Bangalore District Court
Sri. T.Srinivas vs State Of Karnataka on 13 December, 2022
KABC010019482016
Presented on : 23-01-2016
Registered on : 23-01-2016
Decided on : 13-12-2022
Duration : 06 years, 10 months,
20 days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH67)
DATED: This the 13th day of December, 2022
PRESENT
Sri.S.Nataraj, BAL.,LL.B.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.61 of 2016
Appellant : Sri. T.Srinivas,
S/o Late Thimmaiaha,
Aged about 60 years,
R/at No.79, 1st cross,
lalitha Prasanna Badavane
Layout, Laggere,
Bengaluru560 058.
(By Sri.Narayana Reddy M
and Associates Advs.)
/Vs/
Respondent : State of Karnataka,
By Vyalikaval Police,
Bengalure City
Bengaluru 560 003.
(By Public Prosecutor)
2
Crl.A.No.61/2016
JUDGMENT
This is an appeal filed by the Appellant/accused No.1 under Sec. 374(3) of Cr.P.C. against the judgment in C.C.No.8353/2001 passed by the 6 th ACMM, Bengaluru, (hereinafter referred to as Trial Court) wherein the appellant and accused No.3 were convicted for the offences punishable under Secs.406, 419, 420, 468 r/w 34 of IPC and sentenced to undergo SI of one year and to pay a fine of Rs.1,000/ for the offence under Sec. 406 r/w 34 of IPC and sentenced to imprisonment of one year and to pay a fine of Rs.5,000/ for the offence under Sec.419 r/w 34 of IPC. Sentenced to undergo SI for 2 years and fine of Rs.5000/ for the offence under Sec.420 r/w 34 of IPC and sentenced to undergo SI for 2 years and pay a fine of Rs.5000/ for the offence punishable under Sec.468 of IPC and in default of payment of fine the appellant shall undergo SI for another 3 months.
2. Appellant is an accused No.1 before the trial Court. The respondent herein is the complainant/ prosecution before the trial Court for the sake of 3 Crl.A.No.61/2016 convenience. Parties herein are referred to as per their rank held before the trial Court.
3. The brief facts of the case leading to filing of this appeal are as follows: PW.1 R.S.Mani has filed a complaint at Ex.P.1 on 26.03.1999 alleging that his father had three children. He had owned property measuring 20X25, house No.3, 4 th cross, 7th division, Muneshwara Block, Bengaluru, the complainant is an elder son. His father has died about 23 years back. The katha of the property was standing in the name of father, in order to change the katha to the names of complainant and his brothers, he has no wordily knowledge. In the year 1995 he had handed over the original sale deed dated 16.03.1966, katha certificate and encumbrance certificate to the accused/appellant for change of katha in his name and in the name of his brothers. The accused No.1/appellant has introduced Accused No.2 Ravi saying that he knew the officials in Corporation office and he would change the katha in his name. The appellant and Ravi had collected in all 4 Crl.A.No.61/2016 Rs.2000/ from the complainant towards expenses for change of the katha in his name. For about 3 years the appellant and accused No.2 has not at all change the katha in his name. One or the other reasons they have postponed the changing katha. As such, the Karnataka State Finance Corporation officials had visited the house stating that R.Chandrashekar, accused No.3 had borrowed loan of Rs.13,40,000/ and mortgaged the property of the complainant father. The Chandrashekar had not paid the amount and came to auction the property. The complainant has told that his father was died 23 years back and they have not offered the property as mortgage for borrowing loan. Somebody has cheated, for which the KSFC officials have not obliged. They proclaimed to auction the property. The complainant immediately told the accused No.1 and he has not stated anything and he told that he had given the original documents to Corporation Office. Therefore, he filed a complaint. On the basis of complaint, the respondent police registered the case under Sec.468,420 r/w 34 of IPC.
5
Crl.A.No.61/2016
4. During the course of investigation, the PW.5 R.Ramachandra, the then PSI of respondent police conducted the investigation, recorded the statement of complainant and other witnesses. He has collected Ex.P.5 to P.20 documents from the KSFC. Arrested the accused Nos. 2 and 3 and released on bail as per anticipatory bail order. After completion of the investigation, submitted charge sheet against accused Nos.1 to 3 before the trial Court for the offences punishable under Secs.406, 419, 420, 468 r/w 34 of IPC.
5. The trial Court took the cognizance of the offences against accused Nos.1 to 3. The accused Nos.1 and 3 presence was secured. They were on bail represented through their counsel. The copies of the charge sheet was furnished. Accused No.2 Ravi was remained absconding. The case against accused No.2 has been split up. The charges against accused Nos.1 & 3 are framed and read over to them. They pleaded not guilty claimed to be tried. The prosecution in order to prove the guilt of the accused Nos.1 and 3 examined in all PWs 1 to 5 6 Crl.A.No.61/2016 witnesses, Ex.P.1 to Ex.P.20 documents and Ex.D.1 on behalf of accused (Ex.D.1) is not shown in the list of Annexure in the Judgment of the trial Court. Under Sec. 313 Cr.PC statements were recorded. Accused No.1 and 3 denied the incriminating circumstances, not chosen to lead evidence.
6. After hearing arguments of both sides, considering the evidence on record, the trial Court convicted accused Nos.1 and 3 for the offences punishable under Secs.406, 419, 420, 468 r/w 34 of IPC vide impugned Judgment dated 23.11.2015.
7. Being aggrieved by the impugned judgment of conviction and sentence of trial Court, the appellant/accused No.1 has preferred the present appeal challenging the same, on various grounds among other grounds that the trial Court has failed to consider the prosecution, failed to establish the offences alleged and error in convicting the appellant. The evidence of Pws 1 and 2 who are the brothers and interested witnesses. It is further contended that the evidence of PW.1 is not 7 Crl.A.No.61/2016 corroborated the evidence of PW.2. the documents relied by the prosecution would not establish that the complainant had handed over original documents to the appellant and who had handed over the same to accused No.2. That there is no independent evidence on record to convict the appellant with that of the documents issued by KSFC. Ex.P.2 loan application was submitted by accused No.3. It was sanctioned in favour of accused No.3. The guarantee deed being executed by one Raju, accused No.3 in favour of KSFC. The cheque was issued in favour of Ravi Construction Company, which were not established that the appellant had connected with those documents. It is further contended that the appellant had not participated in the alleged impersonation. The appellant has not complied or shared common intention either to impersonate or deceive the complainant and to cheat him. The prosecution has not established any of the offences alleged. The findings of the trial Court is not supported with any evidence. The trial Court errored in drawn inference in convicting the appellant. The trial Court has 8 Crl.A.No.61/2016 ignored the admissions and contradictions which would goes route of the prosecution case and prayed for allowing the appeal and to set aside the Judgment of the trial Court.
8. After registering the appeal, the learned Public Prosecutor represented the respondent. The trial Court records has secured. The appellant counsel inspite of sufficient opportunity not chosen to address the arguments and taken as heard. Heard arguments of Learned Public prosecutor for respondent.
9. The following points that arose for the due consideration of this Court are;
Point No.1: Whether the prosecution proves beyond all reasonable doubt that in the year 1995, PW.1 complainant had handed over original documents of property standing in the name of his Father Raju to accused No.1 and requesting him to change the katha in his name and in the name of his brother and introduced accused No.2 to the complainant on the sue to get change the katha in the name of PWs 1 and 2 in the Corporation records and paid Rs.2,000/ for expenditure and misappropriated the documents knowing that the complainant 9 Crl.A.No.61/2016 father was died and approached to the KSFC pledged the documents as security for loan of accused No.3 and impersonated the complainant father and borrowed loan of Rs.13,40,000/ by Accused No.3. The accused Nos.1 to 3 in furtherance of common intention have induced the complainant cheated and forged documents, thereby committed the offences punishable under Secs.406, 419, 420, 468 r/w 34 of IPC ?
Point No.2: Whether judgment of conviction and sentence passed by trial Court against appellant/accused No.1 is called for interference by this Court?
Point No.3: What order?
[
10. The answer of this Court to the above points are;
1. Point No.1 & 2 : Partly Affirmative 2: Point No.3: As per the final order for the following reasons: REASONS
11. POINT Nos.1 & 2: Since these points are interlinked with each other, they are taken up together for discussion in order to avoid repetition. 10
Crl.A.No.61/2016 The learned counsel for appellant in the appeal Memo has contended that the trial Court has failed to appreciate the materials placed on record and convicted the appellant on the basis of evidence of PWs 1 and 2 that the accused have impersonated as a Raju signed and created forged documents and offer property documents of complainant property as a surety and borrowed the loan. The trial Court has not considered that none of the offences are alleged or proved by the prosecution. The Accused No.1 has not at all impersonated or signed as a Raju or obtained nor offered documents for the loan of Accused No.3. It is further contended the impugned Judgment is suffers from illegality not based evidence on record and he prayed to acquit the accused.
12. The learned Public Prosecutor has supported the Judgment of the trial Court and argued that the evidence of PWs 1 and 2 coupled with the Investigation Officer evidence is sufficient to hold that the appellant along with Accused Nos.2 and 3 in furtherance of common intention have collected original documents from PW.1 and 11 Crl.A.No.61/2016 assured to change katha collected the amount and thereafter the said documents were pledged with the KSFC, borrowed the loan and cheated the complainant. The trial Court Judgment does not suffer from illegality and inferiority and prayed to dismiss the appeal.
13. Before proceed with the merits of the case, it would be appropriate to have a look at the testimony of evidence of prosecution witnesses for better appreciation of the dispute involved in the case.
14. PW.1 R.S. Mani, who is the complainant, stated that house No.3 belongs to him, katha was standing in the name of his Father Raju, who died 31 years back. After his death, the complainant and his brothers are owners in possession of the same. The katha was not changed till that date and continued in the name of his father. He knew the Accused Nos.1 to 3. He has handed over sale deed standing in the name of his father to Accused No.1 and requested him to change the katha in his name. Accused No.1 who in turn handed over sale deed to accused No.2. The accused No.1 taken him before Sub 12 Crl.A.No.61/2016 Registrar office. The accused Nos. 1 and 2 did not change the katha in his name and the name of his brothers. He had requested them to return documents. One day, the KSFC officials came to his house stating that one Chandrashekar has availed a loan on security of the house and he filed a complaint.
15. PW.2 Govindaswamy, the brother of complainant. He stated that the house belongs to his father. His father has died 30 years back. Accused No.1 collected house documents assuring change katha in their name and collected Rs.2000/ towards expenses. Accused No.1 has told that Accused No.2 has acquainted with the officials of BBMP. The accused did not handed over the documents nor change the katha in their names. Finally, KSFC officials came to house and asked to vacate the premises. On enquiry they told the loan has been raised on security of house and it was not paid. Accused No.3 had borrowed loan on security of the house but father was died 30 years back. By impersonating the father, the accused persons pledged the documents. The signature in 13 Crl.A.No.61/2016 the loan application and documents are not that of the father of complainant.
16. PW.3 Samuel Hussain the then PSI, who deposes that he has taken further investigation that on 19.01.2000 he has arrested Accused No.3 and released on bail as per anticipatory bail.
17. PW.4 Bangarappa, Retired ASI who had registered the complaint on 26.03.1999 and submitted FIR to the Court.
18. PW.5 R. Ramachandra, the IO who recorded the statements of Pws 1 and 2 and other witnesses, collected Ex.P.5 to 20 documents from KSFC, arrested the accused Nos. 2 and 3. After completion of the investigation submitted charge sheet against the accused persons.
19. At this juncture, it is pertinent to have a look at the definition of criminal breach of trust.
405 of IPC. : Criminal breach of trust.-- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or 14 Crl.A.No.61/2016 implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
The following essential ingredients are to be established.
a) a person is, in any manner entrusted with the
i) property or ii) dominion over the property
b) he dishonestly : i) misappropriates or converts to his own use that property or ii) dishonestly uses or disposed off that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or any legal contract made by touching discharge of such trust willfully suffers any other person so to do or omit.
20. The Hon'ble Apex Court in case of R.K. Dal Vs Delhi Administration, 1962 AIR 1821, has held the definition in 405 of IPC does not restrict the property movables or immovables alone. The word 'property' used in the code in a much wider sense then the expression movable property. There is no good reason to restrict the meaning of the word 'property' to movable property only. In the present case according to the case of prosecution 15 Crl.A.No.61/2016 and as per Ex.P.1 complaint, the complainant has handed over original documents of his father property to Accused No.1 with request to change katha in his name and in the name of his brothers. Accused No.1 had introduced Accused No.2 who has handed over the documents to Accused No.2. Thereafter, accused misappropriated the documents and mortgaged to KSFC as a security for loan borrowed by A.3.
21. As per Judgment of Hon'ble Apex Court, AIR (2006) SC 2211, State of Madhyapradesh Vs Karanvir, held that the actual manner of misappropriation is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Sec.405 of IPC. In the present case, the evidence of Pws 1 and 2 which establishes that the original documents of property of father of PW.1 and 2 were handed over to accused No.1 only for the purpose of change of katha. Once the entrustment of documents to the custody of Accused No.1 was given, it is for him to explain how it has 16 Crl.A.No.61/2016 to be dealt with. As the evidence on record would discloses the documents which were handed over to the custody of Accused No.1, were in the custody of KSFC pledged by impersonating PW.1 Father and borrowed the loan by Accused No.3. Accused No.1 has to explain how these documents which were handed over to him were found in the custody of KSFC. It is true that the prosecution has to establish the case against accused beyond reasonable doubt. The evidence of PW.1 and 2 clinchingly establishes the entrustment of documents to Accused No.1. In the crossexamination of PW.1 and 2, it is tried to contended that PW.1 himself has pledged the documents with KSFC and borrowed the loan for the purpose of his daughter's marriage. However, there is no material to hold that PW.1 has mortgaged the property and raised the loan. On the other hand, Ex.P.5 to P.20 the loan application, the sanction order, the guarantee deeds and cheques are all discloses, Accused No.3 Chandrashekar had given loan application for which the documents of Pws 1 and 2 were given as security for the loan of Accused No.3, the 17 Crl.A.No.61/2016 signature was made by the person as if a father of PW.1 Raju.
22. The death certificate produced at Ex.P.3, the father of PW.1 was died on 13.04.1976. Certificate was issued in the year 1999. There is no proof as on the date of borrowing the loan from KSFC, the father of PW.1 was alive. There is no enimity elicited in the crossexamination of PW.1 and 2 so as to foist false complaint against the accused persons. The loan was granted by KSFC to Accused No.3 a sum of Rs.13,27,000/ for the purpose of purchase of Earth moving equipments. On 03.01.1996 through cheque the said loan was disbursed to M/s. Ravi construction company. The letter issued by the KSFC dated 02.11.2000 to the complainant police stating that all the original documents of property belongs to Raju were pledged with the bank and it requires for office use and will be produced before the Court. Though the said documents is not marked, these would establishes with the original documents are in the custody of KSFC. The concerned institution has given true copies of original documents 18 Crl.A.No.61/2016 submitted by Accused No.3 along with the guarantee deeds at Ex.P.5 to P.20.
23. The suggestion of accused to PWs 1 and 2 that the PW.1 himself has raised the loan from KSFC for the purpose of marriage of his daughter cannot be acceptable. The KSFC is meant for advancing the loan for the purpose of commercial transaction, not for advancing any personal loan. There is no basis to accept the contention of accused. Therefore, the evidence on record which establishes over the original documents of property of Raju were entrusted by PW.1 to Accused No.1 for the purpose of change of katha in their names. Based on said documents the katha has not been changed nor who have return the documents to PW.1. Therefore, there was entrustment to Accused No.1 and misappropriation of said documents as it were in the custody of KSFC for security for advancing to loan in favour of Accused No.3. Thus, there is no illegality in the appreciation of evidence with regard to 406 of IPC by the trial Court in respect of Accused No.1. 19
Crl.A.No.61/2016
24. It is also the case of prosecution that Accused Nos.1 to 3 in furtherance of common intention forged the signature of Raju, impersonated and the documents were pledged with the KSFC and obtained loan by Accused No.3. Sec.419 of IPC definition is the penal provision punishment for cheating by personation. Sec.415 cheating defines :
a) a person deceives any person
b) He fraudulently or dishonestly induces the persons so deceived
i) to deliver any property to any person or
ii) to consent that any person shall retain any property or
iii) he intentionally induces the person so deceive to do or omit anything which he would not do or omit if not deceived and which act, causes or likely to cause damage or harm to that person.
Only if the ingredients Sec.415 of IPC is establishes then Sec. 419 of IPC cheat by personation would be attracted. Sec. 420 IPC the essential ingredients;
a) a person cheats ;
b) he thereby dishonestly induces the person deceived
i) to deliver any property to any person; or 20 Crl.A.No.61/2016
ii)to make other or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capable of being converted into valuable security.
Sec.468 IPC forgery for the purpose of cheating. To Convict the accused for the offence under Sec. 468 IPC a commission of act is a forgery is a condition precedent. A term forgery used in Sec.468 of IPC is defined in Sec.463 of IPC. As per Sec. 463 of IPC forgery means :
Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
It would also be necessary to understand the scope of Sec.464 of IPC in this context.
464 Making a false document. -- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document; 21
Crl.A.No.61/2016
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
25. A close scrutiny of above said provisions makes it clear that Sec.463 defines the offence of forgery, Sec.464 of IPC substantiates the same by providing an answer as to when the false document could be said to have been made for the purpose of committing an offence of forgery under Sec.463 of IPC. Therefore, Sec.464 defines one of the ingredients of forgery i.e. making of false documents. Sec.465 provides punishment for commission of the offence of forgery. It is clear that sinquanon for the offence 22 Crl.A.No.61/2016 under Sec.468 of IPC is forgery which has been defined under Sec.463 of IPC. In respect of offence under Sec.468 of IPC forgery is a principal offence with cheating being consequential offence. If the forgery goes the cheating also goes. So unless and until the ingredients of offence under Sec.463 of IPC are satisfied person cannot be convicted for the offence under Sec.468 of IPC by solely relying on the ingredients of Sec.464 of IPC as the offence of forgery would remain incompleted.
23
Crl.A.No.61/2016
26. In order to attract the offence of forgery cannot lie against a person who is not created it or signed it. In the present case, the IO PW.5 has admitted that the person who signed impersonating Raju before the KSFC offering the properties as a security has not been traced. Therefore, the impostor the person who signed Ex.P.13, P.14guarantee deed, Ex.P.15 agreement, Ex.P.16Affidavit, Ex.P.17affidavit and Ex.P.18 Power of Attorney are not before the Court. It is not the case of the prosecution that either Accused No.1 or Accused Nos.2 and 3 impersonated as a Raju and signed Ex.P.13 to 18 documents and committed forgery. As per the Judgment of Hon'ble Supreme Court Sheil Sebastian Vs R.Jawaharaj and another, (2018) 7 SCC 581, held that charge of forgery cannot be imposed against the person who is not the maker of false documents in question. In the present case, the maker of the documents executed before KSFC and signed as a Raju, father of PW.1 is not before the Court. Therefore, the Accused No.1 is not a maker of said documents and he cannot be held to be guilty under 24 Crl.A.No.61/2016 Sec.463 or 468 of IPC. Once the forgery and impersonation is not established, Sec.420 of IPC is a subsidiary offence, it cannot be said that the Accused No.1 guilty of the offence of Sec. 420 of IPC. It is well settled law that however strong the suspicion may be, it cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. Thus, on appreciating the evidence on record, the prosecution failed to prove Sec.420, 419, 468 of IPC against Accused No.1. The trial Court without considering the provisions of law, has erroneously convicted the A.1 for the above said offences and it requires to be interfered and liable to be set aside. In so far as Sec. 406 of IPC is concerned, it is proper and correct nothing to be interfered.
The Accused No.1 is liable to be acquitted for the offences under Secs. 419,420 and 468 of IPC.
27. The trial Court while imposing imprisonment and sentence in respect of Sec. 406 of IPC has not at all considered the provisions of probation of offenders Act. It is mandate on the part of the trial Court to give the reasons 25 Crl.A.No.61/2016 for not extending the benefit of provisions of PO Act. Therefore, sentencing the accused for imprisonment under Sec.406 of IPC is liable to be set aside. Hon'ble Apex Court in case of State of Madhya Pradesh Vs Man Singh in Crl. Appearl No. 410/2011 dated 04.11.2019 held, that before releasing any offender on probation of good conduct, the Court must obtain a report from the Probation Officer and can then order his release on his entering bone with or without surety to appear and receive sentence when called upon during such period not exceeding 3 years. Therefore, the report has to be called from the Probation Officer, about conduct of accused No.1. Accordingly, to that extent the Judgment of the trial Court is to be interfered. Hence, answer Point No.1 and Point No.2 in partly affirmative.
28. POINT No.3: In view of findings given on point Nos.1 and 2, this Court pass the following order.
ORDER The Appeal filed by the appellant/accused No.1 T.Srinivas under Section 374(3) of Cr.P.C. is allowed in part.
26
Crl.A.No.61/2016 The conviction of Accused No.1 under Sec. 406 r/w 34 of IPC is confirmed.
The conviction of Accused No.1 under Sec. 419, 420, 468 r/w 34 of IPC is set aside and he is acquitted for the above said offences.
The sentence of imprisonment and fine passed by the trial Court in respect of 406 of IPC in so far as Accused No.1 is concerned is set aside.
To hear on sentence and call for report from the Probation Officer by 27.01.2023.
(Dictated to the Judgment Writer, transcribed by her, corrected by me and then pronounced in the open Court on this the 13th day of December, 2022).
(S.NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
27
Crl.A.No.61/2016
The Judgment is
pronounced in the open Court
vide separate Judgment with
following operative portion.
ORDER
The Appeal filed by the
appellant/accused No.1 T.
Srinivas under Section 374(3)
of Cr.P.C. is allowed in part.
The conviction of A.1
under Sec. 406 r/w 34 of IPC is
confirmed.
The conviction of A.1
under Sec. 419, 420, 468 r/w
34 of IPC is set aside and he is
acquitted for the above said
offences.
The sentence of
imprisonment and fine passed
by the trial Court in respect of
406 of IPC in so far as A.1 is
concerned is set aside.
28
Crl.A.No.61/2016
To hear on sentence and
call for report from the
Probation Officer by 27.01.2023.
LXVI Addl.CC & SJ,
Bengaluru .