Bangalore District Court
State By Yalahanka Ps vs No.2 Is Abated on 29 December, 2021
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 29th day of December 2021
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 OF CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 8712/2008
(Crime No.420/2007)
2. The date of commission
of the offence : 22.01.2005
3. Name of the complainant : State by Yalahanka PS
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden,, Geddalahalli,
Bengaluru.
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
( Abated)
A3: Subramani B.
A4: Smt. Dhanalakshmi
(Split up)
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
2 CC.NO.8712/2008
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 29.12.2021
The Police Inspector, Yalahanka Police Station filed the Charge
Sheet against the accused No.1 to 4 for the offence punishable under
Sections 409, 420 read with Section 34 of Indian Penal Code
(hereinafter referred as IPC).
2. The brief facts of the prosecution case are as under :
The CW1 - H.S.Dhruvaraj filed written first information
statement contending that he was transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the year 2006. He
stated that he worked as a incharge Manager as Ramesh Rao was on
leave. Prior to Sri. Ramesh Rao accused No.1 - Suresh worked as
Manager in the said Bank. After assuming the charge by Sri.Ramesh
Rao as Manager, Head Office, instructed him to review the loan
accounts sanctioned by the previous Manager - accused No.1 -
Suresh. On reviewing the loan accounts he came to know that in loan
account of accused No.3 - B. Subramani became non performing
asset. On perusal of documents of the property which is mortgaged to
the Bank found that accused No.3 - B.Subramani gave an application
for sanction of loan of Rs.10,00,000/- for the purchase of house
property bearing No.24/172 situated at Agrahara, Yalahanka within the
3 CC.NO.8712/2008
limits of TMC, Yalahanka and his wife accused No.4 -
Smt.Dhanalakshmi stood as a co-obligant to the said loan. The loan
was sanctioned and the total outstanding loan as on the date of filing
of the first information statement is of Rs.10,15,492/-. Accused No.3
- B.Subramani and accused No.4 - Smt. Dhanalakshmi agreed to
repay the said amount at prevailing rate of 9% interest. In order to
ascertain the authenticity of documents Ramesh Rao visited the TMC,
Yalahanka, Bengaluru and on enquiry he came to know that no such
khata is existed in respect of property mortgaged by the accused No.3
- B. Subramani or his vendor. He also came to know that Hakku
Patra pertaining to the Sy. No.42, 19, 57, 76, 49, 15, 25, 66 and 64
purported to be issued by the concerned BDO were fabricated for the
purpose of creation of equitable mortgage for availing the said
housing loan and in respect of said properties COD enquiry is pending
since 1983 in respect of issuance of Hakku Patra. Hence, under all
these circumstances the said property is mortgaged and he unable to
trace the existence of the property mortgaged. Even the empaneled
valuer unable to locate the property mortgaged and accused No.2 -
H.S.Nagaraj empaneled valuer had given valuation report knowing
that such property is not existed. Hence, the first informant came to
know that earlier Manager i.e. accused No.1 - Suresh had not
accompanied the valuer at the time of valuation of the property.
Hence, accused No.3 - B.Subramani and his wife accused No.4 -
Smt.Dhanalakshmi who are borrower and co-obligant, accused No.2
4 CC.NO.8712/2008
valuer and accused No.1 the Manager of the said Bank in collusion
with each other with intention to defraud the Bank obtained the
housing loan by depositing the fabricated documents of the property
which is not existed. On the basis of written first information
statement police registered the case under their station Crime
No.420/2007 for the offence punishable under Sections 409, 465, 468,
420 of IPC and issued first information report.
3. During pending investigation accused No.2 appeared through
his counsel and he was released on bail.
4. The PSI, Yalahanka PS after completion of investigation filed
the Charge Sheet against accused No.1 to 4 for the offence punishable
under Sections 409 and 420 read with Section 34 of IPC. My
predecessor in office had taken cognizance for the said offences and
registered the case in Criminal Case Register No.III and issued
summons to accused No.1 to 4. Accused No.1 appeared through his
counsel and released on bail. Accused No.2 after receipt of summons
appeared.
5. The copy of Charge Sheet furnished to accused No.1 and 2 as
per Section 207 of Code of Criminal Procedure (hereinafter called as
Cr.P.C.)
6. The accused No.3 and 4 absconded and this court issued non
bailable warrant against them. My predecessor in office even after
5 CC.NO.8712/2008
issuance of non-bailable warrant as they not secured within a
reasonable time and split up the case against them and ordered to
register separate case against them and directed to file split up charge
sheet against them. Accordingly, office registered the split up CC
No.12166/2016 against them.
7. The contention of accused No.2 that he be discharged from the
said offences was rejected on 05.10.2016.
8. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused No.1
and 2 for the said offences and read over and explained in Kannada
language known to them and they did not plead guilty and claimed for
trial.
9. The prosecution in order to prove its case, examined totally 5
witnesses as P.W.1 to 5 and got marked Ex.P.1 to P.15.
10. As sufficient materials available on record, statement of accused
No.1 and 2 under Section 313 of Cr.P.C. was recorded and read over
and explained all the incriminatory evidence and statements available
against them in Kannada language known to them and accused denied
the same and did not lead defence evidence.
11. Accused No.2 reported as died on 05.10.2021 and case against
accused No.2 is abated.
6 CC.NO.8712/2008
12. The prosecution examined CW1 as PW1, CW2 as PW4, CW3
as PW5, CW4 as PW2, CW6 as PW3. The prosecution got marked
Ex.P.1 first information statement, Ex.P.2 transfer order of accused
No.3, Ex.P.3 Account opening form of accused No.3, Ex.P.4 Form
No.60, Ex.P.5 learner's license of accused No.3, Ex.P.6 loan sanction
letter, Ex.P.7 valuation report of the property given by the accused
No.2 with certificate of accused No.1, Ex.P.8 Hakku Patra, Ex.P.9 Sale
Deed dated 22.01.2005, Ex.P.10 Statement of Loan Account of
accused No.3, Ex.P.11 report of PW2, Ex.P.12 First Information
Report, Ex.P.13 letter of service of accused No.1, Ex.P.14 No
Objection Certificate issued by Block Development Officer,
Bengaluru North Block, Bengaluru, Ex.P.15 report given by PW5.
13. It is the case of the prosecution that the accused No.3
approached to the accused No.1 - Branch Manager, Karnataka Bank
Limited, Sahakara Nagar branch, Bengaluru that he want to purchase
the site No.172 in Sy. No.24 situated at Agrahara, Yalahanka and
applied for loan in the first informant Bank. The accused No.3
opened the Bank account in the first informant Bank and prosecution
produced Ex.P.3 Bank account opening form wherein accused No.3
given his address as Muneshwara Temple Street, Jakkur. It is also
important to note that in the said account opening form no one
introduced to the first informant Bank i.e. any other account holder of
said Bank had not signed as an introducer of accused No.3 to the first
informant Bank. Even then the accused No.1 allowed his application
7 CC.NO.8712/2008
and opened the account in the first informant Bank as Account
No.1212500100146601. The prosecution also produced the Ex.P.4
Form No.60 in which accused No.3 made declaration and verification
and then signed to it. The accused No.3 furnished Ex.P.5 learner's
license as his address proof. The accused No.3 mentioned his wife
accused No.4 as a nominee in Ex.P.3 - Account opening form.
14. The accused No.3 in order to obtain loan from the said Bank he
produced the Ex.P.8 - Hakku Patra, Ex.P.9 sale deed dated 22.01.2005,
Ex.P.14 - No Objection Certificate of Block Development Officer,
Bangalore North Block, Yalahanka, Bengaluru. Hence, on the basis of
these documents accused No.3 want to construct the house on site
No.172 in Sy. No.24 at Agrahara, Yalahanka which was purchased
from Smt.Muniyamma as per Ex.P.9 sale deed dated 22.01.2005.
Here, the accused No.1 the Branch Manager of Karnataka Bank
Limited, Sahakara Nagar branch and accused No.2 Valuator of the
property in the said Bank without visiting the property and verifying
as to the existence of said property issued Ex.P.7 - valuation report.
Hence, on the basis of Ex.P.8 Hakku Patra, Ex.P.9 - sale deed, Ex.P.14
no objections certificate and Ex.P.7 valuation report accused No.1
sanctioned the loan of Rs.10,00,000/- as per Ex.P.6 loan sanction letter
and credited to the account of accused No.3 and accused No.4 who is
wife of accused No.3 and co-obligant to the said loan and in order to
show that the said amount is credited to the account of accused No.3
produced the Ex.P.10 statement of account of accused No.3.
8 CC.NO.8712/2008
15. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, produced Ex.P.2
transfer order of accused No.1 and Ex.P.13 certificate issued by the
the then Branch Manager, Karnataka Bank Limited, Sahakaranagar
branch certifying that accused No.1- Suresh M. worked as a Branch
Manager of said branch from 28.03.2004 to 12.12.2006.
16. Here after transfer of accused No.1 from the said branch
Ramesh Rao assumed the charge of Branch Manager, Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru city. In the Ex.P.1 - first
information statement and also in the evidence of PW1 stated that
after transfer of accused No.1, Ramesh Rao assumed the charge of
Branch Manager of the said Bank. The Head Office, Karnataka Bank
Limited instructed and directed the Ramesh Rao, Manager,
Kanarataka Bank Limited, Sahakaranagar Branch to review the Non
Performing Assets loan accounts which sanctioned during the period
of accused No.1. Accordingly the Ramesh Rao reviewed all loan
accounts sanctioned during the service of accused No.1 and he came
to know that 25 loan accounts which are relating to the housing loan
found that property khata are not existed and among them one of the
present loan account of accused No.3. Hence, the said facts also heard
by the PW1 and he specifically deposed as
"ಯಲಹಹಂಕ ಸರಹದದ್ದಿನಲ ಬರರುವ ಟಿಎಹಂಸ ಗ ಹಹಹೋಗ
ದಾಖಲೆಗಳನರು
ನ ಪರಿಶಹೋಲನ ಮಾಡಿದರರು. ಪರಿಶಹೋಲನ ಮಾಡರುವ
9 CC.NO.8712/2008
ವಹೋಳೆಯಲ ಸರುಮಾರರು 25 ಸಾಲದ ಖಾತೆಗಳರು ಮನಯ ಸಾಲಕಕ
ಸಹಂಬಹಂಧಪಟಟ ದ್ದಿ
ಖಾತೆಗಳಾಗದರು ಸದರಿ ಸಸತತ್ತಿಗ ಸಹಂಬಹಂಧಿಸದಹಂತೆ
ಯಾವುದಹೋ ಖಾತೆಗಳರು ಇಲಲ ಎಹಂದರು ಕಹಂಡರು ಬಹಂದವು."
17. PW1 also came to know that Ramesh Rao visited the BDO
office to verify the khata of site No.172 situated in Sy. No.24,
Agrahara, Yalahanka and he came to know that Ex.P.8 - Hakku Patra
is not issued by the Block Development Officer, Bengaluru North
Block, Yalahanka in favour of Muniyamma and the said Ex.P.8 Hakku
Patra is created. He also came to know that Ex.P.14 no objection
certificate is also not issued from the said office. Accordingly,
Ramesh Rao, Branch Manager of said branch informed the same to
the Head Office. Hence, Head Office instructed and directed to file
first information statement against the accused persons. The Ramesh
Rao, Branch Manager was on one month leave because of which PW1
lodged the Ex.P.1 first information statement stating that accused No.1
and 2 without physically visiting and verifying the existence of the
property submitted Ex.P.7 - valuation report and sanctioned the loan
and thereby committed the said offences.
18. PW1 in his evidence specifically stated and deposed as
"ಬಡಿಒ ಕಛಹೋರಿಯಲ ಪರಿಶಹೋಲನ ಮಾಡಿದಾಗ ಸಾಲ ಮಹಂಜಹರರು
ಮಾಡಿದ ಸಾಲದ ಖಾತೆಗಳಗ ಬಡಿಒ ಕಛಹೋರಿಯಹಂದ ಹಕರು
ಕ ಪತ ತ
ಮಹಂಜಹರಗದಹೋ ಇರರುವುದರು ಕಹಂಡರು ಬಹಂತರು. ಸದರಿ ದಾಖಲೆಗಳನರು
ನ
ಸಾಲ ಪಡಯರುವ ಉದಶಕಕಗ equitable mortgage ಮಾಡರುವ
10 CC.NO.8712/2008
ಸಲರುವಗ ಸಸಷಟಸದರ ಎಹಂದರು ಕಹಂಡರು ಬಹಂತರು. ಆನಹಂತರ ಸಸಳಕಕ
ಹಹಹೋಗದಹೋ ಆಸತ್ತಿಯ ಬಲೆ ಬಗಗ valuation report ಕಹಟಿಟದರ ಎಹಂದರು
ಮಾಹತ ಗಹತತ್ತಿಯತರು. ಎರಡನಹೋ ಆರಹಹೋಪ valuator ಎಹಂದರು
ಗಹತತ್ತಿಯತರು. Valuator ಜಹತೆ ಬಬಹಂಕ ಮಾಬನಹೋಜರ ಹಹಹೋಗ
ನಹಹೋಡಿಲಲ. ಆಗ ಒಹಂದನಹೋ ಆರಹಹೋಪ ಬಬಹಂಕಮಾಬನಹೋಜರ ಆಗದದ್ದಿರರು."
19. The PW1 identified the Ex.P.1 first information statement and
his signature in it. Here the prosecution in order to show that the first
informant Bank sanctioned the loan in favour of accused No.3 and 4
produced the Ex.P.6 loan sanction letter which discloses the fact that
Rs.10,00,000/- credited to the account of accused No.3. Hence, in
order to show that the loan amount of Rs.10,00,000/- credited to the
account of accused No.3 produced the Ex.P.10 statement of loan
account of accused No.3. Here, the prosecution produced the Ex.P.8
Hakku Patra and Ex.P.9 sale deed dated 22.01.2005 and Ex.P.14 no
objection certificate. Here, the prosecution in order to show that the
said documents are created and they are not issued from the Block
Development Officer, Bengaluru North Block, Yalahanka it examined
PW5. PW5 in his evidence specifically deposed that Ex.P.14 no
objection certificate dated 21.12.2004 is not issued from the Block
Development Office, Bengaluru North Block, Yalahanka. He also
deposed that the signature and seal found on it is also not the signature
of any of his employee and the seal is also not belonging to the said
office. He also deposed that, Ex.P.8 Hakku Patra is also not issued
from his office and both of them are created. The report of PW5
11 CC.NO.8712/2008
marked as Ex.P.15 and his signature as Ex.P.15(b). Hence, the oral
evidence of PW5 coupled with Ex.P.8, Ex.P.14 and Ex.P.15 establishes
the fact that Ex.P.8 and Ex.P.14 are created for the purpose of
obtaining loan from the first informant Bank. The advocate for
accused No.1 and 2 cross-examined the CW5 but elicited nothing in
order to disprove the evidence of PW5 and prove that Ex.P.14 and
Ex.P.8 are genuine documents.
20. Here, on the basis of Ex.P.8 and Ex.P.14 accused No.3 and 4
applied for sanction of loan from the first informant Bank alleging that
he purchased the site No.172 in Sy. No.24 of Agrahara, Yalahanka and
also produced the Ex.P.9 sale deed dated 22.01.2005. Here, the Ex.P.9
sale deed is registered in the Sub Registrar Office, Yalahanka. The
prosecution examined the PW4 Retired Sub Registrar, Bengaluru. In
his evidence stated that, Muniyamma wanted to sell the site No.172 in
Sy. No.24 for her domestic and other needs in favour of accused No.3
and produced the Ex.P.8, Ex.P.14 and Ex.P.9 and received
Government Fee on Ex.P.9 and he registered the Ex.P.9 Sale deed. The
PW4 identified his signature in Ex.P.9 sale deed which is marked as
Ex.P.9(a). Later the Investigating Officer enquired him and then he
came to know that in order to obtain loan from the first informant
Bank Ex.P.8 Hakku Patra and Ex.P.14 no objection certificate are
created. The advocate for accused No.1 and 2 cross-examined the
PW4 but nothing is elicited in order to disprove the fact that Ex.P.8
Hakku Patra and Ex.P.14 no objection certificate are not created. In
12 CC.NO.8712/2008
the cross-examination of PW4 it is put the suggestion that he has not
visited the property and verified the existence of the property. But the
duty of Sub Registrar is only to register the deeds which have been
presented to him after receipt of Government charges. Hence, it is not
the duty of the Sub Registrar to visit each of the properties before he
registers the deed. Hence, the Ex.P.9 sale deed shows as if
Muniyamma executed the sale deed in respect of site No.172 situated
of Khata No.3468 situated within the jurisdiction of Agrahara village,
Yalahanka Hobli of Bengaluru North Taluk in favour of accused No.3
- B.Subramani. Here, in fact the said property is not existed at all
even then the accused No.3 presented it for registration and got
registered the sale deed as per Ex.P.9. Further the accused No.3 used
the Ex.P.9 sale deed as if it is genuine and the said property is existed
and on the basis of it and other document obtained loan of
Rs.10,00,000/- from the first informant bank. Hence, for the said loan
accused No.4 stood as a co-obligant. Hence, these illegal acts of
accused shows that in order to gain wrongfully and to cause wrongful
loss to the complainant and with dishonest intention obtained the loan
from the first informant bank.
21. Hence, looking at the evidence of PW4 and PW5 coupled with
Ex.P.8 Hakku Patra, Ex.P.9 sale deed and Ex.P.14 no objection
certificate, it is clear that Ex.P.8 Hakku Patra and Ex.P.14 no objection
certificate are created and they are not issued from the office of PW4.
Here, the PW1 deposed that after transfer of accused No.1 from the
13 CC.NO.8712/2008
Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru, Ramesh
Rao assumed the charge and Head Office directed him to verify the
loan accounts sanctioned by the accused No.1 during his period which
are non performing assets. Accordingly, after verification Ramesh
Rao came to know that 25 loan accounts are non performing assets out
of which the present loan account is also one among them. The PW1
specifically deposed that when Ramesh Rao verified the documents
visited the concerned Government office he came to know that Ex.P.8
and Ex.P.14 are created. He tried to search the site No.172 in Sy.
No.24 of Agrahara, Yalahanka but such property is not existed at all.
Hence, the accused No.1 and 2 with common intention without
visiting the spot issued Ex.P.7 Valuation Report and thereby
sanctioned the loan in favour of accused No.3. Here, on perusal of
Ex.P.7 it is specifically mentioned that accused No.2 visited the spot
i.e. site No.172 in Sy. No.24, Agrahara Layout, Yalahanka Hobli,
Bengaluru North Taluk on 22.01.2005 with accused No.1 and in the
Ex.P.7 valuation report of the property mentioned as :
"I have inspected the property belonging to Smt.Muniyamma and the
report of valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 29 years
panel
2. Date of visit : 22.01.2005
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at the : Sri.Subramani, proposed buyer of the
site property
14 CC.NO.8712/2008
5. Name and branch head accompanied : Sri. Suresh, Manager, Karnataka Bank
and his designation Ltd., Sahakaranagar, Bangalore.
6. Details of the property : : Smt. Muniyamma,
a) Name and address of the owner W/o Sri. Venkataramana,
Agrahara Layout, Yalahanka, Bengaluru.
b) Complete address of the property : Site No.172, Sy. No.24, Agrahara Layout,
Yelahanka Hobli, Bangalore North Tq.
Door No. / site No. / Sy. No. : Site No.172, Sy. No.24
Proposed buyer of the property : Sri.Subramani,
Muneswara Temple Road, Jakkur village,
Yelahanka Hobli, Bengalur - 560 064.
c) Extent of land : North to South : 30'0"
East to west : 40'0"
= 1200.00 sft.
d) Boundaries of property : North by : Property bearing No.173
South by : Vacant land
East by : Road
West by : Site No.182
e) Type / class of construction : Class II
7. Details of the building
i) Whether building constructed strictly : There is a little deviation over the
according to the sanctioned plan sanctioned plan
Area of building : 900.00 sqft.
ii) year of construction : 2001-2002
iii) If building under construct (give full : Building already constructed
details)
iv) Any additions improvement carried : Nil
out
ix) Present value : Rs.5,85,000.00
x) Present condition / state of building : Good
7. Present market value :
Land 1200.0 sft. @ 600/- : 7,20,000.00
Building 5,85,000,00
Compound wall, sump tank, OHT 1,00,000.00
Total Rs.14,05,000.00
15 CC.NO.8712/2008
Basis of present value :
a. Present depreciated value : Rs.14,05,000.00
b. Market value : Same as above
c. Rate adopted : Rs.600.00 per sft. - Site
Rs.650.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site
in this area and construction cost of
building as on that date
e. In case of sale by the bank what will
be the distress sale value : Rs.13,00,000.00
f. whether whole or part of the property
notified for acquisition : No
h. Location of the property : This is located very near to the main road
in a middle class residential area.
19. Whether independent house : Independent house
21. Service items available : CMC water connection is provided.
22. If the property is residential : Yes
23. a) Any encroachment tenancy and
other negative aspects : No
b) Area there any slums around this
property : No
Foundation : Size stone masonry in CM has been done
Super Structure : Table moulded brick masonry in CM, plastered on both side in CM
has been done.
Roofing : RCC slab has been laid.
Flooring : Mosaic flooring has been done
Doors & windows : Mathi & honne wood doors and windows are provided.
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Fourteen lakhs five thousand only.
Declaration :
I have inspected the property personally on 22.01.2005
CERTIFICATE
I, have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same.
16 CC.NO.8712/2008
22. Hence, looking at the contents of Ex.P.7 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the site
No.172 in Sy. No.24 of Agrahara Layout, Yalahanka Hobli. It is also
important to note that accused No.1 and 2 signed to it and accused
No.1 issued certificate to that effect. Hence, the accused No.1 who is
Manager and accused No.2 who is Valuator of the property of
Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru without
visiting the spot issued Ex.P.7 valuation report. Further accused No.1
sanctioned loan of Rs.10,00,000/- in favour of accused No.3 as per
Ex.P.6 loan sanction letter to which accused No.4 stood as co-obligant
and credited the said amount in the account of accused No.3 and the
same is mentioned at Ex.P.10 loan account statement of accused No.3.
Here, the advocate for accused No.1 and 2 cross-examined the PW1
but nothing is elicited in order to disprove the fact that accused No.1
and 2 have not issued Ex.P.7 valuation report and sanctioned
Rs.10,00,000/- as a loan. In the cross-examination PW1 specifically
stated that enquiry was conducting in the bank because of which he
came to know that accused have committed fraud to the first
informant Bank. He also deposed that when loan account of accused
No.3 became non performing asset it revealed that accused No.1 to 4
have committed the cheating in the bank. He also deposed in the
cross-examination that valuator of the Bank valuing the property
which showed by the borrower. Here PW1 also stated that he gave
statement before the police which said by his superior officer. But the
17 CC.NO.8712/2008
fact remains as it is that accused No.1 and 2 issued Ex.P.7 valuation
report as if they visited the site No.172, Sy. No.24, Agrahara Layout,
Yalahanka Hobli, Bengaluru North Taluk as mentioned and extracted
above from Ex.P.7 which itself speaks that accused No.1 and 2 visited
the spot and prepared the valuation report of the said property. In the
Ex.P.7 also contains the declaration and signature of accused No.2 and
certificate of accused No.1. Hence, looking at the evidence of PW1
with PW5 and PW4 and Ex.P.3 - account opening form, Ex.P.4 -
Form No.60, Ex.P.6 - loan sanction letter, Ex.P.7 - valuation report,
Ex.P.8 - Hakkupatra, Ex.P.14 - No Objection Certificate, Ex.P.10 -
statement of account of accused No.3 and Ex.P.15 - report establishes
the fact that accused No.1 and 2 without visiting the said site property
prepared Ex.P.7 valuation report and on the basis of Ex.P.8 - Hakku
Patra, Ex.P.14 - No Objection Certificate sanctioned loan of
Rs.10,00,000/- in favour of accused No.3 and 4 for the purchase of
said site property as per Ex.P.9 sale deed and said property is not
existed at all.
23. Here, on the basis of Ex.P.1 - first information report PW3
registered the Ex.P.12 first information report. PW3 deputed PW2 and
CW5 for the search of accused were absconded. PW2 in his evidence
deposed that he searched the accused persons but he did not find the
accused No.1 and on enquiry near the house of accused No.1 he came
to know that after registration of this case he was absconded and to
that effect he gave his report as per Ex.P.1. Advocate for accused
18 CC.NO.8712/2008
No.1 and 2 cross-examined him but nothing is elicited to disprove the
Ex.P.11 report and evidence of PW2.
24. PW3 in his evidence specifically stated that he recorded the
restatement of PW1 on 25.11.2007. He arrested accused No.2 and
produced in the court. He also deposed that he received Ex.P.2
appointment and transfer order of accused No.1 to the Karnataka Bank
Ltd., Sahakara Nagar Branch, Bengaluru, Ex.P.13 - letter of service of
accused No.1 in the said Bank, Ex.P.3- account opening form, Ex.P.4
- Form No.60, Ex.P.5 learner's license, Ex.P.6 - loan sanctioned letter,
Ex.P.7 valuation report, Ex.P.14 - NOC, Ex.P.8, Hakku Patra, Ex.P.9 -
sale deed and Ex.P.10 the statement of loan account of accused No.3.
he also deposed that he received Ex.P.15 report from the PW5 wherein
it is stated that Ex.P.8 Hakku Patra and Ex.P.14 NOC is not issued
from the Block Development Office, Bengaluru North Block.
Accused No.1 misused his powers on the basis of created documents
sanctioned loan and thereby accused persons misappropriated the
amount by cheating the bank. He filed charge sheet against the said
accused No.1 to 4. Here, advocate for accused No.1 and 2 cross-
examined the PW3 and in cross-examination he specifically deposed
that he asked information from PW5 as to the Ex.P.8 Hakku Patra and
Ex.P.14 - NOC whether they are original or duplicate. PW5 stated
that they were not issued from his office. But he has not examined
Muniyamma who gave them to the accused No.3 and 4. In the cross-
19 CC.NO.8712/2008
examination, in order to disprove the case of prosecution accused
No.1 and 2 have not elicited any of material facts except the denial of
his evidence. Here the PW3, who is Investigating Officer after
investigation he came to know that on the basis of created documents
accused No.3 and 4 obtained the loan and accused No.1 and 2 without
visiting the site issued Ex.P.7 and accused No.1 sanctioned the loan.
Hence, looking at all the materials placed on record the accused No.1
is entrusted with property that is money and he is having dominion
over the money of the Bank to sanction loan to the customers who
fulfills the conditions of Bank. He is having duty towards the bank
while sanctioning the loan. The accused No.2 is the Valuator of the
Bank. Hence, accused No.1 and 2 are entrusted with the duties to visit
the spot and submit the valuation report to the first informant Bank.
But accused No.1 and 2 with dishonest intention concealed the fact of
non existence of said property and also deceived the first informant
Bank as if they visited the property and prepared the Ex.P.7 and
submitted to the first informant Bank. Hence, on the basis of false
Ex.P.8 - Hakku Patra, Ex.P.14 - No Objection Certificate sanctioned
loan of Rs.10,00,000/- in favour of accused No.3. Here, the accused
No.1 knows the fact that in order to open the account in the Bank one
of its customers shall introduce and sign as introducer in the account
opening form. But accused No.1 knowing the fact that in the Ex.P.3
no one introduced the accused No.3 to the first informant Bank even
then opened the account of accused No.3 in the first informant Bank.
20 CC.NO.8712/2008
Hence, the accused No.1 and 2 who are employees and agents of first
informant Bank caused wrongful loss to the first informant Bank by
disbursing loan in favour of accused No.3. Hence, expression
entrusted in Section 409 of IPC is used in wide sense and include in
all cases in which property is voluntarily handed over for a specific
purpose and is dishonestly disposed of contrary to the terms on which
possession has been handed over. Hence the accused No.1 to 4
knowing well that said property is fictitious even then as per Ex.P.6
loan was sanctioned and credited in the account of accused No.3
which is shown at Ex.P.10 - statement of loan account of accused
No.3. Hence, to the said loan accused No.4 stood as a co-obligant.
Hence, accused No.3 and 4 did not repay the loan amount and thereby
caused wrongful loss to the first informant Bank. Hence, accused
No.1 and 2 with accused No.3 and 4 cheated the first informant Bank.
Hence, prosecution proved through its oral and documentary evidence
essential ingredients of Sections 409 and 420 read with Section 34 of
IPC. Hence, prosecution proved its case beyond all reasonable doubt
and in view of above stated facts, circumstances, evidence and reasons
I proceed to pass the following :
ORDER
Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
21 CC.NO.8712/2008Looking at facts and circumstances of case and nature of offences accused No.1 does not entitle for benefit under Probation of Offenders Act.
Hence, case is posted for hearing on sentence.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 29th day of December 2021) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 submitted that he did not commit any offence. He is aged about 59 years and having age old mother and daughter. He also submitted that he has no source of income and leading his life working as a Accountant. In the period of Covid-19 also his family life is affected and affected his source of income. Hence, accused submitted to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This is a case registered against accused in the year 2008. Hence, accused No.1 is attending court since then. Accused No.1 submitted that he is of 59 years old and having age old mother who is depending on accused No.1. Accused No.1 also submitted that he is 22 CC.NO.8712/2008 not having constant source of income and leading his life working as a Accountant. It is known fact that Covid-19 affected all the person including the accused No.1. Hence, taking into note of age of accused No.1, said submission and facts and nature of offence this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the trial is hereby set off to the period of imprisonment.
23 CC.NO.8712/2008Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
Office is directed to keep the entire records of this case in split up CC No.12166/2016. (Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 29th day of December 2021) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : H.S.Dhruvaraj PW.2 : Puttaswamy PW.3 : M. Prabhushankar PW.4 : H.P.Ramanjanaiah PW.5 : Thippeswamy
List of exhibits marked for prosecution:-
Ex.P.1 : Complaint
Ex.P.1(a): Signature of PW1
Ex.P.2 : Transfer order of accused No.1
Ex.P.3 : Account opening form
Ex.P.4 : Form 60
Ex.P.5 : Certified copy of driving license of accused No.3.
Ex.P.6 : Loan sanction order
Ex.P.7 : Valuation report
Ex.P.8 : Hakkupatra
24 CC.NO.8712/2008
Ex.P.9 : Absolute sale deed
Ex.P.10: Statement of accounts
Ex.P.11: Report submitted by PW2
Ex.P.11(a): Signature of PW2
Ex.P.12: FIR
Ex.P.12(a): Signature of PW3
Ex.P.13: Certificate issued by Karnataka Bank
Ex.P.13(a): Signature of PW3
Ex.P.14: NOC issued by Block Development Officer
Ex.P.15: Report submitted by PW3
Ex.P.15(a): Signature of PW3
List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
25 CC.NO.8712/200829.12.2021 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
26 CC.NO.8712/2008Looking at facts and circumstances of case and nature of offences accused No.1 does not entitle for benefit under Probation of Offenders Act.
Hence, case is posted for hearing on sentence.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 submitted that he did not commit any offence. He is aged about 59 years and having age old mother and daughter. He also submitted that he has no source of income and leading his life working as a Accountant. In the period of Covid-19 also his family life is affected and affected his source of income. Hence, accused submitted to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This is a case registered against accused in the year 2008. Hence, accused No.1 is attending court since then. Accused No.1 submitted that he is of 59 years old and having age old mother who is 27 CC.NO.8712/2008 depending on accused No.1. Accused No.1 also submitted that he is not having constant source of income and leading his life working as a Accountant. It is known fact that Covid-19 affected all the person including the accused No.1. Hence, taking into note of age of accused No.1, said submission and facts and nature of offence this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In 28 CC.NO.8712/2008 default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
Office is directed to keep the entire records of this case in split up CC No.12166/2016.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 29th day of December 2021) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
29 CC.NO.8712/2008