Bangalore District Court
Swamy Jayapal vs A1: Ravi Shankar on 16 April, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 16th DAY OF APRIL 2015
PRESENT
Ms.S.L.Ladkhan, B.A., L.L.M.,
IV A.C.M.M. Bangalore
CC No. 29004/2007
Complainant : Swamy Jayapal, 60 Yrs.,
S/o Late Swamy,
R/a. No.38/9, 2nd Main,
CKC Garden, Bangalore - 27.
V/s.
Accused : A1: Ravi Shankar, 47 Yrs.,
S/o. Late B.M.Shankaraiah,
R/a. No.1, V.S.Raju Road,
Kumara Park West, Bangalore - 20.
A2: Giriprasad,
R/a. No.86, Sector B,
Amruthanagar, Shankaranagar Post,
Bangalore - 92.
JUDGMENT
This is a private complaint filed by the above named complainant u/s.200 of Cr.P.C. to take cognizance against the accused No.1 and 2 for the offences punishable u/s.403, 406, 465, 471 r/w 34 of IPC.
2. The brief complaint averments reveals that, the complainant was working in UAE, Abudabi and Dubai for about 30 years as a
-2- CC 29004/2007 Manager, Administration. With an international form of Chartered Accounts. During February 2004 he returned to Bangalore to be settled here. That his wife Nalini Jayapal was qualified beautician, as such the premises of one M.P.Gangadharaiah was taken on rental basis of Rs.7000/- per month with the additional water charges of Rs.5000/- per month with a subsequent renewal period. The lease deed is also produced. That all of a sudden the wife of the complainant died in August 2005. A friend of the complainant by name Wilson proposed the name of the first accused as his wife was also beautician who could run the existing business. The complainant had faith on the words of the said Wilson and landlord and Memo of Understanding was executed between the accused No.1 and the complainant for use of the equipments and the premises for a sum of Rs.19,000/- per month w.e.f. 16.9.2006. During November 2006 BBMP had closed all the commercial aspects in the residential area. As such on 4.7.2007 the complainant got issued legal notice to the accused No.1 to collect the amount of Rs.50,000/- kept by him as a security deposit and to hand over the premises with all the goods. Then the complainant received a telephonic call from the owner by name Gangadharaiah on 11.7.2007. that when he had gone to Tumkur the accused No.1 broke open the seal that was put by the BBMP and removed all the goods belonging to the complainant. The complainant tried to call the accused No.1 but he did not respond. As such the complainant lodged the complaint before Sadashivanagara police. The accused subsequently had issued to the reply notice on 12.7.2007 stating that the Memo of Understanding was executed as the said goods were
-3- CC 29004/2007 sold to the accused No.1 for a consideration of Rs.2 Lakhs and a copy of the Memo of Understanding was also sent to the complainant. The said memo of understanding is a forged, created document. Subsequently again the complainant got issued the rejoinder to the said notice. Again on 19.7.2007 the complainant approached the jurisdictional police and handed over the letter along with the said forged document. The said document is fabricated it could never be believed that goods worth Rs.10 Lakhs could have been sold for a meager sum of Rs.2 Lakhs i.e. also the major portion of Rs.1,50,000/- being received by cash and a cheque of Rs.50,000/-. ON 3.9.2007 the landlord M.P.Gangadharaiah terminated the tenancy. The accused was waiting with other gunda elements. The complainant was assaulted by landlord as well as accused. Complainant was rescued by one Wilson and other passers by and FIR came to be registered and subsequently charge sheet came to be filed in the case. The accused persons have created the said document and they have forced the complainant to withdraw the previous complaint. The accused persons with a criminal intention have committed criminal breach of trust by misappropriating the goods entrusted to them, forged the document and thereby the accused persons have committed all the above said offences. Complainant had led in his sworn statement and my predecessor in office has taken cognizance for the offences punishable u/s.403, 406, 465, 471 r/w 34 of IPC against the accused.
3. Accused No.1 & 2 appeared before the court and they were enlarged on bail.
-4- CC 29004/2007 4. The complainant led in his evidence before charge. My predecessor in office has heard on charges. Charges for the
offences punishable u/s.403, 406, 465, 471 of IPC was recorded. Certificate reveals that, it was read over and explained to the accused persons in the Kannada language known to them. The accused persons have pleaded not guilty and claimed trial. Subsequently another application came to be filed for alteration of charge. The said application came to be allowed and the additional charge for the offence punishable u/s.420 r/w 34 of IPC was also framed by my predecessor in office. Certificate reveals that, it was read over and explained to the accused persons in the Kannada language known to them. The accused persons have pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused the complainant had adopted the evidence that was led on the earlier occasion as PW1 and led in the evidence of PW2 and got marked documents EEx.P1 to Ex.P.12 and Ex.D.1 was confronted to the witnesses.
6. After conclusion of the complainant evidence statement of the accused persons u/s.313 of Cr.P.C. by explaining incriminating evidence available against them was recorded. Accused persons have denied it and led no defense evidence.
7. Heard arguments of the counsel for the accused. Counsel for the complainant has filed the written arguments. Perused the materials on record.
8. The following points arise for my consideration :
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1) Whether the complainant proves beyond all reasonable doubt that, on 16.9.2006 the accused No. 1 and 2 entered into Memorandum of Understanding with the complainant at Sadashivanagara to use the equipment and the premises for a sum of Rs.19,000/- per month and with the intention to knock off the goods the accused No.1 and 2 in furtherance of their common intention for a meager amount of Rs.2 Lakhs created and forged the document and took away the said equipments and thereby misappropriated the goods of the complainant and committed the offence of misappropriation punishable u/s.403 r/w 34 of IPC ?
2) Whether the complainant proves beyond all reasonable doubt that, on 16.9.2006 the accused No. 1 and 2 entered into Memorandum of Understanding with the complainant at Sadashivanagara to use the equipment and the premises for a sum of Rs.19,000/- per month and with the intention to knock off the goods the accused No.1 and 2 in furtherance of their common intention for a meager amount of Rs.2 Lakhs created and forged the document and took away the said equipments and thereby misappropriated the goods of the complainant and committed the offence of misappropriation punishable u/s.406 r/w 34 of IPC?
3) Whether the complainant proves beyond all reasonable doubt that, on 16.9.2006 the accused No. 1 and 2 entered into Memorandum of Understanding with the complainant at Sadashivanagara to use the equipment and the premises for a sum of Rs.19,000/- per month and with the intention to knock off the goods the accused No.1 and 2 in furtherance of their common intention for a meager amount of Rs.2
-6- CC 29004/2007 Lakhs created and forged the document and thereby committed the offence punishable u/s.465 r/w 34 of IPC?
4) Whether the complainant proves beyond all reasonable doubt that, on 16.9.2006 the accused No. 1 and 2 entered into Memorandum of Understanding with the complainant at Sadashivanagara to use the equipment and the premises for a sum of Rs.19,000/- per month and with the intention to knock off the goods the accused No.1 and 2 in furtherance of their common intention for a meager amount of Rs.2 Lakhs created and forged the document used it as genuine document and thereby committed the offence punishable u/s.471 r/w 34 of IPC?
5) Whether the complainant proves beyond all reasonable doubt that, on 16.9.2006 the accused No. 1 and 2 entered into Memorandum of Understanding with the complainant at Sadashivanagara to use the equipment and the premises for a sum of Rs.19,000/- per month and with the intention to knock off the goods the accused No.1 and 2 in furtherance of their common intention for a meager amount of Rs.2 Lakhs created and forged the document used it as genuine document and cheated the complainant and thereby committed the offence punishable u/s.420 r/w 34 of IPC?
6) What order ?
9. My findings on the above points are as follows:
Point No.1 : In the negative.
Point No.2 : In the negative.
Point No.3 : In the negative.
-7- CC 29004/2007 Point No.4 : In the negative.
Point No.5 : In the negative.
Point No.6 : As per the final order for the following:
REASONS
10. Point No.1 to 5 : As these points are inter-related, in order to avoid repetition of discussion they are taken together for common consideration. It is the case of the complainant that he was working in UAE, Abudabi and Dubai for about 30 years as a Manager, Administration. With an international form of Chartered Accounts. During February 2004 he returned to Bangalore to be settled here. That his wife Nalini Jayapal was qualified beautician, as such the premises of one M.P.Gangadharaiah was taken on rental basis of Rs.7000/- per month with the additional water charges of Rs.5000/- per month with a subsequent renewal period. The lease deed is also produced. That all of a sudden the wife of the complainant died in August 2005. A friend of the complainant by name Wilson proposed the name of the first accused as his wife was also beautician who could run the existing business. The complainant had faith on the words of the said Wilson and landlord and Memo of Understanding was executed between the accused No.1 and the complainant for use of the equipments and the premises for a sum of Rs.19,000/- per month w.e.f. 16.9.2006. During November 2006 BBMP had closed all the commercial aspects in the residential area. As such on 4.7.2007 the complainant got issued legal notice to the accused No.1 to collect the amount of Rs.50,000/- kept by him as a security deposit and to
-8- CC 29004/2007 hand over the premises with all the goods. Then the complainant received a telephonic call from the owner by name Gangadharaiah on 11.7.2007. that when he had gone to Tumkur the accused No.1 broke open the seal that was put by the BBMP and removed all the goods belonging to the complainant. The complainant tried to call the accused No.1 but he did not respond. As such the complainant lodged the complaint before Sadashivanagara police. The accused subsequently had issued to the reply notice on 12.7.2007 stating that the Memo of Understanding was executed as the said goods were sold to the accused No.1 for a consideration of Rs.2 Lakhs and a copy of the Memo of Understanding was also sent to the complainant. The said memo of understanding is a forged, created document. Subsequently again the complainant got issued the rejoinder to the said notice. Again on 19.7.2007 the complainant approached the jurisdictional police and handed over the letter along with the said forged document. The said document is fabricated it could never be believed that goods worth Rs.10 Lakhs could have been sold for a meager sum of Rs.2 Lakhs i.e. also the major portion of Rs.1,50,000/- being received by cash and a cheque of Rs.50,000/-. ON 3.9.2007 the landlord M.P.Gangadharaiah terminated the tenancy. The accused was waiting with other gunda elements. The complainant was assaulted by landlord as well as accused. Complainant was rescued by one Wilson and other passers by and FIR came to be registered and subsequently charge sheet came to be filed in the case. The accused persons have created the said document and they have forced the complainant to withdraw the
-9- CC 29004/2007 previous complaint. The accused persons with a criminal intention have committed criminal breach of trust by misappropriating the goods entrusted to them, forged the document and thereby the accused persons have committed all the above said offences.
11. In order to bring home the guilt of the accused, complainant has led in his evidence as PW1 and produced the documents Ex.P.1 to Ex.P.1. PW1 in his evidence has deposed that, an agreement was entered into between himself and the accused No.1 to run the said beauty parlour and a deposit of Rs.50,000/- was given to him, agreeing for an amount of Rs.19,000/- per month to be given to the complainant. But subsequently the accused No.1 failed to hand over the keys of the aid beauty parlour to the complainant. As such the complainant got issued legal notice and there were interchange of notice between the complainant and the accused No.1.
12. PW1 has produced the Ex.P.1 i.e. the original rent agreement that was entered into between the complainant and the landlord by name M.P.Gangadharaiah, that reveals the date of execution of this agreement to be 18.8.2006. Ex.P.2 is the death certificate of one Nalini Jayapal who is said to be the wife of the complainant. This document is of no help to the complainant. The version of the complainant is that, as his wife expired he had handed over the said premises to the accused No.1 to run the beauty parlor through his wife for a rent of Rs.19,000/- per month with an advance of Rs.50,000/-. That a memorandum of understanding was entered into between the accused No.1 and the complainant. Except the
- 10 - CC 29004/2007 document Ex.P.1 to Ex.P.12 the said memorandum of understanding executed between the complainant and the accused No.1 is not produced before the court. This is vital document to prove the case of the complainant.
13. Ex.P.3 is the copy of the notice issued by the complainant to the accused. Ex.P.4 is the copy of the complaint given to the SHO, Sadashivanagara police station. Ex.P.5 is the endorsement issued by the police.
14. Ex.P.6 is the photo stat copy of the reply notice i.e. given by the accused No.1 to the complainant wherein it is contended that it was not an agreement to run the business it was an agreement to sell the said equipment to the accused No.1. Ex.P.7 is the another letter issued by the complainant to the SHO, Sadashivanagara police station stating that the original memo of understanding is with the accused.
15. Ex.P.9 is the rejoinder given by the complainant. Ex.P.10 and Ex.P.11 are the certified copies of the FIR and the complaint in Crime No.32/2007. Ex.P.12 is the pass book of Canara Bank of the complainant. Ex.P.12(a) to (c) reveals, an amount of Rs.50,000/-, Rs.9500/-, Rs.19,000/- were credited to the account of the complainant. Ex.D.1 was admitted by the complainant which is the photo stat copy of the judgment in CC 23938/2007 which reveals that, the accused persons were acquitted in the said case.
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16. PW1 in the cross-examination at one point of time has deposed that, during the year 2000 he had entered into an agreement with the accused No.1. But subsequently has changed his stance saying that during the year 2003 he had entered into an agreement with the owner by name Gangadharaiah. PW1 has deposed that, he has obtained the license to run beauty parlor but no such license is produced by the complainant. At one point of time he has deposed that, there was no agreement entered into between himself and the accused No.1. Further he has deposed that there was no proximity of contract between himself and the accused No.2. That he had lodged complaint against the land owner by name Gangadhairaiah also.
17. He admits that, accused No.1 had given a cheque of Rs.50,000/-. PW1 in the further cross-examination has deposed that Ex.P.8 i.e. the photo stat copy of the statement of one V.S.Ravishankar i.e. accused No.1 was given to him by the police themselves. This Ex.P.8 cannot be relied on as the complainant is not the lawful custodian of this document. Neither it is a certified copy of the said statement. Therefore, under these circumstances Ex.P.8 cannot be relied on.
18. The complainant has the burden to prove that the said equipments were given to the accused No.1 on rental basis. That the accused No.1 subsequently has misappropriated those equipment's. In the instant case it can be seen that there is interchange of notices between the complainant and the accused. It is the version of the complainant that the equipments were given on rental basis whereas the reply notice given by the accused No.1 reveals that, the
- 12 - CC 29004/2007 complainant has executed the agreement to sell the said equipments to the accused No.1. Under these circumstances the ownership of the said equipments is in dispute.
19. In order to make out or prove the offence punishable u/s.403 or 406 of IPC the complainant has to prove that the accused was entrusted with the property of the complainant. In the instant case though the complainant by leading his oral evidence and by producing notice and the copies of the notice has proved that the said equipments were entrusted to the accused No.1, now whether the complainant had the ownership over the said equipments has to be taken into consideration. Further it is the case of the complainant that the accused No.1 had taken away the said equipments from the premises.
20. Except the interested testimony of PW1, one witness by name Wilson is examined as PW2. This witness has failed to identify the signature on the memo of understanding for less as it was a photo stat copy it was not marked. Therefore, the evidence of PW2 is of no help to the prosecution. Except the sworn testimony of PW1 none of the witnesses are examined by the complainant to prove that the said equipments were taken away by the accused No.1. As per the complaint averments it reveals that the complainant came to know about the accused No.2 only when the reply notice was given by the accused No.1 along with the copy of the memorandum of understanding which was attested by accused No.2 as a witness. Therefore, under these circumstances, the complaint averments itself reveals the accused No.2 alleged to have affixed his signature on the
- 13 - CC 29004/2007 said alleged memorandum of understanding. Except this there are no other allegations against accused No.2.
21. PW1 has admitted that, he had not entered into an agreement with the accused No.2. Therefore, the question of the accused No.2 misappropriating or tamper the document would not arise.
22. The case of the complainant is that, the said memorandum of understanding was forged and created by accused No.1 and 2. The said document is not produced before the court. It is deposed by Pw1 that original document is available with the accused No.1. No efforts are made by the complainant to secure the said documents and no efforts are made by the complainant to get the said document referred to the Forensic lab to ascertain regarding the genuineness of the said document. Therefore, under these circumstances the oral evidence of PW1 that the document i.e. memorandum of understanding is forged or created cannot be accepted. The complainant has failed to prove that the said memorandum of understanding was forged by the accused persons. The said document is not produced by the complainant before the court. Therefore, on the over all appreciation of the entire evidence available on record, the complainant has failed to prove that the accused No.1 and 2 having misappropriated the said equipments and to have created the document, used the said forged document as genuine and cheated the complainant. Therefore, the complainant has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, my finding on the above points are in the negative.
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23. Point No.6 : For having answered the above points as per the above discussion, I proceed to pass this following :
ORDER Acting U/s. 248 (1) of Cr.P.C. accused No.1 & 2 are acquitted of the offences punishable U/s.403, 406, 465, 471, 420 r/w 34 of IPC.
As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and the surety stands cancelled after the expiry of 6 months. (Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 16th day of April 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for complainant :
PW.1 : Swamy Jayapal
PW.2: Wilson
List of exhibits marked for complainant :
Ex.P.1 : Rental Agreement
Ex.P.2 : Death certificate of Nalini Jaipal
Ex.P.3 : Copy of legal notice.
Ex.P.4 : Copy of complaint
Ex.P.5 : Endorsement
Ex.P.6 : Another copy of legal notice reply
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Ex.P.7 : Copy of complaint dated 19.7.2007 Ex.P.8 : Copy of statement of Ravishankar Ex.P.9 : Copy of legal notice to Narayana Ex.P.10: Copy of FIR Ex.P.11: Complaint dated 3.9.2007 Ex.P.12: Canara Bank pass book List of M.O.s marked for complainant : NIL List of witnesses and exhibits marked on behalf of accused : NIL (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
- 16 - CC 29004/2007
16.04.2015
State by Sr.APP
Accused
For judgment
ORDER
(pronounced in open court vide separate order) Acting U/s. 248 (1) of Cr.P.C. accused No.1 & 2 are acquitted of the offences punishable U/s.403, 406, 465, 471, 420 r/w 34 of IPC.
- 17 - CC 29004/2007 As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and the surety stands cancelled after the expiry of 6 months. (Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 16th day of April 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.