Bangalore District Court
State By Yalahanka Ps vs No.2 - H.S.Nagaraj Empaneled Valuer Had ... on 27 December, 2022
KABC030104932008
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 27th day of December 2022
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 8714/2008
(Crime No.288/2007)
2. The date of commission
of the offence : 03.02.2005 to 08.08.2007
3. Name of the complainant : State by Yalahanka PS
(By Sr.APP)
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden, Geddalahalli,
Bengaluru.
(By Sri.VB, Adv.)
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
(Abated)
(By Sri.VB, Adv.)
33 CC.NO.8714/2008
A3: Puttaiah, 51 Yrs.,
S/o Lingegowda,
A4: Smt. V.Prema, 43 Yrs.,
W/o Puttaiah,
A3 and A4 are r/a. No.A-508,
Sector-3, HMT colony,
Jalahalli, Bengaluru.
(By Sri.PS, Adv.)
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : A1, A3 and A4 Convicted
8. Date of order : 27.12.2022
The Police Inspector, Yalahanka Police Station filed the Charge
Sheet against the accused No.1 to 4 for the offence punishable under
Sections 409 and 420 of Indian Penal Code (hereinafter referred as
IPC).
2. The brief facts of the prosecution case are as under :
The CW1 - Ramesh Rao filed written first information
statement contending that he was transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the month of January,
2007 as a Manager. Prior to his transfer, accused No.1 - Suresh
33 CC.NO.8714/2008
worked as Manager in the said Bank. After assuming the charges as
Manager, Head Office instructed CW1- Ramesh Rao to review the
loan accounts sanctioned by the previous Manager - accused No.1 -
Suresh. On reviewing the loan accounts he came to know that in loan
account of accused No.3 - Puttaiah became non performing asset.
On perusal of documents of the property which is mortgaged to the
Bank found that accused No.3 - Puttaiah gave an application for
sanction of loan of Rs.4,30,000/- for the purchase of house property
bearing No.25-597 situated at Agrahara, Yalahanka within the limits
of TMC, Yalahanka and his wife accused No.4 - Smt.V.Prema stood
as co-obligant to the said loan. The loan was sanctioned and the total
outstanding loan as on the date of filing of the first information
statement is of Rs.4,04,833/-. Accused No.3 - Puttaiah and accused
No.4 - Smt.V.Prema agreed to repay the said amount at prevailing rate
of 9% interest. In order to ascertain the authenticity of documents
CW1-Ramesh Rao visited the TMC, Yalahanka, Bengaluru and on
enquiry he came to know that no such khata is existed in respect of
property mortgaged in the name of accused No.3 - Puttaiah or his
vendor. He also came to know that parent deeds of the property
mortgaged i.e. Hakku Patra pertaining to the Sy. No.56, 32, 35, 48, 55
and 58 purported to be issued by the concerned BDO were fabricated
for the purpose of creation of equitable mortgage for availing the said
housing loan and in respect of said properties COD enquiry is pending
since 1983 in respect of issuance of Hakku Patra. Hence, under all
these circumstances the said property is mortgaged and CW1-Ramesh
33 CC.NO.8714/2008
Rao unable to trace the existence of the property mortgaged. Even the
empaneled valuer unable to locate the property mortgaged and
accused No.2 - H.S.Nagaraj empaneled valuer had given valuation
report knowing that such property is not existed. Hence, first
informant came to know that earlier Manager i.e. accused No.1 -
Suresh had not accompanied the valuer at the time of valuation of the
property. Hence, accused No.3 - Puttaiah and his wife accused No.4-
Smt.V.Prema who are borrower and co-obligant, accused No.2 valuer
and accused No.1 the Manager of the said Bank in collusion with each
other with intention to defraud the Bank obtained the housing loan by
depositing the fabricated documents of the property which is not
existed. On the basis of written first information statement police
registered the case under their station Crime No.288/2007 for the
offence punishable under Sections 409, 465, 468 and 420 read with
Section 34 of IPC and issued first information report.
3. During pending investigation accused No.2 appeared through
his counsel and released on bail.
4. The Police Inspector, Yalahanka Police Station after completion
of investigation filed the Charge Sheet against accused No.1 to 4 for
the offence punishable under Sections 409 and 420 of IPC.
5. My predecessor in office taken cognizance for the said offences
and registered the case in Criminal Case Register No.III and issued
summons to accused No.2 and NBW to accused No.1, 3 and 4.
33 CC.NO.8714/2008
Accused No.2 appeared after receipt of summons. Accused No.1, 3
and 4 appeared through their counsel and released on bail.
6. The copy of Charge Sheet furnished to accused as per Section
207 of Code of Criminal Procedure (hereinafter called as Cr.P.C.)
7. The contention of accused No.2 that he be discharged from the
said offences was rejected as per order dated 05.10.2016.
8. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused No.1
to 4 for the offences punishable under Sections 409 and 420 read with
Section 34 of IPC and read over and explained in Kannada language
known to them and they did not plead guilty and claimed for trial.
9. The prosecution in order to prove its case, examined totally 5
witnesses as PW.1 to PW.5 and got marked Ex.P.1 to P.14.
10. Accused No.3 and 4 got marked Ex.D.1 - statement of loan
account.
11. Accused No.2 reported as died on 05.10.2021 and case against
accused No.2 is abated as per order dated 17.12.2022.
12. As sufficient materials available on record, statements of
accused No.1, 3 and 4 under Section 313 of Cr.P.C. were recorded and
read over and explained all the incriminatory evidence available
33 CC.NO.8714/2008
against them in Kannada language known to them and accused denied
the same, accused No.1 submitted his written reply / statement and
accused No.1, 3 and 4 did not lead defence evidence.
13. I heard arguments of learned Senior Asst. Public Prosecutor,
Sri.VB, Advocate for accused No.1 and Sri.PS, Advocate for accused
No.3 and 4. I perused the reply / written statement of accused No.1
and all materials available on record.
14. The prosecution examined CW1 as PW3, CW2 as PW1, CW3
as PW4, CW4 as PW2 and CW6 as PW5. The prosecution got
marked Ex.P.1 - Sale deed, Ex.P.2 - Hakku Patra, Ex.P.3 - Report of
PW2, Ex.P.3A - first information statement, Ex.P.4 - transfer order of
accused No.1, Ex.P.5 - certificate of service of accused No.1, Ex.P.6 -
Account opening form of accused No.3, Ex.P.7 - ID cards, Ex.P.8 -
Form No.60, Ex.P.9 - loan sanction letter / order, Ex.P.10 - valuation
report submitted by accused No.2, Ex.P.11 - Statement of Loan
Account of accused No.3, Ex.P.12 - No objection certificate, Ex.P.13
- report of PW4 and Ex.P.14 - FIR.
15. In the cross-examination of PW1, accused got marked Ex.D.1 -
loan account statement of accused No.3 - Puttaiah is closed on
25.06.2014 under Bank's One Time Settlement Scheme.
16. Sri.VB, advocate for accused No.1 contended and argued that
prosecution alleged that accused have created No Objection
33 CC.NO.8714/2008
Certificate and Hakku Patra but the Investigating Officer after
completion of investigation filed charge sheet against the accused
No.1 along with other accused for the said offences and he left Section
465 and 468 of IPC. Hence, the allegations of forgery against accused
is not proved. As per investigation and materials placed on record till
this day the prosecution has not produced the Bank loan account
application form, legal opinion, memorandum of deposit of title deeds
and other documents. The accused No.1 is not having any duty to go
through the documents. But accused No.1 obtained legal opinion on
the loan documents and sanctioned loan to accused No.3 as per
Banking Rules. But the prosecution has not examined the legal
advisor or the person who gave the legal opinion on documents. The
accused have not disputed about the execution of Ex.P.1 sale deed.
The PW3 - Ramesh Rao or PW5 the Investigating Officer have not
physically verified about the existence of property mortgaged. PW1 -
Sub Registrar is a hearsay witness and he is not having any personal
knowledge about the facts. PW4 is not a person to speak about the
Ex.P.12 NOC and Ex.P.2 Hakku Patra. But the proper persons are the
concerned Taluk Panchayath officials to speak about the property
mortgaged to the Bank and its existence. The officials of BBMP are
not the proper persons to speak about the Ex.P.12 -NOC or Ex.P.2
Hakku Patra or the existence of the property. The entire charge sheet
is based on the report and evidence of PW4. But he is not the proper
person to speak about the existence of the property. As per Ex.P.9
loan sanction order loan amount is credited to the account of vendor
33 CC.NO.8714/2008
of the property mortgaged. But the Investigating Officer has not
examined the vendor of the property to prove the allegations made
against him. The prosecution has to prove the allegations of guilt of
the accused beyond all reasonable doubt. But in the present case the
prosecution has not proved the guilt of the accused. Hence, because
of said grounds benefit is to be given to the accused No.1. The
prosecution has not produced crucial documents and examined owner
or seller of the property and it also not examined officials of the Bank.
Absolutely prosecution has not proved the nexus between the accused
No.1 with accused No.3 and 4. In the present case nothing is
entrusted to accused No.1. Accused No.1 discharged his duties as per
Banking Rules. Accused No.1 has not cheated any person. Hence,
prays to acquit the accused No.1.
17. Sri.PS, advocate for accused No.3 and 4 contended and argued
that accused have paid the entire loan amount to th efirst informant
Bank and the Bank issued Ex.D.1 loan accountstatement of accused
No.3. Hence, the Investigating Officer has not ascertained whereand
who created the alleged Ex.2 - Hakku Patra and Ex.P.12 - NOC. As
per contents of Ex.P.1 - sale deed all the original documents are
handed over to accused No.3 after execution of Ex.P.1 - sale deed. But
the Investigating Officer has not examined the owner or the vendor of
the property mortgaged as to the existence of the property. Ex.P.13 -
report is issued by PW4 - Thippeswamy of Taluka Panchayath. But
as per Ex.P.2 - Hakku Patra it is issued by Block Development
33 CC.NO.8714/2008
Officer, Bengaluru North Taluk. Under such circumstance the
prosecution failed to examine the relevant witnesses to prove its case.
The loan amount is credited to the vendor or original owner but
Investigating Officer has not examined the original owner or vendor
of the property or arrested and made him as a accused in the present
case, because accused No.3 and 4 received the said documents from
original vendor or owner of the property mortgaged. The
Investigating Officer also not freezed or seized the account from the
original vendor or owner of the property. The accused No.3 and 4
attended the court regularly for a last 14 years. Hence, the accused
No.3 and 4 are age old persons and have not committed any of the
offences. Hence, under all these circumstances the prosecution failed
to prove its case against accused beyond all reasonable doubt and
prays to acquit the accused No.3 and 4.
18. It is the case of the prosecution that the accused No.3
approached to the accused No.1 - Suresh, Branch Manager, Karnataka
Bank Limited, Sahakara Nagar branch, Bengaluru that he want to
purchase the house property bearing site No.25-597, situated at
Agrahara, Yalahanka and applied for loan in the first informant Bank.
The accused No.3 opened the Bank account in the first informant
Bank and prosecution produced Ex.P.6 account opening form and
introduction column is not filled. Even then accused No.1 allowed
his application and opened the account in the first informant Bank as
Account No.1212500100113901. The accused No.3 furnished his
33 CC.NO.8714/2008
Ex.P.7 - voter ID and HMT company ID card as his address proof.
The accused No.3 mentioned his wife accused No.4 as a nominee in
Ex.P.6 - Account opening form.
19. The accused No.3 in order to obtain loan from the said Bank he
produced the Ex.P.2- Hakku Patra, Ex.P.12 - No Objection Certificate
of Block Development Officer, Bangalore North Block, Yalahanka,
Bengaluru. Hence, on the basis of these documents accused No.3 want
to purchase house site No.597, khata No.1808 situated at Agrahara,
Yalahanka. Accused No.1 - Branch Manager of Karnataka Bank
Limited, Sahakara Nagar branch and accused No.2 Valuator of the
property in the said Bank without visiting the property and verifying
as to the existence of said property issued Ex.P.10 - valuation report.
Hence, on the basis of Ex.P.2 Hakku Patra, Ex.P.12 no objections
certificate and Ex.P.10 valuation report accused No.1 sanctioned the
loan of Rs.4,30,000/- as per Ex.P.9 loan sanction order and credited to
the account of accused No.3. Accused No.4 who is wife of accused
No.3 and stood as co-obligant to the said loan. In order to show that
the said amount is credited to the account of accused No.3 produced
the Ex.P.11 statement of account of accused No.3.
20. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru produced
Ex.P.4 transfer order of accused No.1 and Ex.P.5 Letter/certificate of
service issued by the then Branch Manager, Karnataka Bank Limited,
33 CC.NO.8714/2008
Sahakaranagar branch certifying that accused No.1- Suresh M.
worked as a Branch Manager of said branch from 28.03.2004 to
12.12.2006.
21. Deputy General Manager, HR & IR, Karnataka Bank Limited
transferred accused No.1 from the said branch. Thereafter PW3-
Ramesh Rao assumed the charge of Branch Manager, Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru city. In the Ex.P.3A -
first information statement and also in the evidence of PW3 stated that
after transfer of accused No.1, he assumed the charge of Branch
Manager of the said Bank. The Head Office, Karnataka Bank Limited
instructed and directed PW3 - Ramesh Rao, Manager, Karnataka Bank
Limited, Sahakaranagar Branch to review the Non Performing Assets
loan accounts which sanctioned during the period of accused No.1.
Accordingly PW3-Ramesh Rao reviewed all loan accounts sanctioned
during the service of accused No.1 and he came to know that 24 loan
accounts which are relating to the housing loan found that property
khata are not existed and among them one of the present loan account
of accused No.3. Hence, PW3 specifically deposed as
"ನನನ ಒಒದನನ ಆರರನಪಯ ಅವಧಯಲ ನನಡಲದ ಮನ
ಸಲದ ಖತಗಳನನ ನ ಪರಶನಲನ ಮಡನವ ವನಳಯಲ
ಯಲಹಒಕ ಸರಹದದ್ದಿನಲ ಬರನವ ಟಿಎಒಸ ಗ ಹರನಗ ದಾಖಲೆಗಳನನ
ನ
ಪರಶನಲನ ಮಡಿದ. ಆ ರನತ ಪರಶನಲನ ಮಡಿದಾಗ ಆ ಆಸಸ್ತಿಗಳನ
3 ನನ ಆರರನಪಯ ಹಸರಗ ಇಲಲದರನವ ಬಗಗ ಕಒಡನ ಬಒತನ.
ಪರಶನಲನ ಮಡನವ ವನಳಯಲ ಸನಮರನ 25 ಸಲದ
ದ್ದಿ ಸದರ
ಖತಗಳನ ಮನಯ ಸಲಕಕ ಸಒಬಒಧಪಟಟ ಖತಗಳಾಗದನ
33 CC.NO.8714/2008
ಸಸತಸ್ತಿಗ ಸಒಬಒಧಸದಒತ ಯಾವುದನ ಖತಗಳನ ಇಲಲ ಎಒದನ ಕಒಡನ
ಬಒದವು."
22. PW3 - Ramesh Rao visited the TMC, Yelahanka office to verify
the khata of site No.597 and he came to know that Ex.P.2 - Hakku
Patra is not issued by the B.D.A, Bengaluru and created Ex.P.2 -
Hakku Patra. He also came to know that Ex.P.12 - no objection
certificate is also not issued by concerned office and it is also created.
Accordingly, PW3 - Ramesh Rao, Branch Manager of said branch
informed the same to the Head Office. The Head Office instructed
and directed to file first information statement against accused
persons. PW3 - Ramesh Rao, Branch Manager lodged the Ex.P.3A
first information statement stating that accused No.1 and 2 without
physically visiting and verifying the existence of the property
submitted Ex.P.10 - valuation report and sanctioned the loan and
thereby committed the said offences.
23. PW3 in his evidence specifically stated and deposed as
"ಬಡಿಎ ಕಛನರಯಲ ಹಕನ
ಕ ಪತ ತ ಮಒಜರರಗದನ ಇರನವುದನ ಕಒಡನ
ಬಒತನ. ಸದರ ದಾಖಲೆಗಳನನ
ನ ಸಲ ಪಡಯನವ ಉದಶಕಕಗ
equitable mortgage ಮಡನವ ಸಲನವಗ ಸಸಷಟಸದರ ಎಒದನ
ಕಒಡನ ಬಒತನ. ಆನಒತರ ಸಸಳಕಕ ಹರನಗದನ ಆಸಸ್ತಿಯ ಬಲೆ ಬಗಗ
valuation report ಕರಟಿಟದರ ಎಒದನ ಮಹತ ಗರತಸ್ತಿಯತನ.
ಎರಡನನ ಆರರನಪ valuator ಎಒದನ ಗರತಸ್ತಿಯತನ. Valuator
ಜರತ ಬಬಒಕ ಮಬನನಜರ ಹರನಗ ನರನಡಿಲಲ. ಆಗ ಒಒದನನ
ಆರರನಪ ಬಬಒಕಮಬನನಜರ ಆಗದದ್ದಿರನ."
33 CC.NO.8714/2008
24. The PW3 identified the Ex.P.3A first information statement and
his signature in it. Here the prosecution in order to show that the first
informant Bank sanctioned the loan in favour of accused No.3 and 4
produced the Ex.P.9 loan sanction order which discloses the fact that
Rs.4,30,000/- credited to the account of accused No.3. Hence, in
order to show that the loan amount of Rs.4,30,000/- credited to the
account of accused No.3 produced the Ex.P.11 - statement of loan
account of accused No.3. The prosecution produced the Ex.P.2 Hakku
Patra and Ex.P.1 sale deed dated 05.02.2005 and Ex.P.12 no objection
certificate.
25. Here, on the basis of Ex.P.2 and Ex.P.12 accused No.3 and 4
applied for sanction of loan from the first informant Bank alleging that
they want to purchase the house property bearing site No.597, khata
No.1808 of Agrahara, Yalahanka. The prosecution examined the PW1
Retired Sub Registrar, Bengaluru. In his evidence stated that,
Muniraju S/o Govindappa wanted to sell the house site No.597 in
favour of accused No.3 and produced the Ex.P.2 and Ex.P.12 and
received Government Fee on Ex.P.1 and he registered the Ex.P.1 Sale
deed. The PW1 identified his signature in Ex.P.1 sale deed which is
marked as Ex.P.1(a). Later the Investigating Officer enquired him
and then he came to know that in order to obtain loan from the first
informant Bank Ex.P.2 - Hakku Patra and Ex.P.12 - no objection
certificate are created. The advocate for accused No.1, 2, 3 and 4
cross-examined the PW1 but nothing is elicited in order to show that
33 CC.NO.8714/2008
Ex.P.2 - Hakku Patra and Ex.P.12 - no objection certificate are
genuine and said property is existed. In the cross-examination of
PW1 it is suggested that he has not visited the property and verified
the existence of the property. But the duty of Sub Registrar is only to
register the deeds which have been presented to him after receipt of
Government charges. Hence, it is not the duty of the Sub Registrar to
visit each of the properties before he registers the deed. Hence, the
Ex.P.1 sale deed shows as if Muniraju S/o Govindappa executed the
sale deed in respect of house site No.597 in favour of accused No.3 -
Puttaiah. In fact the said property is not existed at all even then
accused No.3 presented it for registration and got registered the sale
deed as per Ex.P.1. Further accused No.3 used the Ex.P.1 sale deed as
if it is genuine and the said property is existed and on the basis of it
and other document obtained loan of Rs.4,30,000/- from the first
informant Bank. Hence, for the said loan accused No.4 stood as a co-
obligant. All these illegal acts of accused show that in order to gain
wrongfully and to cause wrongful loss to the first informant Bank and
with dishonest intention obtained the loan from the first informant
Bank.
26. Hence, looking at the evidence of PW3 and PW1 coupled with
Ex.P.2 - Hakku Patra, Ex.P.1 sale deed and Ex.P.12 no objection
certificate, it is clear that Ex.P.2 - Hakku Patra and Ex.P.12 no
objection certificate are created and they are not issued from the office
of PW4. Here, the PW3 - Ramesh Rao deposed that after transfer of
33 CC.NO.8714/2008
accused No.1 from the Karnataka Bank Limited, Sahakaranagar
Branch, Bengaluru, he assumed the charge and Head Office directed
him to verify the loan accounts sanctioned by accused No.1 during his
period which are non performing assets. Accordingly, after
verification PW3 - Ramesh Rao came to know that 24 loan accounts
which are non performing assets out of which the present loan account
is also one among them. PW3 specifically deposed that when he
verified the documents and visited the concerned Government office
he came to know that Ex.P2 and Ex.P.12 are created. He tried to
search the site No.597 but such property is not existed at all. Hence,
the accused No.1 and 2 with common intention without visiting the
spot issued Ex.P.10 - Valuation Report and thereby sanctioned the loan
in favour of accused No.3. On perusal of Ex.P.10 it is specifically
mentioned that accused No.2 visited the spot i.e. site No.597, Khata
No.1808 at Agrahara, Yalahanka Hobli, Bengaluru North Taluk on
03.02.2005 with accused No.1 and in the Ex.P.10 valuation report of
the property mentioned as :
"I have inspected the property belonging to Sri.Muniraju and the report of
valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 29 years
panel
2. Date of visit : 03.02.2005
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at : Sri.Puttaiah
the site proposed buyer of the property
33 CC.NO.8714/2008
5. Name & branch head accompanied and : Sri. Suresh, Manager,
his designation Karnataka Bank Ltd., Sahakaranagar
Branch, Bangalore.
6. Details of the property : : Sri.Muniraju S/o Govindappa, Agrahara
a) Name and address of the owner Layout, Yelahanka Hobli, Bangalore
North Tq.,
b) Complete address of the property : Site No.597, Agrahara Layout, Yalahanka
Hobi, Bangalore North Tq.
Door No. / site No. / Sy. No. : Site No.597
Proposed buyer of the property : Sri. Puttaiah,
S/o Lingegowda, No.A 508, Sector - 3,
HMT Colony, Bangalore - 560 031.
c) Extent of land : North to South : 30'0"
East to west : 40'0"
= 1200.00 sft.
d) Boundaries of property : North by : Property bearing No.596
South by : Property bearing No.598,
East by : Property 601
West by : Road
e) Type / class of construction : Class II
7. Details of the building
i) Whether building constructed strictly : Yes
according to the sanctioned plan
Area of building : GF = 700.00 sft.
ii) year of construction : 2003
iii) If building under construction (give : Building already constructed
full details)
iv) Any additions improvement carried : Nil
out
vii) Cost of construction : Rs.4,55,000.00
viii) Amount of depreciation written : Nil
down
ix) Present value : Rs.4,55,000.00
x) Present condition / state of building : Good
7. Present market value :
Land 1200.0 sft. @ 500/- : 6,00,000.00
33 CC.NO.8714/2008
Building 4,55,000.00
Total Rs.10,55,000.00
Basis of present value :
a. Present depreciated value : Rs.10,55,000.00
b. Market value : Same as above
c. Rate adopted : Rs.500.00 per sft. - Site
Rs.650.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site in
this area and construction cost of building
as on that date
e. In case of sale by the bank what will
be the distress sale value : Rs.9,00,000.00
f. whether whole or part of the property
notified for acquisition : No
h. Location of the property : This is located very near to the main road
in a middle class residential area
i. Classification of locality : Middle class
j. Civil amenities : Available
k. Proximity to surface communication : Good
l. Distance from city / corporation limits : Inside Yelahanka CMC limits
m. Distance from central bus stand : 17 kms
n. Distance city railway station : 17 kms
o. Distance from Corporation office : 19 kms
p. Distance from Sahakaranagar Branch : 8 kms
Details of tax paid Year of Assessment Amount Date of tax paid
CMC tax 2004-2005 Rs.321/- 27.01.2005
Particulars of insurance : Not yet done
10. Since how long owing the property : As per document
12. Type of ownership : Sole
15. Purchase price : Has been allotted by the government free
of cost
16. Whether self occupied : Rented
17. No. of tenants :1
18. Total monthly income : Rs.2000/-
19. Whether independent house : Independent house
33 CC.NO.8714/2008
20. In which floor is located : GF
21. Service items available : CMC water connection is provided
22. If the property is residential : Yes
23. a) Any encroachment tenancy and
other negative aspects : No
b) Are there any slums around this
property : No
c) Is there any burial ground or lake near
by : No
24. Whether the property valued earlier, If : No
so
Details of construction :
Foundation : Size stone masonry in CM has been done
Super Structure : Table moulded brick masonry in CM, plastered on both side in CM
has been done.
Roofing : RCC slab has been laid for both the floors
Flooring : Mosaic flooring has been done
Doors & windows : Mathi & honne wood doors and windows are provided.
Electrification : AHE facilities has been provided.
Water supply : CMC water supply is provided
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Ten lakhs fifty five thousand only.
Declaration :
a. I hereby declare that the information furnished above is true to the best of my
knowledge and belief.
b. I have no direct or indirect interest in the property valued
c. I have inspected the property personally on 03.02.2005
d. I have not been found guilty of misconduct in my professional capacity.
CERTIFICATE
I have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same."
33 CC.NO.8714/2008
27. Hence, looking at the contents of Ex.P.10 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the site
No.597 at Agrahara, Yalahanka Hobli. It is also important to note that
accused No.2 signed to it and accused No.1 signed the certificate.
Hence, the accused No.1 who is Manager and accused No.2 who was
Valuator of the property of Karnataka Bank Limited, Sahakaranagar
Branch, Bengaluru without visiting the spot issued Ex.P.10 valuation
report. Further accused No.1 sanctioned loan of Rs.4,30,000/- in
favour of accused No.3 as per Ex.P.9 - loan sanction order to which
accused No.4 stood as co-obligant and credited the said amount in the
account of accused No.3 and the same is mentioned at Ex.P.11 loan
account statement of accused No.3. Here, the advocate for accused
cross-examined the PW3 but nothing is elicited in order to prove the
fact that said house property bearing site No.597, khata No.1808, Sy.
No.25, Agrahara Layout is existed. In the cross-examination PW3
specifically stated that he visited the concerned Government offices
and tried to locate the property but said property is not existed and he
unable to locate the property and thereby accused cheated first
informant and misappropriated the said amount. He also deposed that
when loan account of accused No.3 became non performing asset it
revealed that accused No.1 to 4 cheated Bank. He also deposed in the
cross-examination that valuator of the Bank valuing the property
which showed by the borrower. Hence, the fact remains as it is that
accused No.1 and 2 issued Ex.P.10 valuation report as if they visited
the site No.597, khata No.1808, Sy. No.25, Agrahara village,
33 CC.NO.8714/2008
Yalahanka Hobli, Bengaluru North Taluk as mentioned and extracted
above from Ex.P.10 and which itself speaks that as if accused No.1
and 2 visited the spot and prepared the valuation report of the said
property. Ex.P.10 contains the declaration and signature of accused
No.2 and certificate of accused No.1. Hence, looking at the evidence
of PW3 with PW1 and PW4 and Ex.P.6 - account opening form,
Ex.P.9 - loan sanction order, Ex.P.10 - valuation report, Ex.P.2 -
Hakku Patra, Ex.P.12 - No Objection Certificate, Ex.P.11 - statement
of account of accused No.3 and Ex.P.13 - report establishes the fact
that accused No.1 and 2 without visiting the said site property
prepared Ex.P.10 valuation report and on the basis of Ex.P.2 - Hakku
Patra and Ex.P.12 - No Objection Certificate sanctioned loan of
Rs.4,30,000/- in favour of accused No.3 and 4 for the purchase of said
site property as per Ex.P.1 sale deed and said property is not existed
at all.
28. On the basis of Ex.P.3A - first information statement PW5
registered the Ex.P.14 - first information report. PW5 deputed PW2
and CW5 for the search of accused No.1, 3 and 4 who were
absconded. PW2 in his evidence deposed that CW5 and he searched
the accused No.1, 3 and 4 but they did not find them and on enquiry
they came to know that after registration of this case accused No.1, 3
and 4 absconded and to that effect he gave his Ex.P.3 - report.
29. PW5 in his evidence specifically stated that he arrested accused
No.2 and released on bail as per order of Hon'ble Court. He also
33 CC.NO.8714/2008
deposed that he received Ex.P.4 appointment and transfer order of
accused No.1 to the Karnataka Bank Ltd., Sahakara Nagar Branch,
Bengaluru, Ex.P.5 - certificate of service of accused No.1 in the said
Bank, Ex.P.6 - account opening form, Ex.P.7 - ID cards, Ex.P.8 - form
No.60, Ex.P.9 - loan sanctioned order, Ex.P.10 - valuation report,
Ex.P.12 - NOC, Ex.P.2 - Hakku Patra, Ex.P.1 - sale deed and Ex.P.11
statement of loan account of accused No.3. He also deposed that he
received Ex.P.13 report from the PW4 wherein it is stated that Ex.P.2 -
Hakku Patra and Ex.P.12 NOC are not issued from the Block
Development Office, Bengaluru North Block. Hence on the basis of
investigation accused persons to get the amount from the Bank on the
basis of created document obtained loan and cheated Bank. Accused
No.1 on the basis of created documents sanctioned loan and thereby
accused persons misappropriated the amount and cheated the Bank.
He filed charge sheet against accused No.1 to 4. Here, advocate for
accused cross-examined the PW3 and in cross-examination he
specifically deposed that he asked information from PW4 as to the
Ex.P.2 - Hakku Patra and Ex.P.12 - NOC whether they are original or
duplicate. PW4 stated that they were not issued from his office. But
he has not examined Muniraju who gave them to accused No.3 and 4.
In the cross-examination, in order to disprove the case of prosecution
accused have not elicited any of material facts except the denial of his
evidence. Here the PW5, who is Investigating Officer after
investigation came to know that on the basis of created documents
accused No.3 and 4 obtained the loan and accused No.1 and 2 without
33 CC.NO.8714/2008
visiting the site issued Ex.P.10 - valuation report and accused No.1
sanctioned the loan. Hence, looking at all the materials placed on
record accused No.1 is entrusted with property i.e., money and he is
having dominion over the money of the Bank to sanction loan to the
customers who fulfills the conditions of Bank. He is having duty
towards the Bank while sanctioning the loan. The accused No.2 was
the Valuator of the Bank. Hence, accused No.1 and 2 under duty to
visit the spot and submit the valuation report to the first informant
Bank. But accused No.1 and 2 with dishonest intention concealed the
fact of non existence of said property and also deceived the first
informant Bank as if they visited the property and prepared the
Ex.P.10 - valuation report and submitted to the first informant Bank.
Hence, on the basis of false Ex.P.2 - Hakku Patra, Ex.P.12 - No
Objection Certificate sanctioned loan of Rs.4,30,000/- in favour of
accused No.3. Accused No.1 knows that in order to open the account
in Bank one of its customers shall introduce and sign as introducer in
the account opening form. But accused No.1 knowing the fact that in
the Ex.P.6 introduction column is not filled and no one is introduced
even then opened the account of accused No.3 in the first informant
Bank. Hence, the accused No.1 who is employee of first informant
Bank caused wrongful loss to the first informant Bank by disbursing
loan in favour of accused No.3. Here accused No.3 who borrowed
loan of Rs.4,30,000/- from the first informant Bank he did not repay
the said loan amount to the Bank and account became NPA. Accused
No.4 stood as a co-obligant to the said loan. Here accused No.3
33 CC.NO.8714/2008
obtained the loan on the basis of Ex.P.2 - Hakku patra, Ex.P12 NOC
and Ex.P.1 sale deed. Hence, PW.1 deposed that he registered Ex.P.1
sale deed. Accused No.3 who knew that Site No.597, Khata No.1808
is not existed at all even then he applied for the loan to first informant
Bank and obtained loan of Rs.4,30,000/-. Hence, to show the same
prosecution produced Ex.P.9 Loan Sanction order and Ex.P.11
statement of loan account of accused No.3. Hence, as per evidence of
PW1 and looking at Ex.P.3A first information statement and Ex.P.11
statement of loan account of accused No.3 as on date of filing of
Ex.P.3A first information statement outstanding loan is of
Rs.4,04,833/-. Here as per Ex.P.10 valuation report it is stated and
mentioned that as if accused No. 1 and 2 visited the site No.597,
Agrahara village but in fact the said Site property is not existed.
Hence, accused No.1, 2, 3 and 4 with common intention to cheat the
first informant Bank Accused No.1 sanctioned the loan in favour of
accused No.3. Hence, accused No.3 knowing that said property is not
at all existed even then applied for a loan and obtained loan from the
first informant Bank and thereby cheated the first informant Bank.
Hence, expression entrusted in Section 409 of IPC is used in wide
sense and include in all cases in which property is voluntarily handed
over for a specific purpose and is dishonestly disposed of contrary to
the terms on which possession has been handed over. Hence accused
No.1, 2, 3 and 4 knowing well that said property is fictitious even then
as per Ex.P.9 loan was sanctioned and credited in the account of
accused No.3 which is shown at Ex.P.11 - statement of loan account
33 CC.NO.8714/2008
of accused No.3. Hence, to the said loan accused No.4 stood as a co-
obligant. Hence, accused No.3 and 4 did not repay the loan amount
and thereby caused wrongful loss to the first informant Bank. Hence,
accused No.1 and 2 with accused No.3 and 4 cheated the first
informant Bank.
30. Accused No.1, 3 and 4 argued that loan amount is already repaid
to the Bank and the Bank issued statemetn of loan account as per
Ex.D.1. Hence, when the loan amount is repaid the present case
against accused No.1, 3 and 4 would not survive and prays to acquit.
31. In the present case accused No.3 and 4 have not compromised
the case with first informant i.e. Karnataka Bank, Sahakara Nagar
Branch, Bengaluru. It is also important to note that the offence
punishable under Section 409 of IPC is non compoundable in nature
and it is not included in the list mentioned under Section 320(1) and
(2) of Cr.P.C. In the present case the evidence placed on record as
stated and discussed above prima facie proved the guilt of accused
persons. In view of above said reasons, contentions and arguments of
accused No.1, 3 and 4 would not survive for consideration.
32. Hence, prosecution proved through its oral and documentary
evidence essential ingredients of Sections 409 and 420 read with
Section 34 of IPC against accused No.1, 3 and 4. Hence, prosecution
proved its case beyond all reasonable doubt and in view of above
33 CC.NO.8714/2008
stated facts, circumstances, evidence and reasons I proceed to pass the
following :
ORDER
Acting under Section 248(2) of Code of Criminal Procedure accused No.1, 3 and 4 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Looking at facts and circumstances of case and nature of offences accused No.1, 3 and 4 are not entitled for benefits under Probation of Offenders Act.
Hence, case is posted for hearing on sentence.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 27th day of December 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 submitted that he and accused No.2 visited the spot and prepared valuation report. The legal opinion had taken from the penal advocate. Thereafter as per Banking Rules loan was sanctioned and DD was issued in the name of seller. Accused submitted he has not committed any offence. Hence, accused No.1 submitted to impose minimum sentence or fine only.
33 CC.NO.8714/2008Accused No.3 submitted that he has not committed any of the alleged offence. The Bank had filed O.S. No.5420/2013 for recovery of loan amount. The matter was settled in Lok Adalath and accused No.3 and 4 paid settlement amount to the Bank and produced Bank Account statement as per Ex.D.1. Bank officials have withdrawn original suit but they have not withdrawn this case. Accused No.3 also submitted that he and his wife accused No.4 attending the court regularly. Accused No.3 also submitted that he is a heart patient, underwent 3 times angioplast and his children are not looking after him and accused No.4. Hence, prays to impose minimum fine only.
Accused No.4 submitted that she has not committed any of the alleged offence and she has not received any of the loan amount. The entire loan amount is repaid to the Bank. The complainant also admitted that he received entire loan amount and produced Ex.D.1 - statement of account. Hence, prays to release and acquit.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1, 3 and 4 and prays to impose maximum sentence on accused No.1, 3 and 4.
33 CC.NO.8714/2008This is a 2008 case. Accused No.1, 3 and 4 appeared through out trial. It appears that accused No.1, 3 and 4 are aged persons. Hence, taking into note of age of accused No.1, 3 and 4, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1, 3 and 4 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years, accused No.3 and 4 are hereby convicted and sentenced to undergo simple imprisonment of six months each and accused No.1, 3 and 4 shall also pay fine of Rs.10,000/- each for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1, 3 and 4 shall undergo simple imprisonment of 2 months each.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years, accused No.3 and 4 are hereby convicted and sentenced to undergo simple imprisonment for a period of six months each and shall also pay fine of Rs.10,000/- each for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, 33 CC.NO.8714/2008 accused No.1, 3 and 4 shall undergo simple imprisonment of 2 months each.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the investigation and trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1, 3 and 4 immediately at free of cost.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 27th day of December 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Anna Rajan PW.2 : Mallegowda PW.3 : Ramesh Rao PW.4 : Thippeswamy PW.5 : M. Prabhushankar
List of exhibits marked for prosecution:-
Ex.P.1 : Sale deed
Ex.P.1(a) Signature of PW1
Ex.P.2 : Hakku Patra
Ex.P.3 : Report of PW2
Ex.P.3(a) Signature of PW2
Ex.P.3(b) Signature of PW5
33 CC.NO.8714/2008
Ex.P.3A : First information statement Ex.P.3A(a) Signature of PW3 Ex.P.4 : Transfer order of accused No.1 Ex.P.4(a) Signature of PW5 Ex.P.5 : Certificate of service of accused No.1 Ex.P.5(a) Signature of PW5 Ex.P.6 : Account opening form of accused No.3 Ex.P.6(a) Signature of PW5 Ex.P.7 : Voter ID card Ex.P.8 : Form No.60 Ex.P.9 : Loan sanction letter / order Ex.P.10 : Valuation report submitted by accused No.2 Ex.P.10(a) Signature of PW5 Ex.P.11 : Statement of Loan Account of accused No.3 Ex.P.11(a) Signature of PW5 Ex.P.12 : No objection certificate Ex.P.12(a) Signature of PW5 Ex.P.13 : Report of PW4 Ex.P.13(a) Signature of PW4 Ex.P.13(b) Signature of PW5 Ex.P.14 : First Information Report Ex.P.14(a) Signature of PW5 List of M.Os marked for prosecution:- Nil List of witnesses examined on behalf of accused :- Nil List of exhibits marked on behalf of the accused:-
Ex.D.1 : Statement of account of accused No.3.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.