Bangalore District Court
Who Is Examined As Pw1 Has Stated In His ... vs Has Cheated The Company To The Tune Of Rs on 31 October, 2017
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 31st day of October 2017
Present : Smt. Roopa R. Kulkarni,
B.Com., LL.B. (Spl).
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 12651/2015
2. The date of commission
of the offence : 19.04.2012 to 07.09.2013
3. Name of the complainant : State by Pulakeshinagar PS
4. Name of the accused : Anil Varghese, 33 Yrs.,
S/o T.T.Varghese,
R/a. Ulipu House,
Kutrapadi Grama and Post,
Putturu Taluk,
Dakshina Kannada District.
5. The offences complained : U/s.408 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 31.10.2017
The Pulakeshinagar police have filed the charge sheet against
the accused for the offence punishable u/s.408 of IPC.
2. The brief facts of the prosecution case are as under :
That the accused was working as Sales Executive in Vyapar
Trade Links belonging to CW1 situated at Richards Town, Viviyani
2 CC.NO.12651/2015
Road, Kiranbagh from 19.4.2012 to 26.9.2013 and at that time
they were supplying PVC, CPVC pipes, plywoods and tanks to their
dealers and used to receive amount from the said dealers towards
the supply of pipes and tanks and the accused has received an
amount of Rs.1,33,170/- from the customers but has not deposited
the said amount to the complainant company and thereby the
accused has committed criminal breach of trust and has committed
the offence punishable u/s. 408 of IPC.
3. On perusal of the records, it appears that the accused was
shown as absconding in the charge sheet. But after filing charge
sheet summons was issued to the accused and he appeared before
the court and was enlarged on bail. Copy of the charge sheet was
furnished to the accused as provided u/s.207 of Cr.P.C. Later on
charge was framed wherein he pleaded not guilty and claimed to be
tried.
4. The complainant police have cited CW1 to CW6 as charge
sheet witnesses. The prosecution in order to prove its case got
examined the complainant as PW1 and got marked documents at
Ex.P.1 and Ex.P.1(a) and closed its side of evidence. The defence
side did not choose to adduce any evidence.
5. 313 statement of the accused is dispensed as there is no
incriminating evidence against the accused.
6. Heard both sides.
3 CC.NO.12651/2015
7. On perusal of the evidence adduced by the prosecution, the
complainant who is examined as PW1 has stated in his evidence
that, since 10 years he is running Trading company at Kiran Bhag
and accused was working as Sales Executive in their company from
19.4.2012 to 26.9.2013. Further he has stated that, accused was
entrusted to collect the amount from the dealers towards supply of
PVC, CPVC pipes and tank and he was to deposit the said amount
to their company account. Further he has stated that, as there
was some difference in the financial transaction he filed complaint
before the police as per Ex.P.1. He got marked his signature at
Ex.P.1(a). Further he has stated that, the accused has deposited
the amount which is due to their company and he got compromised
the case with the accused. He has stated that, he do not know the
contents of Ex.P.1 and the accused has not cheated their company.
The said witness was treated as hostile by the prosecution. In his
cross-examination by the prosecution has denied that, as the
accused has cheated the company to the tune of Rs.1,33,170/- he
filed complaint before the police by narrating the facts stated in the
complaint. Further he has denied that, as he has compromised the
case with the accused he is deposing false.
8. As the complainant who is a material witness has turned
hostile, the prayer of Senior APP for issuance of process to the
remaining witnesses was rejected and as such CW2 to CW6 were
ordered to be dropped by this court.
9. On perusal of the evidence adduced by the prosecution, the
complainant who is a material witness has stated in his evidence
that, the accused has not cheated their company and no amount is
4 CC.NO.12651/2015
due to their company by the accused and has denied that, he filed
complaint before the police as per Ex.P.1. Though the complainant
in his evidence has stated that, accused has deposited the amount
which was due to their company by the accused the same is not
sufficient to hold that the accused has committed the offence.
10. Essential ingredients to constitute criminal breach of trust
are (i) Accused was a clerk or servant (ii) Accused was entrusted
with certain property or he had dominion over certain property
which was not his own (iii) He committed criminal breach of trust
for the said property. Essential ingredient is dishonest
misappropriation. Dishonest intention must be proved. No offence
when the property retained without any misappropriation.
Dishonest intention which is an essential element to constitute the
offence. Mere retention is no offence. The essential ingredients of
an offence or criminal breach of trust falling u/s.408 are
entrustment and dishonest intention.
11. So, in the present case the complainant has clearly stated
that the accused has not cheated their company. So, dishonest
intention on the part of the accused is not proved by the
prosecution. So, the prosecution has failed to prove the guilt
leveled against the accused. Hence, I proceed to pass the following:
ORDER
Accused is not found guilty for the offence punishable u/s.408 of IPC.
5 CC.NO.12651/2015Accused is acquitted u/s.248(1) of Cr.P.C. for the offence punishable u/s.408 of IPC.
Bail bond of the accused stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 31st Day of October 2017) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Radhakrishna T.P. List of exhibits marked for prosecution:-
Ex.P.1 : Complaint List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.6 CC.NO.12651/2015
31.10.2017 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offence punishable u/s.408 of IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offence punishable u/s.408 of IPC.
Bail bond of the accused stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 31st Day of October 2017) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.