Bangalore District Court
State By C.O.D Police vs S. M.Pasha on 13 February, 2017
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl. C. M. M, Bengaluru
C.C.No.8119/2000
Dated this the 13th day of February 2017
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by C.O.D Police, Bengaluru.
(By Learned Senior Assistant Public Prosecutor)
VS
Accused:- 1. S. M.Pasha, Cashier, Marketing Consultants
and Agencies Limited, Bengaluru.
2. Syed Lathifulla, Deputy Superintendent of Excise,
age : 54 years, r/o no.47, 7th main,
Palace Guttahalli, Bengaluru-560003.
(Shri J.Rahamathulla Khan, Advocate for accused no.1
and Shri Yunus Alikhan, Advocate for accused no.2)
Offences complained : U/secs 406, 408, 471 and 420 r/w sec 34 of
the Indian Penal Code.
Opinion of the Court : Accused no.1 and 2 are not found guilty
2 C.C.No.8119/2000
Date of Judgment : 13.02.2017.
JUDGMENT
That, the Deputy Superintendent of Police, A.D.S. C.O.D, Bellary, has filed the Final report against the accused no.1 and 2 for the offence punishable under sections 406, 408, 471 and 420 r/w section 34 of the Indian Penal Code.
1. It is the case of the prosecution that, the Marketing Consultants and Agencies Limited, Bengaluru, is a State Government undertaking and in the year 1990 the Stated Government had entrusted to the Marketing Consultants and Agencies Limited, Bengaluru, the work of printing and selling the excise security labels. That, as per the procedure the printed security labels are to be handed over to the Deputy Superintendent of Excise, deputed from the Excise Department for supplying the same to distilleries and beverage. That, it is the duty of the Deputy Superintendent of Excise to sell the said labels to the distilleries and receive the cash and distribute the amount to Marketing Consultants and Agencies, Sales Tax Department and to the Excise Department as specified by the Excise Department and instruct the cashier to collect the amount. That, it is 3 C.C.No.8119/2000 the duty of the cashier to assist the Deputy Superintendent of Excise Department and remit 83% of amount to the company's account and 17% of amount to the account of the Excise Department under separate challans duly signed by Deputy Superintendent of Excise and handover the counterfoil pertaining to the company to regular cashier and the Deputy Superintendent of Excise uses to collect the another counter folio of challan pertaining to the Excise Department. It is allegation of the prosecution that, the accused no.1 was working as a Cashier in Marketing Consultants and Agencies, Bengaluru and accused no.2 was working as a Deputy Superintendent in Excise Department, Bengaluru. That, both the accused with their common intention to cheat the company and make wrongful gain, have fabricated the documents and have failed to remit the share amount pertaining to the Excise Department for the period May 1994 to March 1995 and have misappropriated sum of Rs.6,16,065/-.
2. That, on complaint being lodged the High Grounds Police, Bengaluru, have registered the case. That, thereafter, the matter was transferred to C.O.D, Bengaluru, for investigation. That, the 4 C.C.No.8119/2000 Investigating Officer after completion of investigation filed the Final report against the accused for aforesaid offences.
3. That, this court after taking the cognizance of the aforesaid offences issued summons to the accused and they have appeared before this court through their Learned counsel and they were enlarged on bail. That, the provisions of section 207 of Code of Criminal Procedure, have complied here with. That, the charge of the accused has recorded and read over to them in language known to them and they have not pleaded guilty and claimed to be tried. That, after completion of prosecution side evidence, the statement of the accused as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over to them in language known to them and they have denied all incriminating evidence appearing against them and have not chosen to lead either oral or documentary evidence on their behalf.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:
5 C.C.No.8119/2000
1. Whether the prosecution has proved beyond all reasonable doubt that, both the accused with their common intention to cheat the department and make wrongful gain, have fabricated the documents and have failed to remit the share amount pertaining to the Excise Department for the aforesaid period and thereby have misappropriated of sum of Rs.6,16,065/- and have committed the offence punishable under sections 406, 408, 471 and 420 r/w section 34 of the Indian Penal Code ?
2. What order?
5. That, the prosecution to prove its above case has got examined PWs1 to 9 and got marked the documents at EXsP1 to 34 and closed its side.
6. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2:- As per the final order for the following:-
REASONS
7. Point No.1:- It is specific allegation of the prosecution that, the accused no.1 and 2 with their common intention to cheat the department and make wrongful gain, have fabricated the documents 6 C.C.No.8119/2000 and have failed to remit the share amount pertaining to the Excise Department for the period from May 1994 to March 1995 and have misappropriated sum of Rs.6,16,065/-.
8. It is pertinent to note here that, at this juncture it is very much necessary to have a glance over the essential requisites of sections 405, 408, 406, 471 and 420 of the Indian Penal Code. It is to be noted here that, section 405 of the Indian Penal Code deals with the phrase criminal breach of trust and section 408 of the Indian Penal Code, deals with the criminal breach of trust committed by the clerk or the servant and section 406 of the Indian Penal Code, deals with the punishment for committing the criminal breach of trust.
i) It is to be noted here that, section 405 of the Indian Penal Code, runs as follows:-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such 7 C.C.No.8119/2000 trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do commits "criminal breach of trust".
Explanation No.1 :- xxxxxxxxxxxxxxxxxxxxx Explanation No.2 :- xxxxxxxxxxxxxxxxxxxxx It is pertinent to note here that, to constitute an offence of criminal breach of trust there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property. It is to be noted here that, to prove the offence of criminal breach of trust proof of entrustment is essential and without proof of entrustment there can be no question of the accused being the guilty of the offence of criminal breach of trust. It is to be noted here that, the term entrustment is not necessarily a term of law. It is to be noted here that, in every case of criminal breach of trust a breach of trust is implicit. It is significant to note here that the crucial word used in section 405 of the Indian Penal code, is dishonestly. It is to be noted here that, the dishonest is the gift of the offence. It is to be noted here that, the offence of criminal 8 C.C.No.8119/2000 breach of trust is completed by the misappropriation or conversion of the property dishonestly. It is to be noted here that, it is not only the intention which is essential whether wrongful gain or loss actually results is immaterial. It is to be noted here that, the burden of proving such dishonest intention is on the prosecution though however it being often difficult to get any direct evidence of intention.
ii) It is to be noted here that, section 408 of the Indian Penal Code, runs as follow:
Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property shall be punished with imprisonment of either description for a term which may extend to 7 years and also be liable to fine.
iii) It is pertinent to note here that section 471 of the Indian Penal Code, deals with the using of forged document (or electronic record) as a genuine document (or electronic record). It is to be noted here 9 C.C.No.8119/2000 that, to bring home an offence under section 471 of the Indian Penal Code, the prosecution has to prove that the document concerned was forged one and the accused had used the said forged document by dishonestly and fraudulently as a genuine document.
iv) It is pertinent to note here that, section 420 of the Indian Penal Code, runs as follows:-
whoever, cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also liable to fine.
It is pertinent to note here that, on plain reading of the said section it appears that, for the offence of cheating there must be deception which should always precede the fraudulent or dishonest inducement. It is pertinent to note here that, mere deceit, fraudulent 10 C.C.No.8119/2000 or dishonest inducement will not suffice to convict the accused under section 420 of Indian Penal Code.
9. It is pertinent to note here that, now let us analyze the evidence of witnesses on record.
It is to be noted here that, the prosecution to prove its above case has got examined CW1-Shri T. R. Subramanya s/o T. S. Ramamurthy-the Complainant and the then Managing Director of Marketing Consultants and Agencies Limited., Bengaluru, as PW1. It is pertinent to note here that, PW1 in his examination-in- chief has deposed about the work entrusted to the Marketing Consultants and Agencies Limited., Bengaluru and the work entrusted to the Cashier of the company and Deputy Superintendent of Excise Department. It is to be noted here that, PW1 has further deposed that from 1995 to 1996 the accused no.1 was working as a Cashier in Marketing Consultants and Agencies Ltd and the accused no.2 was working as a Deputy Superintendent in Excise Department and in the year 1993-94 an internal audit was conducted in Marketing Consultants and Agencies and at that time it was found that some challans were missing and the said audit was completed by imposing 11 C.C.No.8119/2000 some conditions. It is pertinent to note here that, PW1 in his examination-in-chief has deposed that he informed the said fact to the Commissioner of Excise Department and the said Commissioner inturn reported the said fact to the Joint Commissioner of Excise Department and for which an enquiry was conducted and on basis of said report the said Joint Commissioner had suspended the Deputy Superintendent of Excise Department. It is to be noted here that, PW1 has further deposed that as per the instructions given by the Chairman of the company he lodged the complaint against the accused persons as per EXP1 and furnished the certificates to the investigating officer as per EXsP2 to 4. It is pertinent to note here that PW1 in his cross-examination has entirely resiled from his said evidence.
It is significant to here that, PW1 in his cross-examination at page no.13 at 12th line as specifically deposed that, I do not know whether A1 and A2 colluded together to commit the alleged offence.
It is further pertinent to note here that, PW1 in his cross- examination at page no.9 at 18th line has further specifically deposed 12 C.C.No.8119/2000 that, I do not know that the EXP3 and P4 are the fabricated documents and they were never found in the drawer as stated.
It is further pertinent to note here that, PW1 in his cross- examination at page no.10 at 3rd line has deposed that, I do not know whether the accused no.2 has committed the act of cheating, misappropriation either to MC and A or to the Excise Department and he cannot answer to that one.
It is further pertinent to note here that, PW1 in his cross- examination at page no.12 at 25th line has deposed that, I do not know whether accused no.1 was also involved in issuing such certificate as per EXsP2 to P4.
It is pertinent to note here that, the said evidence of PW1 is quite sufficient to hold that the accused persons have been falsely implicated in present case. It is to be noted here that, the evidence of PW1 is not trust worthy and it cannot be believed.
10. It is to be noted here that, the Learned counsel for the accused no.1 has drawn the attention of this Court that PW1 has not produced any document to show that he has been authorized by the 13 C.C.No.8119/2000 company to lodge the complaint against the accused persons and inview of the same the present complaint is not maintainable. It is to be noted here that, the Learned counsel has placed his reliance on following decisions:-
1. Director Maruti Feeds and Farms Pvt. Ltd., -vs- Basanna Pattekar, reported in ILR 2007 KAR 3155 wherein it has held that since the company is a juristic person, any person on behalf of the company has to be authorized by the company under the Articles of Association or by a separate resolution to depose on behalf of the company.
2. Om Shakthi SC/ST and Minority Credit Co-operative Society Ltd -vs M. Venkatesh, reported in ILR 2007 KAR 5126 wherein it has held that the presentation of the complaint by the society through its President without authorization is bad in law.
11. It is to be noted here that, at this juncture I have gone through the requisites of section 292 of the Companies Act, 1956 and corresponding section 179 of the Companies Act, 2013. It is pertinent to note here that, from perusal of aforesaid provisions it 14 C.C.No.8119/2000 clearly appears that the Board of Directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorized to exercise and do.
It is pertinent to note here that, in the instant case it is not in dispute that PW1 was the Managing director of the Marketing Consultants and Agencies Ltd. It is pertinent to note here that, PW1 has not produced any documentary evidence to show that he has been authorized by the company to depose on behalf of the company. It is to be noted here that, in the instant case the complaint-EXP1 is hit by aforesaid provisions and inview of the same the evidence of PW1 cannot be looked into.
12. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW2-Shri A. N. M. Rao s/o Sudheendra Rao-the Senior Accounts Officer in Marketing Consultants and Agencies Limited., as PW2. It is pertinent to note here that, PW2 in his examination-in-chief has deposed about the work entrusted to the Marketing Consultants and Agencies and the work entrusted to Deputy Superintendent of Excise Department and Cashier of Marketing Consultants and Agencies. It is to be noted here 15 C.C.No.8119/2000 that, PW2 in his examination-in-chief has further deposed that the accused no.1 was serving as a Executive Cashier on deputation since 1990 till the alleged misappropriation case was noticed and from 1994 the accused no.2 was working as a Deputy Superintendent in Excise Department on deputation in their company and he succeeded CW3 Sri Srikanta. It is to be noted here that, PW2 in his examination- in-chief has further deposed that in respect of amount of Excise Department there was an allegation of misappropriation and complaint was filed against him and the accused persons and the said complaint against him was misconceived and after clarifying the position he was left out from the investigation and after the audit it was learnt that the misappropriation amount was around 26 lakhs of rupees. It is to be noted here that, PW2 has further deposed that he is conversant with the handwriting and signature of accused no.1 and EXsP5 to 14 were written by the accused no.1. It is to be noted EXsP5 to P14 are the Receipt books and EXsP15 to P17 are the Cash books for the year 1993 to 1995.
It is to be noted here that, PW2 in his cross-examination at page no.5 at 21st line has admitted that till enquiry initiated regarding the 16 C.C.No.8119/2000 misuse of funds he was not aware of the same and his company had filed a civil suit against him for attachment of property and in the said suit it was alleged that he was also involved in misappropriation of funds. It is further pertinent to note here that, PW2 in his cross- examination at page no.9 at 18th line has admitted that, it is the accused no.2 for the first time raised the voice regarding the alleged misappropriation and initially the accused no.2 had filed the complaint to the police making allegations against him and accused no.1 and thereafter, the Marketing and Consultants and Agencies, had lodged the present complaint against him and accused no.1.
It is to be noted here that, in the instant case the Investigating Officer has submitted before the Court the complaint lodged by the accused no.2 dated:-19-10-1996 in High Grounds Police Station, Bengaluru, for misappropriation of Exercise Service charges payable by M/s Marketing and Consultants Agencies Limited, no.42, Millers road, Bengaluru-52.
It is further pertinent to note here that, in the instant case the Investigating Officer has also submitted before the Court the Departmental enquiry report of the Excise Commissioner and 17 C.C.No.8119/2000 Disciplinary Authority, Bengaluru, dated:-27-01-1999. It is to be noted here that, from perusal of the said document it clearly appears that the disciplinary authority had dropped the disciplinary proceedings initiated against the accused no.2 as the charges of misappropriation leveled against him were not proved.
It is to be noted here that, in the instant case from entire evidence of PW2 it appears that after lodging the said complaint by the accused no.2 and to over come the lacunas mentioned in the audit report, the accused persons have been falsely implicated in present case. It is to be noted here that, from entire evidence of PW2 it clearly appears that the accused persons have not committed any offence as alleged by the prosecution.
13. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW3-Shri Srikanta s/o Vishweshwara Bhatt-Retired Excise Officer as PW3. It is pertinent to note here that, PW3 in his examination-in-chief has deposed about the work entrusted to the Marketing Consultants and Agencies Ltd, Bengaluru. It is pertinent to note here that, apart from the aforesaid fact PW3 has also deposed that on 27-05-1993 he handed over the 18 C.C.No.8119/2000 charge to accused no.2. It is to be noted here that, PW3 has further deposed that he came to know from the police that in the year 1997 the amount pertaining to Excise Department in respect of printed security labels have been misappropriated.
14. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW5-Shri Rameshbabu s/o Thirumalarao-the LIC agent as PW4. It is pertinent to note here that, PW4 in his examination-in-chief has deposed that from 1990 to 1998 he worked as a assistant to the Cashier of the Marketing Consultants and Agencies and at that time the accused no.1 was working as a Cashier in said company and accused no.2 as a Deputy Superintendent in Excise Department. That, PW4 has further deposed that as per the instructions of accused no.2 he uses to distribute the excise labels and also uses to collect the amount from distillery distributors and also uses to give them the receipts.
It is pertinent to note here that, PW4 in his cross-examinations at page no.2 has specifically deposed that, £Á£ÀÄ r¹Ö®j r¹ÖççÆålgï¤AzÀ ¥ÀqÉzÀ ºÀtPÀÆÌ DgÉÆæ 2 gÀªÀgÀ C¢üPÁgÀ ªÁå¦ÛUÀÆ ¸ÀA§AzÀs¥ÀnÖgÀĪÀÅ¢®è. 19 C.C.No.8119/2000
It is further pertinent to note here that, on cross-examination made by the accused no.1 he further deposed that, D PÁ®PÉÌ ºÀtPÀÆÌ DgÉÆæ 1 gÀªÀjUÀÆ AiÀiÁªÀÅzÉà ¸ÀA§AzÀs EgÀĪÀÅ¢¯Áè JA§ÄzÀÄ ¸Àj.
It is pertinent to note here that, from the said evidence of PW4 it clearly appears that the accused persons have not committed any offence as alleged by the prosecution.
15. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW4-Shri V. Ramesh s/o Late Venkata Shetty-the then Manager of NGEF, Bengaluru as PW5. It is pertinent to note here that, PW5 in his examination-in-chief has deposed about the work entrusted to the Marketing Consultants and Agencies, Ltd, Bengaluru and to the accused persons. It is to be noted here that, apart from the said facts, PW5 has also deposed that in the year 1996 in Marketing Consultants and Agencies, an internal audit was conducted and at that time remittance documents for the period 01-04-1994 to 30-09-1996 were not found and for that the Chartered Accountant had submitted his report and on basis of the said report the company had suspended the accused no.1 and PW1.
20 C.C.No.8119/2000
16. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW8-Shri Srinivas s/o Krishnamurthy-the then Accountant of Marketing Consultants and Agencies as PW6. It is pertinent to note here that, PW6 has also deposed about the work entrusted to the Marketing Consultants and Agencies and further deposed that as the accused no.1 was representing their department, the authorities have suspended him on allegation of misappropriation of money.
17. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW7-Shri M. M. Kashyap s/o M. V. Kashyap-the Media Supervisor of Marketing Consultants and Agencies as PW7. It is pertinent to note here that, PW7 in his examination-in-chief has deposed about the work entrusted to the Marketing Consultants and Agencies, Ltd., Bengaluru.
18. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW9- Shri Ravinarayanagowda M. P s/o B. M. Pillappa- the retired Joint Director of District Treasury as PW8. It is pertinent to note here that, PW8 in his examination-in-chief has deposed that on request made 21 C.C.No.8119/2000 by the Investigating Officer he furnished to him the certified copy of schedule pertaining to the fixed deposit account of Excise Department.
19. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW16-Shri Ramappa s/o Kenchappa-the Investigating Officer as PW9. It is pertinent to note here that, PW9 has deposed about the Final report submitted by him to the court against the accused no.1 and 2.
It is pertinent to note here that, in the instant case no incriminating evidence is forthcoming from the evidence of PWs3 to 9.
20. It is significant to note here that, in all criminal cases it is the bounden duty of the prosecution to prove its case beyond all reasonable doubt. It is significant to note here that, in the instant case evidence on record is not crystal clear to hold that the accused have committed the alleged offences. It is pertinent to note here that, as stated above PW1 has not produced any documentary evidence to show that the company has been authorized to him lodge the complaint and moreover, has given contrary evidence. It is significant to note here that, from the entire evidence of PW2 it 22 C.C.No.8119/2000 clearly appears that to over from the lacunas mentioned in said audit report, the accused persons have been falsely implicated in present case and no incriminating evidence is forthcoming from the evidence of PWs3 to 9.
It is significant to note here that, in the instant case the prosecution has got marked the xerox copies at EXsP2 to 4 and true copies at EXsP19 to 34. It is pertinent to note here that, as per section 65 of the Indian Evidence Act (for short the Act) the prosecution has failed to lay down the foundation for leading the secondary evidence. It is pertinent to note here that, marking of the document is only a ministerial act and it is the bounden duty of the party producing the same to prove its contents. It is pertinent to note here that, in the instant case the prosecution has failed to prove the essential requisites of alleged offences. It is to be noted here that, in the instant case from oral and documentary evidence adduced by the prosecution it clearly appears that the accused have been falsely implicated in present case. It is pertinent to note here that, in view of My all findings and without much discussion I hold that, the prosecution has utterly failed to prove beyond all reasonable doubt 23 C.C.No.8119/2000 the guilt of the accused for the offence punishable under sections 406, 408, 471 and 420 r/w section 34 of the Indian Penal Code. In view of the same, point no.1 is answered in the NEGATIVE.
21. Point No.2:- That, as discussed on point no.1, I proceed to pass the following:-
ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.1 and 2 are acquitted for the offence punishable under sections 406, 408, 471 and 420 r/w section 34 of the Indian Penal Code.
That, the bail and surety bonds of the accused no.1 and 2 are stands cancelled.
That, the accused no.1 and 2 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure. (Dictated to the stenographer, transcript thereof, computerized and then corrected by me and then pronounced in open Court on this the 13th day of February 2017) Date:13.02.2017 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru. 24 C.C.No.8119/2000
Annexure List of witnesses examined on behalf of the prosecution PW1: T.R.Subramanya s/o T.S.Ramamurthy;
PW2: A.N.M. Rao s/o Sudheendra Rao;
PW3: Srikanta s/o Vishweshwara Bhatt;
PW4: Rameshbabu s/o Thirumalarao;
PW5: V.Ramesh s/o Late Venkatashetty;
PW6: Srinivas K. s/o Krishnamurthy;
PW7: M.M.Kashyap s/o M.V.Kashyap;
PW8: Ravinarayanagowda M.P. s/o B.M.Pillappa and
PW9: Ramappa s/o Kenchappa.
List of documents marked on behalf of the prosecution EXP1: Complaint;
EXP1(a): Signature of PW1;
EXsP2 to 4: Xerox copies of certificates;
EXsP5 to 14: Ten receipt books;
EXsP15 to 17: Cash books;
EXP18: True copy of deputation order of the
accused no.1;
EXP19: True copy of schedule and
EXsP20 to 34: True copies of receipts (marked in
C.C.No.8120/2000).
25 C.C.No.8119/2000
List of witnesses examined on behalf of the accused Nil List of documents marked on behalf of the accused Nil List of material objects marked on behalf of the prosecution Nil Date:13.02.2017 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru. 26 C.C.No.8119/2000 13-02-2017 State by Sr.APP., Accused no.1 and 2 C/B For judgment.
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.1 and 2 are acquitted for the offence punishable under sections 406, 408, 471 and 420 r/w section 34 of the Indian Penal Code.
That, the bail and surety bonds of the accused no.1 and 2 are stands cancelled.
That, the accused no.1 and 2 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
(Hema Pastapur) I Addl.CMM, Bengaluru.27 C.C.No.8119/2000