Bangalore District Court
The State By P.S.I vs Nadeem Pasha S/O Gulab John on 4 December, 2021
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU
Present
Sri.Patil Veeranagouda S.,
B.Com. LL.M.
VIII ADDL.C.M.M., BENGALURU.
Dated this the 4th Day of December, 2021
C.C. No.34149/2010
Complainant:
The State by P.S.I.
High Grounds Police Station
(By Sr. Assistant Public Prosecutor)
Versus
Accused:
Nadeem Pasha s/o Gulab John
Age 23 years, r/at No.360,
Opp: Chamundi Temple
Chmundinagar, Bengaluru.
(By Sri.V.Vishwanath, Advocate)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 34149/2010
2. The date of commission 25032010
2 C.C.No.34149/2010
of the offence
3. Name of the complainant Sanjeev Kumar
4. Name of the accused Nadeem Pasha
5. The offence complained of U/s. 420 of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused is convicted
8. Date of such order 04122021
JUDGMENT
The Police SubInspector of High Grounds Police Station has filed the final report against the accused for the offence punishable U/s. 420 of IPC.
2. The prosecution case is that on 25032010 at about 8.20 p.m., at Maharani College Bus Stop when CW1 along with CW2 and 3 were checking the tickets then the accused found with 3 C.C.No.34149/2010 fabricated bus pass and traveling in Bus No. KA01F3808 and cheated BMTC. Accordingly, CW1 lodged first information before the High Grounds Police. The said police have registered the case and issued FIR against the accused. On 26032010 the accused was arrested and produced before this court and he was remanded to JC. On 29032010 the accused by moving application obtained bail. After investigation the IO has filed the charge sheet against the accused.
3. This Court after taking the cognizance issued summons to the accused. In pursuance of summons the accused appeared. The prosecution papers were furnished to accused in compliance of Section 207 of Cr.P.C.
4. After hearing both the side, my predecessor in office has framed the charges, read over and explained to the accused, wherein he pleaded not guilty and claimed to be tried. 4 C.C.No.34149/2010
5. To substantiate its case, the prosecution has examined six witnesses as PW.1 to 6 and got marked six documents as per Ex.P.1 to 6 and material objects as per MO1 and 2. The prosecution has given up CW6. Inspite of taking coercive steps the prosecution has not secured CW7. So, the side of the prosecution evidence taken as closed.
6. Thereafter, the accused was examined U/Sec. 313 of Cr.P.C. to enable him to explain the incriminating evidence appeared against him in the evidence of prosecution witnesses. He denied the same and not chosen to lead defence evidence.
7. Heard both sides and perused the material available on record, the points that arise for my determination are;
1. Whether the prosecution proved beyond reasonable doubt that on 25032010 at about 8.20 p.m., at Maharani College Bus Stop when 5 C.C.No.34149/2010 PW1 along with PW2 and 5 were checking the ticket, the accused by using fabricated bus pass found to be traveling in Bus No.KA01F3808 and cheated BMTC and thereby committed the offence punishable U/sec.420 of IPC?
2. What order?
8. My findings on the above points are as under:
Point No.1 : In the negative Point No.2 : As per final order for the following:
REASONS
9. Points No.1: The prosecution in order to prove its case examined Assistant Traffic Inspector who has lodged first information statement as PW1, the staff of BMTC who were accompanied with PW1 at the time of inspection of the bus and acted as panchas as PW2 and 5, the driver of the said bus as PW3, the Assistant Traffic Manager of Shantinagar BMTC who 6 C.C.No.34149/2010 has deputed PW1, 2 and 5 for ticket checking as PW4, the PSI who has registered case, conducted investigation and filed the charge sheet as PW6.
10. PW1/Sanjeev Kumar being the Assistant Traffic Inspector, Investigative Force deposed that on 25032010 at 8.20 p.m., at Maharani College Bus Stop in BMTC Bus Reg.No.KA01F 3808 when he has inspected the bus, the accused in the bus having photocopy of monthly bus pass and on perusal of it there is difference between the ID Card Number with that of the ID Card of the accused, so it also seen that he has made photocopy of the embelm of their department. So, he found that the accused using fabricated bus pass accordingly he took the accused to the High Grounds Police Station and handed over to the police alongwith his First Information Statement as per Ex.P1 and his signature is at Ex.P1(a). He further deposed 7 C.C.No.34149/2010 that on the next day at 10.20 a.m., the police came to the spot where he has shown the spot and accordingly the spot mahzar was drawn as per Ex.P2 and his signature is at Ex.P2(a). He identified the ID card of the accused as per MO1 and the colour photocopy of the fabricated bus pass as per MO2. He further deposed that due to the use of the said fabricated bus pass the accused has caused loss to the BMTC. He also identified the accused.
11. During the cross examination he admitted that the conductor has not given any complaint against the accused for having the photocopy of the bus pass. He admitted that the particulars in the monthly bus pass has to be filled by the passengers. So also the particulars in the ID Card has to be filled by the passengers. He further stated that he has asked the accused to give his original pass but it was not with him. 8 C.C.No.34149/2010 He also stated that as there is a difference in the ID card number in the said pass and there was no monogram hence they felt that the said bus pass is fabricated one. He admitted that in the said fabricated bus pass he has not taken signature of the accused as well as the other passengers and his other staff. He also admitted that in order to ascertain the said bus pass was fabricated one they have not followed any scientific method. He denied the suggestion that he put his signature on Ex.P2 in the police station. He expressed his ignorance about the colour of the dress worn by the accused on that day but, he further stated that he worn pant and shirt. He categorically denied to the suggestion that in order to save the conductor he has lodged false case against the accused. He also denied the suggestion that though the accused is having the bus ticket but when he raised his voice at the time of inspection against 9 C.C.No.34149/2010 him he has lodged false case against the accused and was deposing falsely.
12. PW2/B.M.Danappagol and PW5/Tajusab Nadap being the Assistant Traffic Inspectors who accompanied the PW1 on that day stated in the same line as of PW1. They further stated that on the next date the police came to the spot and conducted the spot mahazar as per Ex.P2 and they put their signature as per Ex.P2(b) and (c) respectively. They also identified the accused as well as MO1 and 2.
13. During the cross examination they denied the suggestion that the accused was having ticket on that day and he has traveled beyond the limit for which he has taken the ticket. They also denied that in order to overcome the mistake of driver and conductor they were deposing falsely. They also 10 C.C.No.34149/2010 denied that only for their statistics this false case has been filed against the accused.
14. PW3/Jayanna being the driver of the said bus deposed in the same line as of PW1 and identified the accused. During the cross examination he stated that PW1 and other two officers have inspected all the passengers but he has not seen at that time where the accused was sat in the said bus. He further stated that the inspectors have told him that "the accused was traveling in the bus possessing the fabricated pass have you not properly verified?" He further stated that the PW1 has also given a memo to him but he has not submitted the same to the police. He also denied the suggestion that the accused was possessing the bus ticket on that day. He denied the suggestion that since PW1, 2 and 5 are his higher officers so as per their say he was deposing falsely.
11 C.C.No.34149/2010
15. PW4/Prathima being the Assistant Traffic Manager in BMTC Central Office, Shantinagar deposed that in the year 2010 the accused was found traveling with the fabricated bus pass for which she has deputed PW1, 2 and 5 for the inspection and the PW1 has lodged first information against the accused. In this regard police have inquired her.
16. During the cross examination she denied the suggestion that she has not deputed PW1, 2 and 5 for inspection and police have not taken her statement, she was deposing falsely.
17. PW6/Jagadish being the PSI and Investigating Officer deposed about receiving the first information statement from PW1 as per Ex.P1 and registering the case and issuance of first information report as per Ex.P4, arresting the accused seizure of the fabricated bus pass and the ID card under seizure mahazar asper Ex.P3 conducting of spot mahazar as per Ex.P2 12 C.C.No.34149/2010 recording the statements of the witnesses and voluntary statement of accused, writing to the Assistant Traffic Inspector BMTC to furnish the information and receiving of the such information as per Ex.P5 and P6. Recording of the statement of one Geetha and filing of the charge sheet against the accused. He also identified the accused as well as MO1 and 2.
18. During the cross examination he stated that he has checked the accused but he was not possessed with the bus ticket or the original bus pass. In this regard he has not given any information to the court. But he denied the suggestion that he has not checked the accused, as such he has not given any information to the court. He also admitted that there is no mention about who wrote Ex.P2 in it and except the staff of BMTC office there were no other independent witnesses to the mahazar. He has also not obtained the attendance register of 13 C.C.No.34149/2010 PW1, 2 and 5. He denied the suggestion that he had not recorded the statement of witnesses and voluntary statement of accused, conducted the mahazar, and created Ex.P2 and 3 in the police station. He denied the suggestion that he has not verified MO1 and 2 and filed false charge sheet against the accused and was deposing falsely.
19. At this juncture it is necessary to mention the essential ingredients which constitute the offence punishable u/s 420 of IPC, which are as under:
(i) accused cheated the complainant
(ii) accused did so dishonestly
(iii) thereby induced the complainant:
(a) to deliver some property to accused or to some other person
(b) to make, alter or destroy the whole or any part of the valuable security or anything which was signed, sealed and which was capable of being converted into valuable security.14 C.C.No.34149/2010
20. In this case, the presence of the accused in the said bus at the time of inspection was not at all disputed by the accused. This was clearly forthcoming by the suggestion made by the advocate for the accused to PW1 stating that when accused was having ticket and at the time of PW1 was checking the ticket the accused has questioned him for that PW1 has lodged false case. Of course PW1 has denied the suggestion but the suggestion makes it crystal clear that the accused was traveling in the said bus at the relevant point of time.
21. If at all the accused has obtained the bus ticket he would have produced the same before the PW1 at the time of inspection made by him. Apart from that the advocate for accused suggested all the witnesses that in order to overcome 15 C.C.No.34149/2010 the fault of the conductor this false case has been filed. Of course the said suggestion denied by all the witnesses.
22. PW1 being the first informant as well as the BMTC official who has caught the accused has clearly identified the MO2 which is said to be the fabricated bus pass of the accused. Of course, he admitted that he has not followed any scientific method for ascertaining that the bus pass is a fabricated one but he stated that there is a difference between the ID Card as well as the bus pass holding by the accused. The IO has also stated that in order to ascertain the genuineness of the MO2 he has obtained the information from BMTC by writing letter to this the BMTC has furnished Ex.P5 wherein it is clearly mentioned by the said authority stating that the ID number mentioned in the MO2 bearing I.D.No.AA00126405 which was the ID issued from their Corporation to one Geetha K.P., age 24 16 C.C.No.34149/2010 years, House No.19, 2nd Main Road, Moodalapalya Road, Sanjeevini Nagar, Sai Baba Temple, Bengaluru - 560 072. In this regard Ex.P6 and 6(a) has been furnished by the Corporation to the IO.
23. On perusal of the entire records it appears that the ID issued to one Geetha K.P., bears the Card No.AA00126405 whereas in MO2 the name was written as Nadeem Pasha and the ID number written as AA00126405. On the other hand, the accused ID Card is also very well marked as MO1 wherein the Card Number of the accused bears AA00364402. Therefore, it appears that there is no similarity so far as ID number of accused with that of the bus pass as per MO2.
24. Even though the investigating agency has not adopted the method of sending the MO2 to the FSL for getting it verified through it but it has clearly stated that the MO2 is the colour 17 C.C.No.34149/2010 xerox copy wherein the emblem of BMTC is appears to be photocopied. Therefore, when the BMTC official by giving its information and the PW1 to 5 being the officials of BMTC clearly stated that the MO2 is a fabricated one then once again sending it for seeking expert opinion does not warranted. Therefore, merely the IO has not sent the MO2 for FSL will not be the lacuna on the part of the investigation.
25. The advocate for accused also contended that all the witnesses are the officials of BMTC and no independent witnesses were examined and no copassengers in the bus were examined hence, the case of the prosecution cannot be believed. Of course, in this case the independent witnesses were not examined but that only will not be the ground to doubt the case of the prosecution. Moreover the accused has not shown that there is enmity between accused and that of 18 C.C.No.34149/2010 the officials of BMTC which was the reason in filing the false case against the accused. He has also not stated anything during his examination u/s 313 of Cr.P.C.
26. At this juncture it is worth to mention Section 106 of Indian Evidence Act which reads as under:
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
27. On examination of accused u/s 313 of Cr.P.C. he has not at all given any explanation but he simply denied all the questions posed to him. Really if he wanted to give any explanation he ought to have given the same during his examination u/s 313 of Cr.P.C. It is worth to mention the Illustration (a) appended to Sec.106 of Evidence Act, which reads as;
19 C.C.No.34149/2010
When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
28. Looking to the above illustration, heavy burden lies upon the accused to say that he was having bus ticket and MO2 was not concerned to him. In the instant case the accused remained silent and he has failed to explain the contention taken in this case. During the cross examination of PW1 the counsel for the accused has suggested that the accused has taken ticket and he traveled beyond the place for which he has taken ticket. The same was argued by the learned counsel but that is not acceptable because the accused has not at all stated so while his examination u/s 313 of Cr.P.C. He has also not produced the said ticket and not chosen to lead any defence 20 C.C.No.34149/2010 evidence. Therefore, the arguments advanced by the learned counsel for the accused in this regard is not sustainable.
29. In this case the PW1 the first informant has clearly stated about the drawing up of mahazar as per Ex.P2 and 3. The IO i.e., PW6 who has conducted the mahazar has also deposed about the drawing of mahazar as per Ex. P2 and P3. So also PW2 and 5 being the witnesses to the Mahazars have also supported the case. Therefore, the seizure of MO1 and 2 from accused has been established by the prosecution.
30. So far as non examination of other independent witnesses is concerned when the evidence of PW1 is consistent and trust worthy there is no need for corroboration. Of course the corroboration is a rule of prudence but not a rule of evidence. At this juncture it is profitable to mention the decision of Hon'ble Apex Court reported in 21 C.C.No.34149/2010 2016 AIAR (Criminal) 335 Sadhu Saran Singh V/s State of U.P. and others, wherein it is observed in para No.21 that:
"21 (i)....................................................
(vi) As far as the non examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable people normally keep away from the court as they feel it distressing and stressful. Though, this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of the absence of independent witness as long as the evidence of the eye witness, though interested is trust worthy."
31. The above observation of the Hon'ble Apex Court has made it crystal clear that only on the ground that other independent 22 C.C.No.34149/2010 witnesses not led their evidence the case of the prosecution cannot be doubted when the evidence of PW.1 is trust worthy. So, here in this case PW1 being the first informant has categorically deposed the case of the prosecution and his version is clearly corroborated with the evidence of other witnesses.
32. Looking to the entire material placed on record the prosecution is able to prove that the accused was using the fabricated bus pass for making travel in the bus belongs to BMTC. The evidence oral as well as documnetary clearly establishes that MO2 has been seized from the accused while he was using the said bus pass as if it is a genuine one and thereby he has clearly cheated the BMTC with a dishonest intention to get wrongful gain for himself. Therefore, the prosecution has certainly proved the ingredients of Section 420 of IPC as stated above. The contention of the counsel for the accused that there are contradictions, improvement, omission 23 C.C.No.34149/2010 in the evidence of the prosecution is not at all sustainable. The prosecution has proved without any shadow of doubt that the accused has committed the offence punishable u/s 420 of IPC. Hence, I answer the above point in the affirmative.
33. Point No.2: For the foregoing discussion and my findings to the above point, I proceed to pass the following:
ORDER The accused is hereby convicted of the offence punishable u/s 420 of IPC by acting under Section 248 (2) of Cr.P.C.
Call later for hearing on sentence.
(Dictated to the stenographer transcribed and computerized by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 4th day of December 2021.) (Patil Veeranagouda S.) VIII Addl. CMM, Bangalore.
24 C.C.No.34149/2010ORDER ON SENTENCE
1. Heard on sentence.
2. Learned Sr.A.P.P. prayed this Court to impose maximum sentence provided for the offence.
3. On the other hand, learned counsel for the accused submitted that the accused is the only bread earning member in his family. He has to look after his family members, who are depending upon the income of the accused for their livelihood. He has no criminal antecedent. Hence prayed the Court to take lenient view and prayed to give benefit under Probation of Offenders Act.
4. Having regard the submission of both the parties admittedly the offence committed by the accused is against the BMTC which is the Corporation runs by the Government. So, when the 25 C.C.No.34149/2010 accused has cheated the Government, I am of the opinion that the accused is not entitled for the benefit under Probation of Offenders Act.
5. Section 420 of Indian Penal code provides for punishment of imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.
6. It is settled principle of law that sentence imposed shall respond to the cry of the society. Here in this case, the accused has committed offence against the State.
7. At this juncture it is pertinent to mention decision of the Hon'ble Apex Court State V/s Sanjeev Nanda AIR 2012 SC 3104 wherein it is held, "Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from 26 C.C.No.34149/2010 committing similar offence. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crime are certain factors to be considered while imposing the sentence."
8. Keeping in mind the mitigating factors against the accused and considering the above ratio it requires some leniency while passing the sentence. Hence I proceed to pass the following:
ORDER The accused shall undergo simple imprisonment for 1 year for the offence punishable U/s 420 of IPC and also liable to pay fine of ₹ 2,000/. In default of payment of fine he shall undergo SI for 30 days.
The bail bond of the accused shall stands canceled. 27 C.C.No.34149/2010 The MO1 and 2 shall be kept in file.
Office is to supply free copy of this Judgment to the accused.
(Patil Veeranagouda S.) VIII Addl. CMM, Bengaluru ANNEXURE
1. Witnesses examined for the prosecution :
PW1 : Sanjeev Kumar s/o Shankar Rao PW2 : B.M.Danappagol s/o Murigeppa PW3 : Jayanna s/o Puttabasappa PW4 : Prathima w/o Karadigowda PW5 : Tajusab Nadap s/o Khadar Sab PW6 : Jagadish s/o Ramakrishna
2. Documents marked on behalf of the prosecution:
Ex.P1 : First Information Statement Ex.P1(a) : Signature of PW1 Ex.P1(b) : Signature of PW6 Ex.P2 : Spot mahazar Ex.P2(a) : Signature of PW1 Ex.P2(b) : Signature of PW2 Ex.P2(c) : Signature of PW5 Ex.P2(d) : Signature of PW6 28 C.C.No.34149/2010 Ex.P3 : Spot Mahazar Ex.P3(a) : Signature of PW2 Ex.P3(c) : Signature of PW6 Ex.P4 : FIR Ex.P4(a) : Signature of PW6 Ex.P5 : Letter Ex.P5(a) : Signature of PW6 Ex.P6 : Letter Ex.P6(a) : Signature of PW6 Ex.P7 : Copy of Investigating Report Ex.P8 : First Information Report Ex.P8(a) : Signature of PW4 Ex.P9 : Bail Application Ex.P9(a) : Signature of PW4
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL
5. Material Objects:
MO1 : ID Card MO2 : Photocopy of fabricated pass VIII Addl. C. M. M., BENGALURU 29 C.C.No.34149/2010 Again case called out. Accused Present Judgment pronounced in the open court vide separate order ORDER The accused is hereby convicted of the offence punishable u/s 420 of IPC by acting under Section 248 (2) of Cr.P.C.
Call later for hearing on sentence.
VIII Addl. C. M. M. Bengaluru.
Heard learned APP as well as the advocate for accused.
Call later for order on sentence.
VIII Addl. C. M. M. Bengaluru.
30 C.C.No.34149/2010ORDER ON SENTENCE
1. Heard on sentence.
2. Learned Sr.A.P.P. prayed this Court to impose maximum sentence provided for the offence.
3. On the other hand, learned counsel for the accused submitted that the accused is the only bread earning member in his family. He has to look after his family members, who are depending upon the income of the accused for their livelihood. He has no criminal antecedent. Hence prayed the Court to take lenient view and prayed to give benefit under Probation of Offenders Act.
4. Having regard the submission of both the parties admittedly the offence committed by the accused is against the BMTC which is the Corporation runs by the Government. So, when the 31 C.C.No.34149/2010 accused has cheated the Government, I am of the opinion that the accused is not entitled for the benefit under Probation of Offenders Act.
5. Section 420 of Indian Penal code provides for punishment of imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.
6. It is settled principle of law that sentence imposed shall respond to the cry of the society. Here in this case, the accused has committed offence against the State.
7. At this juncture it is pertinent to mention decision of the Hon'ble Apex Court State V/s Sanjeev Nanda AIR 2012 SC 3104 wherein it is held, "Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from 32 C.C.No.34149/2010 committing similar offence. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crime are certain factors to be considered while imposing the sentence."
8. Keeping in mind the mitigating factors against the accused and considering the above ratio it requires some leniency while passing the sentence. Hence I proceed to pass the following:
ORDER The accused shall undergo simple imprisonment for 1 year for the offence punishable U/s 420 of IPC and also liable to pay fine of ₹ 2,000/. In default of payment of fine he shall undergo SI for 30 days.
The bail bond of the accused shall stands canceled. 33 C.C.No.34149/2010 The MO1 and 2 shall be kept in file.
Office is to supply free copy of this Judgment to the accused.
(Patil Veeranagouda S.) VIII Addl. CMM, Bengaluru