Bangalore District Court
Since Beginning. Evidence Of Pw1 To Pw4 ... vs No.2 To 4 Either Directly Or Indirectly ... on 20 January, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 20th day of January 2016
Present : Sri. Venkataraman Bhat,
B.Sc., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 15119/2008
2. The date of commission
of the offence : 5.7.2004 to 23.9.2006
3. Name of the complainant : State by Cubbonpark PS
4. Name of the accused : A1: Pradeep Fatehpuria,
(Split up)
A2: J.Sagay Mary, 32 Yrs.,
W/o M.K.Raghu,
R/o Hical Magnetics Private Limited,
No.9, Electronic city, 2nd stage,
Hosur Road, Bengaluru.
A3: M.K.Raghu, 33 Yrs.,
S/o Keshavamurthy,
R/a. No.9, Raheshwarinagara,
Govindareddy Palya,
Electronic city, Bengaluru.
A4: S.Muniraju, 31 Yrs.,
S/o Sampangappa,
R/o Hical Magnetics Private Limited,
No.9, Electronic city, 2nd stage,
Hosur Road, Bengaluru.
5. The offences complained : U/s.406, 468, 471, 420 r/w 34IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
2 CC.NO.15119/2008
7. Final order : Acquitted
8. Date of order : 20.01.2016
Sub Inspector of Police, Cubbon Park police station placed
charge sheet against accused No. 1 to 4 for the offences punishable
u/s.406, 471, 468, 420 r/w 34 of IPC.
2. It discloses that, a private complaint came to be filed On
behalf of "Weizmann Homes Limited" represented by CW1 at PCR
No.5338/2006 against accused No.1 to 4. It was referred for
investigation to the jurisdictional police station. After the
investigation I.O. submitted charge sheet against accused No.1 to
4. Accused No.1 has been shown as absconding accused in the
charge sheet. Inspite of issuance of NBW accused No.1 remained
absent and case against accused No.1 came to be split up and
ordered to register a separate case. Accused No.2 to 4 had
obtained anticipatory bail and appeared before this court and
released on regular bail.
3. It is the case of the prosecution that, accused No.1 is the
Manager of Neha Associates situated at Ex-serviceman colony, 10th
main, R.T.Nagar, Bangalore. According to the prosecution a joint
development agreement was entered into between accused No.1
and CW7 to construct an apartment in Sy. No.17, 18, 19 and 20 of
Sultan Palya, Bangalore. A GPA was executed by CW7 in favour of
accused No.1. "Weizmann Homes Limited" is a housing finance
company dealing with home loan, term loan etc. According to the
prosecution, accused No.1 and other accused created false
documents and approached Weizmann Homes Limited to provide
3 CC.NO.15119/2008
loan in respect of S-5 Flat No.202. It is alleged that, accused No.1
has induced the said finance as if he is the owner of the said
property. It is further alleged that, accused No.2 induced as if
purchaser of the said property. Accused No.2 and 3 had filed a
loan application. Accused No.4 stood as guarantor to the said loan.
Weizmann Homes Limited lent a sum of Rs.6 Lakhs as loan. The
said amount was taken by accused No.1. Thereafter it came to
know that all the accused with criminal intention to cheat had
availed the said loan by creating forged documents. Apart from
this, the name of apartment has been changed as "Sneha
Apartment". It is further alleged that, all the accused
misappropriated the said loan amount for their own use and
cheated Weizmann Homes Limited.
4. After submission of the charge sheet, cognizance of the
offences have been taken. Copy of charge sheet was furnished as
required u/s.207 of Cr.P.C. Charge was framed against accused
No.2 to 4 for the offences punishable u/s.406, 468, 471, 420 r/w
34 of IPC. Accused No.2 to 4 pleaded not guilty and claimed to be
tried.
5. CW1 to CW11 witnesses have been cited in the charge sheet.
During the course of trial, PW1 to PW4 were examined and Ex.P.1
to Ex.P.18 got marked.
6. After closure of the prosecution side evidence, statement of
accused No.2 to 4 was recorded u/s.313 of Cr.P.C. Accused No.2
to 4 did not adduce any defence evidence.
4 CC.NO.15119/2008
7. Heard arguments of Senior APP and advocate for the accused
No.2 to 4.
8. CW1 was examined as PW1. In fact PW1 was working as
Assistant General Manger of Weizmann Homes Limited at the time
of filing private complaint. PW1 has deposed regarding
disbursement of loan in favour of accused No.2, execution of joint
development agreement, loan papers, alienation of the said
property in favour of 3rd party, cheating and forgery of documents
by the accused. PW1 was subjected into cross-examination.
9. CW8 was examined as PW2. PW2 has deposed to the effect
that as a GPA holder of his brother P.P.Rafel he purchased Flat
No.S-5, 202 from accused No.1 in the year 2001.
10. CW9 was examined as PW3. PW3 was working in Sub
Registrar Office, Bangalore North Taluk in the year 2004. PW3 has
deposed regarding execution of sale deed presented by accused
No.2.
11. CW7 was examined as PW4. According to the prosecution a
joint development agreement was executed between accused No.1
and this witness to develop the said property. But PW4 did not
support the prosecution. He was treated as hostile witness and
cross-examined by Senior APP.
12. Inspite of sufficient opportunity, prosecution could not able to
secure the presence of other charge sheet witnesses. It is reported
that, most of the witnesses left earlier address. CW10 and CW11
5 CC.NO.15119/2008
are the Investigation Officers. Inspite of taking coercive steps by
the prosecution these witnesses remained absent. It can be noticed
that, process came to be issued through higher police officers also.
Inspite of this, other witnesses remained absent.
13. Now the question for consideration is whether prosecution is
able to prove the charges against the accused No.2 to 4 with the
help of evidence of PW1 to PW4. There is separate charge for the
offence punishable u/s.406 of IPC. In order to attract offence of
criminal breach of trust, two essential conditions are to be
established. One is entrustment of the property with the accused
and second is dishonest misappropriation of the property. It is the
case of the prosecution that, accused No.1 to 4 had approached
Weizmann Homes Limited to take loan and same was
misappropriated by accused No.1 to 4. There is material to show
that accused No.2 had filed loan application before Weizmann
Homes Limited. Accused No.3 is the co-applicant. Accused No.4
stood as guarantor. Accused No.1 was developer of the said
apartment. There is material to show that accused No.2 to 4
executed loan papers including loan agreement, DPN etc.
14. Now, the question for consideration is whether transaction of
loan amounts to an entrustment. At this stage, it is more relevant
to extract the commentary on the book "The Penal Law of India
(10th Edition) Dr. Sir Hari Singh Gour. It is stated in page
No.3494 as under :
"Giving a loan to somebody for accommodating
a person to have money for certain time is not
entrustment of money with a direction that the
6 CC.NO.15119/2008
money would be utilized in a particular
manner. Failure to pay back a loan or a debt
does not amount to dishonest misappropriation
of the money or dishonest conversion of the
same towards his own use."
15. In the case on hand also on the perusal of evidence of PW1 it
discloses that, accused failed to repay the loan amount. In other
words accused have committed breach of terms of loan agreement.
As far as dishonest intention of accused No.2 to 4 are concerned,
evidence of PW1 is totally silent. Even there is no indirect evidence
to prove the inference regarding the criminal intention of accused
No.2 to 4 to obtain the said loan amount. When a loan transaction
does not amount to entrustment as defined u/s.405 of IPC,
Sec.406 is not attracted. Likewise absolutely there is no evidence
to prove that accused created, forged documents and induced CW1
to provide loan amount in favour of accused No.2. In order to
attract offence of cheating, prosecution is required to establish that
that accused had induced to deliver property so as to cheat the
complainant since beginning. Evidence of PW1 to PW4 is totally
silent on this aspect. PW1 has duly admitted that a civil suit is
pending for recovery of the said loan amount. At the most,
essentially it is a civil dispute between the parties. "Mensrea" of
accused No.2 to 4 either directly or indirectly is absent. In other
words, it is breach of terms of contract and remedy lies before Civil
Court. When there is no legal and acceptable evidence to prove the
charges against accused No.2 to 4, there is no alternative except to
acquit the accused for want of evidence. In the result, I proceed to
pass the following :
7 CC.NO.15119/2008
ORDER
Accused No.2 to 4 are not found guilty for the offences punishable u/s.406, 468, 471, 420 r/w 34 of IPC.
Accused No.2 to 4 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 468, 471, 420 r/w 34 of IPC.
Bail bond of accused No.2 to 4 stands cancelled.
Keep the entire records of this case in split up case against accused No.1. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 20th Day of January 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : C.S.Upadhya PW.2 : T.P.Fransis PW.3 : K.B.Shankaralingaiah PW.4 : Ramachanda Subbaraju
List of exhibits marked for prosecution:-
Ex.P.1 : Complaint
Ex.P.2 : Certified copy of loan application
Ex.P.3 : Certified copy of Offer letter
Ex.P.4 : Certified copy of loan agreement.
Ex.P.5 : Copy of Promissory Note
8 CC.NO.15119/2008
Ex.P.6 : C.C. of Power of Attorney
Ex.P.7 : C.C. of Letter evidencing deposit of title deeds
Ex.P.8 : C.C. of Deed of Guarantee
Ex.P.9 : C.C. of notice issued to Accused No.2 to 4
Ex.P.10 : C.C. of sale deed
Ex.P.11 : CC of agreement to sell undivided interest Ex.P.12: C.C. of Agreement regarding construction Ex.P.13: Legal notice Ex.P.14: Postal cover Ex.P.15: Original postal receipt Ex.P.16: CC of RPAD receipt Ex.P.17: CC of sale deed Ex.P.18: Statement of PW4 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.9 CC.NO.15119/2008
20.01.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused No.2 to 4 are not found guilty for the offences punishable u/s.406, 468, 471, 420 r/w 34 of IPC.
Accused No.2 to 4 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 468, 471, 420 r/w 34 of IPC.
Bail bond of accused No.2 to 4 stands cancelled.
Keep the entire records of this case in split up case against accused No.1. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 20th Day of January 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
10 CC.NO.15119/2008