Bangalore District Court
Basavarajbommai vs Santhosh Others on 21 September, 2024
KABC030097832007
Presented on : 19-11-2007
Registered on : 19-11-2007
Decided on : 21-09-2024
Duration : 16 years, 10 months, 2 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 21st day of September, 2024
C.C. No.14564/2007
State by Cubbon Park Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Santhosh @ Suresh
S/o Sri Dhanappa,
aged about 26 years,
R/at No.907, 16th Main Road,
B.T.M.Layout, ESW Colony,
Bengaluru.
Case was split up by the order dated 12/02/2024 in
CC No. 5274/2024
KABC030097832007 CC No.14564/2007
2. Sri Naveen
S/o Late Sri Ranganath,
Aged about 33 years,
R/at No.402, 9th Cross,
Ashoka Piller, Jayanagar
2nd Block, Bengaluru-11. ... Accused
(Represented By Sri Harsih M T. Advocate)
1. Date of commission of 04-12-2006
offence to 19-12-2006
2. Name of Complainant Sri Basavaraj Bommai
3. Offences complained Under Section 465, 468
of and 420 R/w Sec. 34 of IPC
4. Charge Pleaded not guilty
5. Final Order Accused No.2 is found
guilty
6. Date of order 21-09-2024
JUDGMENT
The Police Inspector of Cubbon Park Police Station submitted charge sheet against accused No.1 and 2 along with Sri Balaji (who was absconding) for the offences punishable under Section 465, 468, 420 R/w Sec.34 of IPC 2 KABC030097832007 CC No.14564/2007
2. Prosecution Case: That CW1 Sri Basavaraja Bommai has holding savings bank account bearing No.1532 in Canara Bank within limits of Cubbon Park Police Station and sent cheque bearing No.781414 for Rs.3,53,207/- in favour of Mathangi Iron and Steel Company through First Flight Courier, but, the said company has informed that they have not received any cheque. On enquiry, that the said cheque instead of debiting to the amount to the account of Matangi Iron and Steel company and has been fraudulently debited to one Sri Suresh.M., bearing A/c No.217010021263, ING Vysya Bank Ltd, HSR Layout Branch, Bengaluru. The accused No. 1 and 2 forged the signature of CW1 Sri Basavaraju Bommai, strikeout the name of Matangi Iron and Steel Company and Suresh.M. was written it its place and the said cheque was submitted to account of accused No.1 bearing A/c No. 217010021263 for encashment. After withdrawing the money, the accused shared the money amongst themselves. Thereby accused persons cheated CW1 and committed alleged offences.
3. First Information Report: Upon the receipt of complaint as per Ex.P1 from CW1, Police Sub- Inspector of Cubbon Park police registered Crime No.233/2006 against the unknown person for the offences punishable under Section 406, 465, 468 of IPC, prepared FIR as per Ex.P17 and sent the same to the Court and to his superior officers.
3KABC030097832007 CC No.14564/2007
4. Investigation: During the course of investigation, CW15/PW7 on the receipt of complaint as per Ex.P1, recorded the statement of requisite witnesses, secured the documents as per Ex.P4 to 9, 18 to 31 and submitted the charge sheet against the accused No.1 and 2 for the offences u/Sec.420, 465, 468 R/w Sec.34 of IPC. In the charge sheet IO has mentioned that after trace the accused No.3 namely Sri Balaji a separate charge sheet will be submitted against him.
5. At the pre-summoning/crime stage, the accused No.2 and 1 were enlarged on bail by the order dated 20-01-2007 and 08-02-2007 respectively.
6. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
7. In continuous absence of accused No.2, the case against him is ordered to be split up. Thereafter, on 20-01-2020 this case was transferred to the Hon'ble LXXXI Addl. City Civil and Sessions Judge, Bengaluru (Special court exclusively to deal with criminal cases related to elected MPs/MLAs in the state of Karnataka) as per directions of the Hon'ble Supreme Court of India, in W.P. (Civil) No.699/2016 dated 01-11-2017 and dated 14-12-2017 and RSB No.288/2017 dated: 26-02-2018 of the Hon'ble High 4 KABC030097832007 CC No.14564/2007 Court of Karnataka, Bengaluru and vide Government order No.LAW 10 LCE 2018 dated: 8-2-2018 for disposal in accordance with law as the complainant was Home Minister, Government of Karnataka. On perusal of the records, the said court has transferred the case to the this court stating that the accused No.1 and 2 in this case are neither MLAs nor MPs, only the complainant/CW1 is the sitting MLA and hence the said court has no jurisdiction to entertain the case and returned the same. After receipt of the case, the split up case against accused No.2 i.e. CC No.17600/2020 clubbed with the original case in CC No.14564/2007 i.e. present case.
8. Charge: Accused No.2 enlarged on bail by order dated 31-08-2024. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1 and 2. After hearing the learned Senior APP and counsel for accused, charge for the offences punishable U/Sec. 465, 468, 420 R/w Sec.34 of Indian Penal Code has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried
9. Prosecution Evidence: The prosecution in order to establish its case cited 14 witnesses, examined 7 witnesses and exhibited 31 documents and closed their side. However, the examination of 5 KABC030097832007 CC No.14564/2007 CW5 was given up as the prosecution failed to secure the presence of CW5 by the order dated 05/04/2023 and the examination of CW3 and CW10 were given up even after due execution of proclamation by the order dated 19/09/2023.
10. Statement of accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 and 2 were examined as per section 313 statement of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Thereafter, despite repeated NBW and proclamation, the concerned police have not secured the presence of accused No.1 and hence the case against accused No.1 is ordered to be split up in CC No.5274/2024 by order dated 12-02-2024.
12. Heard the arguments. Perused materials on the record.
13. The following point are arises for consideration is as follows;
6KABC030097832007 CC No.14564/2007
1. Whether the prosecution proved proved beyond all reasonable doubt that beyond all reasonable doubt that CW1 Sri Basavaraja Bommai has holding savings bank account bearing No.1532 in Canara Bank within limits of Cubbon Park Police Station , sent cheque bearing No.781414 for Rs.3,53,207/- in favour of Mathangi Iron and Steel Company through First Flight Courier and after the said cheque was stolen, the accused No. 2 along with split up accused No.1 with common and dishonest intention to make wrongful gain forged the signature of CW1 Sri Basavaraja Bommai on the cheque No.78414 thereby resulted in commission of an offence punishable under Section 465 R/w Sec.34 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that accused No.2 along with 7 KABC030097832007 CC No.14564/2007 split up accused No.1 with common and dishonest intention committed an offence of forgery for purpose of cheating thereby resulted in commission of an offence punishable under Section 468 R/w Sec.34 of IPC?
3. Whether the prosecution proved beyond all reasonable doubt that accused No.2 along with split up accused No.1 and with one Sri Balaji with common intention forged the signature of CW1 Sri Basavaraja Bommai on the cheque No.78414 and deposited the cash of Rs.3,53,207/- into he account of split up accused No.1 and encash the amount and cheated CW1 thereby resulted in commission of an offence punishable under Section 420 R/w Sec.34 of IPC?
4. What order?
8KABC030097832007 CC No.14564/2007
14. The court's findings on the above points are as under:
Point No.1& 2 : In the affirmative Point No.3 : In the negative Point No.4 : As per final order REASONS
15. Point No.1 to 3: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Sri Basavaraj Bommayi examined as PW1 deposed that he is the managing partner of Sri Renuka Industries since last 16-17 years. Earlier, he was having the account in Canara Bank at Lavelle Road. His current account number is 1532. He had issued a cheque in favour of Mathangi Iron and Steel Company through Cheque No. 781414 dated 04/12/2006 for Rs. 3,53,207/- through courier. Thereafter Mathangi Iron and Steel Company informed that the above said cheque was not received. Thereafter he contacted Canara Bank. When he contacted his bank, he came to know that the 9 KABC030097832007 CC No.14564/2007 cheque was not received. Thereafter, I contacted his Canara Bank, when I contacted his bank, he came to know that the cheque has been debited to his account on 19/1/2006 through Ing Vysya Bank and Sri Suresh has encashed the same. The bank Manager of Canara bank shown him and he came to know that the forgery has been committed as Mathangi Iron and Steel Company has been cancelled and it was substituted by Suresh. Thereafter he went to Cubbon Park Police Station and lodged the complaint in this regard on 26/12/2006. Now he identified his signature on the complaint and the same is marked as Ex. P. 1 and his signature as Ex. P. 1A. The said receipt is marked as Ex. P. 2. Now he sees the cheque bearing No. 781414. The said Cheque is now marked as Ex. P. 3. To the said Cheque, he has signed as partner, Renuka Industries. The said signature is marked as Ex. P. 3A. Now he sees one more signature on the said cheque. The said signature is appearing by cancelling the Mathangi Iron and Steel Company. The said signature is not that of him. The said signature is marked as QD1 by FSL. The police have obtained his sample signature in the police station on 6 pages, which are marked as R. 1 to R.6 and are marked as Ex. P. 4 to 9. He identified bank extract of Canara Bank, Lavelle Road and the same is marked as Ex. P.
10. The relevant entry shows that debit of Rs. 3,53,207/- is marked as Ex. P. 10A. after thorough investigation and after sending the sample signatures 10 KABC030097832007 CC No.14564/2007 to FSL, the police informed him that the accused No. 1 and 2 have committed the offences.
ii. CW2 Sri Suresh Kamath examined as PW2 deposed that he was working as an Assistant General Manager in Canara Bank, Lavelle Road Branch, Bangalore. CW1 is having account in their bank. On 19/12/2006, a cheque was presented in Vysya bank for clearing and on the same day, cheque was sent to them for clearance. He found the overwriting on the cheque . Prima Facie, they did not doubt his signature and hence the said cheque was passed. The said amount was credited to the account of One Suresh, who was having account in Vysya Bank. Later, the Cubbon Park Police asked him to furnish the said cheque. Accordingly on 06/01/2007, he furnished the said original cheque to the Cubbon Park Police Station along his report. He identified his signature on said letter and the same is marked as Ex. P. 11 and Ex. P.11a. he identified the said cheque as per Ex. P. 3. He identified his signature of bank statement of CW1 and the same is marked as Ex. P. 10 and his signature as Ex. P. 10A. he came to know from the police that forgery has been committed.
iii. CW4 Sri Eshwar examined as PW3 deposed that he is working in First Flight Courier since last 6 years. On 16/12/2006, he had kept his courtier bag outside the office on his bike. He noticed that 22 11 KABC030097832007 CC No.14564/2007 courier covers were stolen. He told about the said incident to Janakiraman and Murugan. They altogether search for the said courier covers. However they could not traced. Later he filed a complaint before the Byappanahalli Police Station in this regard. On 27/12/2006, he came to know that the case has been registered at Cubbon Park Police Station and he was asked to give a statement before the Cubbon Park Police Station. He has given his statement in this regard. He has given the details of stolen covers of the courier. Out of the stolen courier covers, one of the cover pertains to this case. Now he sees the courier receipt bearing consignment No. F12549046. The said Court list is already marked as Ex. P. 2. He came know from the Cubbon Park Police that the said Consignment was having a cheque and it was encashed. I do not know the other particulars of encashment.
iv. CW11 Sri G V V Bhaskar examined as PW4 deposed that he was working as Branch Manager at HSR Layout Branch, Bangalore. He has received a letter from the police requesting him to produce original documents pertaining to the SB account No. 217010021263 of one M. Suresh. On the basis of this letter, after obtaining permission from the corporate office, I have produced the documents through a letter. He identified the signature on the covering letter and the same is marked as Ex. P. 12 and his signature as Ex.P.12A. Account opening form is 12 KABC030097832007 CC No.14564/2007 marked as Ex. P. 13 which contains 4 pages. Copy of the driving license is marked as Ex. P.14. Statement of account for the month of December 2006 is marked as Ex. P.15. He has given statement before the police.
v. CW14 Sri Vijay Kumar examined as PW5 deposed that he was working as constable in Cubbon Park Police Station from the year 2000 till 2009. On 03/02/2007, he and CW13 were deputed for tracing the accused. On the receipt of information from the informant, accused No. 1 was traced at his house at BTM Layout. He submitted a report in this regard as per Ex. P.16 to CW15. He identified his signature on Ex. P.16 as Ex. P.16A and the accused before this court.
vi. CW10 Sri Honesh examined as PW6 deposed that he was working at Cubbon Park two wheeler stand. He identified his signature on Ex. P. 4 to 9 and the same is marked as Ex. P.4A, 5A, 6A, 7A, 8A and 9A. He affixed his signature on to the cubbon park police station. CW1's specimen signature was obtained in the Cubbon Park Police Station as per Ex. P.4 to Ex. P.9. He siged as a witness to the said incident and has given a statement before the police.
vii. CW15 Sri Ravishankar examined as PW7 deposed that he working as Police Inspector with Cubbon Park Police Station from the year 2006 till 13 KABC030097832007 CC No.14564/2007 2008. On 26/12/2006, when he was in-charge of station, received a written complaint from CW1 around 5.30 pm. He identified his signature on the Ex. P. 1 and the same is marked as Ex. P. 1b. On the receipt of complaint from CW1, he registered a complaint in Crime No. 233/2006 and submitted the FIR in this regard to the Court. He identified his signature on FIR and the same is marked as Ex. P.17 and his signature as Ex. P.17A. Thereafter, on 28/12/2006 and 29/12/2006 he recorded the statement of CW4, CW5. On 06/01/2007, CW12 produced the report after the accused No.2 was brought to the police station. He identified his signature on the said report-Ex. P. 18 is marked as Ex. P.18A. On the same day, he recorded the voluntary statement of accused No.2. He obtained the specimen signature of CW1 and accused no.2 in the presence of CW6 and CW7 to ascertain the forgery and thereafter the accused No. 2 was produced before the Court. He obtained the signature on six pages and are marked as S1 to S6. These documents were marked as Ex. P.19 to 24. And his signatures were marked as Ex. P.19A to 24A. On the same day, he obtained the cheque No. 781414 on 04/12/2006 and subjected to property form 1/2007 and submitted to the Court. He identified his signature as Ex. P.11 and his signature as Ex. P.11b. He identified the cheque- Ex. P.3. On 30/01/2007, he obtained the signature of CW1 on six sheets and the same are marked as Ex. R1 to R6 as per Ex. P.4 to 9 and identified his 14 KABC030097832007 CC No.14564/2007 signatures as per Ex. P. 4b, 5b, 6b, 7b, 8b and 9b. On 03/02/2007, CW13 and CW14 brought the accused No. 1 and submitted the report. His signature on the said report is marked as Ex. P. 4b. Thereafter, he recorded the voluntary statement of accused No. 1. He obtained the specimen signature of accused No. 1 in the presence of CW8 and CW9 on six sheets and the same are marked as P1 to 6 and the same are marked as Ex. P. 25 to Ex. P. 30 and his signatures are marked as Ex. P. 25A, 26A, 27A, 28A, 29A, 30A. On 15/02/2007, he sent these documents to FSL for expert opinion. He obtained account opening form and account statement on 08/02/2007 from ING Vysya bank, H. B. R Layout and the same was added to the file on 26/03/2007. He identified his signature on the said letter -Ex.P.12 as Ex.P.12B. He identified the account opening form and statement of account and identification card are already marked as Ex. P. 13 to 15. On the same day, he recorded the statement of CW11. On 11/06/2007, he received the FSL report and identified the report as Ex. P. 31 and his signature as Ex. P. 31A. Thereafter, he submitted the charge sheet against accused persons.
16. The present case is charge sheeted accused No. 1 namely Sri Santhosh @ Suresh S/o. Danappa, Accused No. 2 namely Sri Naveen S/o. Late Ranganath and Accused No. 3 namely Balaji for the offence punishable under section 465, 468, 420 R/w 15 KABC030097832007 CC No.14564/2007 Section 34 of IPC. The relevant provision of forgery is as under
463. Forgery.--3 [Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 in The Indian Penal Code Making a false document.-- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the 16 KABC030097832007 CC No.14564/2007 authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with 342 [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his 342 [electronic signature] on any electronic record knowing that such person by reason of unsoundness of 17 KABC030097832007 CC No.14564/2007 mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
465. Punishment for forgery.-- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 468:- Forgery for purpose of cheating whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Thus, it is culled out the main ingredients of forgery from aforesaid sections are:
1. Making a False Document 18 KABC030097832007 CC No.14564/2007
2. As per Section 463 IPC, forgery involves making any false document or false electronic record or part of a document or electronic record.
3. Section 464 IPC further defines when a person is said to have made a false document:
Dishonestly or fraudulently making, signing, sealing, or executing a document, with the intention of causing it to be believed that such document was made, signed, sealed, or executed by or by the authority of a person by whom or by whose authority the maker knows it was not made, signed, sealed, or executed Dishonestly or fraudulently altering a document or electronic record in any material part after it has been made or executed
4. Dishonestly or fraudulently causing any person to sign, seal, execute, or alter a document or electronic record, knowing that the person does not know the contents or nature of the 19 KABC030097832007 CC No.14564/2007 alteration due to unsoundness of mind or intoxication
5. Intention to Cause Damage, Injury, or Fraud
6. The false document must be made with the intent to cause damage or injury to the public or any person, support any claim or title, cause a person to part with property, enter into a contract, or commit fraud.
7. Knowledge of Forgery In this backdrop, the present case is taken up for evaluation of oral and documentary evidence to ascertain whether the prosecution has made out the case for forgery.
17. The accused No. 1 to 3 have substituted the name of Mathangi Iron and Steel Company with the name of Suresh in Cheque No.781414 dated 04/12/2006 for Rs. 3,53,207/- as per Ex. P.3 and forged the signature of PW1 as QD1. The said Ex. P.3 was sent through First Flight Couriers Limited as per Ex. P. 12 on 15/12/2006 under consignment Number F12549046 was addressed to Mathangi Iron and Steel Company. The said cheque number 20 KABC030097832007 CC No.14564/2007 781414 was credited to the name of Suresh i.e., an amount of Rs. 3,53,207/- has been debited from the account of PW1 as per Ex. 10 and 10A. PW7 obtained the particulars of Bank account of Suresh i.e., account opening form containing photo and specimen signature and driving license of M. Suresh and statement of account for the month of December 2006 as per Ex. P. 12 wherein accused No. 1 was identified as Suresh M S/o. Manjuappa NO. 33, I Floor, 11th Main, 5th Cross, Begur Road, Bommanahalli, Bangalore -560050 as per Ex. P. 13 which was opened on 23/11/2006 vide account no.
217010021263 and the said amount was credited to his account on 19/12/2006 and the same was withdrawn on 20/12/2006 by self cheque as per Ex. P. 15. The accused No. 1 has not disputed his identity as per Ex. P. 14. The accused No. 1 was produced before the PW7 by the report dated 03/02/2007 by PW5. The identity of the accused No. 1 was mentioned as Santosh @ Danappa but in the instant case the accused NO. 1 was identified as Suresh S/o. Manjuappa as per Ex. P. 14 but the photographs embossed in the Ex. P. 14 was not disputed by the accused No. 1 and accused No. 2 that it was not accused No. 1 in the Ex. P. 14 and the account no. 217010021263 with ING Vysya Bank was not opened by the accused No. 1 and the accused No. 2 was produced before the PW7 on 06/01/2007 as per Ex. P. 18. Thus, it is clear from Ex. P. 3 that Ex. P. 3 was originally in the name of Mathangi Iron and 21 KABC030097832007 CC No.14564/2007 Steel Company and the same was replaced with the name of Suresh in Cheque No.781414 dated 04/12/2006 for Rs. 3,53,207/-. A question arises whether the Ex. P. 3 was issued to the accused No. 1 by the PW1. This court had gone through the entire cross examination of PW1 that the accused persons were trying to establish that the cheque bears the signature of PW1 and the same was not forged.
18. PW1 has not seen the accused persons. There is no dispute that the Ex. P.3 was sent through First flight courier service Limited as per Ex. P. 2 and in this regard, PW3 had given the evidence about the same and they have also lodged a complaint with Bynappahalli Police Station that 22 couriers were stolen.
19. PW7 obtained the signature of PW1 and the accused No. 1 as per Ex. P. 4 to 9 in the presence of CW9 Sri Chandrashekar Belegere and CW10 Sri Honesh S/o. Krishnamurthy in the police station and the same has been deposed by the PW6 and the signature of PW1 was obtained on 06/01/2007 as per Ex. P.19 to Ex. P.24 in the presence of accused No. 2 namely Naveen R and CW6 Sri Kumar and Sri Asfar and as per Ex. P.25 to Ex. P.30 in the presence of accused No.1 namely Santosh R, CW8 Sri Chandrashekar and CW9 Sri Honesh.
22KABC030097832007 CC No.14564/2007
20. This court could not secure the CW3 namely Sri Lakshmi Narayana Expert to corroborate the Ex. P. 31 however the PW7 secured the Ex. P.31 as per report from hand writing examination on 04/06/2007. It appears from the Ex. P. 31 appended with the reasons in page 18 that Xxx The specimen signature is free in executions. There is no attempt of imitation observed in it. The specimen signatures are freely executed and found to be sufficient for comparison.
On comparison between the questioned and standard signatures, I find the similarities in the formation of characters such as execution of this initial character appearing like "B"
Location of initial vertical Staff, nature of commencement of body curved part, relative shape of this portion, combining tendency with the further character as observed in the questioned signature marked as Q3 are similarly observed in the standard signatures; execution of the next 23 KABC030097832007 CC No.14564/2007 character, nature of combination from the preceding character, nature of apex part of this character, relative shape of the body curved part, combining tendency with the next character are similarly observed between the questioned and standard signatures; execution of the further characters, shape of the body shoulder part, movement in the formation of terminal characters and nature of finish, putting a dot and formation of rubric as observed in the questioned signature are similarly observed in the standard signatures. The similarities observed between the questioned and standard signatures are significant and sufficient to express positive opinion regarding the authorship of questioned signature as Q3.
As embodied in para 2:
Basavarj S. Bommai My opinion that the person who wrote the red enclosed standard signatures stamped and 24 KABC030097832007 CC No.14564/2007 marked R1 to R6 did not write red enclosed questioned signature similarly stamped and marked Q1 is based on the following consideration. The questioned signature marked as Q1 is existing at the place of correction made to "Name of the bearer" of disputed signature. This signature is showing close resemblance with the questioned signature marked as Q3, which is existing on the same disputed cheque. On examination of the questioned signatures marked as Q1 under VSC - 5000 by using oblique light source. There is clear indentions marks below the existing signatures are noticed. It is evident that this questioned signature is produced by tracing process on indented outlines. The deviations of indentations are also noticed. The indented marks on reverse side of the disputed cheque are visible. On comparison of this questioned signature with the specimen signatures, I find minute differences in the formations. The middle of the 25 KABC030097832007 CC No.14564/2007 initial character 'B', slow formation of apex of the next character, shape of the body oval part of the character 'o' as observed in the questioned signature marked as Q1 are not similarly observed in the standard signatures. The complete copied tendency of characters on outlines is noticed in the questioned signature marked as Q1. The presence of indented outlines below the existing signature, slow and copied movement of formations on outlines, movement interruptions at certain places are indicative of tracing process adopted while producing the questioned the signature marked as Q1.
On the basis of above observations, it is possible express negative opinion regarding the authorship of the questioned signature marked as Q1.
26KABC030097832007 CC No.14564/2007 As Embodied in Para 3: It has not been possible to fix up the authorship of the questioned signature marked at Q1, on the basis of specimens marked as S1 to S6, since the question is produced by imitation process. The questioned signature marked as Q1 is a product of tracing on indented outlines. As such, no writing lapses are available to fix up the authorship. The specimens marked as S1 to S6 are showing copied movement of formations. The data available from them is not sufficient to fix up the authorship hence no opnion is expressed.
As embodied in para 4:
(Santosh @ Suresh) My opinion that the person who wrote that the red enclosed standard signatures stamped and marked as P. 1 to P6 also wrote red enclosed questioned signature similarly stamped and marked Q2 is base on the following consideration. The questioned signature marked as Q2 is 27 KABC030097832007 CC No.14564/2007 existing on reverse side of the disputed signature. It is freely executed. The specimens marked as P. 1 to P6 are showing free in executions and consistent among themselves. It is observed that they are sufficient for comparison.
On comparison between the questioned and standards, I find similarities in the formation of characters such as execution of the character 'S', nature at the commencement, relative shape of the body curved parts are similarly observed between the questioned and standards;
execution of the character 'U', shape of the angularity at the base detached formation are similarly observed; execution of the character 'r', location and nature of commencement, pattern in the formation of this character and its finish are similarly observed; execution of the characters 'sh', location and nature of commencement, pattern in the formation of this character 28 KABC030097832007 CC No.14564/2007 and its finish are similarly observed; execution of the characters "S", combining tendency of these two characters and location of finish are similarly observed; execution of the character 'M' existing at the end of the signature, location of its commencement, relative shape of the body shoulder parts, opened the bifurcation, location of finish as observed in the questioned signature are similarly observed in the standards; patterns and placement of the characters are also similarly observed between the questioned and standards.
The similarities observed between the questioned and standard signatures are significant and sufficient to express positive opinion on questioned signature as Q2.
Thus, it is clear that the signature on the Ex. P. 3 was a product of tracing on indented outlines and more so it appears that the signature of PW1 looks different as PW1 used to sign at the end of S at the whole signature of Bommai. Such being the case, the 29 KABC030097832007 CC No.14564/2007 accused No. 1 and 2 has forged the signature of PW1 by imitation process and presented in the name of Suresh /accused No. 1. Thus, the banker has passed the cheque for encashment however the PW1 lodged the complaint only after verification from courier on 16/17-12-2006 about the status of courier for having sent to Matangi Iron and steel company that it did not reach to them and thereafter after he came to know that cheque was encashed on 26/12/2006 and since there was a delay in lodging the complaint does not mean that the acts of accused persons could be condoned for forging the signature of the PW1.
21. The learned counsel for accused No. 2 has argued that forgery is not proved on Ex. P. 3 as Ex. P. 31 FSL report does not depict that the accused No. 2 forged the signature of PW1 however the signature of PW1 was forged through imitation process and they had given the statement before the PW7 that they have struck down the name of M/S Matangi Iron and Steel Company and written the name of Suresh and withdrawn the money from the account of accused No. 1 and the accused No. 2 received the amount of Rs. 70,000/- from Balaji (accused No. 3) and the remaining amount were shared between accused No. 1 and accused No. 3 and the same is corroborated with the FSL report about the imitation process. Thus, the burden shifts upon the accused No. 1 to 3 to explain how the Ex. P. 3 came to be issued by the 30 KABC030097832007 CC No.14564/2007 PW1 in the name of accused No. 1 and what was the transaction between the PW1 and the accused No. 1 as per Section 106 of Indian Evidence Act as they are within knowledge of accused No. 1 to 3 howsoever they failed to give any explanation rather trying to rely upon FSL report that the signature is tallying with the Ex. P. 3 and never gave any explanation that the signature was obtained through imitation process and there was slow movement in writing the questioned signature on Ex. P. 3.
22. It is relevant to know what is 'Valuable security' as defined by section 30 of Indian Penal Code which reads as under
" 30. "Valuable Security" - The words "Valuable Security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right."
Ex. P. 3 is the cheque which has a valuable security where the same was converted into cash. Whether the element of 'cheating' is made out for an offence under Section 420 or 468 of IPC 31 KABC030097832007 CC No.14564/2007
23. Cheating is defined by Section 415 of IPC . The Hon'ble Apex Court in the case of V. Y. Jose Vs. State of Gujarath and another reported in 2009(3)SCC 78 has observed in paragraph 14 as under " 14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i) Deception of a person either by making a false or misleading representation or by other action or omission;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, prosecution is required to show that the accused No. 1 to 3 had fraudulent or dishonest intention at the time of making promise or representation but in the instant case too, the Ex. P. 3 was stolen i.e., PW1 had not given the Ex. P. 3 to the accused No. 1 after making promise or 32 KABC030097832007 CC No.14564/2007 representation and thereafter forged the signature of PW1 and encashed the value of cheque -Ex. P. 3. There is no direct of making promise or representation to the PW1 from the accused persons however Section Section 468 and 471 of IPC is made out and not section 420 of IPC and the said principle is appreciated in the case of Bhausaheb Kalu Patil vs The State Of Maharashtra reported in AIR1981 SC
80.
24. The essential ingredients of Section 471 are
(i) fraudulent or dishonest use of document as genuine (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one.
25. Section 471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section.
26. To attract Section 471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one.
27. The act or acts which constitute the commission of the offence of forgery are quite 33 KABC030097832007 CC No.14564/2007 different from the act of making use of a forged document. The expression 'fraudulently and dishonestly' are defined in Section 25 and 24 of IPC respectively. For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one. Whether the accused knew or had reason to believe the document in question to be a forged is clear from Ex. P. 3 itself as it was issued to M/S Matangi Iron and Steel Company.
28. Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe".
"Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is a higher level of state of mine.
29. Section 26 of IPC explains the meaning of the words "reason to believe" thus:
26 - "Reason to believe": A person is said to have 'reason to believe' a 34 KABC030097832007 CC No.14564/2007 thing, if he has sufficient cause to believe that thing but not otherwise."
In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe"
have to be deduced from various circumstances in the case and the said principle is appreciated in the case of Joti Parshad v. State of Haryana reported in AIR 1993 SC 1167. As discussed, the accused no. 1 to 3 had not only the knowledge, but also had reason to believe that the document was a forged one before they encashed Ex. P. 3. After evaluation of the oral and documentary evidence on record clearly establishes the case of prosecution that this accused No. 2 has committed the offences punishable under section 465, 468 R/w section 34 of IPC along with the accused NO. 1 and 3 thereby points No.1 and 2 are answered in the Affirmative and point No. 3 in the negative.35
KABC030097832007 CC No.14564/2007
30. POINT NO.4: - In the light of the findings on the above points, this court proceeds to pass the following order.
ORDER Acting Under Section 248(2) of Cr.P.C the accused is convicted of the offences punishable under section 465, 468/471 R/w section 34 of IPC Accused shall be heard on the question of sentence under Sec. 248(2) of Cr.P.C.
(Typed under my dictation by the stenographer on computer, corrected and then pronounced by me in open Court on this the 21 st day of September 2024.) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
36KABC030097832007 CC No.14564/2007 ORDER REGARDING SENTENCE: -
1. Accused submitted that he has been in judicial custody for several years. He has a mother and has no one to look after and prays to take a lenient view.
2. The learned Sr. Public Prosecutor has replied that considering the magnitude of the fraud, maximum possible sentence be imposed on the accused. He also further has argued that the accused is liable to compensate the victim PW1 towards the loss suffered by him.
3. It is undisputed that this accused No. 2 was arrested on 06/01/2007 and was released on bail on 19/01/2007. PSI of Cubbon Park Police Station was in JC in UTP No. 549/2010 and hence body warrant was issued against the accused No. 2 on 19/11/2010 however in this case, the accused No. 2 was taken into Judicial custody on 31/12/2010 and was released on bail by the order dated 12/01/2011 and the accused No. 2 was in JC under UT No. 7935/2011 and was produced before this court under body warrant on 05/09/2011 was released on 03/02/2012. The accused was produced under the NBW on 12/03/2023 and was taken into judicial custody and was released on bail on 01/07/2013.
The accused No. 2 was produced from JC from Guntur jail on 01/12/2022 till the year 21/09/2024 37 KABC030097832007 CC No.14564/2007 which comes to 714 days. Thus he would be entitled for the benefit of set-off u/s 428 of the Cr.P.C.
4. The question is whether the accused should be sentenced to maximum possible sentence or any leniency can be shown to him? Admittedly the accused is aged about 45 years now. Therefore if he is sentenced to undergo the sentence for the period spent under judicial custody it would serve the ends of justice. Further the order of conviction would hover over his conscience which too would be a punishment for him. The substantive sentences for which the accused is convicted carry the sentence of fine. Having regard to the magnitude of the fraud and taking into consideration the circumstances obtaining in the case, this court deems it just and expedient to pass the following sentence.
1. For the offence under Section 465 of IPC accused No.2 is convicted and sentenced to undergo Simple Imprisonment for 2 years and shall pay a fine of Rs.10,000/- and in default of payment of fine he shall undergo SI for six months.
2. For the offence under Section 468 R/w Section 471 of IPC, the accused No.2 is convicted and sentenced to undergo SI for four years and shall pay a fine of Rs.25,000/- and in default of 38 KABC030097832007 CC No.14564/2007 payment of fine he shall undergo SI for Three months.
3. The period of detention shall be given set off against period of sentences of imprisonment under Sec. 428 of Cr.P.C.
4. The substantive sentences shall run concurrently.
5. As the accused has been in judicial custody for a period of 714 days and is entitled for the benefit of set-off, it is deemed that the accused has suffered the imposed period of imprisonment
6. Keep this file in the split up case CC No.5274/2024 registered against accused No.1.
7. Copy of the judgment be given to the accused at free of cost.
(Typed under my dictation by the stenographer on computer, corrected and then pronounced by me in open Court on this the 21st day of September 2024.) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
39KABC030097832007 CC No.14564/2007 ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Basavanraj Bommai PW2 : Sri Suresh Kamath.K.S. PW3 : Sri Eshwar PW4 : Sri G.V.V.Bhaskar PW5 : Sri Vijay Kumar PW6 : Sri Honnesh PW7 : Sri Ravishankar
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint
Ex.P2 : Courier receipt (Copy)
Ex.P3 : Cheque No.781414 (copy)
Ex.P4 : Specimen signature of CW1
P9
Ex.P10 : Canara Bank Statement of account
Ex.P11: Letter dated 6-1-2007
Ex.P12 : Letter dated 10-2-2007
Ex.P13 : Customer Information
Ex.P14 : Driving license
Ex.P15: Statement of account for the period
01-12-2006 to 31-12-2006
Ex.P16: Report
Ex.P17 : FIR
Ex.P18 : Report
40
KABC030097832007 CC No.14564/2007
Ex.P19 : Specimen signature of accused No.2
P24 Naveen
Ex.P25 : Specimen signature of accused No.1
30 Santhosh
Ex.P31 : FSL report
Material Objects marked on behalf of the prosecution:
NIL Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.41
KABC030097832007 CC No.14564/2007 21-9-2024 Judgment pronounced in the open court vide separately ORDER Acting Under Section 248(2) of Cr.P.C the accused No.2 is convicted of the offences punishable under section 465, 468/471 R/w section 34 of IPC Accused shall be heard on the question of sentence under Sec.248(2) of Cr.P.C.
VIII Addl. Chief Judicial Magistrate, Bengaluru City.42
KABC030097832007 CC No.14564/2007 Heard on sentence.
-:ORDER REGARDING SENTENCE:-
1. Accused submitted that he has been in judicial custody for several years. He has a mother and has no one to look after and prays to take a lenient view.
2. The learned Sr. Public Prosecutor has replied that considering the magnitude of the fraud, maximum possible sentence be imposed on the accused. He also further has argued that the accused is liable to compensate the victim PW1 towards the loss suffered by him.
3. It is undisputed that this accused No. 2 was arrested on 06/01/2007 and was released on bail on 19/01/2007. PSI of Cubbon Park Police Station was in JC in UTP No. 549/2010 and hence body warrant was issued against the accused No. 2 on 19/11/2010 however in this case, the accused No. 2 was taken into Judicial custody on 31/12/2010 and was released on bail by the order dated 12/01/2011 and the accused No. 2 was in JC under UT No. 7935/2011 and was produced before this court under body warrant on 05/09/2011 was released on 03/02/2012. The accused was produced under the NBW on 12/03/2023 and was taken into judicial custody and was released on bail on 01/07/2013.43
KABC030097832007 CC No.14564/2007 The accused No. 2 was produced from JC from Guntur jail on 01/12/2022 till the year 21/09/2024 which comes to 714 days. Thus he would be entitled for the benefit of set-off u/s 428 of the Cr.P.C.
4. The question is whether the accused should be sentenced to maximum possible sentence or any leniency can be shown to him? Admittedly the accused is aged about 45 years now. Therefore if he is sentenced to undergo the sentence for the period spent under judicial custody it would serve the ends of justice. Further the order of conviction would hover over his conscience which too would be a punishment for him. The substantive sentences for which the accused is convicted carry the sentence of fine. Having regard to the magnitude of the fraud and taking into consideration the circumstances obtaining in the case, this court deems it just and expedient to pass the following sentence.
ORDER
1. For the offence under Section 465 of IPC accused No.2 is convicted and sentenced to undergo Simple Imprisonment for 2 years and shall pay a fine of Rs.10,000/- and in default of payment of fine he shall undergo SI for six months.
44KABC030097832007 CC No.14564/2007
2. For the offence under Section 468 R/w Section 471 of IPC, the accused No.2 is convicted and sentenced to undergo SI for four years and shall pay a fine of Rs.25,000/- and in default of payment of fine he shall undergo SI for Three months.
3. The period of detention shall be given set off against period of sentences of imprisonment under Sec. 428 of Cr.P.C.
4. The substantive sentences shall run concurrently.
5. As the accused has been in judicial custody for a period of 714 days and is entitled for the benefit of set-off, it is deemed that the accused has suffered the imposed period of imprisonment
6. Keep this file in the split up case CC No.5274/2024 registered against accused No.1.
45KABC030097832007 CC No.14564/2007
7. Copy of the judgment be given to the accused at free of cost.
VIII Addl. Chief Judicial Magistrate, Bengaluru City.
46