Bangalore District Court
State By Ccb (F&M) N.T.Pete P.S vs A1: Kubendravelu on 2 May, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 2nd DAY OF MAY 2015
PRESENT
Ms.S.L.Ladkhan, B.A., L.L.M.,
IV A.C.M.M. Bangalore
CC No. 22618/2006
Complainant : State by CCB (F&M) N.T.Pete P.S.
V/s.
Accused : A1: Kubendravelu, 28 Yrs.,
S/o Saravanavelu,
R/a. No.14, Muniyachari Compound,
2nd cross, Kavalbyrasandra,
R.T.Nagar Post, Bangalore.
A2: Farid @ Mohammed Ajam Fariruddin,
25 Yrs., S/o Aslam,
R/a. No.45, 5th cross, 5th main,
Malleshwaram, Bangalore.
JUDGMENT
The PI, CCB, F&M Squad has filed the charge sheet in Crime No.98/2005 against accused persons alleged to have committed the offence punishable u/s.408 r/w 34 IPC.
2. The brief prosecution case is as follows :
The complaint came to be lodged by the Branch Manager of CMS Securitas Limited by name Murali R.C. on 21.11.2005 alleging that on 14.11.2005 at around 10 'o' clock he got a call from Mr.Murugesh stating that said Murugesh and one Mr.Arunachalam
-2- CC 22618/2006 had visited the Goldmansachs Standard Chartered Bank at Koramangala at 9.30 hours on the said day and found from the ATM security register that accused No.1 and 2 had visited the said ATM, opened the machine. They were not authorised to operate the said ATM. Further the accused No.1 called him in the morning on 14th and stated that he had misappropriated the cash in the ATM handled by him at Euronet - Indiranagar sector. Based on the said telephonic conversation from the said Murugesh the auditor by name Noorul Haq was sent to audit ATM who found shortage of Rs.4 Lakhs. Based on the said incident general enquiry was conducted and one Mr.Raju and Anand were the joint custodians for Euronet Indira Nagar sector along with Mr.Shankar. All the 3 of them carried out day to day operations and audited the same to find that there was a shortage of Rs.35,21,500/-. From the ATMs of Standard Chartered Bank, Development Credit Bank, Indiranagar, SCB Malleswarama, SCB Mekhri Circle, SCB, Sadashivanagara, SCB Goldman Sachs, Oriental Bank of Commerce, OBC Leela Palace, Airport Road an amount of Rs.11 Lakhs, 2.505 Lakhs, 4 Lakhs, 4.9 Lakhs, 7.6 lakhs, 54 Lakhs, 0.205 Lakhs, 1.005 lakhs were misappropriated by the accused No.1 and 2. With the said amount the accused persons had bought some property and a Qualis van and also given some money to his friends and known people. That from the ATMs of Sadashivanagar police station limits from the ATM at SCB, Mekhri Circle an amount of Rs.4.9 Lakhs, from ATM at SCB Sadashivanagar an amount of Rs.7.6 Lakhs, from ATM at Oriental Bank of Commerce, Sadashivanagar an amount of Rs.0.205 Lakhs was misappropriated by the accused No.1 and 2. Hence, this complaint
-3- CC 22618/2006 came to be lodged at 7.00 p.m. which came to be registered in the above said crime number. The I.O. after the investigation has filed the charge sheet against the accused persons. Cognizance was taken after filing of charge sheet.
3. Accused No.1 & 2 appeared before the court and they were enlarged on bail by my predecessor in office. Provisions of Sec.207 of Cr.P.C. were duly complied with.
4. My predecessor in office has heard on charges. Charges for the offence punishable u/s.408 r/w 34 of IPC was recorded. Certificate reveals that, it was read over and explained to the accused persons in the Kannada language known to them. The accused persons have pleaded not guilty and claimed trial. Hence summons were issued to the prosecution witnesses.
5. In order to bring home the guilt of the accused the prosecution in all has led in the evidence of PW1 and got marked Ex.P.1 to Ex.P.4. Subsequently the prosecution has failed to lead the evidence of PW1 and secure CW2 to CW34. As such their evidence was dropped. Prosecution evidence was taken as closed.
6. As PW1 had failed to tender for cross-examination his evidence was non est in the eye of law. As such the question of recording of the statement under the provisions of Sec.313 of Cr.P.C. did not arise.
7. Heard learned Senior APP. Counsel for the accused filed written arguments. Perused the materials on record.
-4- CC 22618/2006
8. The following points arise for my consideration :
1) Whether the prosecution proves beyond all reasonable doubt that, accused No.1 and 2 being the employees of CMS Securitas Limited were entrusted with the cash to be replenished at different ATMs prior to 14.11.2005 accused No.1 and 2 in furtherance of their common intention had misappropriated an amount of Rs.12,50,000/- from the ATM at SCB, Mekhri Circle an amount of Rs.4.9 Lakhs, from ATM at SCB Sadashivanagar an amount of Rs.7.6 Lakhs, from ATM at Oriental Bank of Commerce, Sadashivanagar an amount of Rs.0.205 Lakhs was misappropriated and thereby committed the offence of criminal breach of trust punishable u/s.408 r/w 34 of IPC?
2) What order ?
9. My findings on the above points are as follows:
Point No.1 : In the negative.
Point No.2 : As per the final order for the following:
REASONS
10. Point No.1 : It is the case of the prosecution that on 14.11.2005 at around 10 o' clock the complainant got a call from Mr.Murugesh stating that said Murugesh and one Mr.Arunachalam had visited the Goldmansachs Standard Chartered Bank at Koramangala at 9.30 hours on the said day and found from the ATM security register that accused No.1 and 2 had visited the said ATM, opened the machine. They were not authorised to operate the said ATM. Further the accused No.1 called him in the morning on 14th and stated that he
-5- CC 22618/2006 had misappropriated the cash in the ATM handled by him at Euronet
- Indiranagar sector. Based on the said telephonic conversation from the said Murugesh the auditor by name Noorul Haq was sent to audit ATM who found shortage of Rs.4 Lakhs. Based on the said incident general enquiry was conducted and one Mr.Raju and Anand were the joint custodians for Euronet Indira Nagar sector along with Mr.Shankar. All the 3 of them carried out day to day operations and audited the same to find that there was a shortage of Rs.35,21,500/-. From the ATMs of Standard Chartered Bank, Development Credit Bank, Indiranagar, SCB Malleswarama, SCB Mekhri Circle, SCB, Sadashivanagara, SCB Goldman Sachs, Oriental Bank of Commerce, OBC Leela Palace, Airport Road an amount of Rs.11 Lakhs, 2.505 Lakhs, 4 Lakhs, 4.9 Lakhs, 7.6 lakhs, 54 Lakhs, 0.205 Lakhs, 1.005 lakhs were misappropriated by the accused No.1 and 2. With the said amount the accused persons had bought some property and a Qualis van and also given some money to his friends and known people. That from the ATMs of Sadashivanagar police station limits from the ATM at SCB, Mekhri Circle an amount of Rs.4.9 Lakhs, from ATM at SCB Sadashivanagar an amount of Rs.7.6 Lakhs, from ATM at Oriental Bank of Commerce, Sadashivanagar an amount of Rs.0.205 Lakhs was misappropriated by the accused No.1 and 2.
11. In order to bring home the guilt of the accused, though prosecution initially had led in the evidence of complainant as PW1 and produced the documents Ex.P.1 to Ex.P.4, which is the covering
-6- CC 22618/2006 letter given to the concerned I.O. by the complainant, mahazars being conducted at different ATMs, subsequently failed to secure PW1. As PW1 failed to lead his further evidence and tender himself for cross- examination his evidence was non est in the eye of law. Though sufficient opportunity was given to the prosecution to lead the evidence of the other witnesses, prosecution has failed to secure CW2 to CW34. As such there is no direct substantial evidence against the accused persons for the above said offences. Therefore, my finding on the above point is in the negative.
12. Point No.2 : For having answered the above point as per the above discussion, I proceed to pass this following :
ORDER Acting U/s. 248 (1) of Cr.P.C. accused No.1 & 2 are acquitted of the offence punishable U/s.408 r/w 34 of IPC.
As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and their surety stands cancelled after the expiry of 6 months.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 2nd day of May 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
-7- CC 22618/2006
ANNEXURE
List of witnesses examined for prosecution :
PW.1 : Murali List of exhibits marked for prosecution :
Ex.P.1 : Covering letter Ex.P.2 to Ex.P.4 : Spot Mahazars
List of M.O.s marked for prosecution : NIL List of witnesses and exhibits marked on behalf of accused : NIL (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
-8- CC 22618/2006
ORDER
(pronounced in open court vide separate order) Acting U/s. 248 (1) of Cr.P.C. accused No.1 & 2 are acquitted of the offence punishable U/s.408 r/w 34 of IPC.
As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and their surety stands cancelled after the expiry of 6 months.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 2nd day of May 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
-9- CC 22618/2006