Bangalore District Court
The State Of Karnataka Through vs Shivaraja on 29 April, 2022
1 CC.No.20370/12
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 29th DAY OF APRIL 2022
C.C. No.20370/12
Present: SRI. B.C.CHANDRASHEKAR
B.A., LL.B.,
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
Hanumanthanagar Police Station
V/s.
Accused Shivaraja, s/o.Nanjegowda, 28 yrs,
r/at.No.192, 7th main,
Srinivasnagar, Bengaluru,
DATE OF COMMENCEMENT : 14/8/12
OF OFFENCE
DATE OF ARREST OF THE : Accused is on bail.
ACCUSED
OFFENCES ALLEGED : U/s.420 of IPC.
DATE OF COMMENCEMENT : 08/07/2018
OF EVIDENCE
DATE OF CLOSING OF : 18/09/21
EVIDENCE
2 CC.No.20370/12
OPINION OF THE JUDGE : Found guilty
(B.C.CHANDRASHEKAR)
XXIV A.C.M.M., BENGALURU.
: J U D G M E N T :
The PSI of Hanumanthanagar Police station has filed
chargesheet against accused for the offence punishable
u/s.420 of IPC.
2. The brief facts of the case of the prosecution are
that on 14/8/2012 at 6.30 am., accused gone to the ICICI
Bank ATM situated at Vidyapeetha circle, Katrigupee main
road, opened the lock and by entering the common
combination numbers 02020202 took an amount of
Rs.11,76,500/ from the ATM machine and thereby cheated
the government and on 17/8/12 the accused has caught
hold and the Investigating officer has seized the cheated
amount of Rs.11,76,500/ and thereby he has committed the
offence u/s.420 of IPC.
3. On the basis of the complaint of the CW 1, this crime
has been registered by Hanumanthanagar Police Station.
During the crime stage, the accused has arrested and
produced before the court, he was remanded to police
3 CC.No.20370/12
custody, thereafter he filed the bail application through his
counsel. Accordingly, after police custody, he has released on
bail. After investigation, Investigating officer has submitted
the chargesheet against the accused for the offence u/s.420
of IPC. The cognizance for the said offence is taken. The
copies of the prosecution papers have furnished to the
accused as contemplated u/s.207 of Cr.P.C.,
4. After being heard the arguments before charge, since
allegation against the accused not attracts the provision of
Sec.420 of IPC and as there were no grounds to discharge the
accused, charge for the offence u/s.380 of IPC have been
framed & read over, explained to the Accused in the language
best known to him. The Accused has not pleaded guilty and
claims to be tried. Hence, the case taken up for trial.
5. In order to prove the guilt of the accused person, the
prosecution has examined 3 witnesses as PW 1 to 3 out of 11
witnesses as cited in the chargesheet. 11 documents have
been marked as Ex.P.1 to 11 and also marked 4 material
objects as per MO 1 to 4. After prosecution evidence, the
accused has been examined u/s.313 of Cr.P.C., & he has
denied the prosecution evidence. The accused has not chosen
to submit the defence evidence.
4 CC.No.20370/12
6. Heard the arguments of learned APP and counsel for
accused. Perused, On the basis of the above, the following
points have arises for my consideration :
1) Whether prosecution proves beyond
reasonable doubt that on 14/8/2012 at
6.30 am., accused gone to the ICICI
Bank ATM situated at Vidyapeetha
circle, Katrigupee main road, opened the
lock and by entering the common
combination numbers 02020202 took an
amount of Rs.11,76,500/ from the ATM
machine and thereby committed the
offences u/s.380 of IPC ?
2) What order?
7. My answer to the above points is as under;
Point No.1 In the Affirmative
Point No.2As per final order for the following;
REASONS
8. According to the prosecution the accused has
committed the offences u/s.380 of IPC. In order to prove the
guilt of the accused the prosecution has examined the
Sr.Manager of the Writers Safeguard Pvt., Ltd., as PW 1 and
he has deposed that he was working as a Manager of the
Writers Safeguard Pvt., Ltd., and his company used to fill up
5 CC.No.20370/12
the cash to the ATMS of the respective banks in Karnataka
State. That on 14/8/12 they have collected the amount of
Rs.14 lakhs from ICICI bank and filled it up to the ATM
machine situated at Vidyapeeth circle, having code No.STCH
9786. That on 16/8/12 when their workers have went and
checked they found the difference of 11,78,500/. As workers
by name Muniraja and Keerthi have intimated over phone and
when he went and verified he found the said difference. They
have conducted an internal inspection and lodged the
complaint before the police as per Ex.P.1. On the next day,
the police have came at the spot and drew up the mahazar.
That on 17/8/12, the police have called him to the Police
Station, hence, he went to the Police Station at 3 pm., and the
police have told him that they have traced the accused and
shown a person as accused.
9. He further deposed that on the same day, the police
have taken him as shown by the said accused to the accused
room situated within 100200 mtrs from the said ATM and
the accused has shown cash of Rs.11,76,500/ in a bag and
the police have seized the same infront of witnesses. The
police have seized the Tshirt, worn by the accused at the
time of commission of the offence and a mobile phone with
the said bag. He has identified the said seizure mahazar as
6 CC.No.20370/12
per Ex.P.5. The police have took photo snaps of the amount
which seized from the accused. Later on by virtue of the
order of the Hon'ble court he has taken the said amount to
his custody. He has produced the said bag as MO 1, T shirt
as MO 2, Nokia mobile phone as MO 3 and identity card of
the accused as MO 4 and he has also identified the accused
before the court.
10. The prosecution has examined one of the mahazar
witness as PW 2 and he has deposed that on 17/8/12 in the
ATM center of ICICI bank Vidyapeetha circle, he affixed the
signature on Ex.P.2 the mahazar. He has deposed that in a
sum of Rs.11,78,500/ has stolen away in the ATM and CW 1
has lodged the complaint abuot the incident and police have
drew up the mahazar near the said ATM in between 2.00 to
2.30 pm., Thus, the PW 2 being the spot mahazar witness
has deposed about the mahazar.
11. PW 3 is the Investigating officer has deposed that on
17/8/12 at about 11.45 am., when he was on SHO duty,
CW1 has came and lodged the complaint and he has received
the same and registered the crime. On the same day in
between 12 to 12.45 pm., he has visited the spot and drew up
the mahazar in the presence of witnesses. Since the cheating
case were raising in Bengaluru city, in order to know if similar
7 CC.No.20370/12
cases taken place in any other place, he went to the Chickpet,
Kalasipalya Police Station and collected the information. He
went to the office of the complainant and verified and he
found that two numbers have been entered into in the
statement. When he enquired it is with respect to admin card
and the said No.22900000007873 has been given by the ICICI
bank to ISSSDD security services. On the basis of the said
report he deputed the CW 6 and 7 to trace the accused. On
the same day, they have produced a person with a report. He
has enquired with the said accused person and he admits
that he has drawn the amount of Rs.11,78,500/, hence, he
has arrested him and recorded his voluntary statement and
he has admits that he is working in the ISSSDD security
services.
12. Further PW 3 deposed that as per the statement of
the said accused, he went to the house bearing No.192, I
floor, 7th main, Srinivasnagar, in the said house, the accused
has produced a bag kept by him which was containing an
amount of Rs.11,76,500/ and denomination is 23 bundles of
500 x 100, 1 bundle of 500 x 53 in toto Rs.11,76,500/. He
has seized the said amount in the presence of CW 1 and
mahazar witnesses CW 6, 7 along with said black bag , Tshirt
and mobile phone with his identity card under the said
8 CC.No.20370/12
mahazar. At that time, he has took the photo snaps, he has
identified the amount in the photos which is marked as
Ex.P.6. He has further deposed that at the time of drawing
up of the mahazar, he has recorded the videograph of the
mahazar. On the same day he has recorded the statement of
CW 4 to 7.
13. He has further deposed that on 18/8/12 since
accused was necessary for further investigation he has
produced him before the court with remand application and
took for police custody. On 20/8/12 since accused admits to
show the place of incident, he has taken the accused at the
place of incident and drew up the spot mahazar in the
presence of CW 8 and 9 which is marked as Ex.P.10. He has
got videographed the mahazar and he has recorded the
statement of CW 8 and 9 and took the report from the ASI
about taking videograph and on 21/8/12 he has produced
the accused before the court. On 25/8/12 since the
complainant has submits application before the court for the
custody of cash recovered from the accused, on 26/8/12 as
per the order of the Hon'ble court he has handed over the
cash of Rs.11,76,800/ to the custody of CW 1 by taking
photographs. He has taken the statement of the CW 1 on
27/8/12. Since the accused was working in ISSSDB, he has
9 CC.No.20370/12
taken the report from the said company as per Ex.P.4 and
after investigation he has submitted the chargesheet.
14. Apart from the oral evidence, Ex.P.1 is the
complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the
computerised document, Ex.P.4 is the document with respect
to accused working in ISSSDB, Ex.P.5 is the seizure mahazar,
Ex.P.6 is the photo, Ex.P.7 is the copy of the banking
transaction documents, Ex.P.8 is the FIR, Ex.P.9 is the
report, Ex.P.10 is the spot mahazar, Ex.P.11 is the Report.
15. I carefully gone through the entire evidence placed
by the prosecution. On meticulous verification of the entire
evidence placed by the prosecution, it appears that PW 1 is a
Sr.Manager of the ISSSDB Private company used to fill up the
cash to ATM machine by taking the amount from the
respective banks. PW 1 has produced Ex.P.4 the letter by
ISSSDB security solutions and it disclosing that the accused
has joined the said company and he was assigned the duty of
filling the cash into the ATM machine and he has been given
the route consisting of routes to replenish different bank
ATMs. Thus, as per the evidence of PW 1 and as per Ex.P.4,
the accused was working in the said company and he was
doing the work of filling up the cash to the ATMs. On perusal
of the cross examination of the PW 1, the counsel for the
10 CC.No.20370/12
accused has not disputed the same. Hence, the prosecution
has proved that the accused was working in the said company
and he used to fill up the cash to the ATM machine by taking
the amount from the concerned banks.
16. As per the evidence of PW 1 on 14/8/12 they have
filled Rs.14 lakhs cash to the ATM machine of ICICI bank
situated at Vidyapeetha circle by taking the amount from the
said bank. Since he has received the information that there
was a difference of Rs.11,78,500/ in the ATM machine, he
came and verified and lodged the complaint as per Ex.P.1.
Merely because the accused was working in the said company
and he was doing fill up the cash to the ATM centers and as
deposed by PW 1 there was a shortage of Rs.11,78,500/, it
does not means to say that the accused has stolen the same.
But the prosecution has to prove the theft committed by the
accused by proving recovery of the stolen amount from the
possession of the accused.
17. PW 1 is not only lodged the complaint as per Ex.P.1
as he is a Manager, he is the material witness who was
present at the time of recovery of the stolen cash from the
possession of the accused. Accordingly as per his further
evidence on 17/8/12 at about 3 pm., as the police have called
him, he went to the Police Station and the police have shown
11 CC.No.20370/12
the accused before the court to him. Further he has
specifically deposed that on the same day as shown by the
accused, the police have taken him to the room of the accused
and the accused himself has shown the cash of
Rs.11,78,500/ kept in a bag and the police have seized the
same in his presence with a Tshirt, Nokia mobile phone with
the bag in which the amount was kept. He has identified the
signature on seizure mahazar as per Ex.P.5. Accordingly,
PW1 being the recovery mahazar witness also clearly deposed
that the accused himself has shown his room, thereby the
police have taken them to the room of the accused and
according to him, the accused himself has shown the said
amount kept in a bag in his room, thus, by drawing the
mahazar as per Ex.P.5, the police have seized the same. PW 1
being the recovery mahazar witness who was present at the
time of recovery of amount has clearly and categorically
deposed that the police have seized the stolen amount from
the possession of the accused that too the accused himself
has produced the same to the police from his room.
18. On meticulous verification of the cross examination,
the counsel for the accused have not at all asked any single
question about recovery of the amount from the possession of
the accused thus they have not at all disputed the recovery of
12 CC.No.20370/12
the stolen amount from the possession of the accused.
Accordingly, on meticulous verification of the evidence of the
PW 1, it is crystal clear that the accused was working in the
private company which was doing fill up the cash to the ATM
center and Rs.11,78,500/ was shortage in the ATM machine,
thereby he lodged the complaint as per Ex.P.1, but on
17/8/12, the accused himself has shown the bag kept in his
room and it has been seized in his presence, thus, the
prosecution has successfully proved the recovery of the
Rs.11,78,500/ from the possession of the accused.
19. Further PW 3 being one of the Investigating officer
has clearly deposed that after registration of the crime, he
visited the spot and drew up the spot mahazar in the
presence of mahazar witnesses. He has deputed the staff to
trace the accused and as they have produced the accused
before the court, he has arrested and as per the voluntary
statement, the accused himself as admits that he has took the
said amount and further admits to producing the same. Thus
as per the statement of the accused , he has taken him to the
house situated at No.192, 7th main, Srinivasnagar, Bengaluru
and the accused himself has produced Rs.11,78,500/ kept in
a bag which was kept in the said house . He has seized the
said amount in the presence of mahazar witnesses.
13 CC.No.20370/12
Accordingly, the Investigating officer has visited to the house
of the accused and seized the amount which has been
produced by the accused himself. Thus, the Investigating
officer has recovered the stolen amount on the information of
the accused. At this juncture, it is benefit to refer the
provision of Sec.27 of Indian Evidence Act which reads as
hereunder :
Sec.27 of Indian Evidence Act : How much
of information received from accused may be
proved.--Provided that, when any fact is
deposed to as discovered in consequence of
information received from a person accused
of any offence, in the custody of a police
officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved......
As per the above provision, when the particular fact has
been discovered in consequence of the information received
from the accused, the said information and the said fact
which discovered is proved fact.
20. Accordingly, the Investigating officer has recovered
the stolen amount on the information of the accused only in
the presence of mahazar witnesses including the PW 1 and
the PW 1 has deposed the said fact as stated earlier. Thus,
14 CC.No.20370/12
the recovery of the stolen cash has been proved by the
prosecution as per the provision of the Sec.27 of Indian
Evidence Act.
21. It is further significant to note here that at the time
of recovery of the stolen cash from the possession of the
accused, Investigating officer has videographed the entire
scenario and they have produced the CD to that effect as per
Ex.P.5(b). Further Ex.P.12, a certificate issued by the ASI,
Sri.Manohar and on perusal of the same, he has submitted
the said requisition in the form of certificate that on 17/8/12,
at about 6 pm., the accused has taken the police to his
residential house and he has produced a cash kept in a black
bag at pooja room and the Investigating officer has seized the
same and he has recorded the same and he has transferred
the data to a CD and given to the PSI. Ex.P.12 is not marked
as a certificate u/s.65(B) of Indian Evidnece act, but the
contents of the same is appears to be like certificate under the
said provision. I watched Ex.P.5CD through the laptop and it
disclosing that the accused has produced a bag from his
house and he has removed the cash kept in the said bag,
shown the same and it has been seized by the Investigating
officer. Ex.P.5 is the CD which clearly disclosing that the
accused himself has produced the stolen cash from his house
15 CC.No.20370/12
and the Investigating officer seized the same. Since the CD
has been certified by the person who transferred the data
from the camera to the CD as contemplated u/s.65B of the
Indian Evidence Act, it is admissible electronic evidence under
the Indian Evidence Act.
22. As per the provision of the Sec.65B of Indian
Evidence Act, "Notwithstanding anything contained in this
Act, any information contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer shall be deemed to
be a document and the information in the said electronic
records shall be admissible in the proceedings and it is a
direct evidence shall be admissible. Since the person who
transferred the data from camera to Ex.P.5 CD has been
produced certificate as per Ex.P.12 and the contents available
in the said CD is admissible in evidence. The said CD is
clearly disclosing that the accused has produced the stolen
cash from his house and on the basis of the same, it can be
hold that the accused has kept the said amount in his house.
Accordingly, as per the detailed discussion made above, since
the Investigating officer has seized the said amount from the
possession of the accused on the basis of the information
given by himself, which is a proved fact as per provision
16 CC.No.20370/12
u/s.27 of Indian Evidence Act, that because the accused has
committed a theft of the amount from the ATM center, he has
admitted that it was kept in his house and produced before
the Investigating officer and the recovery has been
successfully proved by the prosecution.
23. Similarly PW 1 being the complainant as well as
mahazar witness who was very much present at the time of
the recovery of the stolen amount has clearly deposed about
the entire scenario, recovery of the amount by the
Investigating officer from the possession of the accused and
on the basis of the said evidence, it can be concluded that the
prosecution has proved the recovery of the amount from the
accused. Apart from this, the CD produced by the
prosecution is supporting the evidence of the PW1 as well as
Investigating officer and it clearly disclosing the production of
the amount by the accused from his house and said CD is an
admissible evidence as discussed above and it is also clearly
disclosing the recovery of the amount from the accused.
Accordingly, the prosecution has successfully proved the
recovery of the amount from the accused.
24. The accused has been examined u/s.313 of Cr.P.C.,
and he has denied the incriminating evidence against him and
has not chosen to submit any defence evidence. When the
17 CC.No.20370/12
prosecution evidence is clearly disclosing the recovery of
amount from the possession of the accused, he must have
explained why he has kept the said amount in his house or he
was keeping the said amount in his house or else he must
have explained about recovery of the amount from his
possession. But he has not explained why and how and on
what basis the police have recovered the amount from his
possession. Under such circumstances, an adverse inference
has to be drawn against the accused when the prosecution
has successfully proved the recovery of the amount from his
possession. Accordingly, as per the detailed discussion made
above, since the accused was working in a ISSSTD company
and he was doing the work of fill up cash to the ATM center
by taking the amount from the respective banks and as he
was working in the said company, he must have committed
theft in the said banks, that is the reason he has kept the
amount in his house and he himself has produced the same
to the Investigating officer and the Investigating officer has
seized the same in the presence of PW 1 and other witnesses.
25. It is significant to note here that though the
prosecution has not examined any other material witnesses
who were present at the time of recovery mahazar, the
evidence of the PW 1 who was present at the time of mahazar
18 CC.No.20370/12
itself is sufficient to prove the recovery of the cash. Apart
from this, the recovery of the amount has been proved by
examining the Investigating officer u/s.27 of Evidence Act.
Apart from this also, there is a CD, which contain the
recovery of the amount and the prosecution has proved the
same as per the provision of Sec.65B of Indian Evidence Act.
Thus on the basis of the above discussion, this court is of the
considered view because the accused was working in the said
company he has committed the theft and he has kept the
amount in his room and it has been seized by the
Investigating officer. Thereby the prosecution has
successfully proved beyond all reasonable doubt that the
accused has committed theft of Rs.11,76,500/ from the ATM
machine of ICICI bank situated at Vidyapetha circle and
committed the offence u/s.380 of IPC. Hence, I answer the
point No.1 in the Affirmative.
22. POINT NO.2 :
For the aforesaid reason and discussion, I proceed to
pass the following:
ORDER
Acting under section 248(2) of Cr.P.C. Accused is found guilty for the offence punishable U/s.380 of IPC.
19 CC.No.20370/12Call on to hear on sentence.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 29 th day of April 2022).
(B.C.Chandrashekara) XXIV A.C.M.M., BENGALURU.
TO HEAR ON SENTENCE Heard the arguments on Probation of Offenders Act.
It has been submitted that the accused has not involved in any other case except this case and he has been implicated by the police. The accused is 38 years old, if he sentenced to jail, he will mixed up with hard core criminals and he will also became criminal and he is a first offender and his family is depending on him only. Hence, requested to release the accused on P.O.Act.
As per the provision of Sec.3 of P.O.Act, when any person is found guilty of having committed an offence punishable u/s.380 of IPC and no previous conviction is proved against him, the court by which the person is found guilty is of the opinion that, having regard to the circumstances of the case including the nature of the offence 20 CC.No.20370/12 and the character of the offender, it is expedient so to do, then notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct u/s.4 of the PO Act release him after due admonition.
In this case, the accused has committed an offence u/s.380 of IPC which covered u/s.3 of the P.O.Act, the prosecution has not produced any material that he was earlier convicted, .the accused himself submits that he is not involved in any cases except this. Hence, this court felt that it is a fit case to release the accused after due admonition by exercising the power u/s.3 of the P.O.Act. Accordingly, I proceed to pass the following :
ORDER Acting u/s.3 of Probation of Offenders Act, instead of sentencing the accused with any punishment or fine for the offence u/s.380 of IPC, release him on provision of good conduct u/s.4 of P.O.Act, it is hereby ordered to release on admonition.
Accordingly, accused has released after admonition.21 CC.No.20370/12
The bail bond and surety bond executed by the accused is stands cancelled.
Interim order in PF.Nos.167/2012, 168/2012 and 169/2012 are made absolute. (Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 29 th day of April 2022).
(B.C.Chandrashekara) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Manjunath PW2 : Ajith PW3 : Rajegowda
Documents marked for the Prosecution:
Ex.P1 : Complaint
Ex.P1(a) : Signature
Ex.P2 : Spot mahazar
Ex.P.34 : Documents with regard to accused working
in ISSSDB company
Ex.P.5 : Seizure mahazar
Ex.P.6 : Photo
22 CC.No.20370/12
Ex.P.7 : Banking transaction documents
Ex.P.8 : FIR
Ex.P.9 : Report
Ex.P.10 : Spot mahazar
Ex.P.11 : Report
Material objects marked for the prosecution :
MO 1 : Black bag MO2 : T shirt MO 3 : Nokia mobile phone MO 4 : Identity card of accused
Witnesses examined for the accused: NIL Documents marked for the accused: NIL (B.C.Chandrashekara) XXIV A.C.M.M., BENGALURU.