Bangalore District Court
State By Basaveshwar Nagar vs Somsunder on 18 March, 2020
IN THE COURT OF V ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT: BANGALORE
Dated this the 18th day of March , 2020 .
:PRESENT:
Smt. SHIRIN J ANSARI B.A.LL.B(Hon's) LLM
V ACMM Bangalore .
CRIMINAL CASE No.37161/2011
Complainant : State by Basaveshwar Nagar
Police station, Bangalore.
(Rep by Sr.A.P.P)
-VS-
Accused : 1. Somsunder
S/of Venkatesh
aged 30 years,
No.54, 35th main
6th cross, Jaimaruthi nagar
Nandini Layout,
Bangalore.
2. Lokesh H.N.
S/of Nanjappa
aged 26 years,
No.42/3,1st main
2nd cross,
Vrushabhavathi Nagar,
Kamakshipalya, Bangalore.
2
CC No.37161/2011
3. Kumar H.G
S/of Gundappa
aged 32 years
No.4 , 13th cross, JC Nagar
Kurubarahalli, Bangalore.
4. Nanjegowda M
S/of Mariyappa
aged 36 years,
No.81 , 6th cross,JC Nagar
Bangalore.
5. Shivanna N
S/of Nanjappa
aged 34 years,
No.42/3, 1st main,
2nd cross,Vrushabhavati Nagar
Kamakashipalya, Bangalore.
(By Sri A.K.N.- Advocate )
1. Date of commencement of 09.11.2011
offence
2. Date of report of offence 09.11.2011
3 Arrest of the accused The accused No. 1 to 5 are on bail
4. Name of the complainant Nagaraj
5. Date of recording of 4.3.2014
evidence
6. Date of closing of evidence 16.10.2019
7. Offences complained of Secs. 3&4 of Exorbitant Interest Act
and Sec 4 & 76 of Chit Funds Act,
1982.
8. Opinion of the Judge The accused No.1 to 5 are found
not guilty
9. Complainant by The Learned Sr.APP
JUDGMENT
The IO of Basaveshwarnagar police station has filed the present charge sheet against the accused persons for the offences 3 CC No.37161/2011 punishable under Sec.3 & 4 of Exorbitant Interest Act and Sec.4 and 76 of Chit Funds Act, 1982.
2.The brief facts of the case of the prosecution is as under :
That on 28.7.2011 at about 18.30 hrs the accused persons in Sreevenkateshwara enterprises shop were conducting the money lending business on exorbitant interest to the public. They were also receiving the documents pertaining to the vehicles and they were obtaining the signatures of the public on On demand Promissory Note, stamp papers and the cheque for the purpose of security. After lending the amount, they were threatening the public and recovering the amount with exorbitant interest and thereby committed the offence punishable under Sec.3 and 4 of Exorbitant Interest Act and 4 & 76 of Chit funds Act, 1982.
On the basis of above said allegations the police have registered a case in crime No.353/2011 and forwarded FIR to this court. During the course of investigation, police have arrested the accused and got enlarged on bail. Thereafter, police have as usually conducted the investigation and submitted the charge sheet against the accused for the above said offences.4
CC.No.37161 /2011
3. On the basis of materials on record, cognizance for the aforesaid offences has been taken and issued summons to the accused. The accused faced the trial through the Advocate. Copies are furnished. The necessary charges were framed, read over and explained the same to the accused, wherein, the accused pleaded not guilty and claimed to be tried.
4. The incriminating evidence available against the accused has been brought to the notice of the accused by recording of 313 Cr.P.C. statement . The accused denied the same . But, did not choose to lead defence evidence.
Heard the arguments on both sides, perused the oral and documentary evidence on record.
5. Based on the above facts and circumstances on record, the following points arise for my determination:-
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, 28.7.2011 at about 18.30 hrs the accused persons in Sreevenkateshwara enterprises shop were conducting the money lending business on exorbitant interest to the public and also receiving the documents pertaining to the vehicles and they were obtaining the signatures of the public on On demand Promissory Note, stamp papers and the cheque 5 CC.No.37161 /2011 for the purpose of security and after lending the amount, they were threatening the public and recovering the amount with exorbitant interest and thereby committed the offence punishable under Sec.3 and 4 of Exorbitant Interest Act and 4 & 76 of Chit funds Act, 1982?
2. What order ?
6. My findings on the above points are as under:-
Point No.1 - In the "Negative"
Point No.2 - As per final order
for the following:-
REASONS
7.Point No.1: It is the allegation of the prosecution that on 28.7.2011 at about 18.30 hrs the accused persons in Sreevenkateshwara enterprises shop were conducting the money lending business on exorbitant interest to the public. They were also receiving the documents pertaining to the vehicles and they were obtaining the signatures of the public on On demand Promissory Note, stamp papers and the cheque for the purpose of security. After lending the amount, they were threatening the public and recovering the amount with exorbitant interest and thereby committed the offence punishable under Sec.3 and 4 of Exorbitant Interest Act and 4 & 76 of Chit funds Act, 1982.
6
CC.No.37161 /2011
8. In order to prove the case, the prosecution cited 16 witnesses in the charge sheet but examined 6 witnesses before the court.
9. CW1 is examined as PW3 .PW 3 Sri K Nagaraju has deposed with regards to conducting of raid . During the raid , the officials found 12 blank signed cheques of different banks, 8 blank signed stamp papers, 20 signed On demand promissory notes and the documents like RC, FC and permits of the autorickshaw and different vehicle, 5 mobile phones, three 2 wheelers and cash of Rs.74,100/- which the official seized according to the mahazar, and thereafter arrested the accused persons .
10. Further, during the course of cross-examination it is stated by PW 3 that out of the oral instruction of ACP -Durgappa they conducted the said raid. But they have not produced any such order issued by the then ACP . The unanimous letter issued by PW3 does not bear the name of the accused persons and PW 3 has not taken any trouble to examine the said person who have written the said unanimous letter.
11. It is also admitted by PW3 that the accused No.1 was possessing valid licence for money lending and the remaining 7 CC.No.37161 /2011 accused persons are the partners of the said money lending business. The complainant and the IO have not investigated as to whom the said two wheelers belong to . They have not verified as to whose signature the said cheque , On demand Promissory Note and the stamp papers bear. This aspect of the matter clearly go to show the irregularities in the investigation. Merely because the raiding party /PW 3 has collected the alleged cheques , stamp papers and the DP Notes, it does not mean that the accused persons were doing money lending business on exorbitant interest without valid licence or permit. The IO has not at all bothered to investigate who has signed the said cheque , Stamp papers and the On demand Promissory Note and to find out whether the accused persons were lending money on exorbitant interest to the public . Therefore in view of irregularity in such investigation and irregularities on the part of PW 3, the testimony of PW 3 cannot be solely relied to proceed against the accused persons.
12. Though PWs 3, 4 and 5 deposed with regard to the presence of advocates by name Prakash, Jagadish and Venkatesh in the alleged place of incident, but, neither PW 3 nor the IO have recorded the statement of those persons. If at all 8 CC.No.37161 /2011 they had conducted the raid on the alleged place of incident and recovered the said Stamp papers, cheques and the On demand Promissory Notes, what was the impediment to the IO/PW 3 to record the statement of those persons. Absolutely, no materials are forthcoming in this regard. Non examination of these persons has created fatal doubt on the very case of the prosecution
13. The witnesses examined before the court are all official witnesses. The prosecution has not examined any independent witnesses before the court. The prosecution has given up Cw 9 as not necessary and in view of evidence of PW3, CWs 8 and 10 are given up as not necessary. Inspite of publication of the proclamation against CW3, 4 and 6 they have not appeared before the court. Hence, CW 3, 4 and 6 are given up by this court.
14. Except the testimony of the official witnesses, the evidence of the independent witness has not been brought on record by the prosecution. For the reasons stated supra,the testimony of the official witnesses is full of material contradictions. Therefore, their testimony is not fully relied by this court. The prosecution has failed to place satisfactory, convincing and reliable evidence before the court to record the 9 CC.No.37161 /2011 conviction against the accused persons . Mere examination of the official witnesses and marking the documents is not sufficient. Absolutely there are no materials before the court to proceed to record conviction against the accused persons. The prosecution has utterly failed to prove the ingredients of the offence alleged against the accused persons. The prosecution has utterly failed to prove the allegations leveled against the accused persons . Hence, in view of this I answer Point No.1 in the negative
15.POINT No.2:- In view of findings on point No.1, I find that the accused No. 1 to 5 are not guilty and in the result , I proceed to pass the following:-
ORDER By acting U/Sec 248(1) the accused No. 1 to 5 are acquitted for the offences punishable U/Sections 3 & 4 of Exorbitant Interest Act, 76 of Chit Funds Act, 1982.
Bail bonds and surety bonds shall stand cancelled.
Accused persons shall execute
personal bonds of Rs.10,000/- each
towards compliance of section 437(A) of Cr.P.C.10
CC.No.37161 /2011 Issue intimation to the Jail authority to release Accused NO.5 if he is not required in any other cases.
(Dictated to the stenographer directly on the computer, typed by her and corrected by me, then pronounced in the open court, on this the 18th day of March, 2020).
(SHIRIN J ANSARI) V ACMM, Bangalore ANNEXURE
1. Witnesses examined by the prosecution.
P.W.1 Shobha
P.W.2 Rohidas Narasimha Pai
P.W.3 K.Nagaraju
P.W.4 Anand D.R.
P.W.5 Althaf
P.W.6 S.S.Ravikiran
2. List of the documents exhibited for the prosecution.
Ex.P.1 Mahazar Ex.P1(a)(b)(c) Signature of Cw 14, CW 2, Cw 1 Ex.P.2to 13 Cheques Ex.P.14 to 21 Stamp papers Ex.P22 to 41 On demand promissory notes Ex.P.42 to 44 RC books Ex.P45 Certificate of Registration Ex.P46 Fitness Certificate Ex.P47 RC Book Ex.P48 Permit Certificate Ex.P.49 RC book Ex.P50 to 57 RC Forms 11 CC.No.37161 /2011 Ex.P58 RC book ExP.59 RC forms Ex.P.60 & 61 Note Books Ex.P.62 Complaint Ex.P.62(a) Signature of Cw 1
3. List of the witnesses examined for defence :Nil
4. List of the Documents exhibited for defence:Nil
5. List of the MOs marked in the evidence: Nil (SHIRIN J ANSARI) V ACMM,Bangalore.
12 CC.No.37161 /2011