Bangalore District Court
Which By Itself Is Not In Any Way Helpful ... vs Used To Raise Bills For A Higher Value And ... on 30 January, 2020
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 30th day of January 2020
Present : Smt. Reshma Jane Rodrigues,
M.Com., L.L.M.
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 1287/2013
2. The date of commission
of the offence : 2008 to 2009
3. Name of the complainant : State by Thilaknagar PS
4. Name of the accused : A1: Muralidhar Rao, 39 Yrs.,
S/o D.Shanmukharao,
R/a.No.17, Sri Sai Rama Nilaya,
Vivekananda Layout,
1st main, Marathhalli Outer Ring Road,
Bengaluru.
5. The offences complained : U/s.408, 420 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 30.01.2020
The Thilaknagar police have filed charge sheet against the
accused for the offences punishable u/s.408, 420, 426 of IPC.
2 CC.NO.1287/2013
2. The brief facts of the prosecution case are as under :
It the case of the prosecution that, the accused being a General
Manger, Finance and Accounts in the company belonging to CW1 and
CW8 by name M/s. Symbiosis Agro Management Pvt. Ltd. was
incharge of the entire financial affairs of the company and was looking
after the purchase requirements of the company, during 2008-09 while
purchasing packaging material for the company to the quotations and
receipts for higher price by pressuring the suppliers and obtained
cheques from the Managing director for the said higher amounts and
handed over the cheques to the suppliers and then received the
difference amount of Rs.27,91,200/- from the suppliers and
misappropriated the said amount for your personal use and committed
breach of trust and cheated the complainant and committed offences
under section 408, 420 of IPC.
3. The accused is enlarged on bail and after filing charge sheet and
summons was issued to the accused. After service of summons
accused appeared before the court and copy of charge sheet was
furnished to the accused in compliance of Sec.207 of Cr.P.C. Later
the charge was recorded for the offences punishable u/s.408, 420 of
IPC and the accused pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused the prosecution has to
prove that the accused has committed offences under section 408, 420
3 CC.NO.1287/2013
of IPC. In this regard 23 witnesses are cited in the charge sheet and
the prosecution has got examined PW1 to PW6 and relied upon Ex.P.1
to Ex.P.64.
5. CW3 given up by Sr APP and CW4, 5, 7 to 15, 18, 19, 20, 22
are repeatedly absent and their presence could not be secured for
evidence and hence they were dropped.
6. 313 statement of the accused was recorded and the accused has
denied all the incriminating evidence and has not choosen to lead any
defence evidence.
7. Heard the learned Sr.APP and counsel for accused.
8. CW2 is examined as PW1. He is the cited witness of ExP1. He
has deposed that, he has signed to Ex.P.1 in the complainant office.
He has been cross examined by the learned counsel for the accused
and in his cross-examination he has admitted that the complainant is
having almost 3 to 4 companies. It is admitted that, PW1 is an
employee of the complainant and hence he has every reason to depose
in support of the case of the prosecution. In addition, the panchanama
Ex.P.1 is prepared with respect to the spot which is the office of the
complainant which by itself is not in any way helpful to prove the
charges levelled against the accused.
4 CC.NO.1287/2013
9. CW16 is examined as PW2. He has deposed that, he was
working as Manager in Symbiosis Agro and the accused was working
in the Finance Department. He has deposed that, he came to know
through the MD, CW8 that the accused used to show raise bills for
higher amount and misappropriated the amount. He has not deposed
anything else apart from this and hence was treated as a hostile
witness by the learned Sr. APP and permitted to be cross examined,
wherein he has deposed that, the accused had obtained a sum of
Rs.3 lakhs from him and later returned the same from the company
amounts. However there is no reliable evidence given by this witness
to prove the charges levelled against the accused.
10. CW6 is examined as PW3. He is the cited witness to Ex.P2. He
has deposed adverse to the case of the prosecution. He has deposed
that he signed to Ex.P.2 on the request of the police and stated he does
not know the panchanama and he has stated that he has not given any
statement to the police. He has been treated as hostile witness by the
learned Senior APP and permitted to be cross-examined, however
nothing is elicited in the cross-examination in support of the case of
the prosecution. Hence his evidence is not corroborative to prove the
genuineness of the panchanama marked as Ex.P.2.
11. CW17 is examined as PW4. He has deposed that, he was
working as the Marketing Manager of Inoflex Laminator Pvt. Ltd. and
5 CC.NO.1287/2013
were supplying materials to Symbiosis Agro Management Pvt. Ltd.
and the accused was the Purchase Manager. He has deposed that, the
accused used to raise bills for a higher value and used to retain the
balance amount and when questioned he stated that he was using it for
the company and accused used to transfer the said amount to his
personal account. Later when the owner of the company enquired with
PW4 he stated the fact to him and came to know that the accused has
similarly collected more amounts from other customers and
misappropriated the said amount to his personal use.
12. As far as the evidence of PW4 is concerned, the further chief-
examination of this witness was deferred for production of documents
and inspite of sufficient opportunity granted this witness never turned
up with the documents and hence an adverse inference has to be
drawn against PW4 for not tendering any documents in support of his
evidence and also for not tendering for further evidence. Hence, the
evidence given is not reliable to prove the guilt of the accused as his
version is not corroborated by any documentary evidence. There is no
material to show that the bills were raised by the accused for a higher
value and to show that the balance amount was transfered to the
personal account of the accused. There is no material to show which
was the actual value and to what extent higher bill was raised and was
is the difference amount collected and misappropriated by the
accused.
6 CC.NO.1287/2013
13. The prosecution has produced Ex.P.11 to Ex.P.16 bank payment
receipts and also the quotation Ex.P.17 and similarly produced Ex.P.19
to Ex.P.25 bank payments made to V.G. Enterprises and Ex.P.28
quotation and Ex.P.18 is the letter by Esscee Enterprises regarding the
payments made and amount due and Ex.P.29 is the letter by
V.G. Enterprises stating that the accused is forcing to make more
payments. However the author of Ex.P.18 and Ex.P.29 are not
examined to prove its genuineness. Similarly the bank payment slips
and quotations of Shenoy Enterprises and Shree Matha Industries,
Shree Lakshmi Venkateswara Packers and Innoflex Laminators Pvt.
Ltd., produced do not depict the manner of misappropriation alleged
to be committed by the accused.
14. CW23 is examined as PW5 is the Investigation Officer and he
has deposed regarding the investigation carried out in this case. He
has identified Ex.P.5 complaint. He has deposed that Ex.P.1
panchanama was prepared in the presence of witnesses. Ex.P.7 is the
appointment letter pertaining to the accused. PW5 has deposed that
he has obtained the voluntary statement of the accused and also stated
that the documents were seized in the presence of witnesses CW6 and
CW7.
15. Though the payment slips and the cheques of Symbiosis Agro
Management Pvt. Ltd., to ESS CEE enterprises, V.G. Enterprises,
7 CC.NO.1287/2013
Shenoy Enterprises is stated to be seized in the course of investigation
only the payment slips are marked in this case.
16. Ex.P.56 is the information letter regarding the difference
amount. It is alleged that, as per there is a difference amount of
Rs.6,20,510/-. The letter given by Stellar Holidays to the accused
about payment of amount is marked as Ex.P.57. However the relevant
witnesses are not examined to corroborate the documentary evidence
and to prove the manner of misappropriation.
17. The income tax returns of Symbiosis Agro Management Pvt
Ltd. of the year 2008-09 to 2011-12 is marked as Ex.P.58 to Ex.P.61.
The prosecution has produced the bank statements of the accused
maintained at Andhra Bank and ICICI Bank as Ex.P.62 and Ex.P.63.
The letter of Goodwill Holidays is produced as Ex.P.64. The bank
statement of V.G. Enterprises of Merchantile Bank Ltd., is not
exhibited in this case. PW5 has stated that he has obtained the
statements of the witnesses CW6 to 9 and CW12, 13, 16 and 17.
However the witnesses have not been examined to corroborate the
documentary evidence. The documents by their own also are
incomplete documents and do not clearly reflect the misappropriated
amounts.
18. PW5 is cross examined by the learned counsel for the accused
and one of the contentions raised in the cross-examination is that the
8 CC.NO.1287/2013
Head Office of Symbiosis Agro Management is within the limits of
Jayanagar police station. However, PW5 has submitted that the
registration office of Symbiosis Agro Management come within the
jurisdiction of Tilaknagar police station. At the same time it is
admitted that the office wherein the accused was working does not
come within the jurisdiction of Tilaknagar police station. As far as the
jurisdiction is concerned, the accused was working as a General
Manager comprising of all the sub branches and hence it cannot be
considered that Tilaknagar police had no jurisdiction to register and
investigate the case. In addition, as far as the detention of accused
much prior to the registering of the case and receipt of complaint is
concerned, it is a matter to be submitted and enquired at the time of
arrest and production of the accused before the Magistrate. However,
the only probability which can be assumed is that the complainant
might have been acquainted with a particular police station and it
could be a tainted and interested investigation at the instance of the
complainant.
19. PW5 has admitted in his further cross-examination that, all the
orders are of the year 2011 and the quotations given by all other
companies are of the year 2011. It is admitted that, the orders were
not placed by the accused to these various companies. It is admitted
that, only the orders and quotations are produced and all the
documents Ex.P.27 to 29, 32, 39 to 42, 48, 49, 52, 56 were received on
9 CC.NO.1287/2013
17/10/2011. It is suggested that, all the documents are submitted by
the complainant and no documents are seized from the various
companies with whom the complainant company has transacted.
20. The seizure of the documents from the possession of the
complainant and the witnesses is not satisfactorily established as the
witnesses to the seizure panchanama have not deposed in support of
the case of the prosecution. Hence, it is possible that the documents
are obtained from the complainant and the complainant might have
submitted only some of the documents or some created documents to
suit the purpose of the complaint. Though some of the documents are
marked in this case they do not clearly establish that the difference
amount stated therein is misappropriated by the accused.
21. CW21 is examined as PW6 is the police official who has
deposed regarding the arrest of the accused and hence his evidence is
formal in nature restricted to the arrest of the accused and report to the
IO.
22. The prosecution by way of documentary evidence has produced
Ex.P.4 which is a document which could be prepared by any layman.
No doubt Ex.P.7 is the appointment letter, however it does not specify
about the disputed transactions and the manner in which they had to
be performed by the accused. Ex.P.5 speaks about the allegations of
10 CC.NO.1287/2013
manipulation of documents and showing higher value of purchase
price while purchasing the materials from the suppliers namely
M/s.Esscee Enterprises and V.G.Enterprises and others and stated that
the accused has received the difference amount in cash and also
received illegal gratification however none of the suppliers that is
either M/s.Esscee Enterprises nor V.G. Enterprises, Sri.Lakshmi
Vekateshwara, M/s. Sri Matha Industries nor M/s.Innoflex nor
M/s.Shenoy Enterprises have deposed regarding the price paid by
them to the accused and deposed any of the documents in that regard.
Hence, there are incomplete documents produced by the prosecution
in support of the case of the prosecution and to prove the case of
misappropriation. It is alleged in the voluntary statement stated to be
given by the accused that, the accused had contacted the suppliers and
got prepared quotations for a higher amount and gave the company
cheque for a lesser amount and converted for personal use the
difference amounts. However none of the witnesses have deposed in
corroboration to the prosecution case.
23. In order to attract section 406 the complainant should entrust the
accused with some property to be used in a specific manner or have
dominion over the complainants' property and the said property of the
complainant should be misappropriated or converted to own use by
the accused in violation of law. The prosecution has produced only
the appointment letter of the accused however there is no evidence to
11 CC.NO.1287/2013
prove as to what was the actual price of the materials and what was
the amount collected by the accused and how the difference was
misappropriated. The documents produced by the prosecution are
incomplete documents.
24. The language of this section has been structured in a manner
that it has a wide ambit, however 'entrustment' of the property is an
essential element for an offence to be penalized under S.405 of IPC.
25. The essential ingredients of the offense of criminal breach of
trust are;
(1) The accused must be entrusted with the property or
with dominion over it,
(2) The person so entrusted must use that property, or;
(3) The accused must dishonestly use or dispose of that
property or wilfully suffer any other person to do so in
violation,
(a) of any direction of law prescribing the mode in
which such trust is to be discharged, or;
(b) of any legal contract made touching the
discharge of such trust.
26. In addition in order to attract the offence under 420 of IPC there
should be an intention to cheat from the very inception of the
12 CC.NO.1287/2013
transaction and the accused must have entered into transaction solely
with an intention to cheat and not to fulfill obligations.
27. There is no oral or documentary evidence placed on record by
the prosecution to prove entrustment and in what manner
misappropriation has been committed by the accused or how the
property is converted to own use by the accused. The alleged
transactions and the mode of payments and the manner of
misappropriation is not established. In addition, there is no material to
prove dishonest and fraudulent intention on the part of the accused
and inducement with an intention to cheat the complainant and to
prove the actual amount of the order and the excess amount collected
and transfered by accused to his personal account. No such entries are
satisfactorily proved. The sole testimony of the investigation officers
is not of any help to prove the guilt of the accused. In addition, their
evidence is only formal in nature. Though evidence is documentary in
nature there are no satisfactory documents which have been exhibited
in evidence to prove the charges levelled against the accused. Hence
there is no oral or documentary evidence placed on record to prove the
ingredients of the alleged offences.
28. Taking an overall view of the matter the accused are entitled for
a benefit of doubt and therefore will have to be acquitted of the
alleged offences. Hence, I proceed to pass the following :
13 CC.NO.1287/2013
ORDER
Accused No.1 is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bond of the accused and that of his surety stands cancelled after expiry of appeal period.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 30th day of January 2020) (Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Lakshman PW.2 : V.Keshava Naidu PW.3 : Srinivas PW.4 : Vinodkumar PW.5 : R.R.Kalyanshetty PW.6 : Venkataswamappa
List of exhibits marked for prosecution:-
Ex.P.1 : Spot Mahazar
Ex.P.2 : Seizure mahazar
Ex.P.3 : Statement of PW3
Ex.P.4 : Document containing details of Symbiosis
14 CC.NO.1287/2013
Ex.P.5 : Complaint
Ex.P.6 : FIR
Ex.P.7 : Appointment letter
Ex.P.8 &
Ex.P.9 : Reports submitted by CW21 and CW22
Ex.P.10: Voluntary statement of accused
Ex.P.11: Payment slip dated 20.04.2011
Ex.P.12 : Payment slip dated 17.05.2011 Ex.P.13 : Payment slip dated 25.06.2011 Ex.P.14 : Payment slip dated 11.07.2011 Ex.P.15 : Payment slip dated 01.08.2011 Ex.P.16 : Payment slip dated 23.08.2011 Ex.P.17 : Quotation of ESS CEE Enterprises Ex.P.18 : Letter Ex.P.19 : Payment slip dated 16.04.2011 Ex.P.20 : Payment slip dated 23.04.2011 Ex.P.21 : Payment slip dated 20.06.2011 Ex.P.22 : Payment slip dated 02.08.2011 Ex.P.23 : Payment slip dated 09.08.2011 Ex.P.24 : Payment slip dated 09.08.2011 Ex.P.25 : Payment slip dated 09.08.2011 Ex.P.26 : Tax invoice Ex.P.27 & Ex.P.28 : Condition and quotation issued by Eureka Forbes Ex.P.29 : Letter of V.G.Enterprises regarding issuance of Rs.3,80,000/- to accused Ex.P.30 : Payment slip dated 30.07.2011 Ex.P.31 : Payment slip dated 03.08.2011 Ex.P.32 : Letter of Shenoy Enterprises Ex.P.33 : Payment slip dated 04.05.2011 Ex.P.34 : Payment slip dated 05.07.2011 Ex.P.35 : Payment slip dated 13.07.2011 Ex.P.36 : Payment slip dated 26.07.2011 Ex.P.37 : Payment slip dated 03.08.2011 Ex.P.38 : Payment slip dated 18.08.2011 15 CC.NO.1287/2013 Ex.P.39 : Letter of Matha Industries regarding summary of difference in the rate for supply of containers Ex.P.40 : Quotation for supply of HDPE containers Ex.P.41 : Credit note issued by Matha Industries Ex.P.42 : Letter of Matha Industries dated 17.09.2011 Ex.P.43 : Differentiation of accounts list along with Ex.P.42 Ex.P.44 : Payment slip dated 20.04.2011 Ex.P.45 : Payment slip dated 01.08.2011 Ex.P.46 : Payment slip dated 03.08.2011 Ex.P.47 : Payment slip dated 24.08.2011 Ex.P.48 & Ex.P.49 : Quotation and letter issued by Lakshmivenkateshwara Packers Ex.P.50 : Payment slip dated 01.08.2011 Ex.P.51 : Payment slip dated 24.08.2011 Ex.P.52 : Letter dated 16.09.2011 of Syed Tabrez Ex.P.53 : Seizure panchanama Ex.P.54 : Registration certificate of complainant company Ex.P.55 : Salary revised letter of accused Ex.P.56 : Letter issued by V.G.Enterprises Ex.P.57 : Letter of Stellar Holidays regarding payment to accused Ex.P.58 to Ex.P.61 : Income Tax returns of Symbiosis Agro Management Pvt.
Ltd. For the period 2008-09 to 2011-12 Ex.P.62 : Statement of Account of accused of Andhra Bank Ex.P.63 : Statement of Account of accused of ICICI Bank Ex.P.64 : Letter dated 02.02.2012 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.
16 CC.NO.1287/2013 17 CC.NO.1287/201330.01.2020 State by Sr.APP Accused For judgment ORDER (Pronounced in open court vide separate order) Accused No.1 is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bond of the accused and that of his surety stands cancelled after expiry of appeal period.
(Reshma Jane Rodrigues) IV Addl. Chief Metropolitan Magistrate, Bangalore.
18 CC.NO.1287/2013