Bangalore District Court
B.M. Road vs 2 Nd Floor on 1 March, 2023
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
PRESENT
SRI.OONKAR MURTHY K.M.,
B.Sc., L.L.M.,
XIV Addl. C.M.M., Bengaluru
DATED ON THIS 1 st DAY OF MARCH 2023
CASE NO C.C. NO.51455/2021
Sri. Gopi
S/o. T. Jayaram
Aged about 58 years,
R/at 'SQS' Color Lab,
COMPLAINANT B.M. Road, Robertsonpet,
K.G.F.
(By Sri. K.P. Murali - Adv.,)
Sri. Venkatesh
S/o. M. Kannan
Aged about 50 years,
R/at No.S.F-5, Balaji Nest,
ACCUSED 2 nd Floor, 2 nd Main,
Basappa Layout, Hennur Cross,
H.B.R Layout,
Kalyan Nagar Post,
Bengaluru.
(By Sri. Suresh S. Lokre - Adv.,)
2
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER
Accused is acquitted
Digitally signed by
ONKARMURTHY ONKARMURTHY K M
KM Date: 2023.03.01
16:48:22 +0530
(OONKAR MURTHY K.M)
XIV ADDL. C.M.M.,
BENGALURU
JUDGMENT
This complaint is filed under Sec.200 of Cr.PC against the accused alleging offense punishable under Section 447, 451, 468, 379, 380, 415 and 420 of IPC.
The prosecution case against the accused briefly stated thus;
2. The complainant is permanent resident of K.G.F and is running a photo studio under the name and style of "SQS color lab" situated at B.M. Road, Robertsonpet, K.G.F. He had purchased property next to his photo studio and started construction in the year 2014 by demolishing the earlier building. He had constructed a 3 commercial complex worth more than Rs.2 crores with ground floor and three other floors with number of shops and rented/leased to different persons. The tenants are in occupation of the said building.
2.1) For running his business, the complainant used to keep the cheques, documents and money in his "SQS color lab" for convenience.
2.2) On 31.08.2018 the complainant received an SMS alert from Corporation Bank in respect of presentation of cheque bearing No.55873. Immediately the complainant approached the bank with complaint that his cheque has been misused by unknown person and sought for details of the cheque and the person who has presented the cheque. The bank expressed its inability to furnish the details of the person who presented the cheque. Immediately, the complainant after verifying his shop premises came to know that a cheque book which was obtained from the bank for his personal requirements and for his business, was found missing and were stolen away by some unknown person. Immediately on 31.08.2018, he had lodged a complaint before Robertsonpet Police for 4 which acknowledgment under N.C.R No.313/2018 dtd.31.08.2018 has been issued.
2.3) On 29.09.2018 the complainant was shocked to receive a legal notice from the accused alleging dishonor of his cheque. Till receipt of the legal notice, he was not aware of whereabouts and identity of the accused person. After receiving the notice, he learnt that the accused might have trespassed into his shop and stolen away cheques and documents from his shop, misused it, forged his signature and presented the cheque for encashment and thereby has cheated him.
2.4) Immediately, he rushed before Robertsonpet Police Station and lodged a complaint. But the police had refused to register the case and to take any legal action against the accused though information of cognizable offense was brought to their notice. Simultaneously he has also instructed his counsel to send reply notice.
2.5) In view of the refusal of Robertsonpet police to register a case, he had approached Superintendent of Police, Champion Reef, K.G.F and Dy. Superintendent of Police, Champion Reef, K.G.F and lodged complaint before 5 them for which acknowledgments have also been issued by them on 02.10.2018. But no action has been taken on his information by the police.
2.6) He has not seen the accused nor borrowed any amount from him. He has not executed any documents in his favour. The claim of the accused under the alleged cheque is nothing but an act of extortion. Therefore, the accused has committed the offense punishable under Section 447, 451, 468, 379, 380, 415 and 420 of IPC. Hence, the complaint.
3. Initially the complaint was filed before Sr. Civil Judge & JMFC., K.G.F, and cognizance has been taken for the alleged offenses by registering a private complaint in PCR. No.134/2018. After recording Sworn statement of the complainant and on hearing the complainant and by considering the materials produced, summons has been issued to the accused by registering the criminal case in C.C.No.34/2019. After service of summons, the accused has appeared before the said court and has pleaded for bail. The accused has been enlarged on bail.
64. Thereafter, when the matter was posted for evidence before charge, the complainant has filed Crl. Pet. No.2190/2019 with a prayer to make over C.C. No.34/2019 arising out of PCR. No.134/2018 pending before Sr. Civil Judge & Prl. JMFC., K.G.F and C.C. No.59240/2018, arising out of PCR No.57582/2018 pending before XIV ACMM., Mayohall, Bengaluru to any one of the courts. Vide order dtd.19.01.2021 the Hon'ble High Court has transferred this case i.e., C.C. No.34/2019 pending before Sr. Civil Judge & Prl. JMFC., K.G.F to the XIV ACMM., Mayohall, Bengaluru for disposal with a direction to both parties to appear before this court on 12.03.2021. This court has received the entire records on 01.03.2021 and was registered a new C.C. No.51455/2021. Both parties have appeared on 12.03.2021 and the matter was posted for evidence before charge. The complainant has led his evidence before charge as PW.1 and has produced some documents. After hearing the both parties, this court vide order dtd.16.02.2022 has held that there are sufficient grounds to frame charges against the accused. The said order has been challenged by the accused in Crl. Rev. Pet. No.25019/2022 and the same has 7 been dismissed on 08.03.2022. Thereafter, charges have been framed for offenses punishable under Section 447, 451, 379, 380, 420 and 468 of IPC. The accused has pleaded not not guilty and claims to be tried.
5. In order to prove the guilt against the accused, the complainant has examined himself as PW.1 and relied on the documents marked at Ex.P1 to P13. The incriminating circumstances in the evidence of prosecution witness was read over and explained to the accused and his statement under Sec.313 of Cr.PC was recorded. The accused asserts that the complainant has issued cheque. Further states that complainant along with his son has also executed a bond paper in that regard. The accused has not led defense evidence. But has relied on the documents marked at Ex.D1 to D4 which were countered in the cross-examination of PW.1.
6. Heard the arguments of both the counsels.
7. The counsel for the complainant has relied on the following decisions;
8 i) Aniceto Lobo & Others Vs State
(Goa, Daman & DIU) - [(1994) AIR
(SC) 1613]
ii) Barjure Kaikhosroo Maarfatia Vs
State of Maharashtra - [(1978)
AIR (SC) 434]
iii) Sheoraj Singh Ahlawat & Others Vs State of U.P & Another -
[(2013) AIR (SC) 52] 8 . Perused the materials on record. The points that arise for my consideration are:-
1) Whether the prosecution proves beyond all reasonable doubt that during the year 2018 and prior to it, the accused has committed criminal trespass by entering into photo studio in the name and style of SQS color lab, B.M. Road, Robertsonpet, KGF, in possession of the complainant with an intention to commit an offense and thereby has committed the offense punishable under Section 447 of IPC?
2) Whether the prosecution proves beyond all reasonable doubt that on the above said period and place, the accused has committed house trespass by entering into SQS color lab, B.M. Road, Robertsonpet, KGF with an intent to commit theft and other offenses punishable with imprisonment and thereby has committed the offense punishable under Section 451 of IPC?9
3) Whether the prosecution proves beyond all reasonable doubt that on the above said period and place, the accused dishonestly has taken away the cheques including cheque bearing No.55873 drawn at Corporation Bank, Robertsonpet, KGF in possession of the complainant and thereby has committed the offense punishable under Section 379 of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that on the above said period and place, the accused by committing theft of cheques including cheque bearing No.55873 from the complainant's building - SQS color lab, B.M. Road, Robertsonpet, KGF has committed the offense punishable under Section 380 of IPC?
5) Whether the prosecution proves beyond all reasonable doubt that on the above said period and place, the accused by committing theft of cheques including cheque bearing No.55873 in possession of complainant and by filing private complaint in C.C. No.59240/2018 alleging offense U/s.138 of N.I. Act by creating false documents has cheated and fraudulently induced the complainant to 10 pay an amount of Rs.35 lakhs and thereby has committed the offence punishable under Section 420 of IPC?
6) Whether the prosecution proves beyond all reasonable doubt that on the above said period, the accused by committing theft of cheques along with cheque bearing No.55873 drawn at Corporation Bank, Robertsonpet, KGF has made false document by forging the signature of the complainant; by writing the other contents of the cheque which purports to be a valuable security to receive money of Rs.35 lakhs for the purpose of cheating the complainant has committed the offense punishable under Section 468 of IPC?
7) What Order?
9. My findings on the above points are as under;
Point No.1 to 6: In Negative,
Point No.7 : As per final order,
for the following.,
REASONS
10. Point Nos.1 to 6: All the points have taken up together for discussion as they revolve around the same set of facts and circumstances of the case and also in 11 order to avoid repetition of facts and also for better appreciation of evidence on record.
11. In support of his case, the complainant has examined himself as PW.1. In his chief-examination, PW.1 states that on 31.08.2018 he has received a SMS message from Corporation Bank intimating the presentation of the cheque bearing No.55873. He approached the bank and enquired about the person who has presented the cheque. The bank told him that the cheque was presented at Bengaluru and have expressed their ignorance in respect of details of person who has presented the cheque. Thereafter, he returned back to his shop and verified his shop premises and came to know that one old cheque book was missing. Thereafter, he had been to the bank and has issued stop payment instructions in respect of lost cheques. Also has lodged complaint before Robertsonpet Police Station in respect of lost cheque books. Police have not initiated any action on his complaint. On 29.09.2018 he received a legal notice from the accused. He has lodged complaint before the Superintendent of Police and Dy.
12Superintendent of Police on 02.10.2018. On 04.10.2018 he has replied to the legal notice issued by the accused. Further states that till his appearance in C.C. No.59240/2018 filed by the accused against him, he was not aware of the accused. Since no action has taken by the police he has filed complaint in PCR No.134/2018. Further, PW.1 states that he has not issued any cheque to the accused. The signature on the accused is not his signature and the writings on the cheque is not in his handwriting.
12. Nowhere in his chief-examination, PW.1 has stated that the accused has committed trespass to his shop premises and has stolen the alleged cheque bearing No.55873. Also has not stated anything in respect of forging his signature by the accused on the said cheque.
13. The complainant has also relied on the documents marked at Ex.P1 to P13 in support of his contentions. Ex.P1 is the acknowledgment dtd.31.08.2018 issued by Robertsonpet Police, K.G.F in N.C.R No.313/2018. The said acknowledgment disclose that the complainant has lodged a complaint stating that he is 13 running "SQS color lab" and he is holding A/c. No.019400201000319 at Corporation Bank, Robertsonpet, K.G.F. Cheque numbers of about 30 cheques have been mentioned in the acknowledgment. It is stated that the said 30 blank cheques have been lost accidentally while painting his shop and he has not misused it. This document shows that at the first instance, the complainant lodged complaint stating that cheques have been lost while carrying out painting of his shop.
14. Ex.P2 is the representation of the complainant dtd.31.08.2018 to the Manager, Corporation Bank, B.M. Road, Robertsonpet, K.G.F stating that, cheque No.55873 is misplaced and it has been misused by some unknown person on 30.08.2018. It is also stated that the said cheque has been bounced for sum of Rs.35 lakhs and therefore has sought details of the person who has misused the cheque. Ex.P3 is the representation of the complainant dtd.31.08.2018 to the above said Manager of Corporation Bank requesting him to block 29 cheques stating that the said cheques have been misplaced.
14Nothing has been mentioned in the said Ex.P2 and P3 in respect of theft of the said cheques.
15. Ex.P4 is the legal notice dtd.24.09.2018 issued by the accused through his counsel alleging that the complainant has borrowed a sum of Rs.35 lakhs to clear his bank loan and other private loans made during construction of his building. By agreeing to repay the same, the complainant has issued a post dated cheque bearing No.055873 dtd.14.08.2018 for Rs.35 lakhs drawn at Corporation Bank, Robertsonpet, K.G.F. When the same was presented for encashment, the same is returned dishonoured with bank endorsement dtd.30.08.2018 for the reason "funds insufficient". Therefore, has sought for the payment of cheque amount within 15 days from the date of receipt of the said notice. It is also stated that complainant has executed Hand Loan Agreement in respect of the same.
16. Ex.P5 and P6 are the copies of the complaint dtd.02.10.2018 addressed to the Superintendent of Police, Champion Reef, K.G.F and Dy. Superintendent of Police, Champion Reef, K.G.F respectively. Both complaints are 15 replica one another and relevant portion is extracted below for better understanding.
"On 31.08.2018 I have received a SMS alert from Corporation Bank regarding receipt of cheque bearing No.55873 and immediately I have approached the Bank and clarified the details and the persons who had presented the cheque and I have also complained that my cheque has been misused by some unknown person and sought for the details of persons who had misused the cheque and the Bank had expressed its inability to furnish the same and immediately I have verified the shop premises and I came to know that many cheques which has been kept in the shop were not available and was stolen away by some persons, immediately I have lodged a complaint on 31.08.2018 before your good office and your your good office had issued me the NCR reference No.313/2018 dated 31.08.2018. On 29.09.2018 I have received a legal notice alleging that one K.Venkatesh S/o. M.Kannan, R/at S.F-5, Balaji Nest, 2nd Floor, 2nd Main, Basappa Layout, Hennur Cross, HBR Layout, Kalyan Nagar Post, Bengaluru and he had presented the cheque and the said cheque was dishonoured. Till the receipt of the legal notice I was not aware of the person and his where about was not known to me and after the notice the identity of the person is came to my knowledge and now the said person might have trespassed into my shop and stolen away the documents, cheques from my shop and now the said documents was misused, 16 forged and presented for the encashment and hence it is clear the said person in order to commit cheating had presented the cheque."
(emphasis supplied by me)
17. Ex.P7 is the reply notice dtd.04.10.2018 issued by the complainant in response to the legal notice issued by the accused alleging offense U/s.138 of N.I. Act. The relevant portion at paragraph 8 to 10 are extracted below for better understanding...
8. My clients instructs me to state that my client is running a photograph center in the name and style of SQS Color Lab in KGF and having heavy business in the said shop and my client had came to know that his cheque has been misplaced or stolen by some unknown person and the same might have been misused by some unscrupulous person and immediately my client had lodged a complaint with the Manager, Corporation Bank, KGF on 31.08.2018 complaining that some person have misused the cheque and called upon the Banker to furnish the details of the person but the Banker had failed to give the details and finding no other alternative my client had also approached the police and lodged a complaint on 31.08.2018.
9. My clients instructs me to state that after lodging of the complaint with the Banker my client had verified the Almirah kept in the shop and found that a 17 bunch of cheques have been stolen and in this regard a complaint is also lodged with the police and to the Banker.
10. My clients instructs me to state that as the cheque has been stolen from the shop by some unknown person and your client might have misused the stolen cheque of my client for the purpose of harassing me and might have presented the cheque without the knowledge and consent of my client and hence my client reasonably suspect that your client might have committed various offenses and might have presented the cheque and hence my client reserves his right to initiate necessary legal proceeding before the competent court of law for his redressal.
(emphasis supplied by me) The sole allegation is that the complainant came to know that his cheque has been misplaced or stolen by some unknown person and the same might have been misused by some unscrupulous person. There is no concrete allegation that the accused has committed the alleged offenses.
18. Ex.P8 and P10 are the postal receipts showing dispatch of complaint to the Superintendent of Police, Champion Reef, K.G.F and Dy. Superintendent of Police, Champion Reef, K.G.F on 15.10.2018. Ex.P10 and P11 18 are the complaint's dtd.15.10.2018 addressed to the Superintendent of Police, Champion Reef, K.G.F and Dy. Superintendent of Police, Champion Reef, K.G.F which are replica of Ex.P5 and P6. Ex.P12 is the copy of SMS message in respect of dishonour of cheque bearing No.55873 stated to be received by the complainant. Ex.P12(a) is certificate U/s.65-B of Indian Evidence Act pertaining to copy of the message produced at Ex.P12. Ex.P13 is the certified copy of bank pass book of complainant bearing A/c. No.510101000944989, wherein the entry at Ex.P13(a) shows dishonour of cheque No.55873 for Rs.35 lakhs on 30.08.2018.
19. In the cross-examination, PW.1 admits the suggestion that one J.Shankar is his elder brother and he is running Photo Center Digital Lab at B.M. Road, K.G.F. Also admits that the name of his elder brother is Murali. The suggestion that PW.1 is in good terms with his elder brother J.Shankar is also admitted. For a suggestion that his elder brother J.Shankar had borrowed a sum of Rs.3,50,000/- from the accused and had issued a cheque, PW.1 states that he came to know the said fact later.
19For a suggestion that the transaction between J.Shankar and accused had happen on 24.05.2016, PW.1 states that he came to know about the said fact after producing the judgment at Ex.D1 by the accused. Ex.D1 disclose that the present accused-Venkatesh has filed a case against J.Shankar who is elder brother of the complainant alleging offense punishable U/s.138 of N.I. Act in respect of the loan of Rs.3,50,000/- borrowed by him on 24.05.2016 and also issuance of cheque bearing No.641338 dtd.23.08.2018. The said case has been dismissed with the finding of the court that J.Shankar has repaid the loan to the complainant. When it is shown that the elder brother of the complainant is having money transaction with the present accused, the contention of the complainant that the accused is not known to him do not inspire any confidence in the mind of the court.
20. PW.1 in his cross-examination admits that he has not produced the certified copy of the loan agreement executed by himself and his son Rakesh with respect of borrowing of the loan of Rs.35 lakhs on 20 14.01.2018 even though the same is produced by the accused in the cheque bounce case filed against him. It is also admitted that he has not taken copy of the cheque and produced it before the Superintendent of Police while lodging the complaint before him. PW.1 admits that the seal "for SQS Color Lab, Proprietor" on the cheque belongs to his color lab. But denies the signature on the cheque. He clearly states that no expert opinion is obtained to show that his signature has been forged on the alleged cheque. Even though the complainant states that he do not have any problem to produced copy of the complaint lodged before the police on 31.08.2018, no such document is produced before the court. Further in the cross-examination, PW.1 states that his photo studio will be opened from 9.00 a.m to 9.00 p.m and one or the other persons will be there in his shop. For a suggestion whether he has any document or eye witnesses to show that the accused has trespassed to his studio, PW.1 answers in negative. When he was questioned, whether can he say on what date and time, the accused has trespassed his photo studio, PW.1 has answered in negative. Also states that he has not stated 21 the time of committing of the theft by the accused in his complaint before police. Also states that he has not mentioned about the theft of seal of his studio in his complaint. PW1 admits the suggestion that in his complaint he has not stated that theft has happened when he was not in the shop.
21. In the cross-examination dtd.06.07.2022 PW.1 admits the suggestion that his photo studio is situated at K.J. Complex and he has lodged complaint against the accused alleging trespass to the said studio. Further admits the suggestion that on 08.07.2018, he has sold the said building to one Markande Gowda. He also admits the said sale deed which is shown to him and marked at Ex.D4. Further PW.1 states that he has not sold the said property but has executed the said document towards loan raised by him. EX.D4 goes to show that the complainant has sold the building in which his photo studio is situated to one Markande Gowda on 08.07.2018 earlier to lodging of his complaint before the police on 31.08.2018.
2222. On critical evaluation the entire evidence of PW.1 who is the sole witness examined to substantiate the complaint allegation, nowhere in his chief- examination states that accused has committed trespass and has stolen his cheque book. Also has not stated anything in respect of committing forgery of his signature on the cheque by the accused. Merely states that he has not given any cheque to the accused and denies signature and writings on the cheque. In the cross-examination, it is clearly stated that his photo studio will be open from 9.00 a.m to 9.00 p.m and one or the other persons will be there in the photo studio. He has also stated that there are no eye witnesses in respect of the allegation of trespass against the accused. Further he has not stated in respect of theft of the seal of the photo studio which is said to be affixed on the alleged cheque bearing No.55873 drawn at Corporation Bank, Robertsonpet, K.G.F. More vital is that the complainant has not even produced the disputed cheque bearing No.55873 which is produced by the accused in the cheque bounce case filed against the complainant in C.C. No.59240/2018. Admittedly, no expert opinion is 23 obtained to show that his signature on the alleged cheque has been forged by the accused. The allegations in the complaint is that it came to the knowledge of the complainant that the accused person might have trespassed into his shop and stolen away the cheques and other documents, forged his signature and has misused it. There is no certainty in the allegations that the accused has committed alleged offenses. At the first instance when the complaint is lodged on 31.08.2018 before the Robertsonpet Police Station, K.G.F, the complainant has mentioned that cheques have been lost during coloring of his building. Thereafter, after receiving the legal notice from the accused, complainant has thrown allegations of trespass, theft, forgery and cheating only on speculation without any basis. Throwing such allegations seems to be an after thought improvement in the case.
TRESPASS:
23. Section 441, 442, 447 and 451 of IPC reads as follows;
24441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offense, is said to commit "criminal trespass".
442. House-trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation.--The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
447. Punishment for criminal trespass.-- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.
25451. House-trespass in order to commit offence punishable with imprisonment - Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
Even though allegation of trespass is made against the accused, there is no certainty as to the place and time of committing trespass by the accused. Also PW.1 in his cross-examination states that there are no eye witnesses nor any documents to show trespass committed by the accused. Therefore, the complainant has failed to make out an offense of criminal trespass against the accused person.
THEFT:
24. Section 378, 379 and 380 of IPC reads as follows;
378. Theft.--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.26
Explanation 1.-......
379. Punishment for theft.- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
380. Theft in dwelling-house, etc.-- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
When the accused has failed to prove criminal trespass by the accused, the allegations of committing theft also has remained without any proof.
CHEATING:
25. Section 415 of IPC reads as follows;
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".27
Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section.
When the complainant contends that the accused is not known to him, the essential ingredient of cheating i.e. dishonest inducement and deceiving is found to be missing. Therefore, no offense of cheating is made out against the accused.
FORGERY:
26. Section 463, 464 and 468 of IPC reads as follows;
463. Forgery.-- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document. -- [A person is said to make a false document or false electronic record--
First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
28(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-.....
468. Forgery for purpose of cheating. - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Even though it is contended that the accused might have forged his signature on the cheque, the complainant has not produced the instrument of cheque even though it is produced by the accused in C.C. No.59240/2018. Also no expert opinion is obtained in this case to show that the said signature on the alleged 29 cheque is forged. Under the circumstances, except mere oral assertions there is nothing on record to show that the accused has created false document by committing forgery. Therefore, the allegation of forgery has remained without any proof.
27. In Sheoraj Singh Ahlawat's case supra relied upon by the complainant, it is held that even a strong suspicion in regard to commission of the offense would be sufficient to justify framing of charges. Any such determination can take place only after trial. In the case on hand, even after trial no offenses are made out. Therefore the decision is not helpful for the case of the complainant. The complainant has also relied on other decisions and I humbly opine that they are not applicable to the facts of this case.
28. Under all these circumstances, there is absolutely no materials on record to implicate the accused for the offense of criminal trespass, theft, forgery or cheating. Accordingly, I hold Point Nos.1 to 6 in Negative.
3029. Point No.7 : In view of the discussions made while answering the above points, I proceed to pass the following.., ORDER In exercise of power vested under section 248(1) of Cr.P.C., I hereby acquit the accused for the offense punishable under Sec.447, 451, 379, 380, 420 and 468 of IPC.
The bail bond of the accused and his surety stands canceled.
(Dictated to the stenographer, transcripted thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 1st day of March, 2023) Digitally signed by ONKARMURTHY ONKARMURTHY K M KM Date: 2023.03.01 16:48:45 +0530 (OONKAR MURTHY K.M) XIV ADDL. C.M.M., BENGALURU 31 ANNEXURE List of witnesses examined by complainant:
PW.1 : Sri. Gopi List of Documents marked by complainant:
Ex.P1 : Police acknowledgement Ex.P2 & P3 : Letter dtd.31.08.2018 Ex.P4 : Legal Notice Ex.P5 : Complaint dtd.2.10.2018 Ex.P6 : Complaint dtd.2.10.2018 Ex.P7 : Reply Notice Ex.P8 & P9 : Two postal receipts Ex.P10 : Complaint dtd.15.10.2018 Ex.P10(a) : Postal acknowledgement Ex.P11 : Complaint dtd.15.10.2018 Ex.P11(a) : Postal acknowledgement Ex.P12 : Copy of SMS message Ex.P12(a) : Certificate U/s.65-B Evidence Act Ex.P13 : Certified copy of Bank Passbook. Ex.P13(a) : Relevant entry in Ex.P13
List of Witnesses examined by defence:
NIL 32 List of Documents marked by defence:
Ex.D1 : Certified copy of judgment in C.C. No.59481/2018 Ex.D2 : Certified copy of Lease Agreement Ex.D3 : Certified copy of Sale Agreement Ex.D4 : Copy of Sale Deed Digitally signed by ONKARMURTHY ONKARMURTHY KM KM Date: 2023.03.01 16:48:33 +0530 (OONKAR MURTHY K.M) XIV ADDL. C.M.M., BENGALURU