Bangalore District Court
State By vs Appanna K.P S/O Poonappa K.K on 3 May, 2023
KABC030489162018
IN THE COURT OF VII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU.
Dated this the 3rd day of May, 2023.
Present : Sri.Umesha H.K. B.A, LL.B.
VII Addl.C.M.M., Bengaluru.
JUDGMENT U/s 355 of Cr.P.C.
C.C.No.18184/2018
Complainant : State by :
Sampigehalli Police Station.
(By Assistant Public Prosecutor)
V/s
Accused Appanna K.P S/o Poonappa K.K,
30 years, R/at Konanjageri Village,
Parane Post, Madikere Taluk,
Kodagu District.
(By.Sri.G.H.Channagangaiah,Advocate)
Date of occurrence of offence 17.05.2018
Date of report of offence 02.06.2018
Name of the Complainant Sri.Shashi Bharathiya
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Date of Commencement of recording 04.11.2022
Evidence
Date of Closing of Evidence 20.03.2023
Offences complained of U/s 420 of I.P.C.
Opinion of the Judge Accused found not Guilty.
CW9 P.S.I. of Sampigehalli Police Station has
filed charge sheet against the accused for the offence
punishable U/s 420 of I.P.C.
2. Brief case of the prosecution is as under :
It is alleged in the chargesheet that Complainant
posted an advertisement in OLX forum to sell his
Modern Amusement Company's BenqMX 704
(Projector BenqMX 704 Modern Amusements) in OLX
forum. By seeing the same accused contacted CW1 on
17.05.2018 at about 8.00 p.m., and agreed to
purchase the said projector and thereafter accused
issued a cheque bearing No.000004 for Rs.60,000/ in
favour of Complainant and purchased the projector.
When CW1 presented the cheque for encashment the
same was dishonoured and thereby accused knowingly
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that there was no fund in his account has issued and
committed cheating and thereby accused committed
the offence U/s 420 of I.P.C.
3. Upon the written information given by the
Complainant Crime was registered in Crime
No.151/2018, dated 02.06.2018 and investigation was
taken up. After the completion of the investigation, the
chargesheet was submitted against the accused for
the aforementioned offence.
4. This Court by perusing the chargesheet
materials acting U/s 190 (1) (b) of Cr.P.C, has taken
cognizance for the offence U/s 420 of I.P.C., and
registered the case as CC and issued summons to
the accused.
5. In pursuance of summons accused appeared
through his counsel and he is on bail. Thereafter,
chargesheet materials supplied as per Sec.207 of
Cr.P.C. After hearing Ld.counsel for accused Charge
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was framed for which he pleaded not guilty and claims
to be tried.
6. The prosecution has examined P.W.1 and 2
and got marked Ex.P1 to Ex.P10 on its behalf.
Since, CW1 to 6 did not turn up, inspite of repeated
warrant and Proclamation, the prayer of Ld.Sr.APP
for reissue of Proclamation to CW1 to 6 is rejected
and evidence of CW1 to 6 are dropped. On the
closure, accused has been examined U/s 313 Cr.P.C.
for the incriminating circumstances appeared against
him and he denied the incriminating evidence available
against him. Accused not chosen to adduce any
evidence on his behalf.
7. Heard the arguments. Perused the
documents placed on record.
8. The points that arise for consideration are :
1. Whether the prosecution has proved
beyond all reasonable doubt that
accused has committed the offences
U/s 420 of I.P.C. ?
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2. What order ?
9. The above points are answered as under :
Point No.1: In the Negative.
Point No.2: As per final order for the following :
REASONS
10. Point No.1 : It is the case of Prosecution
that Complainant posted an advertisement in OLX
forum to sell his Modern Amusement Company's
BenqMX 704 (Projector BenqMX 704 Modern
Amusements) in OLX forum. By seeing the same
accused contacted CW1 on 17.05.2018 at about 8.00
p.m., and agreed to purchase the said projector and
thereafter accused issued a cheque bearing No.000004
for Rs.60,000/ in favour of Complainant and
purchased the projector. When CW1 presented the
cheque for encashment the same was dishonoured and
thereby accused knowingly that there was no fund in
his account has issued and committed cheating and
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thereby accused committed the offence U/s 420 of
I.P.C.
11. The Ld.Sr.APP for the State has vehmently
argued that though the material witness i.e.,
Complainant did not turn up for evidence., the
evidence placed by prosecution through I.Os and the
documentary evidence placed by prosecution clearly
establishes that accused has purchased the product
and issued cheque for Rs.60,000/ and when it was
presented it was dishonoured and accused
dishonestly issued the said cheque and knowingly that
there was no "Sufficient Funds" in his account and
committed the offences as alleged in the chargesheet.
Therefore, Prosecution proved the guilt of the accused
beyond all reasonable doubt and the evidence placed
by the prosecution is sufficient to convict the accused
and prays to convict the accused.
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12. On the other hand the Ld.counsel for
accused, has vehmently argued the material witness
i.e., Complainant did not turn up for evidence. So, in
the absence of evidence of Complainant i.e., material
witness, the evidence placed by Prosecution through
I.Os cannot be considered. Even, on perusal of entire
allegations the alleged offence attract the provisions of
Sec.138 of N.I.Act and I.O., without enquiring the
matter properly has simply filed the chargesheet for
the offences U/s 420 of I.P.C., though, there was no
ingredients to attract the provisions of offence U/s
420 of I.P.C. As such case of Prosecution cannot be
accepted. Prosecution failed to prove the guilt of the
accused beyond all reasonable doubt and prays to
acquit the accused by extending the benefit of doubt.
13. In the light of the above submissions, once
again I have carefully perused the materials on record.
The Prosecution in order to prove the guilt of the
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accused has examined PW1 and 2 who are official
witness and they have stated before the Court
regarding their part of Investigation and Assistance in
the investigation.
14. As rightly submitted by Ld.counsel for
accused the material witness i.e., Complainant did not
turn up for evidence. Though, this Court his issued
summons NBW and Proclamation he remained absent.
Like wise the other independent witness i.e., mahazar
witness have also not turned up for evidence. So, in
the absence of evidence of material independent
witness, the evidence placed by prosecution through
official witness cannot be accepted. PW1 and 2 being
the Investigation Officer's have naturally supported
the case of prosecution. Therefore, the evidence placed
by prosecution is not sufficient to come to conclusion
that accused has committed the offences as alleged in
the chargesheet.
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15. Further, as rightly contended by Ld.counsel
for accused, the alleged ingredients for the offence U/s
420 of I.P.C., does not find place in the entire
chargesheet materials. The I.O., ought not to have
filed the chargesheet for the offence U/s 420 of I.P.C.
He should have directed the Complainant to approach
competent Court of Law to file a private complaint U/s
200 of Cr.P.C for the offence U/s 138 of N.I.Act.
Instead of that he has simply filed the chargesheet for
the offence U/s 420 of I.P.C., though there is no
ingredients to attract the said provisions. Therefore,
this Court is of the view that prosecution not proved
the ingredients of Sec.420 of I.P.C. Thus by extending
benefit of doubt in favour of accused. I answer Point
No.1 in the Negative.
16. Point No.2 : In view of the discussion made
above accused found not guilty and hence I proceed to
pass the following :
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ORDER
Acting U/s 248(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/s 420 of I.P.C.
Bail bonds and surety shall stand cancelled after the appeal period is over.
(Dictated to the Stenographer, transcript computerized by him, revised corrected and then pronounced by me in the open Court on this 3RD day of May, 2023) (UMESHA H.K) VII Addl.C.M.M., Bengaluru.
A N N E X U R E S List of witnesses examined for the Complainant :
PW.1 Raju Kalal, PW.2 Shivshankar.
List of documents marked for the Complainant :
Ex.P.1 Submission,
Ex.P.2 Complaint,
Ex.P.3 F.I.R,
Ex.P.4 Spot-mahazar,
Ex.P.5 Cheque return Memo,
Ex.P.6 Copy of cheque,
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Ex.P.7 Copy of accused,
Ex.P.8 Statement of accused,
Ex.P.9 Property Seizure Memo,
Ex.P.10 Photos of Seizure of
Benq MX-704.
List of witnesses examined for the Accused Nil.
List of documents exhibited for the Accused Nil.
List of Material Object marked for prosecution Nil.
VII Addl.C.M.M.,Bengaluru. 12 CC.No.18184/2018