Bangalore District Court
Company vs Hence on 26 April, 2018
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 26th day of April 2018
Present : Smt. Roopa R. Kulkarni,
B.Com., LL.B. (Spl).
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 8826/2015
2. The date of commission
of the offence : 17.07.2014
3. Name of the complainant : State by Mico Layout PS
4. Name of the accused : Lohith Kumar, 26 Yrs.,
S/o Subbanna,
Presently R/a. No.389,
Nethravathi Building,
Kittaganahalli, Bommasandra,
Attibele, Bengaluru.
Permanent address: Indiranagar,
Huliyar Hobli,
Chikkanayakanahalli Taluk,
Tumkur Dist.
5. The offences complained : U/s.408 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 26.04.2018
The Mico Layout police have filed the charge sheet against the
accused for the offence punishable u/s.408 of IPC.
2 CC.NO.8826/2015
2. The brief facts of the prosecution case are as under :
That the accused was working as a Junior Executive in
Brinks India Pvt. Ltd., situated at Anepalya which is belonging to
the complainant and he was entrusted to deposit an amount to 26
ATM machines at route No.2 and on 16.7.2014 he was directed to
deposit a sum of Rs.1,42,00,000/- to 19 ATM machines and CW5,
CW8 and CW9 were accompanied with him, at that time he has
deposited Rs.2,00,000/- of denomination worth Rs.100/- and has
deposited an amount of Rs.5 Lakhs having denomination worth
Rs.1000/- to the ATM machine of ICICI Bank situated near the
main door of Mantri Elegance of N.S.Palya and on 17.7.2014 at
about 8.45 p.m. he had been to ICICI Bank and took Rs.5 Lakhs
having denomination of Rs.1000/- and has misappropriated the
said amount for his own use and thereby he has committed offence
punishable u/s.408 of IPC.
3. On perusal of the records, it appears that the accused was
arrested during the course of investigation. Later on he was
enlarged on bail. After filing the charge sheet summons were
issued to the accused and after service of summons he appeared
before the court and copy of charge sheet was furnished to the
accused as provided u/s.207 of Cr.P.C. Later on charge was
framed wherein he pleaded not guilty and claimed to be tried.
3 CC.NO.8826/2015
4. The complainant police have cited CW1 to CW7 as charge
sheet witnesses. The prosecution in order to prove its case got
examined PW1 and got marked documents at Ex.P.1 to Ex.P.3 and
closed its side of evidence. The defence side did not choose to lead
any defence evidence.
5. 313 statement of the accused is dispensed as there is no
incriminating evidence against the accused.
6. Heard both sides.
7. As the present PW1 is not arrayed as a witness by the
complainant company, the prosecution has filed application
u/s.311 of Cr.P.C. Considering the application this court has
allowed the said application and has permitted the authorized
person PW1 to depose on behalf of the complainant company.
8. On perusal of the evidence adduced by the prosecution side,
PW1 who is authorized person on behalf of the complainant
company has stated in his evidence that, CW1 was working as a
Branch Manager from 2014 to 2016 and in the year 2016 he left
their company and at present he is working in Delhi and so he is
unable to give his oral evidence. Further he has stated that, in his
place he is working as an Area Manager and he has been issued
with authorization letter to depose on behalf of the complainant
before the court. Further he has stated that, he is working as a
Area Manager in Brinks India Pvt. Ltd. company from January
4 CC.NO.8826/2015
2017. As the difference with regard to financial matter arose
between their company and the accused when the complainant was
working in their company, he filed complaint on behalf of the
complainant company. He has stated that, the accused got settled
the financial matter with the complainant company. He got
marked the authorization letter as per Ex.P.1 and his signature as
per Ex.P.1(a). He got marked his identity card as per Ex.P.2. He
got identified the complaint as per Ex.P.3. He has stated that he do
not know the contents of Ex.P.3 complaint. Further he has stated
that, as the financial matter between the company and the accused
is settled, they are not interested to proceed with the case. The
said witness was treated as hostile by the prosecution.
9. In his cross-examination by the prosecution has denied that,
the accused was entrusted with Rs.1,42,00,000/- to deposit to 19
ATM machines on 6.7.2014 and at that time he has deposited an
amount of Rs.2 Lakhs having denomination of Rs.100/- and has
also deposited Rs.5 Lakhs having denomination of Rs.1000/- each
to ATM machines and later on 7.7.2014 at about 7.45 p.m. he had
been to ICICI Bank ATM and had taken an amount of Rs.5 Lakhs
having denomination of Rs.1000/- each and has misused the said
amount for his own use and the complainant has filed complaint
against the accused. Further he has admitted that, their company
has got compromised the matter with the accused and has denied
that, in order to help the accused he is deposing false.
5 CC.NO.8826/2015
10. The authroised person on behalf of the complainant company
has clearly stated in his evidence that their company is not
interested to proceed with the matter as the financial matter has
been settled between the company and the accused. Hence, the
prayer of Senior APP for issuance of process to remaining witnesses
was rejected and as such CW1 to CW17 were ordered to be
dropped.
11. So, on perusal of the evidence adduced by the prosecution
side, though the complainant has not been examined on behalf of
the prosecution, the PW1 who is authorized person on behalf of the
complainant company has clearly stated in his evidence that, the
financial matter between their company and accused has been
settled, so the complainant company is not interested to proceed
with the matter. So, when the complainant company is not
interested to proceed with the matter and when PW1 is an
authorized person on behalf of the complainant company and when
CW1 is not available for evidence and considering the application
filed by the prosecution, this court has permitted the authorized
person to depose on behalf of the complainant company. So, when
it is the evidence of PW1 that their company is not interested to
proceed with the matter, I am of the opinion that there is no need
to discuss much regarding the commission of the alleged offences
by the accused.
6 CC.NO.8826/2015
12. Essential ingredients to constitute criminal breach of trust
are (i) Accused was a clerk or servant (ii) Accused was entrusted
with certain property or he had dominion over certain property
which was not his own (iii) He committed criminal breach of trust
for the said property. Essential ingredient is dishonest
misappropriation. Dishonest intention must be proved. No offence
when the property retained without any misappropriation.
Dishonest intention which is an essential element to constitute the
offence. Mere retention is no offence. The essential ingredients of
an offence or criminal breach of trust falling u/s.408 are
entrustment and dishonest intention. But in the present case the
prosecution has failed to prove the ingredients of Sec.408 of IPC.
So, the prosecution has failed to prove the guilt leveled against the
accused. Hence, I proceed to pass the following:
ORDER
Accused is not found guilty for the offence punishable u/s.408 of IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offence punishable u/s.408 of IPC.
Bail bond of the accused and that of his surety stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 26th day of April 2018) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
7 CC.NO.8826/2015ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Shankar List of exhibits marked for prosecution:-
Ex.P.1 : Authorisation letter Ex.P.2 : Identity card of PW1 Ex.P.3 : Complaint List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.8 CC.NO.8826/2015
26.04.2018 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offence punishable u/s.408 of IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offence punishable u/s.408 of IPC.
Bail bond of the accused and that of his surety stands cancelled.
(Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.