Rs.63 Crores with 5 cheques of Rs.17 Crores towards the total sale- consideration-amount and thereafter he took-away the said demand-draft and cheques from the said PW.1 and destroyed the same and even prior to the same, the accused No.1 induced the PW.1 to deliver the papers pertaining to his properties and he required for publishing in the newspapers which were utilized for fabrication of the document which has been converted into a valuable-security i.e., absolute sale-deed and thereby the accused No.1 has cheated by way of his overt-acts and committed the offence punishable U/Sec.420 of IPC.
105. It is significant to note that, admittedly, as per the well- settled principle of law, it is absolute burden on the prosecution to 123 SC No.705/2008 establish it's case against the accused-persons beyond the shadow of all the reasonable doubts.
106. When that is so, equivalently the burden lies-on the prosecution to establish the requisite ingredients of Section 420 of IPC which deals with regard to cheating and dishonestly regarding the delivery of property, wherefore, a person can be stated as cheater and dishonestly induced the person deceived, to deliver any property to any person, or to consent with any person shall retain any property, or to make, alter or destroy the whole or any part of the valuable-security, or to make, alter or destroy anything which is signed or sealed or which is capable of being converted into a valuable-security.
107. Therefore, in the light of the said essential ingredients to say that there is a commission of offence punishable U/Sec.420 of IPC, now it is incumbent-upon this court to delve-into the oral as-well-as the documentary-evidence conjointly.
108. With reference to the same, it is at the very outset to note the aspect that, as stated and discussed herein before supra, the very-deposition of the PW.1/informant/Shanthakumar, more- particularly, his chief-examination is held to be not worthy and not deserving to be taken-into consideration and also cannot be looked-into, basing-on the well-settled proposition of law of the Hon'ble Apex Court of India. To put-into simple-terms, the very- 124 SC No.705/2008 deposition of the PW.1 is held to be as non-est for the reasons discussed at much-length herein before supra.
109. It is no doubt, the learned Spl. Public Prosecutor has much-more endeavored to rely-on the very-deposition of the PW.1 coupled-with the PW.4; but when it is held that the very-deposition of the PW.1 as non-est, the only deposition of the PW.4 stands remained. However, under the circumstances prevailing herein, it is also significant to note that the PW.4 being the partial eyewitness as-well-as the mediator of the alleged sale-transaction between the PW.1 and accused No.1 in connection with the PW.1's landed-properties, has partly turned hostile to the prosecution by depicting his animus of hostility.
110. With reference to the same, on meticulous perusal of the very-deposition of the PW.4/Yebi George, it is no doubt that he has endeavored to depose in favour of the prosecution that, earlier since 1994 he was doing the share-business and thereafter since 2009 he is doing the share-business consultant work by opening the office in the name and style of 'Way to Wealth' which is situated in 3rd Block, Jayanagar, Bengaluru City. The informant- M.G.Shanthakumar-PW.1 is known to him since 2004 while he (PW.4) was working in IL & FS, during which time the said PW.1 use to visit his company often to make the investments. Since the PW.1 had sustained huge-loss in the shares during the year 2005- 2006, he had expressed before him (PW.4) that it was very difficult 125 SC No.705/2008 for him to invest the money and therefore, he would invest the money by selling his lands situated on Huskur Road and in connection with the same, the PW.1 use to visit him and request to see a customer for purchasing his property. The said property being situated on Huskur Road measures about 22 acres and in view of the request of the PW.1, he had introduced few International Real-Estate Brokers with whom the PW.1 had maintained the direct-contact. Thereafter, the PW.1 came to him and stated that about 2-3 clients/customers had come in contact with him and thereby asked him to sell the said property by mediating, in respect of which the PW.1 assured that he would pay some-amount to him. In the year 2006 he had been to the house of the informant in connection with some-other work related to his company. At that time, the informant/PW.1 introduced the accused No.1/Nagendra, stating that he had come for purchasing his lands and the said Nagendra Reddy himself is the accused No.1. Thereafter, about one-week, the PW.1 along-with accused No.1/Nagendra Reddy came to his office to discuss about the sale of his properties and later-on also for about 2-3 times, they had come to his office, during which time he stated that it would not be appropriate to speak in his office and therefore proposed to go outside and have the sale-talks. Thereafter, one-day they took him (PW.4) to a hotel situated at 4th Block, Jayanagar, and made the sale-talks. He does-not know the name of the said hotel. After the 126 SC No.705/2008 sale-talks, the accused No.1 and the informant both went to their respective houses. During the sale-talks in the said hotel, the PW.1 had asked the accused No.1 to discuss with him (PW.4) for any further inquiries and in view of the same, after about one-week the accused No.1 called him on mobile-phone and asked him to fix a meeting to discuss with the informant/PW.1 with regard to the said sale-transaction and thereby the accused No.1 asked him to come to him besides Adiga's Hotel in Jayanagar. Accordingly, on 10.07.2006 at the instance of the accused No.1 at about 12.00 - 1.00 in the afternoon, he went besides Hotel Adiga's. But, the accused No.1 was not there though he had stated that he was there-at. Again he called the accused No.1 on phone and inquired, whereby the accused No.1 stated that he is in a car and asked him to the car itself. Accordingly, he went to the car which was parked besides Adiga's Hotel, where-at the accused No.1 stated that he had finalized the transaction in connection with the said landed- property. Thereafter, at the say of the accused No.1, he called the informant/PW.1 on phone and asked him to come to the said car, during which time the PW.1 stated that he being in court, he needs about 1-2 hours. Thereafter, the accused No.1/Nagendra Reddy stated him that he would speak with Shanthakumar and finalize the transaction. Thereafter about one-hour, the informant- Shanthakumar came near the car and asked and phoned as to where they are?, for which he replied that he is in the car of the 127 SC No.705/2008 accused No.1. Even, the accused No.1 also rang to the PW.1 and asked to come to his car. Thereafter, himself, the informant and the accused No.1 together sat inside the said car of the accused No.1 and both the informant as-well-as the accused No.1 stated that they have finalized the transaction. Thereafter, two-persons came near the car of the accused No.1 and sat on both-sides of the informant inside the said car. After about 10-15 minutes having the discussion, he (PW.4) went outside for nature-call. Within 5 minutes, the informant, accused No.1 and others sitting in the car went-away. Therefore, later-on, he called the informant on phone and inquired as to where were they?, for which the informant stated that he was going to Anekal for registration purpose. Therefore, he asked the informant as to whether he should come?, for which the informant stated that if he is interested he may come. Thereafter, when he expressed his interest to come, the informant asked him to come near a temple and accordingly, he went there-at and thereafter they went in their car towards Anekal. Even, while going in the said car when he (PW.4) asked the informant/Shanthakumar twice on the way as to what did he do, he stated that he is on the way to Anekal for registration purpose. Thereafter, the accused No.1 and the informant spoke each-other for 10 minutes and asked him to be outside of the said car for sometime. Thereafter, again the accused No.1 and the informant proceeded in the said car towards Anekal Sub-Registrar's Office, 128 SC No.705/2008 during which time also he asked the informant/Shanthakumar as to whether everything is okay and how, for which Shanthakumar stated that everything is okay. Even, at 5.30 p.m. in the evening he being near the car outside, the accused No.1 and the informant did-not return, wherefore, he called the informant/Shanthakumar on phone and questioned as to where he was? and asked as whether he should go?, for which Shanthakumar stated that, yet he has to go to Sub-Registrar's Office and asked him to go. Accordingly, he came to his house from Anekal in a bus and when he called in the evening at about 6.00 p.m. on phone, the informant stated that he was still in the Sub-Registrar's Office. On the very next-day at about 9.10 a.m. in the morning when he called Shanthakumar again and inquired, the PW.1 stated that not yet registered and it will be registered today. He does-not know as to who was the person sitting besides the said Shanthakumar (PW.1). He cannot identify the said person and say as to whether he is present in the open-court or otherwise, on the day on which he has deposed. But, the PW.1 has never whispered anything-else regarding the inducement of the PW.1 by the accused No.1 in any way. Apart from the same, even there is no whisper made by the PW.1 with regard to giving any demand-draft/cheque to the PW.1 in presence of him and also nothing is stated by the PW.4 regarding the talks pertaining to the alleged sale-transaction between the accused No.1 and the PW.1, wherefore, the learned 129 SC No.705/2008 Spl. Public Prosecutor was inclined to treat him as partly-hostile and endeavored to put-forth the entire tale of the prosecution by putting various suggestions to him. But, unfortunately, the PW.4 has went-on palpably denying. In addition to the same, the PW.4 has clearly stated in his unequivocal-terms that he has not given any statements before any police, as per Exs.P.22 & P.23.
111. Apart from the same, PW.4 has stated in his cross- examination by the learned counsel for the accused that, he personally does-not know the quantum of sale-consideration settled with respect to the properties of the PW.1 between the PW.1 and the accused No.1 with the mode of payment and etc. This itself clearly goes to indicate that the PW.4 has no knowledge with regard to any kind of transaction in connection with the properties of the PW.1 between the accused No.1 and the PW.1.
112. Merely having secured the PW.1 through the PW.4 to the spot near Adiga's Hotel in 4th Block, Jayanagar, Bengaluru City, it does-not mean that there was an inducement made by the accused No.1 to the PW.1 because, as per the very-versions of the PW.4 in his chief-examination, he has put-in his prompt-efforts to inquire the PW.1 and the accused No.1 regarding the stage and status/position of the transaction and talks which had already taken place between themselves which clearly goes to indicate that there was no any kind of intention of cheating the PW.1 with the accused No.1 and also no any undue inducement. Otherwise, the 130 SC No.705/2008 PW.1 would have stated the PW.4 regarding the contrary intention with the accused No.1 to cheat him (PW.1) and induce, if really the accused No.1 had the same. Apart from the same, viewing from another-angle, it is clear on the facet itself that since there was the transaction taken place between the PW.1 and the accused No.1 only, without role of the PW.4, the PW.1 had not disclosed anything-else before the PW.4.
113. The learned Spl. Public Prosecutor has endeavored to urge robustly that the portion of the deposition of a witness which is apart from the portion of hostility, needs to be taken-into consideration in respect of which there are settled principles of laws. Accordingly, in pursuance with the same, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in AIR 1976 SC 202 = 1976 Cri.L.J. 203 = (1976) 1 SCC 389 in a case between Bhaghwan Singh Vs. State of Haryana, which reads thus:
"Para-8. We have carefully perused the evidence of Jagat Singh, who had examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross- examine his own witness, thus characterizing him as, what is described as a hostile-witness, does-not completely his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately 131 SC No.705/2008 been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony."
114. Apart from the same, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in (2010) 8 SCC 536 in a case between Preethi Vs. State of Haryana, which reads thus:
"Criminal Law - Murder - Hostile witness -
Acceptability - Held - in a murder trial evidence of a prosecution witness cannot be rejected in toto merely because prosecution choose to treat him as hostile. (Para - 18)"
115. On plain-perusal of these particular well-settled principles of laws, it is crystal clear that the evidence of the witness who has turned hostile excluding his hostile evidence remains admissible in the trial and there is no bar to base a conviction upon his testimony if it corroborates by other reliable evidence and therefore, his entire evidence cannot be rejected in toto merely because the prosecution has chosen to treat him as hostile. In the light of these two well-settled principles of laws, on meticulous consideration of the very-deposition of the PW.4 who is the touch-stone witness to the entire structure of the prosecution's tale, he has nothing whispered regarding any kind of inducement and cheating to the PW.1 by the accused No.1 or any other- persons.
116. Apart from the same, at the very inceptional-stage itself, as contended by the prosecution, the documents were secured by 132 SC No.705/2008 the accused No.1 from the PW.1 relating to his properties stating that they are required for the purpose of publishing the public- notice in the daily newspapers, by inducing him. With respect to the same, admittedly, it is on record that the accused No.1 had issued a public-notice in the daily newspapers, through the then learned counsel and the said public-notice duly published on 20.11.2005 in Vijaya Karnataka daily newspaper finds place on record, as per Exs.P.12 & P.12(a). Now, it is incumbent-upon this court to evaluate and analyze regarding the alleged inducement by the accused No.1 to the PW.1. If the very ultimate-intention of the accused No.1 was to secure the documents relating to the properties of the PW.1, then as-soon-as he secured the same from the PW.1, the question of issuing the public-notice in Ex.P.12 as per Ex.P.12(a) would have never arised at-all. Therefore, the otherwise alleged intention of inducing the PW.1 with the accused No.1 certainly indicates as lacking substantially. Therefore, in the lack of such inducement, it cannot be said that the accused No.1 has induced the PW.1 to secure the documents relating to the properties of the PW.1 from him and also to secure the PW.1 through the PW.4 and therefore, the question regarding obtaining the signatures of the PW1 on the disputed sale-deed as per Ex.P.16 and also inducing the PW.1 by giving the demand-draft of Rs.63 Crores with 5 cheques of Rs.17 Crores towards the total sale- consideration of Rs.80 Crores to the PW.1, does-not arise at-all. To 133 SC No.705/2008 put-into simple-terms, there is no substantial chunk of material with the prosecution to establish all the requisite ingredients to hold that the accused No.1 has committed the cheating and dishonestly induced the PW.1 to deliver his property. Ultimately, the prosecution has failed to establish the said ingredients of Section 420 of IPC, as even non-hostiled-portion of the deposition of the PW.4 is not in favour of the prosecution, wherefore, any portion of the very-deposition of the PW.4 does-not deserve for relying and believing without any substantial corroborative material. Hence, it can be safely stated that the prosecution has utterly failed to establish the alleged offence punishable U/Section 420 of IPC which deals with cheating and dishonestly inducing for delivery of property, against the accused-persons.
117. Apart from the same, it is also the sturdy and serious- allegation of the prosecution against the accused No.1 that the documents of the properties relating to the PW.1 were obtained fraudulently by the accused No.1 under the guise of the publishing the public-notice in the newspaper offering for the objections of any interested-persons, the accused No.1 has got prepared the fake-document as sale-deed through the hands of the PWs.7 & 8 and got converted the same as the absolute sale-deed which goes to depict that the inclusion of particulars of consideration were incorporated in the draft of Ex.P.16 which is highly improbable of inserting and irrelevant-matter by way of copy-pasting process 134 SC No.705/2008 while drafting the sale-deed. It is also urged by the learned Spl. Public Prosecutor that the accused No.1 has got created the false- document and later by obliterating/erasing a para marked at Ex.P.16(k) with the whitener and forged the same the reference made by the PWs.7 & 9 about Rs.63 lakhs which actually refers to Rs.63 Crores, which further refers with the transaction made in connection with Ex.P.16, wherefore, the said reference of Rs.63 Crores depicted in Ex.P.16 being well within their notice, the said contents have been obliterated/erased as per Ex.P.16(k). Even, the number of demand-draft, date and other-endorsement as "subject to realization of demand-draft" being handwritten in Ex.P.16(k) portion, the signatures of both the accused No.1 and PW.1 were made to the said handwritten-endorsements. But, later-on, the accused No.1 has fabricated the said contents by erasing the same by applying the whitener.
118. With reference to the said alleged contentions of the prosecution which are endeavored to invoke the offences punishable U/Sec.465 of IPC which deals with punishment for forgery, Section 467 of IPC which deals with forgery of valuable- security, Will and etc., and Section 468 of IPC which deals with the forgery for the purpose of cheating, as stated herein before supra, in view of the well-settled principle of law, again the heavy burden lies-on the shoulders of the prosecution alone to establish these allegations with regard to the Sections 465, 467 & 468 of IPC. 135 SC No.705/2008
119. With reference to the same, at the very outset, it is for the prosecution to establish all the essential ingredients of the said alleged offences, such as, with respect to Section 465 of IPC, the ingredients provided U/Sec.463 of IPC which deals with the forgery, viz., the document or part of the document must be false and it must have been made dishonestly or fraudulently in one or the other three modes specified U/Sec.464 of IPC with an intention to cause damage or injury to the public or person or cause any person to enter-into an express or implied contract or to commit fraud and etc.
120. Similarly, to invoke Section 467 of IPC, the ingredients, such as, the accused must have forged the document and such document must be one of the clauses specified in the section; and Section 468 of IPC which deals with regard to the forgery for the purpose of cheating, the prosecution has to establish that the document is a forged-one by the accused with an intention that the forged-document would be used for the purpose of cheating.
121. All these essential ingredients are mandatorily required by the prosecution beyond the shadow of all the reasonable doubts to invoke the alleged offences punishable U/Secs.465, 467 & 468 of IPC, against the accused-persons. In the light of the said essential ingredients of Sections 465, 467 & 468 of IPC, it is incumbent-upon this court to marshal over the entire material available on record.
136 SC No.705/2008
122. In view of that matter, it is clear from the record that the accused No.1 secured the documents of the properties relating to the PW.1 stating that they are required for publishing the public-notice calling-upon any objections from the public whoever is interested in the said property/s and accordingly, as per Ex.P.12, the accused No.1 has published in the Kannada daily newspaper. Therefore, the question of dishonest/fraudulent intention does-not prevail or cannot be made-out only there-from. Undoubtedly, the disputed-draft of his sale-deed is got prepared through the PWs.7 & 8 by the accused No.1, as per Ex.P.16 which is already available on record.
123. With reference to the role of the PWs.7 & 8, on meticulous perusal of their depositions, the PW.7/B.V.Ravi being an Advocate stated to have drafted the sale-deed and got registered, has endeavored to depose in favour of the prosecution that, he knows the accused-persons and also he had seen the informant/Shanthakumar at the time of registration in the Sub- Registrar's Office, Anekal. Prior to 10.07.2006 about 3 months, the accused No.1/Nagendra Reddy had come to their office stating that he was intending to purchase the landed-property of the PW.1/Shanthakumar and handed-over some-documents relating to the said landed-property for verification. On going through the said documents, it was found that the said property was measuring 22 acres coming within the limits of Hebbugodi village 137 SC No.705/2008 in Anekal Taluk, but he does-not remember the survey-number of the said property. The accused No.1 had given the original sale- deed of the PW.1/Shanthakumar along-with the RTC extract and mutation. On verifying the same, he stated that the RTC needs to be rectified and therefore he advised him to get it rectified and come. Thereafter in the month of May 2006, again the accused No.1/Nagendra Reddy came to him and stated that he has already discussed with the registering-authorities and therefore asked him to prepare the sale-deed, wherefore, himself and the PW.8 together drafted the said sale-deed. On 10.07.2006 at about 12.00 - 12.30 in the afternoon while he was in City Civil Court Complex, the accused No.1/Nagendra Reddy called him on phone and stated that everyone is coming today and thereby asked him to bring the sale-deed to Anekal. Accordingly when he went to the Sub- Registrar's Office, Anekal, it was 4.00 p.m. in the evening and since the computer use to get locked by 5.00 p.m. in the evening, the Sub-Registrar's Office Authorities did-not take the said draft sale-deed and asked to come by 10.00 a.m. in the morning on the next-day, wherefore, he returned-back to Bengaluru on that day. On 11.07.2006 at about 11.00 a.m. he went to Anekal in a private- car, whereby the accused No.1 and others had already been to Anekal. When he asked the accused-persons and PW.1/Shanthakumar to sign on the draft sale-deed, they stated to wait for sometime since there was some rectification to be made, 138 SC No.705/2008 wherefore, he handed-over the said draft sale-deed to them. They rectified the unwanted- things for them written therein by using the whitener. In respect of having put the whitener when he informed the Sub-Registrar, the Sub-Registrar asked both the parties were asked to put their signatures on both the extreme- ends of the space where the whitener is put. At the same-time, the informant-Shanthakumar was returning the cheque worth of Rs.63 Crores (wrongly typed in the deposition as Rs.63 lakhs as per the submissions of the learned Spl. Public Prosecutor in the open court during his advancement of arguments on merits). He does- not know as to for what reason and in connection with which transaction the said cheque was being returned by Shanthakumar to accused No.1, but the said cheque was belonging to the accused No.1/Nagendra Reddy. Thereafter, he gave the sale-deed in the Sub-Registrar's Office. The Sub-Registrar's Office Authorities took the photos of both the parties and thereafter at about 4.00 - 5.00 p.m. in the evening they took for registration. But, the RTC was not in the name of the purchaser. The RTC which was brought by the accused No.1 was in Tamil language, wherefore, the Sub- Registrar asked him to bring the translation-copy of the said Tamil RTC and thereby kept the said registration as pending. The Office of the Sub-Registrar gave an acknowledgement for having submitted the said sale-deed for registration and the said acknowledgement is given to the accused No.1/Nagendra Reddy by 139 SC No.705/2008 him and stated the accused No.1 that if the correct RTC is brought and given to the Sub-Registrar Office, immediately the registered sale-deed will be issued and thereafter he received his fees and then returned-back to Bengaluru. One Banuprakash and another Reddy have signed on the said sale-deed. He does-not know as to whether the CW.5/Prasannakumar had been at the time of registration or otherwise. Neither the sale-talks nor any giving and taking of money/amount-transactions have been taken place between the informant/Shanthakumar and accused No.1/Nagendra Reddy in presence of him. He has only got it registered and came-back. He does-not know what was the market-value of the said landed-property at that time and he cannot say even the approximate market-value also. He has identified the said drafted sale-deed in favour of the accused No.1 as per Ex.P.16 and his signature thereon is as per Ex.P.16(l) and the portion erased with the whitener as per Ex.P.16(k). Ex.P.16 having been drafted in his office, it's print-out is also taken-out from his office. Out of the two computer-screens, one had become dummy. Before presenting the said Ex.P.16/sale-deed before the Sub-Registrar at Anekal, in the portion marked at Ex.P.16(k) the whitener was not yet put and now he does-not remember what was typed in the said Ex.P.16(k) portion. The COD/investigating-officer has recorded his statements but he has not given any statement or additional-statement in connection with the details of the typing 140 SC No.705/2008 made in the portion marked at Ex.P.16(k); and thereby turned hostile-partly to the prosecution.
124. Similarly, the PW.8/Prasannakumar being an Advocate stated to have drafted the disputed sale-deed, has endeavored to depose in favour of the prosecution that, the PW.7/B.V.Ravi, Advocate, is his colleague and he knows the accused No.1/Nagendra Reddy since 2004, as he is from Mutthanallur village in Surjapur Hobli of Anekal Taluk. The accused No.1 was his client in one cheque-bounce case in the year 2002. In the month of December 2005 the accused No.1/Nagendra Reddy had brought the documents stating that he intended to purchase the property. On verifying the said documents, he found that the said landed-property measuring 18 acres was situated within the jurisdiction of Hebbugodi village and advised him to get rectified certain things and the said property was standing in the name of the PW.1/M.G.Shanthakumar. Thereafter about 10-15 days, the said accused No.1 came to him and stated that he has applied for the rectification of RTC extract before the appropriate-authorities and also stated that on inquiring in the Sub-Registrar's Office, it is informed that if the mutation is correct, then the registration can be made. Thereafter, the accused No.1 asked him to draft and prepare a sale-deed basing-on which, himself and CW.6 prepared a draft of the sale-deed in the year 2006. On 10.07.2006 the accused No.1/Nagendra Reddy called him on phone and stated 141 SC No.705/2008 that, himself and the informant (PW.1) were on the way to Anekal for registration and therefore asked him to come there-at, for which he stated that he would send the CW.6 for registration purpose. But, since it was too-late, the registration could not be made on that and therefore, the Sub-Registrar asked them to come on the very next-day. Accordingly, the CW.6 (PW.7) went on the very next-day to the Sub-Registrar's Office at Anekal and got made the pending registration and informed him. Thereafter on the very next-day, the accused No.1/Nagendra Reddy came to his office and asked for getting the said document released, for which he stated that if the recent RTC and it's translation-copy is provided, he would get released the said document. On 14.07.2006 the sister- in-law of the accused No.1 being an Advocate brought a document and gave to him. In respect of releasing the said document, he drafted a letter and gave to the accused No.1/Nagendra Reddy which was carried by the sister-in-law of the accused No.1 on 15.07.2006. Thereafter, neither Nagendra Reddy nor anybody has come to his office. Even, he does-not know as to whether the said document is released thereafter or otherwise. At that time, the market-value of the said property was Rs.7 Crores. The said draft as per Ex.P.16 is prepared by him, in which the consideration- amount was left as blank. He does-not remember as to who has taken-out the print of the said draft sale-deed. The registration work of Ex.P.16 has been made by the PW.7/B.V.Ravi. He has not 142 SC No.705/2008 learnt anything about what has happened at the time of registration-process of Ex.P.16. The said draft was prepared through the computer. He does-not remember regarding the police having demanded the computer hard-disc from his office and also he does-not know where it is now?. He cannot identify the MO No.2/hard-disc. He has not given any statements before the police; and thereby turned hostile-partly to the prosecution.
125. The PW.8 has undoubtedly admitted regarding he having prepared the draft of Ex.P.16 by leaving blank regarding the consideration-amount. But, unfortunately, he has stated in his chief-examination itself that, he has not given the statements before the police as per Exs.P.65 & P.66. Apart from the same, he has even disclosed his non-remembrance regarding the police having demanded for the hard-disc of the computer in his office and also he has disclosed his ignorance as to where the said hard- disc is?. Therefore, though the learned Spl. Public Prosecutor has endeavored to treat him as hostile-witness and cross-examined in- extenso, no worth-relying material has been elicited and extracted through the mouth of the PW.1 even in connection with Ex.P.55, which is stated to be as CDAC report.
126. Apart from the same, even the PW.7 has stated in his chief-examination itself that, the drafted sale-deed was with him and he had taken the same on 11.07.2006 at 11.00 a.m. in the morning to the Anekal Sub-Registrar's Office and then handed- 143 SC No.705/2008 over the said drafted sale-deed as per Ex.P.16 to the accused No.1 and the PW.1 and asked them to sign thereon. By virtue of this particular-version of the PW7, it clearly indicates that the said Ex.P.16 was in possession of the PW.7 himself till 11.00 a.m. in the morning on 11.07.2006. When that is so, the question of obtaining the signatures of the PW.1 as per Exs.P.16(a) to P.16(j) at the gun-point under threat and also the inducement on the PW.1 by the accused No.1 and etc., does-not arise at-all. It is further stated by the PW.7 that, when he asked the accused No.1 and the PW.1/M.G.Shanthakumar to sign on the said Ex.P.16, they asked him to wait for sometime since they wanted to get deleted some unwanted-portions from the said sale-deed, and thereafter they have removed certain-portions and rectified by applying the whitener. Apart from the same, the PW.7 has stated in his further chief-examination on the second-occasion that he had taken the draft printout of Ex.P.16 from his office itself. It is also stated by the PW7 that, before producing the said document before the Sub- Registrar/PW.13, no whitener was put-on the said Ex.P.16 and thereby the PW.7 has turned hostile-partly, wherefore, the learned Spl. Public Prosecutor has endeavored to marshal him by way of cross-examining in-extenso; but no worth-relying has been elicited and extracted through his mouth in favour of the prosecution, whereas, he has merely went-on disclosing his ignorance and pleaded no knowledge. But, in the cross-examination by the 144 SC No.705/2008 learned counsel for the accused, he has went-on giving fatal- admissions to the effect that they maintained the formats in the computer and whenever the clients approach them, they change and fill-up the details of the clients and transact sometimes, along- with the schedule and consideration-amount and prepare the draft of the sale-deed and while doing so, they cut and paste the matter, during which time there are every possibilities of commission of mistakes and errors regarding the consideration-amount, wherefore, as-soon-as it comes to their notice during the registration-time, then they apply the whitener and then obtain the signatures of both the parties in the said obliterated portion and also after getting confirmed regarding receiving of the consideration-amount by the seller from the purchaser, he registers the sale-deed. It is also fatally admitted by the PW.7 that, while after getting confirmed by the Sub-Registrar at the time of registering the said Ex.P.16 from the PW.1/Shanthakumar as to whether he has received the entire sale-consideration-amount or otherwise?, the PW.1/Shanthakumar has stated that he has received the entire consideration-amount, and then only the Sub- Registrar/PW.13 has taken the said document for registration.
127. Therefore, on overall consideration of the very-versions of the PWs.7 & 8 which are admissible excluding the hostiled- portion, the very urge put-forth by the learned Spl. Public Prosecutor that it was not possible to the PW.7 being a 145 SC No.705/2008 professional to commit any blunder due to mistake while making copy-paste in the draft holds, no water and by virtue of the said PWs.7 & 8, the said urge of the learned Spl. Public Prosecutor stands defeated without any substantiality. Even, it is clear from the records available, that one Sadashiva who is examined as PW.5 is stated to have been hugged by the PW.1 on 11.07.2006 in the Sub-Registrar's Office, Anekal. Though the PW.5 being an agent in the Sub-Registrar's Office and the circumstantial-witness, has endeavored to depose in favour of the prosecution that, he informed the informant/Shanthakumar since he use to visit the Anekal Sub-Registrar's Office. About 4 years back, the PW.1/Shanthakumar had come to Sub-Registrar's Office, Anekal, along-with 4-5 persons. The PW.1 spoke to him by holding his hand and thereafter went inside the Sub-Registrar's Office. He does-not know as to whether the registration took place inside the office or otherwise. But, on the next-day he came to know that there were some-problems regarding the said registration. The PW.1 did-not say anything to him when he met him (PW.5). He has not seen the accused No's.1 & 2 on that day. He did-not find any difference in the behavior and on the face of the PW.1 except regarding his old-age. He has stated regarding the same before the police when he was inquired. He does-not know anything except as stated above; and thereby, ultimately, he turned hostile-partly to the prosecution, wherefore, the prosecution has failed to 146 SC No.705/2008 establish Ex.P.24 through the mouth of the PW.5. Even, on considering his evidence, the portion which is otherwise than the hostile-one, it discloses regarding the PW.1 being in natural-way without any change in his behaviour. Therefore, nothing has been elicited through his deposition regarding any kind of disturbance in the way or manner of approach/behaviour of the PW.1 when he made the PW.1 by holding his hands on 11.07.2006 in the Sub- Registrar's Office, Anekal.
128. Apart from the same, the PWs.9 & 10 being Krishna Reddy S/o Rama Reddy as-well-as Banuprathap S/o Venkataramana Reddy, respectively, who are stated to be the circumstantial-witnesses being present at the time of registration, the PW.9 has endeavored to depose in favour of the prosecution that, he knows the accused-persons and informant/Shanthakumar and also the CW.8/Banuprakash, as the accused-persons are from his Taluk. There was the sale-talk taken place in the month of March 2006 in connection with the landed-properties of Shanthakumar measuring 22 acres 24 guntas in connection with which the accused has given Rs.2 Crores to the informant and when the informant demanded the amount thereafter, again the accused-persons gave Rs.5 Crores to the informant in the month of June 2006. In the month of July, they had been to Sub-Registrar's Office, Anekal, for registration purpose, during which time the informant issued a receipt to the 147 SC No.705/2008 accused-persons for having received a cheque for Rs.5 Crores and also in respect of the amount received by him. The said transaction has taken place in presence of him. At the time of registration, himself, accused No.1/Nagendra Reddy, CW.8/Banuprakash and the informant/Shanthakumar were present. Shanthakumar stated that everything is correct. He has also signed on the said Ex.P.16/sale-deed, as per Ex.P.16(m). On the date of execution of the said sale-deed, the informant/Shanthakumar was normal in nature as usual.
129. Similarly, the PW.10 has also endeavored to depose in favour of the prosecution that, he knows the accused-persons and the informant/Shanthakumar along-with the CW.7/Krishna Reddy. Himself and the CW.7 (PW.9) together do the Real-Estate business. They had been to the Sub-Registrar's Office, Anekal, at 11.00 a.m. in the morning in the month of July 2006, in connection with the registration of the sale-deed of the landed- property measuring 22 acres 24 guntas belonging to Shanthakumar, as the accused No.1/Nagendra Reddy had taken them. At that time, the accused No.1/Nagendra Reddy, PW.1/Shanthakumar, Ravi and Prasanna (Advocate) were present in the Sub-Registrar's Office. On the same day at about 4.00 - 5.00 p.m. the work was over. After taking-back the agreement by Shanthakumar after registration, Shanthakumar issued a receipt to the accused No.1/Nagendra Reddy for worth of Rs.7 Crores. 148 SC No.705/2008 Thereafter on the same-day, they went to the said landed-property and the PW.1 handed-over the possession of the said property to the accused No.1/Nagendra Reddy. The said agreement of sale was taken place in the month of March 2006, during which time the accused No.1/Nagendra Reddy had given Rs.2 Crores to the PW.1/Shanthakumar. In the month of June, the accused No.1/Nagendra Reddy gave Rs.5 Crores to the PW.1/Shanthakumar, in respect of which the PW.1 had issued a receipt. Accordingly, he has given the statement before the police also. His signature on the said sale-deed/Ex.P.16 is as per Ex.P.16(n). But, unfortunately, the PWs.9 & 10 have turned hostile-partly to the prosecution, wherefore, the prosecution has failed to establish Exs.P.25 to P.27 respectively, through their mouths.
130. But, however, the PW.9 has stated in his chief- examination itself that with regard to the sale-talks taken place in the month of March 2006, the accused-persons had paid Rs.2 Crores to the PW.1/informant and thereafter again when the PW.1 demanded the amount, the accused-persons paid Rs.5 Crores in the month of June 2006 and when they had been to Sub- Registrar's Office, Anekal, in the month of July 2006, the PW.1 issued a receipt to the accused-persons for having received Rs.5 Crores and one-cheque, during which time he was present. But these particular aspects which have been whispered by the PW.9 149 SC No.705/2008 are absolutely emanating for the first-time as a new-story unlike from the very basic tale of the prosecution. But, however, in the cross-examination by the learned counsel for the accused, he has stated in detail and contradictorily to his own-versions in his chief- examination and further fatally admitted that after returning the receipt of Rs.7 Crores by the PW.1/informant, the procedure of the registration commenced and the said Ex.P.16 is mentioned with the total sale-consideration-amount of Rs.7 Crores and also stated that in presence of him, Shanthakumar/PW.1 returned one- cheque to the accused No.1/Nagendra Reddy; but he does-not know what was worth of the said cheque and he has disclosed his ignorance and pleaded no knowledge regarding the demand-draft of Rs.63 Crores and fatally admitted that the said demand-draft of Rs.63 Crores is not connected to the said sale-deed as per Ex.P.16 in any way. According to the very-versions of the PW.9, it is clear that he has absolutely given go-bye to the very-case of the prosecution and admitted that there is no any connection/relation of the said alleged demand-draft of Rs.63 Crores with the alleged sale-deed as per Ex.P.16.
131. In addition to the same, the PW.10 has stated in his chief-examination itself that, at the time of agreement of sale in the month of March 2006, the accused No.1 paid Rs.2 Crores to the PW.1 and the accused No.1 further Rs.5 Crores in the month of June to the PW.1, during which time the PW.1 has issued a 150 SC No.705/2008 receipt. Though he has been treated as hostile by the learned Spl. Public Prosecutor, no worth-relying material has been elicited through his mouth. But, in the cross-examination by the learned counsel for the accused, he has fatally admitted that the PW.1/M.G.Shanthakumar has executed an agreement of sale in favour of the accused No.1 for total sale-consideration-amount of Rs.7 Crores, by receiving Rs.2 Crores as an earnest-money, for which he has also signed as one of the attesting-witnesses along- with CW.7 (PW.9). It is also clearly stated by the PW.1 that, in the month of June, again the accused No.1 paid Rs.5 Crores to the informant/PW.1, in respect of which the PW.1 has passed a receipt and at the time of execution of the sale-deed, by getting returned the said two-receipts by the informant/PW.1 from the accused No.1 along-with the agreement of sale, the PW.1 has passed the fresh-receipt for Rs.7 Crores in favour of the accused No.1. Apart from the same, the PW.10 has also clearly admitted as PW.9, that there is no any nexus of demand-draft for Rs.63 Crores with the said sale-deed as per Ex.P.16 and when the Sub-Registrar/PW.13 inquired the said PW.1 as to whether he has received the said entire sale-consideration-amount?, the PW.1 has responded by stating that he has received the entire-amount? and thereafter, the said sale-deed as per Ex.P.16 was taken-up for registration purpose. By these versions of the PW.10, again the very-case of the prosecution stands demolished and dismantled because, the 151 SC No.705/2008 sale-consideration-amount stated to have been fixed as per the very-versions of the PWs.9 & 10 along-with the contentions of the defence-side is hardly Rs.7 Crores, has been paid to the PW.1 and accordingly he has admitted before the PW.13.
132. Admittedly, the PW.31 is one Kum. Asha D/o Shivashankara Reddy being the sister-in-law of the accused No.1 as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, on 11.07.2006 her sister i.e., the PW.32 asked her to go to Anekal Sub-Registrar's Office along-with her brother-in- law/accused No.1, who introduced the PW.1/M.G.Shanthakumar to her and at that time the PW.1, the accused No.1 and 3 - 4 unknown-persons being present in the said Anekal Sub-Registrar's Office, but the accused No.2/Afroz Babu was not at-all present and she has not seen whether the registration has taken-place on that day or otherwise? Therefore, nothing having been elicited through the mouth of the PW.31, her deposition is of no consequence and assistance in favour of the prosecution.
133. Apart from the same, on perusal of the very-deposition of the PW.13 who is stated to be as the Sub-Registrar as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution to the effect that, on 11.07.2006 the informant/Shanthakumar and the purchaser-accused No.1/Nagendra Reddy had come along-with an Advocate by name 152 SC No.705/2008 Ravi who had prepared the draft-sale-deed and placed before him and therefore, he sent them to the CW.27/Srinivas who is the Manager of the Sub-Registrar's Office, for verification. On verifying the same by the CW.27, again it was placed before him, whereby he found that the purchaser-accused No.1 had no RTC extract, in respect of which he inquired the informant/Shanthakumar and thereafter, the accused No.1/Nagendra Reddy produced the RTC extract in Tamil language, wherefore, he asked him to bring the Kannada translation of the said Tamil RTC. But, the accused No.1/Nagendra Reddy sought-for sometime to get it translated. Therefore, he kept the said document under suspension and completed the process of registration. On 15.07.2006 the Police- Inspector of Thilaknagar police station visited him and sought-for producing the original disputed sale-deed No.7130/2006-2007 and accordingly, he has produced before him under a vide covering- letter as per Ex.P.30, on which his signature is as per Ex.P.30(a), along-with the receipt-book, finger-print register, affidavit and original RTC extract and the same are as per Exs.P.31 & P.32, on which his signatures are as per Exs.P.31(a) & P.32(a). On 12.07.2006 the accused No.1/Nagendra Reddy did-not come to him; but on Ex.P.32 it is written the date as 12.07.2006 and he has identified the said sale-deed handed-over to the police as per Ex.P.16. Before registering the sale-deed, he inquires the seller and purchaser and obtains their signatures and also inquires the 153 SC No.705/2008 consideration-amount in respect of such sale-transaction and also mentioning of the same in the sale-deed and also in connection with the stamp-duty and registration-fees to be paid thereon. In Ex.P.16 it is written that, on 12.06.2007 Rs.7 Crores are paid to the seller of the said property and the same is taken-into consideration as the sale-transaction amount and also he has got confirmed through the attesting-witnesses; and thereby partly turned hostile to the prosecution.
134. Apart from the same, the PW.13 has stated in his chief- examination itself that, it has been mentioned specifically as Rs.7 Crores as the consideration-amount in the said sale-deed as per Ex.P.16. Though the learned Spl. Public Prosecutor has endeavored to cross-examine him by treating him as partly-hostile and questioned, the PW.13 has stated that the obliterated/erased- portion came to his notice only when Ex.P.16 was produced before him. But, as per the very-version of the PW.7, the said portion was not applied with the whitener in Ex.P.16 prior to producing the said Ex.P.16 before the Sub-Registrar, Anekal. The said versions of the PWs.7 & 13 are absolutely emanating in contravention with each-other creating the fatal-doubts in the mind of this court. But, however, in the cross-examination by the learned counsel for the accused, the PW.13 has clearly stated in unequivocal-terms to the effect that, he had got confirmed regarding the total sale- consideration-amount of Rs.7 Crores from both the parties and the 154 SC No.705/2008 witnesses. Further, he has endeavored to explain as to why he has not recorded in the separate-document regarding the portion on which the whitener was applied and obliterated, stating that since around 100 - 120 documents come for the purpose of registration daily which require minimum 30 minutes to each-document for registering and since both the parties already signed in the portion of the whitener applied in Ex.P.16, he felt that the same has been made with the consent of both the parties. Therefore, it further clearly goes to indicate that, only Rs.7 Crores sale-consideration was mentioned.
135. Apart from the same, the PW.14 being the Manager in the Sub-Registrar's Office, Anekal, as-well-as the circumstantial- witness, has endeavored to depose in favour of the prosecution to the effect that, he verifies the consideration-amount and the stamp-duty with the registration-fees regarding the sale-deed and then places it before the Sub-Registrar. On 11.07.2006 the Sub- Registrar having sent the sale-deed for verification which is as per Ex.P.16 but, there is no specific mentioning of the consideration- amount therein. None had come to him regarding the said sale- deed. When he saw and verified the said Ex.P.16/sale-deed, he found there was a portion erased with the whitener and thereafter, he having verified the signature therein, he sent-back the same to the Sub-Registrar. But, he does-not know anything regarding the whitener having put thereon. On 15.07.2006 the police came to 155 SC No.705/2008 their office and taken-back the documents which were required to them and when Ex.P.16 was with him, he found the signatures of everyone thereon.
136. In the chief-examination itself, the PW.14 has stated to the effect that, in the said Ex.P.16 no specific consideration- amount appeared to have written and none of the parties to the said document had come to him; But, it came to his notice regarding the whitener applied portion in Ex.P.16. The version of the PW.14 in respect of the said consideration-amount is absolutely emanating in contravention with the very-version of the PW.13. But, however, in the cross-examination by the learned counsel for the accused, he has clearly admitted that on verifying the said Ex.P.16, he came to know that Rs.7 Crores was written as sale-consideration-amount and also on verifying the stamp-duty and registration-fees, he sent-back the said sale-deed to the Sub- Registrar/PW.13. In overall, on considering the very-versions of the PW.14, it indicates that already the whitener was applied before the said Ex.P.16 had come before him. According to the very-versions of the PW.13, he noticed regarding the whitener applied portion in Ex.P.16 which clearly indicates that prior to presenting the said sale-deed, the said whitener was applied to the portion which is marked as per Ex.P.16(k). As per the very-version of the PW.7 in the cross-examination by the learned counsel for the accused, the whitener was put in the portion marked at Ex.P.16(k) 156 SC No.705/2008 only after taking the said sale-deed document/Ex.P.16 by the PW.1/M.G.Shanthakumar and before returning the same to him by the PW.1. On overall consideration of these-versions of the PWs.7, 8, 13 & 14, they clearly go to indicate that the said whitener was applied in the portion as per Ex.P.16(k) by the PW.1/M.G.Shanthakumar himself during the said Ex.P.16 was in his possession but not by the accused No.1.
137. Apart from the same, the PW.15 who is the Computer- Operator of the Sub-Registrar's Office, Anekal, as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution with respect to the procedure of recording the schedule, taking the photo, finger-print and etc., which requires about 40 minutes. Except the same, nothing has been elicited through her mouth, wherefore, her deposition is of no aid and assistance and consequence in favour of the prosecution.
138. Admittedly, the PW.24 being the PSI has secured the Ex.P.16 the disputed draft sale-deed, Exs.30 to P.32 with other- documents from the PW.13 under a covering-letter and produced before the PW.25/investigating-officer with a report as per Ex.P.46.
139. Apart from the same, the PW.33 being the Police- Inspector as-well-as the partial investigating-officer, has seized the hard-disc from the computer of the PWs.7 & 8's office under the seizure-mahazar as perEx.P.29 in presence of the PW.12/seizure- mahazar-witness. But, unfortunately, the PW.12 has absolutely 157 SC No.705/2008 turned hostile to the prosecution, wherefore, the prosecution has utterly failed to establish Ex.P.29 through the mouth of the PW.12 and also failed to establish the seizure of the hard-disc, through Ex.P.29 in presence of the PW.12.
140. Under the peculiar circumstances prevailing herein, though it is also a settled-law that the mahazar can be established through the evidence of the police-officer, it is absolutely unsafe to rely-on the very-evidence of the PW.33 alone with respect to the seizure of the MO No.2/Hard-disc and the seizure-mahazar as per Ex.P.29 are concerned.
141. Keeping-in-mind this particular aspect, it is also significant to note that the said MO No.2/Hard-disc was referred to the PW.35/Software-Scientist, CDAC, for it's examination scientifically, who has dealt with technically and scientifically and issued a detailed-report as per Ex.P.55 which has been countersigned by the PW.36/Executive-Director of CDAC, Kerala. Therefore, the evidence of the PWs.35 & 36 need to be taken-into consideration for better evaluation and appreciation of the relevancy and admissibility and validity of the said Ex.P.55, more- particularly, it's contents with the MO No.2 with reference to Ex.P.16 and it's contents.
142. Therefore, on meticulous perusal of the deposition of the PW.35, he being the computer/software-scientist has been examined stated to have analyzed the hard-disc of CPU as-well-as 158 SC No.705/2008 the circumstantial-witness, has deposed in favour of prosecution that, during the year 2007 - 2008 he was working as a Scientist in Centre for Development of Advanced Computing (CDAC) being in- charge of Cyber Forensic Lab there-at and he being a B-Tech Graduate in Computer-Science. He was working there-at from 2001 to March 2013 and in the year 2002 the Ministry of Information & Technology gave a project to CDAC to develop the computer forensic tools, whereby he having been associated with the said project from 2002 onwards, after development of forensic tools, they started supporting flaw enforcement agencies in analyzing digital-evidence and to give better-support, they developed a lab in CDAC with the help of Government of India. In case of computer hard-disc if any data is deleted, the same could be retrieved, if the data is not overwritten, whereas, in order to retrieve the data, they use the tools which they have developed and also use some of the tools developed in USA. On receiving the papers with the material-objects i.e., the computer CPU containing the hard-disc on 07.01.2008 from COD, it is found that they had asked the following 5 questions.
(1) Whether there is any information relating to the drafting of sale-deed in question in the seized hard-disc?
(2) The date and time of drafting of sale-deed?
(3) The contents of sale-deed in question find reference in seized hard-disc?
(4) Any other information relating to the crime? 159 SC No.705/2008 (5) Whether the contents of page No.5, para No.8 is present in the hard-disc in the questioned sale-deed?
They took the hash-value of the bit-stream copy and that hash-value is mentioned in the forensic-report. The keywords used in the analysis are mentioned in the page No.5 of the report. After feeding the keywords, they analyzed the search-hit and identified the fragments of the contents almost similar to the sale- deed in the unallocated area of the bit-stream copy and the same is attached as Annexure-II - Item-1 which is marked as per Ex.P.55, and the relevant-portion is as per Ex.P.55(a). They found some-other sale-deed also relating to the contents from the unallocated area and attached as Annexure-II (Item No's.2 to 4), running into 7 pages which are marked as per Ex.P.55(b). After examining the hard-disc, he has furnished his opinion and report with the conclusion that they have identified the fragments of the contents similar to the sale-deed in the unallocated area of bit- stream of the hard-disc which is attached as annexure and his signature thereon, is marked as per Ex.P.55(c) and the said report is countersigned by the Addl. Director/B.Ramani and the information sought-for by the police were found partially in the said hard-disc which is marked as per MO No.2.
143. Apart from the same, the PW.36/B.Ramani has endeavored to depose in favour of the prosecution regarding the 160 SC No.705/2008 same in his chief-examination and also identified his signature as per Ex.P.55(d) on the said Ex.P.55.
144. Undoubtedly, the PW.36 being a formal-witness since he is a mere counter-signatory to the Ex.P.55 prepared by the PW.35, the very-deposition of the PW.36 may not play any vital role in favour of the prosecution's case, under the circumstances herein; But, however, the deposition of the PW.35 prevails with some domain in relation to the software technicalities, wherefore, his deposition does-not deserve for ignoring.
145. On meticulous perusal of the very-versions of the PW.35 in his cross-examination by the learned counsel for the accused, he has clearly admitted to the effect that, if the CPU and hard-disc are connected to monitor, one can add anything to the data with the help of keyboard, pen-drive or floppy, but, however, the date and time of further data added would also be recorded in the hard-disc. It is further stated by the PW.35 in the cross- examination that, unallocated area as referred in Ex.P.55/report means itself the space which is previously allocated to some-other file and now it is not allocated to any particular file. It is further stated that, in a computer if already the data regarding the said sale-deed is present, that can be made use of in drafting a new sale-deed. Further, he has stated that, accordingly, in the said hard-disc as per MO No.2, there was only a partial sale-deed, a copy of which portion of questioned sale-deed and the same is 161 SC No.705/2008 incorporated in Page No.5 of the report as per Ex.P.55, which is agreement of sale and not the sale-deed and he cannot say anything about the same as he is not a legal-expert and the sale- deed referred by him in Ex.P.55/report refers to Item No's.1 & 2 of Annexure-II; but he does-not know the difference between the sale- deed and agreement of sale. It is further stated by him that, the entire contents of the questioned sale-deed as such were not found in the hard-disc. But, he has further admitted that the keyword No.8 mentioned in Page No.8 of the report is not found in his report as per Ex.P.55. With reference to these particular versions of the PW.35, on meticulous perusal of the Ex.P.55, admittedly, it is a detailed-report given by the PW.35 with the countersignature of the PW.36, on due examination and analysis of the said MO No.2/hard-disc. In Page No.9 of the said Ex.P.55, more- particularly, the Annexure-II, Item No.I, which runs up-to Page No.12 marked at Ex.P.55(a), it discloses the nature of the said transaction as "full and final agreement of sale" with the "total sale-consideration-amount of Rs.45 Crores" and also with reference to all the 3 cheques, namely, cheque bearing No.495822, dated 31.07.2005, for Rs.10 Crores, drawn on Central Bank of India, BTM Branch, Bengalure; cheque bearing No.495837, dated 19.10.2005, for Rs.5 Crores, drawn on Central Bank of India, BTM Branch, Bengaluru; and cheque bearing No.495838, dated 19.04.2006, for Rs.10 Crores, drawn on Central Bank of India, 162 SC No.705/2008 BTM Layout Branch, Bengaluru, and the said Ex.P.55(a) is mentioned with the date as drafted on 6th March 2006.
146. It is pertinent to note that, the PW.34 who is S.Selvaraj, additional-witness working as Bank-Manager having produced the document/Ex.P.63 which was summoned by the instant-court, the said Ex.P.63 clearly recites in the nature of information-letter with regard to the said 3 cheques to the effect that the said cheques were issued by their client-Nagendra Reddy/accused No.1 on 09.12.2004 and they have not been either encashed/realized till date of Ex.P.63 dated 12.06.2012. But, according to the recitals in Ex.P.55(a), the cheque bearing No.495822, for Rs.15 Crores is dated 31.07.2005 and the remaining 2 cheques were mentioned as dated 19.10.2005. Apart from the same, Ex.P.16 is an absolute out and out regular sale-deed stated to have been executed by mentioning the date as 06.07.2006. It is no doubt, as per the very- versions of the PW.35, some-portions of Ex.P.16 are synchronizing with some-portions in Ex.P.55(a). But, it does-not mean that the said Ex.P.16 is replica to the said Ex.P.55(a) because, as admitted by the PWs.7 & 8, the drafts will be maintained in the computer regarding the various deeds and the same will be used for preparing some-other similar deeds as and when clients seek-for. In addition to the same, even the PW.35 has also clearly admitted in the cross-examination that the portion which is traced-out from MO No.2 from the unallocated area may be used for some-other 163 SC No.705/2008 files also to prepare the similar-documents. When that is so, it cannot be stated that the said Exs.P.16 & P.55(a) are connected to each-other.
147. Apart from the same, as per the prosecution's-case, the total sale-consideration-amount is Rs.80 Crores. According to Ex.P.55(a), it is mentioned as Rs.45 Crores. Even, as per the recitals in Ex.P.55(a), if Rs.7 Crores are paid, the demand-draft of Rs.63 Crores plus the cheques of Rs.17 Crores totally tantamount to be as to the tune of Rs.87 Crores as the total sale-consideration- amount. All these three aspects certainly overlap without any synchronization, as Ex.P.16 clearly discloses the consideration- amount as only Rs.7 Crores has been paid. Therefore, it is clear on record that, there is no firm-stand with the prosecution itself with regard to the quantum of sale-consideration-amount. Apart from the same, the said Ex.P.55(a) being a very model-draft of agreement of sale, it cannot be held that as relating absolutely to the said Ex.P.16 disputed sale-deed itself and also it cannot be held as the final-draft of the said Ex.P.16.
148. Even, it is quite significant to note that, none of the PWs.23, 25, 27 & 33 being the investigating-officers have endeavored to collect any information/material with regard to the alleged specific market-value of the said properties of the PW.1/informant/M.G.Shanthakumar in Ex.P.16. But, on the contrary, the PW.8 has whispered regarding the quantum of the 164 SC No.705/2008 sale-consideration or the market-value of the said disputed- properties as Rs.7 Crores only, as on the date of Ex.P.16. Therefore, under these circumstances, the said Exs.P.55 & P.55(a) coupled-with the very-depositions of the PWs.35 & 36 do-not come to the aid and assistance with any favourable consequence to the prosecution's-case. To put-into simple-terms, there is no substantial material in favour of the prosecution to connect and co-relate either the MO No.2 or Ex.P.55(a) with the said Ex.P.16.
149. Apart from the same, the said deciphered-portion in Ex.P.16, more-particularly, the portion as per Ex.P.16(k) was tendered for the document-expert by sending the entire Ex.P.16 to the PW.17 who is none-other than the handwriting-expert, FSL, Bengaluru, who has scientifically dealt-with and analyzed the said Ex.P.16(k) portion and issued his detailed-report as per Ex.P.34 with reasoning as per Ex.P.34(b) and deciphered-contents of Ex.P.16 as per Ex.P.35 and small-print of Ex.P.35 deciphered- contents as per Ex.P.36.
150. With respect to the said Ex.P.16(k) coupled-with Exs.P.34 to P.36, on perusal of the very-deposition of the PW.17, he has endeavored to depose in favour of the prosecution to the effect that, on 23.11.2006 he having received a stamp-paper from Thilaknagar police relating to it's Crime No.174/2006, for the purpose of examining and finding-out the contents concealed therein, he having identified the same as Ex.P.16, he has shown 165 SC No.705/2008 the concealed/erased portion therein with the letters Q-1. The said Q-1 portion having been examined and analyzed through Video Spectral Compiler - 5000, he found with the writings as under:
"1) THE PURCHASER has paid a sum of Rs.63,00,00,000/- (Rupees Sixty-Three Crores only) by way of D.D. bearing No.551036, dated 15.06.2006, drawn on State Bank of Mysore, Hosur Branch in favour of the Vendor towards partial sale-consideration subject to realization of the above D.D.
2) In the above mentioned deciphered-contents, the figures "551036" and 15 of the date and the words subject to realization of the above D.D. are handwritten and the rest of the contents are electronically typed".
In respect of the same, he has issued his opinion as per Ex.P.34, on which his signature is as per Ex.P.34(a) and the reasons as per Ex.P.34(b) and his signature is as per Ex.P.34(c). He has produced the deciphered-contents and also to show as to what are the contents concealed/erased in Ex.P.16 and the said deciphered-contents is marked as per Ex.P.35, on which his signature is as per Ex.P.35(a). The small-print of Ex.P.35 is as per Ex.P.36, on which his signature is as per Ex.P.36(a) and he has produced the FSL model-seal as per Ex.P.37 and his signature thereon is as per Ex.P.37(a) and thereafter sent his opinion to the Dy.S.P., COD, Bengaluru. While writing his opinion in Ex.P.34 through typographical mistake, the said demand-draft number is written as 561036 in lieu of 551036.
166 SC No.705/2008
151. It is no doubt, nothing substantial contrary to the prosecution has been elicited through the mouth of the PW.17 in the cross-examination by the learned counsel for the accused; But, however, he has given his opinion in Ex.P.34 to the effect that the deciphered-portion in Ex.P.16 is that, "b) The purchaser has paid a sum of Rs.63,00,00,000/- (Rupees Sixty Three Crores Only) by way of D.D. bearing No.561036, dated 15.06.2006, drawn on State Bank of Mysore, Hosur Branch, in favour of the vendor towards partial sale-consideration, subject to realization of the above D.D." It is also indicated that in the said deciphered- contents the figures "551036" & "15" of the date mentioned and the words "subject to realization of the above D.D." are handwritten while the rest of the contents are electronically typed.
152. From the very deposition of the PW.17 coupled-with Exs.P.34 to P.36, this court can realize regarding the contents of deciphered-portion in the Ex.P.16, more-particularly, marked as Ex.P.16(k).
153. It is significant to note that, by virtue of the versions of the PWs.7, 9, 10, 13 & 14 as discussed at much-length herein before supra, the said document as per Ex.P.16 was handed-over to the PW.1/informant/Shanthakumar by the PW.7, during which time there was no whitener applied but when he returned-back the sale-deed to the PW.7, it was applied with whitener and signed by the PW.1 besides it. Therefore, if really the said deciphered- 167 SC No.705/2008 contents were to be the outcome of true-facts, then the question of obliterating/erasing by way of application of the whitener by the PW.1 himself would have never arised at-all. Even, it is also clear that the said document was presented before the PW.13/Sub- Registrar, Anekal, after applying the whitener on it, which clearly goes to indicate that only after admitting the said document, it was placed before the PW.13 only after applying the whitener at the portion marked as Ex.P.16(k).
154. It is no doubt, it is an allegation by the prosecution and the PW.1/informant/M.G.Shanthakumar that the signatures on the said Ex.P.16 obtained as per Exs.P.16(a) to P.16(j) were at gun- point held by the accused No.2 and by cheating and inducing him by the accused No.1. But, as stated herein before supra, no substantial material has been placed on record and also established beyond the shadow of all the reasonable doubts by the prosecution regarding the said allegations against the accused- persons. When that is so, the question of the PW.1 being under any undue-force and influence or coercion or threat or gun-point and etc., to sign on Ex.P.16 as per Exs.P.16(a) to P.16(k) do-not prevail with any substantial chunk of material in favour of the prosecution; meaning-thereby, the prosecution has utterly failed in establishing the same beyond the shadow of all the reasonable doubts.
168 SC No.705/2008
155. Therefore, under these circumstances, the said Exs.P.34 to P.36 coupled-with the evidence of the PW.17 do-not come to the aid of the prosecution under any circumstances in establishing the alleged charges of Sections 420, 465, 467 & 468 of IPC against the accused-persons.
156. It is no doubt, the PW.27 being a partial investigating- officer having received the said Ex.P.55/report from the PW.35 in connection with the hard-disc marked at MO No.2 and submitted the additional charge-sheet before the court, wherefore, her deposition does-not come to the aid of the prosecution substantially to establish it's case.
157. The next connected-point to be taken-into consideration for discussion would be with respect to the bank-challan as per Ex.P.33 with regard to purchasing the demand-draft for Rs.63/-. In connection with the same, already the said Ex.P.33/bank- challan of State Bank of Mysore, Hosur Branch, Tamil Nadu, is secured by the investigating-officer and placed on record. The PW.16 being the Manager of State Bank of Mysore as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect, on 05.12.2005 someone had come to his SBM Bank, Hosuru Branch, and purchased the demand-draft for Rs.63/-; But, he does-not know as to who and he does-not know the name of the person who has taken the same and also he does-not know the said person, but 169 SC No.705/2008 the place is written as Hosuru and he has identified the challan submitted by the said person as Ex.P.33 with DD No.551036, which has been obtained by some-person in the name M.G.Shanthakumar.
158. But, in the cross-examination by the learned counsel for the accused, he has clearly admitted that he cannot remember as to who-else purchase the demand-drafts everyday from his bank since number of demand-drafts will be purchased everyday and anybody can purchase the demand-draft and he cannot say as to who had come to purchase the said demand-draft and who has signed on Ex.P.33/bank-challan?.
159. On meticulous perusal of the said Ex.P.33, it is hardly for worth of Rs.63/- demand-draft and the said bank-challan is dated 05.12.2005. It is no doubt, there is a specific mentioning of the number of demand-draft as 551036 to connect the said Ex.P.33/bank-challan with the accused No.1. The investigation- agency has endeavored to get referred the said Ex.P.33 to the Scientific-Officer, FSL, Bengaluru, more-particularly, the handwriting-expert therein, during the investigation and accordingly, the PW.26 who is the Scientific-Officer, FSL, Bengaluru, has scientifically examined and analyzed the said Ex.P.33/bank-challan with the admitted handwritings of the accused No.1 and given his report as per Ex.P.54. 170 SC No.705/2008
160. In connection with the same, the PW.26 has been got examined by the prosecution who has endeavored to depose in favour of the prosecution in his chief-examination with regard to he having examined the bank-challan to the effect that, on 24.11.2008 the COD police, Bengaluru, having sent the documents in a sealed-cover in connection with the Thilaknagar police station Cr.No.174/2006 and on verifying the sample-seals with the seals available on the said seal-cover, they were tallying; On opening the said sealed-cover, it was containing a demand-draft application- form dated 05.12.2005 of SBM, Hosuru Branch, with the disputed- writings and signatures thereon; It was in the name of M.G.Shanthakumar and the signatures were already marked by the investigating-officer as Q1 - Q10. The investigating-officer had sent the admitted-signatures stated to be pertaining to the accused No.1/Nagendra Reddy on the specimen-signatures-card available at Central Bank of India dated 26.03.2003 & 17.12.1995, along- with the said disputed-documents for the comparative-analysis. The admitted-signatures were marked by the investigating-officer himself as S1 - S11. Another cheque-leaf of Central Bank of India, BTM Layout Branch, dated 03.06.2007 stated to be pertaining to the said accused No.1 related to GMAC Financial Service India Ltd., was also sent, on which the admitted-signatures of the accused No.1 were already marked by the investigating-officer as S12 - S15. Similarly, another admitted-document i.e., a letter 171 SC No.705/2008 written to Central Bank of India, BTM Layout, Bengaluru, by the accused No.1 was also sent, on which the signatures of the accused No.1 were already marked by the investigating-officer as S16 - S22. Similarly, the investigating-officer had sent the specimen-signatures of the accused No.1/Nagendra Reddy in 12 papers and 6 withdrawal-forms by marking them as RW.1 - RW.12 and RS1 - RS6. On verifying and analyzing scientifically the said disputed-writings and signatures with the admitted-writings and signatures, he found the person written and signed in the disputed-documents is different from the person written and signed in the admitted-documents and accordingly, he has issued the detailed-opinion as per Ex.P.54, on which his signature is as per Ex.P.54(a). Even, he has sent the photographs taken while attesting the said documents scientifically, along-with a certification in a sealed-cover to the Dy.SP., Spl. Inquiry, COD, on 02.04.2009. At the time of scientific-examination, he has examined even the challan as per Ex.P.33.
161. In consonance with the very-deposition of the PW.26, on meticulous perusal of the said opinion-report as per Ex.P.54, it is clear that the final-opinion of the PW.26 is that the person who wrote the writings in Ex.P.33 has not written by the person who has written the admitted handwritings sent to him as the handwritings and the signatures of the accused No.1; meaning- thereby, the handwritings in Ex.P.33 are not of the handwritings of 172 SC No.705/2008 the accused No.1. Therefore, the said Ex.P.33 cannot be connected to purchasing of the alleged demand-draft for Rs.63/- as stated by the accused No.1 himself. It is no doubt, the said demand-draft number mentioned on Ex.P.33 is also appearing in the deciphered- contents in the portion marked at Ex.P.16(k). But, admittedly, as stated by the PW.17, the said number of demand-draft is handwritten in Ex.P.16(k). As stated herein before supra, with reference to the very-versions and the depositions of the PWs.7, 8, 9, 10, 13 & 14, the portion marked at Ex.P.16(k) is erased/obliterated by applying the whitener by the PW.1/informant/M.G.Shanthakumar himself because, there was no occasion to the accused No.1 to have the possession of the said Ex.P.16 with him in view of the firm-versions of the PW.7. When that is so, the handwritings appeared in the deciphered-portion marked at Ex.P.16(k) are of the PW.1/informant- M.G.Shanthakumar. Therefore, it cannot be said that either the accused No.1 or accused No.2 or anybody-else except the PW.1 has fabricated and tampered the said Ex.P.16, more-particularly, Ex.P.16(k) portion because, for having re-erased/obliterated by applying the whitener in the portion marked at Ex.P.16(k), the PW.1 has admittedly signed thereon along-with the accused No.1 which clearly goes to imply that, with the mutual-consent of the PW.1 and the accused No.1, the said Ex.P.16(k) portion has been 173 SC No.705/2008 erased/obliterated by way of applying the whitener during the custody and possession of Ex.P.16(k) with the PW.1 himself.
162. Therefore, under all these circumstances, Ex.P.33 cannot be connected to the deciphered-handwritings/contents in Ex.P.16(k) and the accused No.1.
163. It is also one of the sturdy urges endeavored to put- forth before this court by the learned Spl. Public Prosecutor that, the accused No.1 was incapable financially to purchase the said property/s. With respect to the same, the PWs.9 & 10 as discussed herein before supra, have clearly stated contrary to the very-case of the prosecution. In addition to the same, the PW.29 being the circumstantial-witness and nearest-relative of the accused No.1 who is stated to have financially assisted the accused No.1 for the stamp-duty and the father of the PW.29 having been examined as PW.30, the PW.30 has turned hostile to the prosecution, wherefore, it has failed to establish Ex.P.59 through the mouth of the PW.30 and even the PW.29 having turned hostile-partly to the prosecution, it has failed to establish Ex.P.58 through his mouth. But, however, the PW.29 has deposed to some-extent in his chief- examination that, he has financially helped the accused No.1 for the purpose of purchasing the property and stated that he has given 4 demand-drafts worth of Rs.2,16,78,000/-. Therefore, the portion in exclusion of hostile-portion in the deposition of the PW.29 is also leaning in favour of the accused No.1 but not the 174 SC No.705/2008 prosecution. In addition to the same, the statement of accounts pertaining to the accused No.1 has been secured by the investigating-officer/PW.33, in which the balance in the account of the accused No.1 as on 29.06.2006 is shown as Rs.1.5 Crores. Even, the learned counsel for the accused has vehemently urged that the wife of the accused No.1 was a licenced money-lender and had the transaction which was looked-after by the accused No.1 himself for several-years and even the accused No.1 also had the income out of the said business. It is also urged that, even the accused No.1 and his wife hail from the agricultural family having immovable-properties and he is dealing-with the Real-Estate business in and around Bengaluru and also other-parts of the India. As against this particular urge of the learned counsel for the accused, nothing counter-blasting urge is put-forth by the prosecution's-side. In addition to the same, even the financial capacity and capability of the accused No.1 to purchase the property/s of the PW.1/informant is not the major criteria to be decided rather than it is a remote aspect to be taken-into consideration which requires to be established by the prosecution itself against the accused No.1 but not by the accused No.1 regarding his financial capacity and capability to purchase the property/s from the PW.1/informant/M.G.Shanthakumar.
164. Therefore, in view of the above discussion basing-on the material placed on record, it is clear that there is no any 175 SC No.705/2008 substantial stuff in the contention of the prosecution questioning and disputing the financial capacity and capability of the accused No.1 to purchase the property/s of the PW.1/informant/M.G.Shanthakumar.
165. On overall consideration of the material placed on record by the prosecution with reference to the oral-evidence of the various prosecution-witnesses examined and discussed herein before supra, at the very outset, it is clear that the prosecution has failed to make-out and prove the inducement by the accused No's.1 & 2 to the PW.1 and also the fraudulent-intention with the accused No.1 to cheat and dishonestly induce him and also with regard to forgery of the documents of the PW.1 and converting them into the fabricated absolute disputed sale-deed as per Ex.P.16 as a valuable-security-document with a dishonest-intention to cheat the PW.1 because, the prosecution has utterly failed to establish the nexus between the evidence of the PW.4 and the alleged non- payment of the amount to the PW.1. Even, the fraudulent-intention and motive with the accused No.1 to secure the documents from the PW.1 is not established. The seizure of the MO No.2/hard-disc has not at-all been established through the PW.12 who is stated to be the seizure-mahazar-witness and the seizure-mahazar as per Ex.P.29. Even, it is not proved that the accused No.1 himself gave the instruction to Ex.P.16. Even, Ex.P.33/bank-challan has not been proved to be in the handwritings of the accused No.1, 176 SC No.705/2008 admittedly. There is no nexus between the accused No.1 and the alleged forgery of Ex.P.16 through the said alleged draft as per Ex.P.55 in the hard-disc/MO No.2. No substantial nexus is being established between Ex.P.16 & Ex.P.55 and the alleged demand- draft etc.
166. Therefore, under all these circumstances, when there is sufficient lack of substantial material to bring-out the nexus between each and every circumstances and events, from the prosecution's-side and also in view of the prosecution having utterly failed to establish and prove all the mandatory essential ingredients of Sections 420, 465, 467 & 468 of IPC, this court is of the clear opinion that the prosecution has failed to prove the alleged offences punishable U/Secs.420, 465, 467 & 468 of IPC against the accused-persons. Hence, this court is inclined to answer the Point No's.5 & 6 in the 'Negative'.
167. Point No.2:- It is the specific case of the prosecution that, on 10.07.2006 at about 2.30 p.m. in the afternoon, the accused No's.1 & 2 with some-other-persons in furtherance of common-unlawful-intention while on the way to the Sub- Registrar's Office, Anekal, in the car of the accused No.1, the accused No.2 by showing the gun to the PW.1/informant/M.G.Shanthakumar, the accused No.1 forcibly obtained the signatures of the PW.1/informant on the valuable- security-document i.e., the sale-deed with dishonest-intention for 177 SC No.705/2008 the purpose of extortion by threatening to his life and also by inducing him dishonestly and robbed the said valuable-security- document i.e., sale-deed and thereby, the accused No's.1 & 2 committed the offences punishable U/Secs.347, 384 & 392 of IPC.
168. To prove the said alleged offences against the accused- persons, the prosecution certainly needs to establish and prove the ingredients of extortion which are provided U/Sec.383 of IPC, and the ingredients of wrongful-confinement to extort the property or constrain the illegal-act as provided U/Sec.347 of IPC and also the ingredients of robbery as provided U/Sec.380 of IPC.
169. As per Section 347 of IPC, in pursuance of the ingredients of wrongful-confinement to extort the property or constrain the illegal-act, it is incumbent-upon this court to look- into as to whether the prosecution has established the ingredients, such as, the accused obstructed the informant voluntarily by intentionally putting the PW.1 in fear of injury, and dishonestly induced him (PW.1) to deliver his property/s and valuable- security-document as per Ex.P.16 in favour of the accused No.1/Nagendra Reddy and also put the PW.1 in fear of the instant death, in connection with the offences punishable U/Secs.347, 384 & 392 of IPC.
170. In view of that matter, in continuation of the discussion made herein before supra, while answering the Point No's.1, 3 & 4, it has been dealt-with in-extenso to the effect that, there is no iota 178 SC No.705/2008 of evidence in either-ways from the prosecution's-side with respect to the wrongful-confinement of the PW.1 by the accused-persons in the secret-place i.e., in the house of the accused No.1 and also regarding the alleged abduction of the PW.1. In addition to the same, the one and only star-witness who is stated to be the eyewitness by the prosecution is the PW.4/Yebi George; But, he having turned hostile to the prosecution partly, his hostiled- portion of the deposition absolutely does-not deserve to be taken- into consideration, in the lack of substantial corroborative material. In so-far-as the portion otherwise than the hostiled- portion in his deposition, it also does-not come to the aid and assistance with any favourable consequence to the prosecution's- case in view of he having given go-bye to the very-case of the prosecution as he has not at-all whispered anything-else regarding either the abduction or putting the fear or threat at the gun-point or any kind of ill-treatment to the himself or the PW.1. Apart from the same, he has not at-all whispered anything-else regarding obtaining any kind of writings or signatures of the PW.1 under undue-influence or with force or dishonest inducement to the PW.1 by either of the accused-persons. Therefore, neither the question of commission of offences of the wrongful-confinement of the PW.1 nor the extortion nor the robbery by the accused-persons, does-not arise at-all.
179 SC No.705/2008
171. On overall consideration of the material available on record in the lack of the iota of material in connection with the alleged wrongful-confinement of the PW.1 by the accused-persons, alleged extortion of the property/s of the PW.1 and alleged robbery of the valuable-security-document i.e., the sale-deed as per Ex.P.16 from the PW.1, it is clear that on the facet of record itself, none of the ingredients such as, the wrongful-restraint of the PW.1 preventing him from proceeding beyond certain circumscribed limits binding him for the purpose of extorting his property/s and valuable-security-document i.e., sale-deed as per Ex.P.16 by putting the PW.1 in fear of injury and instant death intentionally so as to deliver his own-property/s and valuable-security- document i.e., sale-deed as per Ex.P.16 in favour of the accused No.1 and also the dishonest inducement, have been established and proved by the prosecution. Therefore, the question of attracting of the offences punishable U/Secs.347, 384 & 392 of IPC against the accused No's.1 & 2, does-not arise at-all.
172. Having utterly failed to establish the essential mandatory ingredients of the said offences punishable U/Secs.347, 384 & 392 of IPC by the prosecution, ultimately, the Point No.2 deserves to be answered in the 'Negative'. Accordingly, the Point No.2 is hereby answered in the 'Negative'.
173. Point No.7:- It is the specific contention of the prosecution that, the accused No's.1 & 2 in furtherance of 180 SC No.705/2008 common-unlawful-intention criminally intimidated the PW.1 and threatened to his life at the gun-point by the accused No.2 and also forcibly abducted him by threatening to his life and etc.
174. It is significant to note that, the PW.4 is only witness to speak regarding the criminal intimidation by the accused-persons and others to the PW.1 by threatening to his life with dire- consequence under the gun-point by the accused No.2. But, on meticulous perusal of the entire-deposition of the PW.4/Yebi George, nowhere he has stated regarding any kind of threat by the accused-persons to the PW.1 in presence of him. Even, the PW.5 being the circumstantial-witness, has not at-all whispered anything-else with regard to any change of the approach and behaviour with the nature of the PW.1 when he met the PW.5 in the Sub-Registrar's Office, Anekal. But, the PW.5 has stated in an otherwise-manner to the very-case of the prosecution that, he did- not find any change in the nature of the PW.1, whereas, he was as usual as in the normal-course, except his aged appearance. Therefore, even the evidence of the PW.5 does-not come to the aid of the prosecution. Apart from the same, the PWs.2 & 3 being the brothers of the PW.1, they are absolutely the hearsay-witnesses in respect of the alleged instant fear of death and threat by the accused-persons to the PW.1. Apart from the same, the PW.3 has clearly stated in the cross-examination that when the accused No.1, his wife/PW.32-Shashikala along-with accused No.2/Afroz 181 SC No.705/2008 Babu and their car-driver and etc., had come to the house of the PW.1 on 12.07.2006 in the afternoon at about 12.00, there was a scramble taken place between himself and the accused-persons, during which time the accused No.2 tried to strangulate his (PW.3) throat and also all of them tried to threaten them, but they have not tried to lodge the complaint immediately regarding the same.
175. It is pertinent to note that, the said versions of the PW.3 are no way supported and corroborated with any kind of substantial material and as admitted by the PW.3 himself, they have not lodged any complaint in respect of the alleged event of threatening by the accused No's.1 & 2, the wife of accused No.1 and their car-driver on 12.07.2006 in the afternoon at about 12.00 in the house of the PW.1.
176. In addenda of the same, in continuation of the discussion made herein before supra, while answering the Point No's.1, 3 & 4 in the 'Negative', it has been dealt in detail regarding the alleged instant-threat to the life of the PW.1 also and thereby held that the prosecution has utterly failed to establish the same.
177. Therefore, in view of all these reasons, viewing from any angle, there is no iota of substantial material-evidence regarding the alleged criminal intimidation by threatening to the life of the PW.1 instantly with dire-consequence by the accused-persons and others and also threat with the gun-point by the accused No.2, and therefore, the prosecution has utterly failed to prove the same 182 SC No.705/2008 along-with the essential ingredients of the offence punishable U/Sec.506 of IPC against the accused-persons. Hence, this court is inclined to answer the Point No.7 in the 'Negative'.
178. Point No.8:- It is the specific contention of the prosecution that, the accused had taken-away the demand-draft worth of Rs.63 Crores and also 5 cheques worth of Rs.17 Crores and also obliterated/erased-portion of the particulars of the said demand-draft which was written in Ex.P.16, more-particularly, at the portion marked as Ex.P.16(k) so as to cause disappearance of the evidence of the offence and to screen themselves (accused) the legal-punishment and thereby, committed the offence punishable U/Sec.201 r/w Section 34 of IPC.
179. It is significant to note that, in continuation with the discussion made herein before supra, while answering the Point No's.5 & 6, it has been clearly held that the prosecution has utterly failed to establish the alleged cheating and dishonestly inducing the PW.1 by the accused-persons to deliver his property/s to the accused No.1 and also failed to establish the alleged forgery of the documents of the PW.1 and valuable-security-document i.e., the sale-deed as per Ex.P.16 for the purpose of cheating the PW.1. Even, it has been clearly discussed and held that the prosecution has utterly failed to establish the nexus between the accused No.1 and the said bank-challan as per Ex.P.33 along-with the alleged forgery of Ex.P.16 through the draft in the hard-disc marked at MO 183 SC No.705/2008 No.2. Even, the prosecution has failed to establish regarding the alleged deciphered-portion in Ex.P.16 in connection with which the PW.17/Handwriting-Expert, FSL, Bengaluru, has been examined and marked his opinion and etc., as per Exs.P.34 to P.36, have not been connected with the accused No.1 himself.
180. When that is so, the question of causing disappearance of any evidence of the alleged offences and to screen themselves by the accused-persons from the legal-punishment, does-not arise at- all.
181. To put-into simple-terms, the prosecution has utterly failed to establish the very essential ingredients of the alleged offence punishable U/Sec.201 of IPC. Therefore, the Point No.8 is hereby answered in the 'Negative'.
182. Point No.9:- It is significant to note that, the learned Spl. Public Prosecutor has put-in his prompt and honest-efforts to enlighten this court regarding the basic-elements which are quint- essentially required to constitute a crime namely, motive, preparation, attempt, conduct and commission of the offence.
183. At this point of juncture, it would not be wrong on the part of the instant-court to place it on record regarding the job rendered by the learned Spl. Public Prosecutor as commendable- one with respect to he having enlightened the basic ingredients of a crime to constitute.
184 SC No.705/2008
184. On coming over to the ingredient-motive, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 2000 Cri.L.J. 2457 in a case between State of Uttar Pradesh Vs. Babu Ram, in which the Hon'ble Supreme Court of India has held that, "Motive is relevant factor in all criminal-cases, whether based on testimony of eyewitness or circumstantial evidence and if the prosecution proves the existence of a motive, it would be well and good for it, particularly in a case depending-on circumstantial evidence, for, such motive could then be counted as one of the circumstances."
185. Undoubtedly, the learned Spl. Public Prosecutor has endeavored to highlight on certain circumstances, such as, accused No.1 being professionally a Real-Estate agent since from the midst of the year 2005, he gathered the information about the lifestyle of the PW.1, such as, he was aware of the fact that the PW.1 was intending to dispose-of his property/s, the PW.1 was a bachelor living alone in his house possessing the property/s worth of Crores-together, his relatives were living separately in different places and the said PW.1 being introvert by nature, no-one were to come ahead to help him if he was abducted, due to which the PW.1 easily succumbed to the criminal overt-acts and etc.
186. On meticulous consideration of these particular highlighted aspects by the learned Spl. Public Prosecutor, one cannot directly arrive-at a conclusion regarding the motive of the accused No.1 in an otherwise-manner to do the criminal-act 185 SC No.705/2008 against the PW.1. To put-into simple-terms, the alleged motive should be of a criminal-intention or dishonest in the nature of dishonesty. But, for the reasons discussed at much-length herein before supra, nowhere such motive and dishonest-intention either with the accused No.1 or with the accused No.2 have been established by the prosecution substantially. Therefore, it is clear on the facet of record that the instant ingredient "motive" is absolutely lacking.
187. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 1970 Cri.L.J. 750 in a case between Malkiat Singh Vs. State of Punjab, in which the Hon'ble Apex Court of India has held that, "Preparation consists in devising or arranging means necessary for the commission of an offence."
188. In connection with this particular essential ingredient i.e., preparation, the learned Spl. Public Prosecutor has endeavored to urge that the evidence of the PW.1 analyzed and also the accused No.1 obtained the documents of the PW.1 expressing his intention to purchase the properties under the pretext of publishing the public-notice in the newspapers calling-upon the objections of the interested-persons, and in advance the accused No.1 purchased the demand-draft in the month of December 2005 for Rs.63/- only from State Bank of Mysore, Hosur Branch, etc. 186 SC No.705/2008
189. With reference to the same, in continuation of the discussion made herein before supra, while answering the Point No's.5 & 6 which are with respect to cheating and dishonestly inducing the PW.1 to deliver his property/s and also the forgery of the valuable-security-document i.e., Ex.P.16/sale-deed for the purpose of cheating the PW.1, already it has been discussed in- extenso and arrived-at a conclusion and held that the prosecution has utterly failed to establish the connection with the alleged bank-challan as per Ex.P.33 and also the prosecution has failed to establish and prove the nexus between the accused No.1 and the alleged forgery of Ex.P.16 through the draft in the hard-disc marked at MO No.2. When that is so, the question of purchasing the said disputed demand-draft for Rs.63/- only, from the State Bank of Mysore, Hosuru Road Branch, Tamil Nadu, in the month of December 2005 itself by the accused No.1 himself, does-not arise at-all. In addition to the same, as stated herein before supra, basing-on the settled principle of law, the evidence of the PW.1 being a non-est, is of no aid and assistance and consequence in favour of the prosecution. Merely having obtained the documents from the PW.1 by the accused No.1 expressing his intention to purchase the properties of the PW.1 who had put the same for sale, and merely having duly published the public-notice by the accused No.1 in the newspaper marked at Exs.P.12 & P.12(a), it does-not mean that the said acts of the accused No.1 were with a 187 SC No.705/2008 dishonest-intention to cheat the PW.1, wherefore, the said acts of the accused No.1/Nagendra Reddy cannot be held to be as the preparation by the accused No.1 for commission of the alleged offences.
190. Now, coming over to the third ingredient namely, "attempt" is concerned, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, in a case between Abhayanand Misra Vs. State of Bihar, in which the Hon'ble Supreme Court of India has observed that, "The question whether a certain-act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it."
191. With reference to the same, the learned Spl. Public Prosecutor has endeavored to highlight certain aspects namely, the accused No.1 got prepared the fabricated deed of "agreement of sale" and false "receipts" showing that there was an agreement of sale of the properties for Rs.45 Crores and the entire-money was paid to M.G.Shanthakumar through cheques and by way of cash and etc., which is found in the computer hard-disc of the PW.8, supported by the record in Ex.P.55 and Exs.P.55(a) to P.55(c).
192. In continuation with the discussion made while answering the Point No's.5 & 6, it is pertinent to note that, it has been clearly held that the said Ex.P.55 as a whole is of no aid and assistance with any favourable consequence to the prosecution 188 SC No.705/2008 since it has utterly failed to establish the clear nexus between the said Exs.P.55 & P.16 and the said Ex.P.55 with the accused No.1, and therefore the question of fabrication of the alleged agreement to sell and false receipts showing the properties worth of Rs.45 Crores etc., does-not arise at-all. Apart from the same, the prosecution has failed to establish substantially regarding the alleged attempt by the accused No.1 to commit the offence of making false-documents for the purpose of cheating the PW.1 and to grab his properties fraudulently. When that is so, the question of the alleged attempt by the accused No.1 to commit the alleged offences, does-not arise at-all.
193. Further, the learned Spl. Public Prosecutor has endeavored to highlight on the element of "conduct" of the accused to consider it as a strong circumstance and endeavored to refer the evidence of the PWs.1 & 4 along-with the documentary-evidence placed on record and urged that the accused No.1 deliberately dropped to show any interest after publication of the public-notice in the newspaper, but later he objected the other-purchasers stating that he is interested in the property and thereby delayed the process of sales and also delayed the proceedings on one or the other-pretext which conduct of the accused No.1 clearly corroborates the other-ingredients of commission of the offences by the accused No.1.
189 SC No.705/2008
194. It is significant to note that, merely having issued the public-notification by way of publication in the newspaper as per Exs.P.12 & P.12(a) and merely having delay caused, it does-not mean that the conduct of the accused No.1 was contrary to the very interest of the PW.1. In the meanwhile, admittedly, the PW.1 having taken further-steps to approach to the other companies by offering his interest of selling his own-properties to them, for which the accused No.1/Nagendra Reddy has objected on looking-into the newspaper publication issued by the said company. Even, such objection by the accused No.1 disclosing his interest in the properties of the PW.1 cannot be absolutely taken-into consideration as the conduct of the accused No.1 as in an otherwise-manner to the very-interest of the PW.1. In addition to the same, admittedly, the said properties of the PW.1 are stated to be valuing crores-together and when that is so, the process of sale or transaction cannot be made then and there itself, whereas, it requires it's own-process by passing through the full-dressed transaction-measures to be taken in connection with the same which may need it's own-time; but it cannot be said that the said delay was deliberately made by the accused No.1 and dropped his interest, in the lack of substantial corroborative material on record. Therefore, under the circumstances prevailing herein, in continuation with the discussion made herein before supra, the 190 SC No.705/2008 said conduct of the accused No.1 cannot be accounted as against the interest of the PW.1 and his properties.
195. Further, the learned Spl. Public Prosecutor has also endeavored to highlight and emphasize on the last ingredient i.e., "commission of offence", and highlighted on certain vital-aspects namely, the accused No.1 secured the PW.1 through the PW.4 near Adiga's Hotel in 4th Block, Jayanagar, Bengaluru City, and abducted the PW.1 in his (accused No.1) car and dishonestly induced him to sign on the fabricated-document marked as per Ex.P.16 and also used the criminal-force and intimidation by putting the PW.1 in the instant-fear of death throughout the process of registration of deed and illegal-confinement in his residential-house at Amar Canopy Apartment, BTM Layout, Bengaluru City, throughout the night, erasing of portion by using the whitener in Ex.P.16(k), and delivered the fabricated demand- draft showing it's value as Rs.63 Crores though it was for Rs.63/- only and destruction of evidence by taking-away the said demand- draft and 5 cheque-leaves with an unlawful-intention to wipe-out the criminal-liability and etc.
196. While discussing and arriving-at a conclusion and held the Point No's.1 to 8 in the 'Negative' as stated herein before supra, it has been clearly held that in the lack of substantial chunk of evidentiary material from the prosecution's-side, it has utterly failed to establish all the requisite mandatory ingredients of the 191 SC No.705/2008 alleged offences. It has even failed to establish the alleged abduction of the PW.1, wrongful confinement of the PW.1 in a secret-place for the purpose of cheating and extorting his property/s and also the alleged robbery and the alleged fabrication of the Ex.P.16/sale-deed using of criminal-force and intimidation by putting the PW.1 in the instant-fear of death under the gun- point by the accused No.2 and also feared throughout the process of registration of the alleged deed of sale and also the obliteration/erasion of the writings in the portion marked as Ex.P.16(k) by using the whitener, delivering of the alleged fabricated demand-draft showing the value of Rs.63 Crores and destruction of the evidence by taking-away the said demand-draft and 5 cheque-leaves with an intention to wipe-out the criminal- liability. When that is so, this court is not in agreement with the interpretation put-forth by the learned Spl. Public Prosecutor that the accused-persons have committed the offences.
197. It is further significant to note that, the learned counsel for the accused has drawn the attention of the instant-court with regard to the delay caused in lodging the complaint and making the First Information Report, contending that it is absolutely fatal to the prosecution's-case. In connection with the same, admittedly, the original-complaint which finds place on record is marked as Ex.P.17. The date typed thereon on the top is 12.07.2006. The date and time mentioned with regard to the receipt of the said 192 SC No.705/2008 Ex.P.17 in respect of which the police-endorsement discloses is 14.07.2006 at about 10.30 a.m. in the morning. Admittedly, the alleged incident has taken place on 10.07.2006 at about 2.30 p.m. in the afternoon. As per the prosecution's tale, the complaint has been endeavored to lodge by the PW.1 on 12.07.2006 itself. In respect of the same, at the time of fag-end of the closer of the trial on merits, again the learned Spl. Public Prosecutor filed an application U/Sec.311 of Cr.P.C., and further got examined the PW.25 who is one of the investigating-officers through whom a copy of the said Ex.P.17 has been got marked as per Ex.P.67. The said Ex.P.67 is contended to be as a copy of Ex.P.17, on which the endorsement was given by the then Police-Inspector who received the said complaint, who is none-other than the PW.25 himself. As per the endorsement of receipt/Ex.P.17 from the PW.1 on Ex.P.67, more-particularly, the said endorsement as per Ex.P.67(a), the said Ex.P.17 was lodged on 12.07.2006. Apparently, there is a delay of clear two-days in between the receipt of the said Ex.P.17 and the endorsement as per Ex.P.67(a). But, the endorsement on Ex.P.17(b) with the signature and date as 14.07.2006 of the PW.25 is absolutely contrary to the said Ex.P.67(a) which leads to the absolute fatality to the very-case of the prosecution. It is no doubt in respect of the said fatal-contradiction and the delay caused between 12.07.2006 and 14.07.2006, the PW.25 has endeavored to give the explanation in his further chief-examination dated 193 SC No.705/2008 22.03.2006 to the effect that when the PW.1 lodged the complaint as per Ex.P.17 on 12.07.2006 the alleged spot of incident being near Adiga's Hotel in 4th Block, Jayanagar, Bengaluru City, he being under impression that the said spot of alleged incident would come within the jurisdictional limits of Jayanagar police station, he asked the PW.1 to approach the Jayanagar police station stating that the said spot of incident does-not come within the jurisdiction of Thilaknagar police station and therefore only after ascertaining that the said alleged spot of incident comes within the jurisdiction of Thilaknagar police station, he got registered the case on 14.07.2006. But, unfortunately, the PW.25 has clearly admitted in the cross-examination by the learned counsel for the accused that, as-soon-as the complaint comes to the police station irrespective of it's nature as written or oral-one, they will register the case immediately if it is in connection with the cognizable offences and in case if the offences are in relation to the non-cognizable, then they register the NCR case and thereafter, they will note in the SHD regarding the same. Further, he has disclosed his non- remembrance as to whether he has mentioned and noted in the SHD regarding the receipt of Ex.P.17 (Ex.P.67) on 12.07.2006. Apart from the same, he has fatally admitted that if a case comes to the police station relating to cognizable offences irrespective of the jurisdiction of the police station, they register the case and then basing-on the jurisdictional limits, they will transfer the case 194 SC No.705/2008 to the jurisdictional police station for further legal-action and investigation and in connection with the same, there is a specific column in the FIR, more-particularly, Ex.P.47 at column No.4(c). It is further admitted by the PW.25 that, he had no any impediment or difficulty to register the case immediately on 12.07.2006 basing-on Ex.P.17 as-soon-as the PW.1 lodged the same, in his police station and then transfer the same basing-on the jurisdictional limits of the police station. But, again further the PW.25 has volunteered that, to avoid the double-work, he has not registered the same in his Thilaknagar police station. Further, he has clearly stated that, the distance between Thilaknagar police station and Jayanagar police station is hardly one-kilometer.
198. On meticulous consideration of all these versions of the PW.25 in his cross-examination, it is clear that, it is mandatory on the part of the police-officer, whoever is in-charge of the police station to register the case whenever he receives the complaint irrespective of the jurisdiction and thereafter, he has to decide regarding the jurisdiction and then transfer to the jurisdictional police station; in connection with which the column No.4(c) of the First Information Report discloses with respect to which the said police-officer needs to attend mandatorily. This particular mandatory-duty has not been discharged by the PW.25. Though he has endeavored to state that, to avoid the double-work he has not registered the case, that itself clearly goes to disclose his gross- 195 SC No.705/2008 negligence and indeligence in discharging his mandatory-duty. His said version is absolutely contrary to the mandate of law, wherefore, merely basing-on his said version, it cannot be arrived- at a conclusion that the said reason given by him is sufficient to condone the delay overlooking the adverse effects arising-out of the very negligence of the PW.25 in registering the case. Apart from the same, even as per the very-version of the PW.25 itself, the distance between his Thilaknagar police station and the Jayanagar police station is hardly one-kilometer, which requires hardly 5 - 10 minutes to travel in a Government vehicle from his police station to Jayanagar police station. But, unfortunately, he has not endeavored to approach the Jayanagar police station immediately. Therefore, the said explanation endeavored to give by the PW.25 is absolutely not deserving to be as acceptable-one.
199. Apart from the same, though the said complaint as per Ex.P.17 is noted as received on 14.07.2006 at about 10.30 a.m. in the morning, as per the specific-endorsement thereon, as per Ex.P.17(b). Ex.P.47 which is stated to be as the original-FIR discloses the endorsement of the learned II ACMM, Bengaluru, the date of submission and time as 11.00 a.m. in the morning on 15.07.2006. Here also there is a delay of more than 24 hours, in respect of which there is no any explanation given by either of the investigating-officers. Even, the column No.12 of the said Ex.P.47 does-not disclose the time and date of dispatch of the said First 196 SC No.705/2008 Information Report as per Ex.P.47. Therefore, there is a serious defect in the process of registering the case and also sending the First Information Report by the investigating-officer, more- particularly, the PW.25, which has ultimately resulted-into the inordinate-delay without any substantial, reasonable and justifiable explanation.
200. In connection with the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 2009 SC 1866 (From : Kerala) in a case between State of Kerala Vs. Anilachandran alias Madhu and Others, which reads thus:
"Penal Code (45 of 1860), Ss.300, 323 - Murder
- Appreciation of evidence - Allegation that accused with dragger inflicted a stab-injury on deceased - and other accused inflicted blows on body of deceased with iron-rods - Authenticity of FIR was doubtful - There was unexplained delay in receipt of occurrence report by Magistrate - Genesis of incident not established - Accused failed to prove plea of alibi beyond reasonable doubt - Merely because accused was not able to prove his defence, it cannot be presumed that prosecution case is proved against him -
Acquittal of accused is proper. (Paras 6, 8)"
201. On meticulous perusal of this particular settled principle of law, it is clear that wherever there is an unexplained delay in receipt of the occurrence report by the Magistrate, the authenticity of the First Information Report stands under doubtful circumstances.197 SC No.705/2008
202. Apart from the same, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in (2003) 3 Supreme Court Cases 355 (A) to (C) in a case between Rajeevan and another Vs. State of Kerala, which reads thus:
"A. Penal Code, 1860 - Ss. 302/34 - Murder - Appreciation of evidence - Reversal of acquittal by High Court - Propriety of - Ongoing clash between two political parties - Deceased I, a non- Hindu belonging to one political party, entering into a temple and beating the workers of the opposite party - Said incident stated to be the motive behind the murder of I - Delay of 12 hours in lodging FIR - Delayed dispatch of FIR to Magistrate - On facts, genuineness of the Fir doubtful - Inconsistencies between the observations noted in the scene mahazar and the version given by the eyewitnesses - Doubt also about the fact that the weapons used in crime were sword and knife - Possibility that the incident might have happened in some-other manner could not be ruled-out - There was also possibility of subsequent implication of appellants as a result of an afterthought - Prosecution case not proved beyond reasonable doubt - Held on facts, High Court erred in reversing the acquittal of the two appellants - Criminal Procedure code, 1973 - Ss. 386 and 378
- Appeal against acquittal - Interference by High Court - On facts, was not called-for.
B. Criminal Procedure Code, 1973 - S.154 - FIR - Delay in lodging FIR - Delay of 12 hours in lodging FIR - Delayed filing of FIR and it's consequences, discussed - Held on facts, sufficient to doubt the genuineness of the FIR.
C. Criminal Procedure Code, 1973 - S. 157(1) -
Delay in forwarding FIR to Magistrate - No satisfactory explanation therefor - Delay adversely affected the prosecution-case."198 SC No.705/2008
203. On meticulous perusal of this particular settled principle of law, it is clear that the delay in lodging the First Information Report for 12 hours along-with the delayed dispatch of the First Information Report certainly leads to the sufficient doubt regarding the genuineness of the First Information Report in the lack of satisfactory explanation, wherefore, the delay adversely affects the prosecution's-case certainly.
204. Further, the learned counsel for the accused has placed his reliance-on a well-settled principle of law, reported in AIR 1976 Supreme Court 2423 (From : Allahabad) (A) in a case between Ishwar Singh Vs. The State of Uttar Pradesh, which reads thus:
"A. Criminal P.C. (1898), S. 157 - FIR in respect of cognizable offence to be sent 'forthwith' to a Magistrate competent to take cognizance of offence - Unexplained delay of two- days in sending FIR to Magistrate - Effect. The extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient-time to the prosecution to introduce improvements and embellishments and set-up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when the case made in court differs at least in two very important particulars from that narrated in the FIR. In such a case, the evidence of the eye- witnesses "cannot be accepted at it's face-value." AIR 1976 SC 1156. Rel. on."
205. On meticulous perusal of this particular well-settled principle of law, it is clear that as-soon-as the First Information Report is lodged in respect of cognizable offence, it has to be sent 199 SC No.705/2008 'forthwith' to a Magistrate competent to take cognizance of offence and in case of extraordinary-delay in sending the First Information Report, such circumstance provides a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour affording sufficient-time to the prosecution to introduce improvements and embellishments and set-up a distorted version of the occurrence.
206. On the contrary, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 1996 Cri.L.J. 2364 (b) & (d) in a case between Raj Bahadur alias Denny and another etc., Vs. State, which reads thus:
"(b) The case examined the plea of the appellant that the investigating-officer (IO) was too-late in recording the statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973 - It was observed that the investigating-officer was not given any opportunity to explain the delay since the record showed that this question was not put to the IO during his cross-examination - The Court considered the facts of the case and held that the question was not material at this stage of the case.
(d) The case debated over the delay in lodging First Information Report (FIR) and recording of statement of the witnesses under Sections 302/149, 195, 397, 149 etc of the Penal Code, 1860 - the offences were committed during riots after assassination of the Prime Minister Smt. Indira Gandhi - The appellants were convicted and sentenced for various terms by the Trial Session Court - The delay in filing the FIR and also recording statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973 was satisfactorily explained - Also the contradictions in the evidence of the 200 SC No.705/2008 prosecution-witnesses were found to be, not material - Therefore, the Court upheld the conviction and sentence."
207. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in 1999(1) ACR 151 (1) in a case between Ibrahim and another Vs. State of Uttar Pradesh, which reads thus:
"(1) Indian Penal Code, 1860 - Section 302/34
- Murder - Conviction and sentence - Validity -
Some delay in lodging F.I.R. - Properly explained by informant--It cannot be doubted that F.I.R.
was outcome of consultation with enemies of accused or investigating agency - Facts and circumstances establish that accused 1 and A sharing common-intention of committing murder in consequence whereof their two associates firing at victim causing his instantaneous death - For sharing a common-intention it is not necessary that accused might have participated in actual assault on victim--Facts and circumstances clearly pointing-out that accused had prior meeting of mind and had come prepared for committing murder of deceased--Evidence of prosecution-witnesses and medical-evidence - Worth credence and rightly acted-upon by trial court - Appeals of living accused-persons dismissed."
208. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in AIR 2004 SC 1290 in a case between State of Punjab Vs. Ramdev Singh, which reads thus:
"Case Note: Criminal - Indian Penal Code -
Sections 228A, 376, 376A, 376B, 376C, 376D - Delay in lodging F.I.R. cannot be ground to discard prosecutions case - Prosecution has to satisfactorily explain the delay and if it is so explained the same cannot be a ground for disbelieving the case of the prosecution -201 SC No.705/2008
Evidence of the witnesses clearly shows that the complainant was seriously ill and the family- members waited for his recovery - Doctor examined the victim after 3 weeks and therefore the effect of the Act on the physical form was practically obliterated - Prosecutrix complaining of rape is not an accomplice - No rule of law that her testimony cannot be acted without corroboration in material particulars - High Court erred in reversing the conviction of the respondent - Doubt has to be a reasonable doubt and not an excuse for finding in favour of the acquittal - Appeal allowed."
209. Further, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law, reported in AIR 2005 SC 1929 (2) in a case between Ravi Kumar Vs. State of Punjab, which reads thus:
"(2) Code of Criminal Procedure, 1973 -
Sections 154 and 157 - Delay in lodging F.I.R. -
Concern of relatives of victim of deadly assault is first to save life of victim - Hence, if victim admitted in one hospital after other and F.I.R.
lodged after his death in hospital - No unreasonable delay in lodging FIR - There is also no delay in sending special report to Magistrate when distance between police station and place of Magistrate not small.
Sending the copy of the special report to the Magistrate as required under Section 157 of the Cr.P.C. is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the F.I.R. may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find- out as to whether the version as stated in the Court was the same-version as earlier reported in the F.I.R. or was the result of deliberations involving some-other persons who were actually not involved in the commission of the crime.
Immediate sending of the report mentioned in Section 157, C.P.C. is the mandate of flaw.
202 SC No.705/2008Delay, wherever found, is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not.
Para-12. In Ram Jag and Ors. v. The State of U.P. MANU/SC/0150/1973 : 1974 Cri.L.J. 479, it was observed as follows:
"Whether the delay is so long as to throw a cloud of suspicion on the deeds of prosecution case must depend-upon a variety of factors. Even a long delay can be condoned if the witnesses have no motive for implicating, the accused. On the other hand, prompt filing of the reports is not an unmistakable guarantee of the truthfulness of the version of the prosecution. It is true that witnesses cannot be called-upon to explain every hour's delay in filing information and a commonsense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence."
Para-13. As observed by this Court in Pala Singh and another vs. State of Punjab MANU/SC/0199/1972 : 1973 Cri.L.J. 59, some delay in receipt of the special report by the Illaqa Magistrate does-not make the investigation tainted. Similar was the view expressed in Sarwan Singh and others Vs. State of Punjab MANU/SC/0169/1976 :
1976 Cri.L.J. 1757. It was held that delay in dispatch of the First Information Report is not a substance which can throw-out the prosecution case in it's entirety.
Para-14. The trial court and the High Court, therefore, rightly held that there was no delay in either lodging the FIR or sending the special report to the Illaqa Magistrate."
210. Lastly, the learned Spl. Public Prosecutor has placed his reliance-on a well-settled principle of law 203 SC No.705/2008 (MANU/UP/0611/2007) in a case between Ramvir Singh S/o Mahendra Pal Singh (In Jail) Vs. State of Uttar Pradesh (2), which reads thus:
"(2) Code of Criminal Procedure, 1972 -
Section 154 - F.I.R. - Delay in lodging - By itself cannot be ground to doubt prosecution case and discard it - If delay properly explained - Eye-
witness account not to be doubted on this ground."
211. It is no doubt, on meticulous perusal of these particular well-settled principles of laws relied-upon by the learned Spl. Public Prosecutor, the delay in lodging the FIR by itself cannot be a ground to doubt the prosecution's-case and discard. But, the said rule is applicable provided the delay is properly explained. But, in the instant-case in hand, the delay in lodging the complaint by the PW.1 before the PW.25 and also registering the case by the PW.25 by delaying for two-days and also dispatching the said FIR and submitting the same to the II ACMM, Bengaluru, has not been duly explained by the PW.25 rather than expliciting his absolute ignorance and indiligence in discharging his mandatory-duty as required under the law and also the rules under which the column No.4(c) is also provided. Therefore, the said evasive-versions of the PW.25 which are endeavored to urge in the fashion of explanation for the delay by the learned Spl. Public Prosecutor, do-not tantamount to be as the reasonable and justifiable explanation to receive and accept the same, wherefore, desisting to admit the said versions of the PW.25 as the reasonable and justifiable 204 SC No.705/2008 explanation, it is clear that there is an unexplained inordinate- delay in registering the case and also dispatching the FIR and etc., which certainly goes to the very-root of the prosecution's-case and affects adversely leading this court to suspect the genuinity of the said Exs.P.17(b) & P.47, in respect of which the benefit of fatal- doubt shall have to be extended in favour of the accused-persons as per the well-settled principle of law of the Hon'ble Supreme Court of India.
212. Therefore, even the said citations relied-upon by the learned Spl. Public Prosecutor certainly favour the very defence of the accused-persons in addition to the citations relied-upon by the learned counsel for the accused.
213. Even, it is a vital-aspect prevailing in the instant-case in hand that, no alleged revolver is seized by the concerned investigating-officer, wherefore, it also stands as fatal to the prosecution's-case.
214. It is also significant to note that, at the time of recording the statements of the accused No's.1 & 2 U/Sec.313 of Cr.P.C., the accused No.1 has produced certain-documents namely, the copy of agreement of sale between himself and the PW.1 dated 07.03.2006; the certified-copy of the acknowledgement/receipt stated to have issued on 12.06.2006 by the PW.1/M.G.Shanthakumar in favour of N. Nagendra; the copy of endorsement given by the Sub-Registrar, Anekal, on 19.07.2012; 205 SC No.705/2008 the certified-copy of the valuation-slip in O.S.No.2237/2006; the xerox-copy of the judgment in O.S.No.3992/2001 on the file of VIII Addl. City Civil & Sessions Judge, Bengaluru City (CCH - 15); the xerox-copy of the judgment in O.S.No.2791/2001 on the file of IX Addl. City Civil & Sessions Judge, Bengaluru City (CCH - 10); the xerox-copy of W.P.No.52447/2012 C/W W.P.No.52449/2012 & W.P.No.51760/2012 (GM-CPC) of the Hon'ble High Court of Karnataka, Bengaluru; the xerox-copy of a memo dated 03.01.2013 submitted before the FTC - IV, Bengaluru Rural District, Bengaluru, and the certified-copy of the RFA No.200/2013 on the file of the Hon'ble High Court of Karnataka, Bengaluru, which certainly stand in favour of the defence of the accused No.1, whereby it goes to the very-root of the conduct of the PW.1 itself disfavoring the very crux of the prosecution's-tale.
215. Apart from the same, it is significant to note at this point of juncture that, when the case was heard on merits from both the learned Spl. Public Prosecutor and the learned counsel for the accused on merits, and reserved for the judgment, on 21.07.2016 the requisition of one Hariyappa, Police-Inspector, Spl. Enqury Division, CID, Bengaluru, with the xerox true-copy of the statement stated to have been recorded U/Sec.164 of Cr.P.C., of one Yebi George S/o George M.T. on 23.03.2015 in Anekal police station Cr.No.168/2011 for the offence punishable U/Sec.302 of IPC, is simply dumped in the Inward-Branch of the City Civil Court 206 SC No.705/2008 and it is received by this court on 27.07.2016 and on perusal of the said requisition, it is contended that the said Yebi George who is none-other than the PW.4 in the instant-case in hand, has given the admissions and statement regarding the offences against the instant accused-persons, in detail, in his voluntary-statements recorded under Section 164 of Cr.P.C. It would be appropriate on the part of the instant-court to make it clear that, as stated herein before supra, the said Section 164 Cr.P.C. voluntary-statement of the instant PW.4 has been received by this court on 27.07.2016, by which time already the entire-process of full-dressed trial was over and reserved for the judgment on merits.
216. It is significant to note that, the said Section 164 of Cr.P.C. voluntary-statement of the PW.4 was recorded on 23.03.2015 in Anekal police station Cr.No.168/2011 which was duly well within the notice and knowledge of the concerned CID/COD police, Bengaluru. Knowing-fully-well regarding the contents of the said voluntary-statement of the PW.4 U/Sec.164 of Cr.P.C., they have kept-mum idly till July 2016 without thinking- over the matter as to produce the same in the instant-case in hand or otherwise if law permits, in due process of law and procedure, during which time the trial was not yet over. Even, on hearing both the sides in the open-court with respect to the said Section 164 Cr.P.C. voluntary-statement of the PW.4 in a sealed-cover which was opened in the open-court on 27.07.2016, even it was a 207 SC No.705/2008 fact of astonishing to both the learned Spl. Public Prosecutor and also the learned counsel for the accused regarding the said voluntary-statement U/Sec.164 of Cr.P.C. of the PW.4 stated to have recorded in Anekal police station Cr.No.168/2011 and dumping the same by the police-officer by name H. Hariyappa, Police-Inspector, Spl. Enqury Division, CID, Bengaluru, in the Inward-Section in a closed-cover, in the City Civil Court on 21.07.2016. This itself clearly goes to indicate the said requisition with Section 164 of Cr.P.C. voluntary-statement of the PW.4 are emanating in a sudden and surprise manner which were not in the notice and knowledge of both the prosecution as-well-as the defence-side, earlier. That apart, it also clearly goes to disclose the clear pictorial-scenario of the irresponsibility, indiligence and the gross-negligence on the part of the concerned police to see that it is placed on record without taking proper-steps, well within time during the trial itself in due process of law and procedure if the law permitted. It further squarely indicates that, the said voluntary- statement U/Sec.164 of Cr.P.C. are placed on record merely, to escape from the responsibility and diligent-duty of the concerned Police-Inspector, wherefore, such kind of indiligence and gross- negligent approach by such police-officers need to be viewed seriously by deploring and condemning such approaches and acts which are absolutely fatal and affecting to the very crux of the prosecution's-case. Because of such irresponsibilities and 208 SC No.705/2008 indiligence on the part of the investigation-agency, unfortunately majority of the prosecution's cases are ending with failure i.e., in acquittal, in respect of which the role of the investigation-agency prevails in a fashion of major part which needs to be taken-into consideration and thought-of to rectify by the concerned- authorities much-less at this point of juncture though it is highly belated-stage, in the better-interest of maintaining the law and order and also in the better-interest of the litigant public who knock the doors of the court of law craving for speedy and fair justice.
217. Having produced the said requisition as-well-as the said Section 164 of Cr.P.C. voluntary-statement of the PW.4 without under any proper and due law and procedure and also having produced the same astonishingly at the highly belated- stage when the case was reserved for judgment on merits, the same cannot be taken-into consideration and looked-into. If at all anything stands affected to the very-case of the prosecution by virtue of the said approach and act of the said police-officer, it is only at the risk and responsibility of him but not of anybody-else. Therefore, with these observations, the said requisition with Section 164 of Cr.P.C. statement hereby stand as not taken-into consideration for any purpose in this case.
218. During the time of trial, the then learned Spl. Public Prosecutor has voluntarily given-up the CWs.30, 35 & 43. Despite, 209 SC No.705/2008 having issued sufficient process to the CWs.13 to 17, 20, 22, 24 & 25, they having not turned-up before this court and deposed in favour of the prosecution, in the lack of substantial and reasonable-grounds, they have been dropped by rejecting the prayer of the learned Spl. Public Prosecutor which is clear from the earlier order-sheets.
219. On overall consideration of the material available within the gamut of matrix on record, it is clear that the PWs.12, 30 & 32 have absolutely turned hostile to the prosecution, wherefore, it has failed to establish Exs.P.27 to P.29, P.59 & P.60. Apart from the same, the PWs.4 to 10 & 13 have partly turned hostile to the prosecution, whose evidence otherwise than the hostiled-portions of their depositions are also not in favour of the prosecution's-case, in respect of which it has been discussed at much-length herein before supra, wherefore, their depositions also do-not come to the aid and assistance of the prosecution's-case with any favorable consequences. The very-depositions of the PWs.2, 3, 13 & 14 to 19 who are also the circumstantial-witnesses do-not come to the aid of the prosecution's case. Apart from the same, merely basing-on the depositions of the PWs.14 to 17, 26, 28 & 34 to 36 being the official-witnesses as-well-as the circumstantial-witnesses, and the PWs.18 to 20 being the police-officers as-well-as the circumstantial-witnesses and PWs.21, 22 & 24 being the police- officers having merely assisted the investigating-officers and the 210 SC No.705/2008 PWs.23, 25, 27 & 33 being the investigating-officers, out of whom the PWs.23 & 25 are the investigating-officers having investigated the major-portion of the investigation of the case, this court cannot arrive-at a conclusion to target the accused-persons for the conviction in the lack of the substantial corroborative chunk of material in support of the said circumstantial-evidence in pursuance with the settled principle of law, as the prosecution has miserably failed to establish the nexus and inter-connection between all the alleged circumstances and events sequentially to constitute the complete chain of fulfilling all the essential mandatory ingredients of the alleged offences, since the entire-case of the prosecution is absolutely prevailing with the major discrepancies, contradictions, infirmities, fatal-doubts creating in the mind of this court and also the entire-case is absolutely lacking with the substantial material in respect of proving all the essential ingredients of the alleged offences punishable U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC as against the accused No.1 and also the accused No.2.
220. Therefore, under all these circumstances, I am of the clear opinion that, the entire-case of the prosecution is prevailing with the major discrepancies, discrepanting the entire-case of the prosecution, creating the fatal-doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts 211 SC No.705/2008 will have to be given to the accused-persons by virtue of a well- settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused No's.1 & 2. Therefore, in view of all these reasons, I am of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No.9 beyond the shadow of all the reasonable doubts. Hence, this court is inclined to answer Point No.9 in the 'Negative'.
221. Point No.10:- For the reasons discussed at much- length while answering the Point No's.1 to 9 in the Negative herein before supra, this court is inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 & 2 and therefore, the Accused No's.1 & 2 are found not guilty for having committed the offences U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant Accused No.1 by name, Nagendra Reddy, S/o. Late Nanjunda Reddy, aged about 45 years, Real-Estate Business, C/o. Y.B.Shivashankara Reddy, Yamare Grama, Sarjapura Hobli, Bommasandra Post, Anekal Taluk, Bengaluru Rural District - 562 106, and the instant Accused No.2 by name, Afrose @ Afrose Babu, S/o. Sultansaab, aged about 40 years, Real-Estate 212 SC No.705/2008 Business, residing at No.44/7B, 8th Main, Old Gurappanapalya, Bengaluru - 560 076, and set them to liberty forthwith in this case.
The Accused No's.1 & 2 are hereby discharged of their bail-bonds, along-with their sureties.
The interim-custody of the seized-property marked at MO No.1 being the white-colored Lancer Car bearing No.KA-05-MN-9559 with it's RC owner i.e., PW.32/Shashikala W/o Nagendra Reddy (wife of the accused No.1), is hereby ordered to be absolute after the efflux of the appeal period.
The seized-property marked at MO No.2/Hard-disk of the computer is hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 24th day of September, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side:
PW.1 M.G. Shanthakumar
PW.2 M.G. Dattathreya
PW.3 M.G. Nagendra
PW.4 Abhi George
PW.5 Sadashiva
PW.6 Smt. Vasantha
PW.7 B.V. Ravi
PW.8 Prasannakumar
PW.9 Krishna Reddy Y.R.
PW.10 Bhanuprathap
213 SC No.705/2008
PW.11 Amaranaga
PW.12 Suresha
PW.13 H.M. Venkatesh
PW.14 M. Srinivas
PW.15 Smt. Bharathi
PW.16 Nagendraraju
PW.17 Syed Asgar Imam
PW.18 Mahadevappa
PW.19 Shivananda
PW.20 Srinivasa
PW.21 H.L. Krishnappa
PW.22 Janardhana Rao
PW.23 B.L. Asode
PW.24 G. Thimma Bhovi
PW.25 Abdul Satthar
PW.26 Shankarappa Murali
PW.27 Smt. Susheela R
PW.28 Murthy S
PW.29 Aravinda Reddy
PW.30 Basappa Reddy
PW.31 Kum. Asha
PW.32 Smt. Shashikala
PW.33 K.C. Prakash
PW.34 S. Selvaraj
PW.35 Satish Kumar K
PW.36 Ramani B
List of documents exhibited for the prosecution-side:
Exs.P.1 & P.2 Memorandum of notice/memo dtd
19.05.2003.
Exs.P.3 to P.11 RTC extracts.
Ex.P.12 Copy of newspaper.
Ex.P.12(a) Portion of the publication.
Ex.P.13 Copy of newspaper.
Ex.P.13(a) Portion of the publication.
Ex.P.14 Commitment-letter/deed dated 15.05.2006.
Ex.P.14(a) Signature of the PW.1.
Ex.P.15 Letter dated 19.05.2006.
Ex.P.16 Registered sale-deed dtd 06.07.2006 executed
by one M.G.Shanthakumar (CW.1/PW.1) in
favour of one Nagendra Reddy (accused No.1).
Exs.P.16(a) to Signatures of the PW.1.
P.16(k)
Ex.P.16(l) Signature of the PW.7.
Ex.P.16(m) Signature of the PW.9.
Ex.P.16(n) Signature of the PW.10.
Exs.P.16(o) Portions of the PW.13.
214 SC No.705/2008
& P.16(p)
Ex.P.17 Complaint of CW.1/PW.1.
Ex.P.17(a) Signature of the PW.1.
Ex.P.17(b) Signature of the PW.25.
Ex.P.18 Spot-mahazar.
Ex.P.18(a) Signature of the PW.1.
Ex.18(b) Signature of the PW.11.
Ex.P.18(c) Signature of the PW.25.
Ex.P.19 Seizure-mahazar.
Ex.P.19 (a) Signature of the PW.1.
Ex.P.19(b) Signature of the PW.4.
Ex.P.19(c) Signature of the PW.25.
Exs.P.20 & P.21 Photographs of the car.
Ex.P.22 Statement of the PW.4 dated 15.07.2006.
Ex.P.23 Additional-statement of PW.4 dtd 16.10.2007.
Ex.P.24 Statement of the PW.5 dated 14.08.2007.
Ex.P.25 Statement of the PW.9 dated 19.12.2006.
Ex.P.26 Statement of the PW.10 dated 19.12.2006.
Ex.P.27 Spot-mahazar.
Ex.P.27(a) Signature of the PW.12.
Ex.P.28 Spot-mahazar.
Ex.P.28(a) Signature of the PW.12.
Ex.P.28(b) Signature of the PW.33.
Ex.P.29 Spot-mahazar.
Ex.P.29(a) Signature of the PW.12.
Ex.P.30 Letter from the Office of the Sub-Registrar,
Anekal, dated 15.07.2006.
Ex.P.30(a) Signature of the PW.13.
Ex.P.31 Affidavit dated 10.07.2006.
Ex.P.31(a) Signature of the PW.13.
Ex.P.32 Affidavit dated 12.07.2006.
Ex.P.32(a) Signature of the PW.13.
Ex.P.33 DD challan.
Ex.P.34 FSL opinion.
Ex.P.34(a) Signature of the PW.17.
Ex.P.34(b) Reasons.
Ex.P.34(c) Signature of the PW.17.
Ex.P.34(d) Signature of the PW.23.
Ex.P.35 Deciphered contents.
Ex.P.35(a) Signature of the PW.17.
Ex.P.36 One small-print.
Ex.P.36(a) Signature of the PW.17.
Ex.P.37 Sample-seal.
Ex.P.37(a) Signature of the PW.17.
Ex.P.38 Report of the PW.22.
Ex.P.39 Police-notice dated 17.07.2006.
Ex.P.39(a) Signature of the PW.22.
Ex.P.40 Report of the PW.22.
215 SC No.705/2008
Ex.P.40(a) Signature of the PW.22.
Ex.P.41 ING Vysya Bank letter dated 21.11.2006.
Ex.P.41(a) Signature of the PW.23.
Exs.P.42 to List of particulars of the mobile-calls.
P.45
Exs.P.42(a) to Signatures of the PW.23.
P.45(a)
Ex.P.46 Report of PW.24.
Ex.P.46(a) Signature of the PW.24.
Ex.P.47 First Information Report.
Ex.P.47(a) Signature of the PW.25.
Ex.P.48 Mahazar.
Ex.P.48(a) Signature of the PW.25.
Ex.P.49 Voluntary-statement of the accused No.2.
Ex.P.49(a) Signature of the PW.25.
Exs.P.50 to P.52 Letters of ING Vysya Bank.
Exs.P.50(a) to Signatures of the PW.25.
P.52(a)
Ex.P.53 Letter of State Bank of Mysore.
Ex.P.53(a) Signature of the PW.25.
Ex.P.54 FSL opinion.
Ex.P.54(a) Signature of the PW.26.
Ex.P.55 Analysis-report.
Ex.P.55(a) Annexure-II Item No.1 of PW.35.
Ex.P.55(b) Annexure-II Item No.2 of PW.35.
Ex.P.55(c) Signature of the PW.35.
Ex.P.55(d) Signature of the PW.36.
Ex.P.56 Document/letter dated 14.05.2012 of PW.28.
Ex.P.56(a) Signature of the PW.28.
Ex.P.57 Statement of the PW.29.
Ex.P.58 Additional-statement of the PW.29.
Ex.P.59 Statement of the PW.30.
Ex.P.60 Statement of the PW.31.
Ex.P.61 Bank-Account-Statement of the Central Bank
of India, BTM Layout, Bengaluru.
Ex.P.62 Letter dated 07.08.2007 addressed to the Office
of the Director General of Police, Bengaluru, by the Central Bank of India, BTM Layout, Bengaluru.
Ex.P.63 Letter dated 12.06.2012 addressed to the Sheristedar, Civil Court, Bengaluru, by the Central Bank of India, BTM Layout, Bengaluru.
Ex.P.63(a) Signature of the PW.34.
Ex.P.64 Additional-statement of B.V.Ravi.
S/o Vishwanathappa.
Ex.P.65 Statement of Prasannakumar S/o
M. Thimmareddy.
216 SC No.705/2008
Ex.P.66 Additional-statement of B.T. Prasannakumar,
S/o M. Thimmareddy.
Ex.P.67 Copy of complaint dated 12.07.2006
addressed to the Inspector of Police,
Thilaknagar police station, Bengaluru, by
M.G.Shanthakumar, along-with an
endorsement.
Ex.P.67(a) Signature of the PW.25.
List of material-objects marked for the prosecution-side:
MO No.1 Lancer Car bearing No.KA-05-MN-9559.
MO No.2 Hard-disc from computer CPU.
List of witnesses examined for the defence-side:
- NIL -
List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.217 SC No.705/2008
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 & 2 and therefore, the Accused No's.1 & 2 are found not guilty for having committed the offences U/Secs.342, 346, 347, 364, 368, 384, 392, 420, 465, 467, 468, 506 & 201 r/w Section 34 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant Accused No.1 by name, Nagendra Reddy, S/o. Late Nanjunda Reddy, aged about 45 years, Real-Estate Business, C/o.
Y.B.Shivashankara Reddy, Yamare
Grama, Sarjapura Hobli,
Bommasandra Post, Anekal Taluk,
Bengaluru Rural District - 562
106, and the instant Accused No.2
by name, Afrose @ Afrose Babu,
S/o. Sultansaab, aged about 40
years, Real-Estate Business,
residing at No.44/7B, 8th Main,
Old Gurappanapalya, Bengaluru -
560 076, and set them to liberty
forthwith in this case.
The Accused No's.1 & 2 are
hereby discharged of their bail-
bonds, along-with their sureties.
The interim-custody of the
seized-property marked at MO
No.1 being the white-colored
Lancer Car bearing No.KA-05-MN-
9559 with it's RC owner i.e.,
PW.32/Shashikala W/o Nagendra
Reddy (wife of the accused No.1),
is hereby ordered to be absolute
after the efflux of the appeal
period.
The seized-property marked
at MO No.2/Hard-disk of the
computer is hereby ordered to be
confiscated to the Exchequer of
218 SC No.705/2008
the State Government after the
efflux of the appeal period.
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
219 SC No.705/2008