Bangalore District Court
If Intention Is Absent Then Dishonor Of vs No.1 And 2 Have Destroyed The Cctv ... on 27 January, 2021
IN THE COURT OF THE I st ADDL.CMM: BENGALURU
Dated this the 27 th day of January 2021.
Present: Shri Bhat Manjunath Narayan,
B.Com., LL.B.
Ist Addl. C.M.M BENGALURU.
State by Halasurgate
Police Station, Bengaluru. ....Complainant
(Rep. by Sr.APP)
Vs
1. Pradeepkumar Pande
s/o Devendranath Pande,
44 years, M/s Navtel Electronics
Private Ltd., No.161/2, 2nd floor,
3rd main, between 7 & 8th cross,
Chamarajpet, Bengaluru 18,
2. S.Kalicharan s/o Swarnam,
42 years, r/o No.143, 2nd floor,
5th cross, G.K.W.Layout,
Vijaynagar, Bengaluru North. .....Accused
(Rep. by Rajanikanth R.)
1. Sl. No. of the case : CC No.23630 of 2017
2. The date of commission of : 08.03.2017
the ofence
3. Name of Complainant : Shankarlal Choudhry
C.C.No.23630/2017
2
4. Name of the accused : As stated above
5. The ofences complained or : U/s 380, 420, 201 r/w
proved sec.34 IPC.
6. Plea of the accused and their : Pleaded not guilty
examination
7. Date of Commencement of : 17.12.2018
evidence
8. Date of Closing of : 03.10.2019
prosecution evidence
9. Opinion of Judge : Accused not guilty
10. Date of Judgment : 27.01.2021
(Bhat Manjunath Narayan)
Ist Addl. CMM., Bengaluru.
C.C.No.23630/2017
3
JUDGMENT
That, Halsurgate Police have fled charge sheet against the accused Nos.1 and 2 alleging that they have committed an ofence punishable under Sections 380, 420, 201 R/w sec.34 of IPC.
2. The allegations made in the charge sheet are as under:
In the charge sheet it is alleged that the accused Nos.1 and 2 for the purpose of repayment of amount due to C.W.1 Shankarlal Choudhary have issued cheque bearing No.182254 drawn on IDBI Bank for ₹.1,52,37,322/-. It is alleged in the charge sheet that on 06-03-2017 C.W.1 Shankarlal Choudhary has presented the said cheque for encashment and same is not honored due to "insufcient fnds" in the account of accused Nos.1 and 2. It is submitted by the prosecution that the accused Nos.1 and 2 with an intention to cheat C.W.1 have issued the cheque and same is dishonored. It is further alleged that on 08-03-2017 at about 1.15 p.m. the accused Nos.1 and 2 came to the shop of C.W.1 situated in S.P.A. Plaza shop No.1094/13. It is the case of the prosecution that C.W.2 Mukhesh s/o Valaram Choudhary was present in the shop and C.W.1 Shankarlal Choudhary was not in the shop. The prosecution further alleges that during this time, ICICI C.C.No.23630/2017 4 Bank through which the above mentioned cheque was presented has sent cheque endorsement through courier. The prosecution alleged that C.W.2 Mukesh has received the envelope sent by the bank through courier and has kept the same in the draw of the shop. It is the case of the prosecution that the accused Nos.1 and 2 have sent C.W.2 Mukesh to take tea for them and thereafter the accused Nos.1 and 2 have stolen cheque and endorsement kept in the drawer and also destroyed CCTV footage of the shop. The prosecution further alleges that for the purpose of cheating, accused have destroyed the cheque which is issued in favour of C.W.1
3. After incident C.W.1 Shankarlal Choudhary has fled frst information before Halsurgate police and criminal case is registered at Halsurgate PS Cr.No.89/2017 against the accused for the ofences punishable under Sections 380, 420, 201 R/w sec.34 of IPC. The Investigating ofcer has visited the spot and prepared the spot mahazar. The Investigating ofcer has also recorded the statements of C.Ws.2, 3, 6 & 7. The Investigating ofcer has seized CD containing CCTV footage by drawing mahazar in the presence of C.W.1, Shankarlal Choudhary, C.W.5 Raghu and C.W.4 Madan Ganai. After recording statements of eye witnesses, the Investigating ofcer came to a conclusion that accused C.C.No.23630/2017 5 have committed an ofence punishable under section 380, 420, 201 r/w sec.34 of IPC and as such charge sheet has been fled against the accused for the above said ofences.
4. After fling of charge sheet, cognizance for the ofence under Section 380, 420 and 201 R/w sec.34 of IPC is taken and the presence of accused Nos.1 and 2 is secured by issuing summons. The accused have appeared and they were released on bail. Copies of the charge sheet is supplied to the accused Nos.1 and 2 as required under sec.207 of Cr.P.C.
5. After hearing the learned counsel for accused and learned Senior APP, charge for the ofence punishable under Section 380, 420, 201 R/w sec.34 of IPC are framed and accused pleaded not guilty & claims trial by this court.
6. In order to prove the guilt of the accused, prosecution has examined nine witnesses as P.Ws.1 to 9 and nine documents are marked as Exs.P1 to P9. After closure of prosecution evidence, Statement of the accused Nos.1 and 2 as required under Section 313 of Cr.P.C. has been recorded. The accused Nos.1 and 2 C.C.No.23630/2017 6 have denied the incriminating evidence against them and they have not led any defence evidence in support of their contention.
7. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 8-3-2017 at about 1-15 p.m. in shop No.1094/13 of SPA Plaza belonging to C.W.1 Shankarlal Choudhary the accused No.1 and 2 have stolen cheque and envelope from the drawer of said shop and thereby committed an ofence punishable under Section 380 R/w sec.34 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1 and 2 with an intention to cheat/deceive C.W.1 Shankarlal Choudhary have issued cheque bearing No.182254 of IDBI Bank for ₹.1,52,37,322/- and thereby committed an ofence punishable under Section 420 r/w sec.34 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on on 8-3-2017 at about 1-15 p.m. with common intention the accused Nos.1 and 2 have destroyed the C.C.No.23630/2017 7 CCTV footage of shop of C.W.1 Shankarlal Choudhary and have also destroyed cheque bearing No.182254 along with endorsement and thereby committed an ofence punishable under Section 201 r/w sec.34 of IPC?
4. What order ?
8. Heard Counsel appearing for the accused and learned Sr.APP. Perused the oral and documentary evidence adduced by the prosecution and my fndings on the above points are as under:
Point No.1 to 3: In the Negative Point No.4 : As per fnal order, for the following:
REASONS Point No.1 to 3: -
9. Point No.1 to 3 are taken for common discussion as they are arising out of same incident and in order to avoid repetition. However, separate fnding has been given to each point.
10. In order to bring home the guilt of the accused for the ofence punishable under section 380, 420, 201 C.C.No.23630/2017 8 R/w sec.34 of IPC, the prosecution has examined nine witnesses and got marked nine documents. In this case, the prosecution has to prove beyond reasonable doubt that the accused Nos.1 and 2 have committed theft of cheque and endorsement from the drawer of the shop of C.W.1 Shankarlal Choudhary and also have to prove that the cheque in question was issued with an intention to cheat C.W.1. The prosecution has to further prove that the accused No.1 and 2 have destroyed CCTV footage of shop and cheque and endorsement in order to cover up their acts. I have perused the evidence of witnesses in detail. C.W.1 Shankarlal Choudhary who is examined as P.W.1 has deposed that there was a business transaction between company of C.W.1 and accused No.1 and 2 and accused were in due of ₹.1,52,37,322/-. He further deposed that the accused No.1 and 2 have issued cheque bearing No.182254 of IDBL Bank for Rs.1,52,37,322/-. The accused No.1 and 2 have not seriously disputed the issuance of cheque bearing No.182254 in favour of C.W.1. The amount C.C.No.23630/2017 9 mentioned in the said cheque is disputed. The certifed copy of the cheque is produced and marked as Ex.P8. Cheque bearing No.182254 is issued for Rs.1,52,37,322/- in favour of Rishab International. Rishab International is belonging to C.W.1 Shankarlal Choudhary according to the prosecution. However, no document is produced in this regard. Whereas the cheque in question was issued by Navatel Electronics Pvt. Ltd., and it bears only one signature i.e., of accused No.1. So from the evidence of P.W.1 and Ex.P8, it is clear that the cheque in question was issued in favour of complainant and same is dishonoured.
11. Now the question is whether the accused Nos.1 and 2 are the persons who have stolen the cheque in question from the shop of C.W.1. As per the case of the prosecution C.W.1 was not present when the incident has occurred. So C.W.1 Shankarlal Choudhary is not competent witness to depose regarding the steeling of cheque. The prosecution is relying upon the evidence of C.C.No.23630/2017 10 C.W.2 Mukesh son of Valaram and C.W.3 Rajesh son of Subramanya, I have perused the evidence of these two witnesses in detail. P.W.2 Rajesh in his evidence has stated as under:
£Á£ÀÄ J¸ï¦J ¥ÁèdÁzÀ°è 15 ªÀµÀðUÀ½AzÀ ºË¸ï QæAUï EAeÁeïð PÀÉ®¸À ªÀiÁqÀÄwÛzÉÝãÉ. £À£ÀUÉ DgÉÆæUÀ¼ÀÄ ºÁUÀÆ ZÁ¸Á.1gÀªÀgÀ ¥ÀjZÀAiÀÄ EzÉ. ¢B 08.03.2017 gÀAzÀÄ ªÀÄzsÁåºÀß 1.00 jAzÀ 1.15gÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀ PÀZÉÃjAiÀÄ £É®ªÀĺÀrAiÀÄ°è EzÁÝUÀ DgÉÆæUÀ¼ÀÄ ºÁUÀÆ ZÁ¸Á.1gÀªÀgÀÄ PÀĽvÀÄPÉÆArzÀÝgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è ZÁ¸Á.2gÀªÀgÀÄ nà vÀgÀ®Ä ºÉÆgÀUÀqÉ ºÉÆÃzÁUÀ 1£Éà DgÉÆæ PÀZÉÃjAiÀÄ°è PÀĽvÀÄPÉÆArzÀÝgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è MAzÀÄ PÉÆjAiÀÄgï §A¢zÀÄÝ, CzÀ£ÀÄß 2£Éà DgÀÉÆæ vÉUÉzÀÄPÀÉÆAqÀÄ ºÉÆÃzÀgÀÄ. F «ZÁgÀzÀ §UÉÎ ZÁ¸Á.1gÀªÀgÀÄ «ZÁgÀuÉ ªÀÄÁrzÁUÀ ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß CªÀjUÉ w½¹gÀÄvÉÛãÀÉ.
PÀZÉÃjAiÀÄ°èzÀÝAvÀºÀ ¹¹n« PÁåªÀÄgÁzÀ ¥ÀÇmÉÃeïUÀ¼À£ÀÄß DgÉÆæUÀ¼ÀÄ £Á±À¥Àr¹gÀÄvÁÛgÉ.
C.C.No.23630/2017 11 P.W.3 Mukesh in his evidence has also deposed stating that the accused No.1 and 2 have stolen the cheque bearing No.182254. P.W.3 Mukesh before this court has deposed as under:
£À£ÀUÉ DgÉÆævÀgÀÄ UÉÆvÀÄÛ. ¥Áæ¸Á -1 gÀªÀgÀÄ UÉÆvÀÄÛ. WÀl£É £ÀqÉzÀ ¢£À £Á£ÀÄ CAUÀrAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÉÝ. ¸ÀzÀj CAUÀr ZÁ¸Á-1 gÀªÀjUÉ ¸ÉÃjzÀÄÝ. D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ M§â£É EzÉÝ DUÀ DgÉÆævÀgÀÄ C°èUÉ §A¢zÀÝgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è M§â PÉÆjAiÀÄgï ºÀÄqÀÄUÀ £ÀªÀÄä CAUÀrUÉ §A ¢gÀÄvÁÛ£É. ¸ÀzÀj PÉdÆjAiÀÄgï ºÀÄqÀÄUÀ¤AzÀ MAzÀÄ PÀªÀgï C£ÀÄß £Á£ÀÄ vÉUÉzÀÄPÉÆAqÉ DUÀ DgÉÆævÀgÀÄ £À£ÀߣÀÄß nà vÀgÀ®Ä ºÉÆgÀUÉ PÀ¼ÀÄ»¹gÀÄvÁÛgÉ. £ÀAvÀgÀ £Á£ÀÄ nà vÀAzÀÄ ªÁ¥À¸ï §AzÁUÀ qÁæ C°è £Á£ÀÄ EnÖzÀÝ PÀªÀgï ZÉPï EgÀ°®è. DUÀ C°è 1£Éà DgÉÆæ EzÀÝgÀÄ. 2£Éà DgÉÆæ EgÀ°®è. ¸ÀzÀj WÀl£ÉAiÀÄ ¸ÀA§AzÀªÁV £Á£ÀÄ ¹¹n« C°è £ÉÆÃr ªÀiÁ°ÃPÀjUÉ w½¹gÀÄvÉÛãÉ. DgÉÆævÀgÀÄ ¥Áæ¸Á-1 gÀªÀjUÉ ¥ÀjZÀAiÀÄEgÀÄvÁÛgÉ. DgÉÆævÀgÀÄ ¥Áæ¸Á-1 gÀªÀjAzÀ ¹¹l¦« PɪÀÄgÁ ªÀÄvÀÄÛ CzÀPÉÌ ¸ÀA§AzÀs¥ÀlÖ G¥ÀPÀgÀtUÀ¼À£ÀÄß ªÀåªÀºÁgÀ ªÀiÁrgÀÄvÁÛgÉ. F §UÉÎ £Á£ÀÄ ¥ÉǰøÀjUÉ ºÉýPÉ ¤ÃrgÀÄvÉÛãÉ. £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄA ¢gÀĪÀ 2£Éà DgÉÆæAiÀÄ£ÀÄß £ÉÆÃr ¸ÁQë UÀÄwð¹gÀÄvÁÛgÉ.
C.C.No.23630/2017 12
12. I have perused the statement of these two witnesses in detail. According to P.W.2, when courier came C.W.2-P.W.3 Mukesh was not in shop and courier is received by accused No.2. According to P.W.2, the accused No.2 has taken envelope from the courier boy directly and has not taken it from the drawer of the shop of C.W.1. Interestingly he also states that the accused No.1 and 2 have destroyed the CCTV footage of shop of C.W.1. When the accused No.1 and 2 were destroying the CCTV footage, P.W.2 Rajesh has not stopped them. Such behavior is strange. It is not stated by P.W.2 Rajesh in his evidence why he has not made any attempt to stop accused from destroying CCTV footage. Per contra P.W.3 Mukesh has given contrary evidence. According to P.W.3 he has received courier and kept the cover in the drawer. It is the statement of P.W.3 Mukesh that after receipt of cover, the accused No.1 and 2 have requested him to get tea for themselves. So he went out of the shop and later he came to a shop found that in the drawer there was no C.C.No.23630/2017 13 cover. P.W.3 further states that the accused No.1 was present when he came back and accused No.2 was not there. He further states that he verifed the CCTV footage and thereafter informed C.W.1 Shankarlal Choudhary regarding the act of the accused. P.W.3 Mukesh has not stated that the accused No.1 and 2 have destroyed/ formatted the CCTV footage of shop pertaining to C.W.1 According to P.W.3, the footage of CCTV was available and he has verifed the said footage and informed the same to C.W.1. So there is a contradiction in the evidence of P.W.2 and P.W.3 who are the eye witnesses to the incident. CCTV footage of inside the shop is the important piece of evidence in this case and same is not produced. P.W.3 in his evidence has clearly stated that he has verifed the CCTV footage. But for the best reasons known to C.W.1 he states that CCTV footage is formatted and destroyed by the accused No.1 and 2. It is not easy to erase the footage of CCTV as the same will be password protected and administrative right shall be available to the user who is trying to delete C.C.No.23630/2017 14 the footage. Apart from this the Investigating ofcer has not seized the CCTV DVR of shop of C.W.1 Shankarlal Choudhary and has not tried to recover deleted footage, though technology is available to retrieve the footage of CCTV. The statement of P.W.3 stating that CCTV footage was available and in which he has seen that the accused No.2 is taking/committing theft of cheque and envelope from the drawer. The contrary statement of P.W.2 to the efect that the accused No.2 took courier directly from the courier boy is contrary to each other. Therefore, the statement of eye witnesses are creating doubt to the efect that really the accused No.1 and 2 have committed theft of cheque and envelope by taking the same from the drawer of shop No.1094/13. Evidence of other witness are also not helpful to prove that accused are the persons who have stolen cheque from the shop of CW-1. Apart from this cheque and endorsement are seized by IO from the custody of accused No.1 and 2. Considering the contradictions in the evidence of PW-2 C.C.No.23630/2017 15 and 3 there is no connecting evidence to connect the accused No.1 and 2 to theft of cheque & endorsement.
13. As far as the ofence of sec.420 of IPC is concerned it is not in dispute that cheque issued in favour of C.W.1 and same was dishonoured. Separate criminal case is fled under the provisions of Negotiable Instruments Act. To attract sec.420 of IPC, the prosecution has to prove that from the inception of the transaction, the accused had intention to cheat the complainant. If intention is absent then dishonor of cheque is issued will be mere breach of contract and same will be punishable under sec.138 of Negotiable Instruments Act. In this case there are many transactions between the accused No.1 and 2 and C.W.1. The cheque in question was issued for repayment of amount comprising of any transaction. Even in examination in chief or in cross-examination it is stated that the accused No.1 and 2 have issued cheque only to cheat the complainant. If the evidence of P.W.1 is C.C.No.23630/2017 16 considered in toto, it is clear that the accused No.1 and 2 and C.W.1 Shankarlal Choudhary had so many transactions earlier and there is nothing to show that from the inception of transaction & at the time of issuance of cheque, the accused had intention to cheat C.W.1 by not honoring the cheque. This being the case, ingredients of ofence punishable under section 420 of IPC is also not made out. The observation that prosecution has failed to prove that from the inception of the transaction, the accused had intention to cheat the complainant is to be considered as far as this case concerned and will not afect the right of CW-1 Shankar Lal with respect to case fled by him against accused for the ofence punishable under sec.138 of Negotiable Instruments Act.
14. As far as ofence punishable under section 201 of IPC is concerned, the prosecution is alleging that the accused No.1 and 2 have destroyed the CCTV footage and also destroyed the cheque. To prove that CCTV C.C.No.23630/2017 17 footage are destroyed, nothing is produced in this case. CCTV DVR of ofce of C.W.1 Shankarlal Choudhary is not seized nor it is sent for scientifc investigation nor attempt was made to retrieve the footage. As far as destruction of cheque is concerned, the prosecution is relying audio footage marked in this case. I have perused the audio footage as well as transcription of audio as per Ex.P3. No where in the audio the conversation alleged to have been took place between the accused No.1 and C.W.1, the cheque No.182254 is mentioned, amount is mentioned, date of cheque is mentioned. So, one cannot presume that the torn of cheque mentioned in the audio conversation pertains to cheque No.182254 for Rs.1,52,37,322/-. Apart from this IO has not produced any call details record, certifcate from service provider to the efect that numbers mentioned are that of accused and CW-1 and such a call was made CW-1 to accused or visa versa. So absolutely there is no evidence in this case to prove the guilt of the accused for the ofence punishable under sec.201 of IPC. Therefore I am of the C.C.No.23630/2017 18 opinion that the conviction cannot be given to the accused No.1 and 2 for the ofence punishable under sections 380, 420 and 201 R/w sec.34 of IPC. Accordingly, I answer point Nos.1 to 3 in the negative. Point No.4: -
15. In view of discussion and conclusion arrived at point Nos.1 to 3, accused Nos.1 and 2 are entitled to be acquitted. Hence I proceed to pass following:
ORDER Acting under Section 248(1) of Cr.P.C. the accused Nos.1 and 2 are acquitted for the ofence punishable under Section 380, 420 and 201 r/w sec.34 of IPC.
The bail and surety bond of the accused Nos.1 and 2 stand canceled.
M.O.1 DVD being worthless is ordered to be destroyed after lapse of appeal period.
(Dictated to the stenographer, transcribed by her, revised and then corrected by me and then pronounced in open court on this the 27th day of January 2021).
(Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.
C.C.No.23630/2017 19 ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Shankarlal Choudhary, P.W.2, Rajesh, P.W.3, Mukesh, P.W.4, Raghu, P.W.5, Madanganai, P.W.6, Shashank Pande, P.W.7, Anandkumar,, P.W.8, Chikkavenkataiah, P.W.9, Vinayaka Kulkarni;
List of exhibits marked for prosecution :-
Ex.P1, Complaint,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W.8,
Ex.P2, Spot mahazar,
Ex.P2(a), Signature of P.W.1,
Ex.P2(b), Signature of P.W.4,
Ex.P2(c), Signature of P.W.5,
Ex.P2(d), Signature of P.W.7,
Ex.P3, Mobile phone transcription,
Ex.P4, Bank statement pertaining to
shop of P.W.1,
Ex.P5 to
Ex.P7, E-mail printouts,
Ex.P8, Copy of cheque,
Ex.P8(a), Signature of P.W.6,
Ex.P9, First information report,
Ex.P9(a), Signature of P.W.8;
List of material object :
M.O.1, DVD;
C.C.No.23630/2017
20
List of documents marked for defence:-
NIL List of documents marked for defence:-
NIL (Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.
C.C.No.23630/2017 21 27/1/2021 State by Sr.APP Accused Nos.1 & 2 C/B For Judgment (Judgment pronounced in the Open Court) ORDER Acting under Section 248(1) of Cr.P.C. the accused Nos.1 and 2 are acquitted for the ofence punishable under Section 380, 420 and 201 r/w sec.34 of IPC.
The bail and surety bond of the accused Nos.1 and 2 stand canceled.
M.O.1 DVD being worthless is ordered to be destroyed after lapse of appeal period.
(Bhat Manjunath Narayan) I Addl. CMM., Bengaluru. C.C.No.23630/2017 22 C.C.No.23630/2017 23 C.C.No.23630/2017 24