Bangalore District Court
Bengaluru City vs No.2 Has Committed Offences Triable By ... on 14 September, 2022
1 C.C.No.8118/2002
KABC030013912002
Presented on : 11-11-2002
Registered on : 11-11-2002
Decided on : 14-09-2022
Duration : 19 years, 10 months, 3 days
IN THE COURT OF THE II ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY.
Dated this 14th day of September 2022
PRESENT : SRI.VEDAMOORTHY B.S. B.A.(L), LL.B.
II Additional Chief Metropolitan Magistrate, Bengaluru City
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1. Sl. No. of the case C.C.No.8118/2002
Date of commission of the From 10.02.1999 to
2.
offence (As per F.I.R.) 14.12.2000
Srirampura Police Station,
3. Name of the complainant
Bengaluru City.
4. Name of the accused 1. B.S.Sundar,
S/o K.M.Subramanyam.
2. Shanmugam,
S/o T.K.Venkatesh,
Aged about 37 years,
R/at No.151, 6th Cross,
9th Main, N.T.I. Layout,
2 C.C.No.8118/2002
Vidyaranyapura,
Bengaluru.
3. M.V.Venuegopal,
S/o Venkataswamy Naidu,
4. Subhashini,
W/o M.V.Venuegopal,
(Case against accused No.1,
3 and 4 - Split Up)
Sections 120B, 406, 420 and
The offences complained
5. 468 R/w Section 34 of the
of
Indian Penal Code.
6. Plea of the accused Pleaded not guilty
7. Final order Accused No.2 is is acquitted
8. Date of order 14.09.2022
The Police Sub-Inspector of Srirampura Police Station, Bengaluru City has filed Police Report against the above named accused persons alleging that they have committed the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code.
2. The Prosecution case in brief is that the accused persons representing that they are the directors of M/s Indian Institute of Computer Science Ltd. situated at No.51, Ganesha Complex, Opposite to Sujatha Talkies, 3 rd Main 3 C.C.No.8118/2002 Road, Ramachandrapura, Bengaluru within the territorial limits of Srirampura Police Station, Bengaluru City have applied for loan in the year 1997 at Karnataka State Finance Corporation for establishment of Software business and borrowed loan of Rs.42.03 lakhs between 17.02.1997 and 26.03.1999 by producing false documents. They have purchased 14 machineries for software and furnitures from the said loan amount. Thereafter, the accused persons committed criminal conspiracy between each other; they have either transported them to any other places or sold them to others without informing the Corporation; they have not repaid the loan amount and they have misused the said money for their own gain. Thereby, the accused persons have committed the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code.
3. Based on the First Information of CW1, the crime was registered in Crime No.460/2000 at Srirampura Police Station, Bengaluru City. During investigation, the accused persons have appeared before the Court and enlarged on bail. 4 C.C.No.8118/2002 On completion of the investigation, the Police Sub-Inspector of Srirampura Police Station, Bengaluru City filed Police Report against the accused persons alleging that they have committed the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code. After taking cognizance of the said offences, the process was issued to the accused persons. They have appeared before this Court. Thereafter, accused No.1 was not appeared before the Court. Hence, case against him ordered to split up and split up Criminal Case in C.C.No.24128/2009 is registered against accused No.1. Thereafter, accused No.3 and 4 were not appeared before the Court. Hence, case against them ordered to split up and split up Criminal Case in C.C.No.13144/2017 is registered against accused No.3 and 4. The copies of the Police Report and other prosecution papers are furnished to accused No.2 under section 207 of Cr.P.C. After hearing, since there were grounds for presuming that accused No.2 has committed offences triable by this court, charges for the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code 5 C.C.No.8118/2002 have been framed and read over to him in Kannada language. He has pleaded not guilty and claims to be tried.
4. To prove the charges framed against accused No.2, the prosecution has produced the oral evidences of PW1 to PW10 and the documentary evidences in Ex.P1 to Ex.P24. After completion of the prosecution evidences, for the purpose of enabling accused No.2 personally to explain any circumstances appearing in the evidences of the prosecution against him, examined accused No.2 under Section 313 of Cr.P.C. He has submitted that he has defense evidence. Accused No.2 produced his oral evidences as DW1 and he has produced the documentary evidences Ex.D1 to Ex.D6. Heard the arguments of learned Senior Assistant Public Prosecutor. The learned counsel for accused No.2 has filed his written arguments. Perused the materials available on record.
5. The points for determination are;
1. Whether prosecution has proved the offences charged against the accused persons for the 6 C.C.No.8118/2002 offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code beyond reasonable doubts?
2. What order or sentence?
6. My answers to the above points are as follows:
Point No.1 : In the Negative, Point No.2 : As per final order for the following;
REASONS
7. POINT No.1 :- In order to prove the charges leveled against accused No.2, out of 22 witnesses cited in the Police Report by the Investigation Officer, the prosecution has produced the oral evidences of ten witnesses as PW1 to PW10. Among them, PW1 N.R.Sridhar is the First Informant; PW2 Nagaraj is the witness who verified the loan security documents submitted by the M/s Indian Institute of Computer Science Ltd. and gave advise to lend loan; PW3 Shashikumar is the witness who submitted the the loan proposal in the meeting; PW4 Dr.Shivanaika is the witness who was one of the members in the Loan Sanctioning Committee while sanctioning the loan to M/s Indian Institute 7 C.C.No.8118/2002 of Computer Science Ltd.; PW5 K.Srinivas is the witness who recommended for disbursed of last loan installment to M/s Indian Institute of Computer Science Ltd.; PW6 S.J.Kumar is the witness who is the owner of the building in which, the accused persons were running M/s Indian Institute of Computer Science Ltd. and the Seizer Mahazar witness; PW7 Radhakrishna is the Recovery Officer of KSFC; PW8 Siddojirao is the Investigation Officer of this case; PW9 Sadashivan and PW10 Ashok are the independent witnesses who said to have been cheated from the accused persons.
8. The prosecution has also produced the documentary evidences Ex.P1 to Ex.P24. Among them, Ex.P1 is the copy of the Loan Application submitted by the accused persons, Ex.P2 is the copy of the Memorandum and Articles of Association of M/s Indian Institute of Computer Science Ltd., Ex.P3 is the copy of the List of Directors of M/s Indian Institute of Computer Science Ltd., Ex.P4 is the copy of Incorporation of M/s Indian Institute of Computer Science Ltd., Ex.P5 is the copy of Board Resolution, Ex.P6 is the copy 8 C.C.No.8118/2002 of Tax Demand Register Extract, Ex.P7 is the copy of Encumbrance Certificate, Ex.P8 is the copy of Loan Sanction Intimation Letter, Ex.P9 is the copy of Loan Sanction Letter, Ex.P10 is the copy of Hypothecation Deed, Ex.P.11 is the copy of Collateral Loan Agreement, Ex.P12 and Ex.P13 are the copies of Invoices, Ex.P14 and Ex.P15 are the copies of Receipts, Ex.P16 to Ex.P18 are the copies of Invoices, Ex.P19 is the First Information, Ex.P20 and Ex.P21 are the copies of Notices, Ex.P22 is the copies of the Proceedings, Ex.P23 is the copy of the Mahazar and Ex.P24 is the copy of the Spot Mahazar.
9. Accused No.2 during his examination under Section 313 of Cr.P.C. has stated that he was the Director of M/s Indian Institute of Computer Science Ltd. Except the said fact, he has denied the entire prosecution evidences which are incriminating against him. He has produced his oral evidences as DW1. He has produced the copy of the proceedings of KSFC as Ex.D1, copy of the Mahazar as Ex.D2, copy of the Order in Misc. Case No.214/2002 as 9 C.C.No.8118/2002 Ex.D3, copy of the Petition in Execution Case No.1718/2014 as Ex.D4, copy of the Status Report issued by KSFC as Ex.D5 and certified copy of the Judgment in O.S.No.687/1998 as Ex.D6.
10. The arguments of the learned Senior Assistant Public Prosecutor are that from the evidences of Ex.P1 to Ex.P10 and the documentary evidences Ex.P1 to Ex.P24, the Prosecution has proved the guilt of accused No.2 beyond all reasonable doubts. Accused No.2 during his examination under Section 313 of Cr.P.C., has admitted that he was one of the Directors of M/s Indian Institute of Computer Science Ltd. DW1 has admitted during his cross-examination that M/s Indian Institute of Computer Science Ltd., borrowed loan of Rs.42,03,000/- from KSFC for purchase of the materials relating to software. He has also admitted the execution of the loan documents in favour of KSFC. Though, he has contended that he resigned for the post of Director in the year 1999 itself, he has not produced any materials in that regard. 10 C.C.No.8118/2002 Therefore, the defences of accused No.2 cannot be considered.
11. In the written arguments, the learned counsel for accused No.2 has contended that the essential ingredients to constitute the offences charged against accused No.2 are not proved by the Prosecution. In that regard, the learned counsel for accused No.2 has relied the judgment of the Hon'ble Supreme Court in the case between Raju Kumar V/s State of Uttar Pradesh. Accused No.2 was not the Director of M/s Indian Institute of Computer Science Ltd., as on the date of the alleged commission of the offences. As per the evidences produced by the Prosecution, accused No.1 and 3 have executed the documents in favour of KSFC and they were the authorized persons at that time. Accused No.2 did nothing illegal and he has not utilized the loan proceeds. He has not committed any offences as alleged against him. He has not misappropriated nor did anything with dishonest intention. There is no criminal breach of trust attributing accused No.2. KSFC instituted the civil suit for recovery of 11 C.C.No.8118/2002 dues. The allegations are civil in nature and no criminal offences are made out. The learned counsel has also relied the judgments of the Hon'ble Supreme Court in the cases between Binod Kumar & others V/s State of Bihar & another, G.Sagar Suri V/s State of UP, Thullia Kali V/s State of Tamil Nadu and the Judgment of the Hon'ble High Court of Karnataka in the case between Annu Poojari V/s Sate of Karnataka.
12. In the light of the above rival submissions, I read the evidences produced by the Prosecution and also accused No.2 both oral and documentary. PW1 has deposed in his examination-in-chief that KSFC has lent loan of Rs.42,03,000/- to M/s Indian Institute of Computer Science Ltd., for establishment of Computer Unit; the accused persons were the Director of M/s Indian Institute of Computer Science Ltd; they have hypothecated the computers and its accessories i.e., APT Offline, 3KVA UPS including 10 batteries, 20 CA Rellia Software, 49 RAM, 2 Computer Systems, 48 feet length 1 table, 1 AC, Platinum II 12 C.C.No.8118/2002 Computer System, Computer accessories, HP Scanner, 1 Epson Printer, 1 HP Laser, 1 HUB Rack Wallmount were hypothecated as security to the loan; they have also mortgaged site measuring 60 x 40 feet situated at Jayanagara and deposited Rs.1,00,000/-; after sanction of the loan, the accused persons repaid some installments and thereafter, they became defaulters; therefore, KSFC issued 4 Notices to them; but still, the accused persons have not repaid the loan; on 14.11.2000, KSFC obtained Order for seizure of the properties of M/s Indian Institute of Computer Science Ltd; on the same day, they have seized the Computer Unit; when they seized the Computer Unit, the movable properties hypothecated were not found and therefore, he gave complaint to Srirampura Police on 01.12.2000 as per Ex.P19.
13. The above evidences deposed by PW1 and the documentary evidences marked through him are remained undisputed by accused No.2. Though, the prosecution could not produced the oral evidences of CW21 who registered the Crime and forwarded the First Information Report to the 13 C.C.No.8118/2002 Court due to his death is reported, as accused has not disputed the oral evidences of PW1, the judgments relied by the learned Counsel for accused No.2 in the cases between G.Sagar Suri V/s State of UPand Thullia Kali V/s State of Tamil Nadu are not applicable to the case on hand.
14. PW2 has deposed in his examination-in-chief that he verified the documents for sanction of loan to M/s Indian Institute of Computer Science Ltd. and after he found that the said documents are correct, he gave opinion that loan may be sanctioned to the accused persons. He has also deposed that he has obtained signatures of the accused persons on the documents executed by them. Nothing has been elicited in his cross-examination to disbelieve the above evidences deposed by him.
15. PW3 has deposed in his examination-in-chief that the accused persons have filed proposal for sanction of loan to launch M/s Indian Institute of Computer Science Ltd.; on 20.09.1997, he submitted their proposal application in the meeting; their proposal application was approved in the 14 C.C.No.8118/2002 meeting; thereafter, the accused persons gave their application for loan along with documents on 07.10.1997; their loan was approved; they availed the loan and informed that they will start their business by purchasing the equipments; as they have not repaid the loan, Recovery Branch Officials went to the place and found no materials at M/s Indian Institute of Computer Science Ltd. These evidences of PW3 are also remained undisputed by accused No.2.
16. PW4 has deposed in his examination-in-chief that the loan application submitted by the accused persons as Directors of M/s Indian Institute of Computer Science Ltd. came to his branch; the accused persons requested for loan to purchase the machineries relating to computer; on 21.11.1997, loan was sanctioned after verification as per Rules of KSFC; after sanction of the loan, the accused persons started their Unit; run it for some time and thereafter, they failed to repay the loan amount; when Recovery Branch persons went to the place of business of the 15 C.C.No.8118/2002 accused persons, no machineries found therein. His above oral evidences are also remained undisputed by accused No.2.
17. PW5 has deposed in his examination-in-chief that before he joined the duty at main office of KSFC, loan was sanctioned to M/s Indian Institute of Computer Science Ltd. and except the last installment, remaining loan amount was disbursed; after he came to the main branch, he recommended to disburse the last loan installment of Rs.1.83 lakhs to M/s Indian Institute of Computer Science Ltd.; the said amount was disbursed through cheque; it was sanctioned for purchase of the equipments; thereafter, the Directors of M/s Indian Institute of Computer Science Ltd. after borrowing loan of Rs.42,03,000/- from KSFC did not purchased the equipments; they have either moved the equipments to some where or sold without informing KSFC and they misusing the said money have cheated KSFC. He has deposed in his cross-examination that from the loan 16 C.C.No.8118/2002 recovering people, he came to know that the equipments were either moved to somewhere or sold them.
18. PW6 has deposed in his examination-in-chief that the accused persons taking two floors from his building on rent have kept computer sets; as the accused persons have not repaid the loan have seized computer equipments and he signed the Mahazar drawn at that time as per Ex.P24. He has deposed in his cross-examination that from KSFC bank, came and seized computer and other equipments.
19. PW7 has deposed in his examination-in-chief that KSFC sanctioned loan of Rs.43.80 lakhs to M/s Indian Institute of Computer Science Ltd. out of which, Rs.42.03 lakhs was availed by them; they have started M/s Indian Institute of Computer Science Ltd. at Ramachandrapura; after availing the loan, the accused persons have not repaid it; KSFC was requesting the accused persons to repay the loan periodically; but still, the accused persons were not repaying the loan; therefore, notice was issued to the accused persons for repayment of the loan failing which, KSFC will seize the 17 C.C.No.8118/2002 company; accused persons wrote letter stating that they will repay the loan amount within 2 months; but, they have not repaid the loan amount; therefore, on 14.11.2000, he and other officers of KSFC have visited to seize the company of the accused persons; at that time, the company was locked; when they entered after breaking open the lock and conducted the mahazar, they came to know that the equipments purchased from the financial assistance of KSFC were not there; inspite of issuance of notice on 27.11.2000 to the accused persons to return the said equipments, they have not returned them. Nothing has been elicited in his cross- examination to disbelieve the above evidences deposed by him.
20. PW8 has deposed in his examination that on 31.05.2001, he received the case file from CW21 for further investigation; verified the documents; deputed the police officials to secure the accused persons; recorded the Witness Statements of CW10 to CW20 and on completion of the investigation, he filed Police Report against the accused 18 C.C.No.8118/2002 persons. Nothing has been elicited in his cross-examination also to disbelieve the above evidences deposed by him.
21. PW9 has deposed in his examination-in-chief that in the year 1998, accused No.3 met him through telephone; called him to 2nd floor of Ganesh Complex; introduced three persons that they are staring a Computer Institution for which, asked to prepare a board measuring 18 X 4 feet in the name of "M/s Indian Institute of Computer Science"; accordingly, he prepared a board; gave it along with Bill for Rs.12,240/- out of which, they gave Rs.1,000/- - Rs.2,000/- every month. His above oral evidences are remained undisputed by accused No.2.
22. PW10 has deposed in his examination-in-chief that as per the request of the accused persons, he did aluminum partition at their office; he told the accused persons to pay Rs.2.50 lakhs; the accused persons have not paid any money to him and he came to know that the accused persons have created the Bill in his name. His above oral evidences are also remained undisputed by accused No.2.
19 C.C.No.8118/2002
23. It appears from the contents of Ex.P1 and Ex.P3 that accused No.2 is one of the shareholders and Executive Director of M/s Indian Institute of Computer Science Ltd. Accused No.2 during his examination under Section 313 of Cr.P.C. has admitted that he was one of the Directors of M/s Indian Institute of Computer Science Ltd. Though, DW1 has deposed in his examination-in-chief that he has resigned to the said Company in the month of October 1999, he has not produced any documentary evidences in that regard. He has deposed in his examination-in-chief that he has executed the loan documents in favour of KSFC. Therefore, the liability of accused No.2 is co-extensive with the other Directors of M/s Indian Institute of Computer Science Ltd.
24. It appears from the the contents of Ex.P11 that the accused persons have created security on the immovable property belongs to one Nagaraju bearing Site No.317/9 situated at 2nd Main Road, 24th Cross Road, Jayanagara 6th Block, Yediyuru, Bengaluru in favour of KSFC for the loan borrowed by them. But, there are no allegations by the 20 C.C.No.8118/2002 prosecution with regard to commission of any crime on the said property by the accused persons.
25. It appears from the contents of Ex.P8 that loan amount of Rs.42.60 lakhs was sanctioned to M/s Indian Institute of Computer Science Ltd. for purchase of the machineries. It appears from the contents of Ex.P12 and Ex.P13 that on 10.12.1997, M/s Indian Institute of Computer Science Ltd. purchased 3 APT UPS (3KVA) and 15 Batteries worth Rs.3,03,750/- and on 23.12.1997, M/s Indian Institute of Computer Science Ltd. purchased 23 PENTIUM 133 MHZ 32 MB RAM, 256 KB CACHE 1.44 MB FDD, 2.1 GB HDD, 32 BIT PCI, VGA CARD, 14'' SVGA COLOR MONITOR, 104 WIN 95 KEYBOARD, 2 SERIAL PORT, 1 PARRALLEL PORT, MINI TOWER CABINET, 2 PENTIUM 266 MHZ 512 KB CACHE 32 MB RAM, 1.44" MB FDD, 2.1 GB HDD, 64 BIT PCI, VGA, 14'' SVGA COLOR MONITOR, 104 KYS WIN 95 KEYBOARD, 2 SERIAL PORT, 1 PARRALLEL PORT, MINI TOWER CABINET worth Rs.14,05,100/-. It appears from the contents of Ex.P14 and Ex.P15 that on 14.08.1997, M/s Indian Institute of 21 C.C.No.8118/2002 Computer Science Ltd. paid Rs.10,30,000/- and on 26.12.1997, M/s Indian Institute of Computer Science Ltd. paid Rs.6,75,850/- to Blaze Computing Systems towards Invoices at Ex.P12 and Ex.P13. Ex.P16 and Ex.P17 are the Invoices about interior work for office setup of M/s Indian Institute of Computer Science Ltd. It appears from the contents of Ex.P10 that the accused persons have hypothecated the above purchased movable properties, 105 ton air conditioners with stabilizers of 4 KVA and installation, cabling with connection huks, etc. required for network cabling, computer tables and chirs, partitions, doors, etc., Carneting for an of 900 Sq. Feet, CA Realice II Work bench, CAJCL, SPF/ISFF Terminol Editors and FDB Work Bench to KSFC as security to the loan. On perusal of the contents of Ex.D2, it appears that on 14.11.2000, while KSFC officials breaking open the lock of M/s Indian Institute of Computer Science Ltd., there were Aluminum Partition with Glass Fittings measuring 920 feet, Plywood made long tables in 2 rooms, 2 UPS Systems, 5 Batteries, 4 ceiling fans, 1 Table Fan, 1 Steel Wash Basin, 1 Prestige Water Filter, 1 AC Duck, 22 C.C.No.8118/2002 1 office table and one sign board at the premises. On perusal of the contents of Ex.P24, it appears that the same were there at the time of mahazar also. It is not the case of accused No.2 that except the above, the other hypothecated movable properties mentioned in Ex.P10 were there in the premises of M/s Indian Institute of Computer Science Ltd. at the time of seizer.
26. On perusal of the contents of Ex.P19, it appears that initially, the law was set into motion by the Station House Officer of Srirampura Police Station by registering the Crime for the offences punishable under Sections 120B, 406 and 420 of the Indian Penal and the Police Report was filed for the offences punishable under Sections 120B, 406, 420 and 468 of the Indian Penal Code. On combined reading of the above evidences both oral and documentary, it appears that there are no evidences from the prosecution attracting the offence punishable under Section 468 of the Indian Penal Code. There are no evidences from the prosecution that which documents have been allegedly the false documents created 23 C.C.No.8118/2002 by the accused No.2 along with the other accused persons. PW2 has deposed in his examination-in-chief itself that he verified the documents for sanction of loan to M/s Indian Institute of Computer Science Ltd. and after he found that the said documents are correct, he gave opinion that loan may be sanctioned to the accused persons. These evidences of PW2 are falsifing the allegations of the prosecution for the offence charged against accused No.2 for the offence punishable under Section 468 of the Indian Penal Code. Therefore, the prosecution has not proved that accused No.2 has committed the offence punishable under Section 468 of the Indian Penal Code.
27. Admittedly, M/s Indian Institute of Computer Science Ltd. was the owner of the movable properties hypothecated under Ex.P10 to KSFC and the right of KSFC on it is only as security on loan availed by the accused persons as Directors of M/s Indian Institute of Computer Science Ltd. It appears from the contents of Ex.D2 and Ex.P24 that on 14.11.2000 and at the time of mahazar, some of the properties 24 C.C.No.8118/2002 hypothecated under Ex.P10 were not found at M/s Indian Institute of Computer Science Ltd. On perusal of the oral evidences of PW1 to PW10, it appears that among the witnesses examined before the Court, PW2 to PW6 have no personal knowledge about the sale or transportation of the hypothecated movable properties by the accused persons. The have not deposed that on 14.11.2000, they have also visited M/s Indian Institute of Computer Science Ltd. and found that the hypothecated movable properties were not found there. Therefore, from the evidences of PW2 to PW6, the prosecution cannot prove that accused No.2 along with other accused persons committed criminal conspiracy between themselves; dishonestly disposed of them from the said place and thereby, they have cheated KSFC. Only PW1 and PW7 were the witnesses who visited M/s Indian Institute of Computer Science Ltd. on 14.11.2000 for seizer of the hypothecated movable properties and found at that time that they were not there at M/s Indian Institute of Computer Science Ltd. PW1 has deposed in his examination-in-chief that the accused persons have sold them and cheated KSFC. 25 C.C.No.8118/2002 PW7 has also deposed in his examination-in-chief that the accused persons have cheated KSFC. Therefore, the oral evidences of PW1 and PW7 are only about cheating by the accused persons to KSFC. But, they have not deposed that the accused persons have either shifted or sold the hypothecated movable properties to KSFC with an intention to cheat KSFC. Though, the said evidences of PW1 and PW7 deposed in their examination-in-chief are remained undisputed by accused No.2, the said evidences are not sufficient to prove the ingredients to constitute the offences punishable under Section 120B, 406 and 420 of the Indian Penal Code by accused No.2. When the prosecution alleges against the accused persons with regard to dishonest disposition of hypothecated properties by them, without producing the oral evidences with regard to such dishonest intention or documentary evidences or producing the properties dishonestly disposed of by the accused persons seizing from the person who received it from the accused persons to cheat KSFC, the commission of the offences punishable under Section 406 and 420 of the Indian Penal 26 C.C.No.8118/2002 Code cannot be proved by the prosecution beyond all reasonable doubts.
28. In the judgment relied by the learned Counsel for accused No.2 in the case between Rajiv Kumar V/s State of Uttara Pradesh, the Hon'ble Supreme Court laid down the ingredients which constituting the offence punishable under Section 120B of the Indian Penal Code. In the judgment relied by the learned Counsel for accused No.2 in the case between Binod Kumar & others V/s State of Bihar & another, the Hon'ble Supreme Court laid down the ingredients which constituting the offences punishable under Sections 406 and 420 of the Indian Penal Code. Upon relying the said judgments, if the oral evidences and the documentary evidences produced by the prosecution are considered, none are proving the ingredients constituting the offences punishable under Sections 120B, 406 and 420 of the Indian Penal Code. In this case, the Investigation officer has not made any attempt to seize the dishonestly disposed of hypothecated properties by the accused persons either by 27 C.C.No.8118/2002 recording their confession statement or any other mode of investigation. On perusal of the allegations made in the Police Report itself, it appears that the Investigation Officer is not clear about the fact that whether the accused persons have sold the hypothecated movable properties to any other person/s or they have transported them some where. Under these circumstances, the prosecution has not proved the guilt of accused No.2 for the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code beyond reasonable doubt. Hence, I answer Point No.1 in the Negative.
29. POINT No.2 :- For the reasons stated in Point No.1, the prosecution has not proved the guilt of accused No.2 for the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code beyond all reasonable doubt. Therefore, accused No.2 is not found guilty for the aforesaid offences charged against him. In the result, I proceed to pass the following;
28 C.C.No.8118/2002
ORDERS
Under Section 248(1) of Cr.P.C,
accused No.2 is hereby acquitted for the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code.
His bail bond and surety bond executed under Section 437 of Cr.P.C. will be in force till appeal period of over and thereafter, it shall stands canceled.
(Typed by the Stenographer in the Court Computer on my direct dictation, printout taken, corrected and then pronounced by me in the open court on 14.09.2022) (VEDAMOORTHY B.S.) II Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE Witnesses Examined on behalf of Prosecution :-
PW1 : N.R.Sridhar,
PW2 : Nagaraj,
PW3 : Shashikumar,
PW4 : Dr.Shiva Naidu,
PW5 : K.Srinivas,
PW6 : S.J.Kumar,
29 C.C.No.8118/2002
PW7 : Radhakrishna,
PW8 : Siddoji Rao,
PW9 : Sadashivan,
PW10 : Ashok.
Documents marked on behalf of Prosecution :-
Ex.P1 : Copy of Loan Application,
Ex.P2 : Copy of Memorandum & Articles of
Association,
Ex.P3 : Copy of List of Directors,
Ex.P4 : Copy of Certificate of Incorporation,
Ex.P5 : Copy of Board Resolution,
Ex.P6 : Copy of Tax Demand Register
Extract,
Ex.P7 : Copy of Encumbrance Certificate,
Ex.P8 : Copy of Loan Sanction Intimation
letter,
Ex.P9 : Copy of Loan Snaction Letter,
Ex.P10 : Copy of Hypothecation Deed,
Ex.P11 : Copy of Collateral Loan Agreement,
Ex.P12 & 13 : Copies of Invoices,
Ex.P14 & 15 : Copies of Receipts,
Ex.P16 to 18 : Copies of Invoices,
Ex.P19 : First Information,
Ex.P19(a) : Signature,
Ex.P20 & 21 : Copies of Notices,
Ex.P22 : Copy of Proceedings of KSFC,
30 C.C.No.8118/2002
Ex.P23 : Copy of Mahazar,
Ex.P24 : Mahazar,
Ex.P24(a) : Signature.
Material objects marked on behalf of Prosecution :-
NIL Witnesses Examined on behalf of the accused :-
DW1 : Shanmugam.
Documents marked on behalf of the accused :-
Ex.D1 : Copy of Proceedings of KSFC,
Ex.D2 : Copy of Mahazar,
Ex.D3 : Copy of Order in
Crl.Misc.No.214/2022.
Ex.D4 : Copy of Petition in Ex.Case
No.1718/2004,
Ex.D5 : Copy of Status Report,
Ex.D6 : Certified copy of Judgment in
O.S.No.8687/1998.
(VEDAMOORTHY B.S.)
II Addl. Chief Metropolitan Magistrate, Bengaluru City.31 C.C.No.8118/2002
14.09.2022 (Judgment pronounced in open Court vide separate order).
ORDERS Under Section 248(1) of Cr.P.C, accused No.2 is hereby acquitted for the offences punishable under Sections 120B, 406, 420 and 468 R/w Section 34 of the Indian Penal Code.
His bail bond and surety bond executed under Section 437 of Cr.P.C. will be in force till appeal period of over and thereafter, it shall stands canceled.
(VEDAMOORTHY B.S.) II Addl. Chief Metropolitan Magistrate, Bengaluru City.