Bangalore District Court
Who Is Examined As Pw1 Has Stated In His ... vs No.1 In The Business And Factory ... on 28 November, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 28th day of November 2016
Present : Smt. Roopa R. Kulkarni,
B.Com., LL.B. (Spl).
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 12799/2008
2. The date of commission
of the offence : January 2008
3. Name of the complainant : State by Commercial Street PS
4. Name of the accused : A1: V.A.Ravichandar, 37 Yrs.,
S/o I.V.Appadorai,
R/a. NO.48, 19th cross,
Lakshmipura, Halasuru, Bengaluru.
A2: Vaseem Sayeed Syed, 23 Yrs.,
S/o Sayeed Ahmed,
R/a. No.95, 4th cross,
N.K.Palya, Shivaji Road,
Shibajinagar, Bengaluru.
A3: B.N.Nagaraja, 27 Yrs.,
S/o Narasimhappa,
R/a. No.10, Kodigehalli main road,
Maruti Nagara, Bengaluru-92.
5. The offences complained : U/s.408, 420 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 28.11.2016
2 CC.NO.12799/2008
The Commercial Street police have filed charge sheet against
the accused for the offences punishable u/s.408, 420 of IPC.
2. The brief facts of the prosecution case are as under :
That accused No.1 to 3 were working as Bank Manager, Sales
Executive and Asst. Sales Executive respectively in the company
Forever Living Products India Pvt. Ltd., belonging to CW1 which is
situated at No.6, Union Sweets, Bangalore and accused No.1 was
entrusted with entire branch operation and in collusion with other
sold company stocks to dealers and customers for a sum of
Rs.8,13,593/- and did not remit the said amount to company's
account and used the same for his personal use and dishonestly
committed criminal breach of trust and thereby committed offences
punishable u/s.408, 420 of IPC.
3. On perusal of the records it appears that accused No.1 to 3
were arrested during the course of investigation and thereafter they
were enlarged on bail. After filing of the charge sheet summons
were issued to the accused and they appeared before the court.
Copy of the charge sheet was furnished to the accused as provided
u/s.207 of Cr.P.C. Thereafter charge was framed wherein they
pleaded not guilty and claimed to be tried.
4. The complainant police have cited CW1 to CW13 as charge
sheet witnesses. The prosecution in order to prove its case got
examined PW1 to PW5 and got marked documents at Ex.P.1 to
Ex.P.8 and closed its side of evidence.
3 CC.NO.12799/2008
5. 313 statement of the accused was recorded wherein they have
denied the incriminating evidence deposed against them and did
not choose to lead any evidence on their behalf.
6. Heard both the sides.
7. On perusal of the evidence adduced by the prosecution, the
complainant who is examined as PW1 has stated in his evidence
that he was working as Head of Logistics in Forever Living Products
India Pvt. Ltd., and he had the branch office at Infantry road and
their company is wholesale dealer in food products, nutritional
products and cosmetics. Since 5 years their branch is in operation
and he know accused No.1 to 3 and accused No.1 was appointed as
Branch Manager in the year 2006 and accused No.2 and 3 were
also appointed in the same year and accused No.1 was entrusted
with the duty to take responsibility of the Bangalore branch and
selling of their products and receiving amount from the customers
and to deposit the said amount to the company on the next
working day and to maintain stock register and to maintain book of
accounts. Accused No.2 and 3 were entrusted to assist the
accused No.1 in the business and factory products and deliver
them to the customers. He has also stated that, accused No.1 had
gone to training for Mumbai in the year 2008 and on verification of
actual physical stocks he found that there were differences, so he
called internal auditors and directed them to conduct audit and it
was found there was deficit of stocks to the tune of Rs.8,13,593/-
and so he terminated the services of accused No.1 to 3 and lodged
complaint before police as per Ex.P.1 and got marked his signature
as per Ex.P.1(a), Spot Mahazar as per Ex.P.2 and his signature as
4 CC.NO.12799/2008
per Ex.P.2(a). He has stated that accused No.1 to 3 have
dishonestly misappropriated the company funds to the tune of
Rs.8,13,593/- and has admitted that, at the time of appointment
accused produced police verification certificate and has also
admitted that in police certificate it is stated that accused are good
character. He has also admitted that, the accused were depositing
the cash collection to the bank account but he cannot say whether
it was Axis Bank or HDFC Bank and has admitted that, he used to
have knowledge that whatever stock was received by his
subordinate officials, and his subordinate officials were not directly
reporting to him about receiving the stock because they were at
various places and they were sending through e-mail
and on 24.5.2006 what reports were send to him. He has stated
that, he has not appointed accused persons, but the company has
appointed them. On the allegation of misappropriation and is also
fact that he was threatening his subordinate officials. Further he
has denied that his superior and himself by conspiring have lodged
false complaint against the accused and the fact that he do not
know the contents of complaint. In his further cross-examination
has stated that, the accused persons would come to know about
the use of the products and he cannot say whether the accused
have used the products for themselves or not or for their family and
has stated that stock worth Rs.8 Lakh and odd was missing and if
there was any damage in the product they would write it and the
same would not be delivered to the customers and they do not have
any target to sell such a quantum of the products per month. It is
denied that, as there was pressure on the accused to sell certain
quantum of products to the customers due to which the
5 CC.NO.12799/2008
misappropriation has been taken place and has denied that no
misappropriation has taken place and has he has personal grudge
against the accused he has filed false complaint against the
accused.
8. PW2 has stated in his evidence that, he is working as
Chartered Accountant since 2005 and he has verified the stocks of
Forever Living Products India Pvt. Ltd., on 1.3.2008 and CW1
appointed him to verify the stocks for every 6 months and so he
has verified the physical stock of the products and he has
submitted report to CW1. He has stated that, there was difference
in the stock and at the time of verification accused No.1 and other
workers were present. He has submitted report as per Ex.P.3 and
it contains his signature at Ex.P.3(a). Further he has stated that,
there was difference in the amount and the stock and he has
clearly mentioned the details in Ex.P.3. Further he has stated that,
at the time of verification the complainant company have issued the
stock list and he has verified the said stock list and accused No.1
Ravichandra, Sayeed Vaseem and Nagaraj were signed on behalf of
the company and he got marked the signatures of said persons as
per Ex.P.3(b) to (m) and he got marked the reconciliation statement
as per Ex.P.4. Got marked verification report as per Ex.P.5. Ex.P6
is the Impressed cash verification report and Ex.P.7 is the
verification report of cash and cheques list. In his cross-
examination has stated that, he was not present at the time of
depositing the amount of Rs.47,620/- and he did not go personally
to the company at the time of inventory verification and his
students have gone to the company and have conducted the
6 CC.NO.12799/2008
inventory verification and has stated that they would not verify as
to how much is the deficit of stock and they only verify as to the
physical stock available in the company. In his further cross-
examination has stated that, on the date of the incident the
complainant has not requested him in writing to verify the stock
and has asked him to conduct surprise verification. He has denied
that in the audit report there is no mention about the date and has
denied that he has submitted false report through his students.
9. PW3 has stated in his evidence that, he has worked as
Salesman in Planet mobile shop situated at Commercial Street from
the year 2000 to 2010 and at that time the workers of Forever
Living Products company used to come to his mobile shop and
getting recharge their mobile and so he came into contact with the
said company. Further he has stated that, he had gastric problem
so he was advised to take tablet from the Ayurvedic medicine and
they had given one form and have received Rs.750/-. He has
stated that, he had no amount at that time and therefore he had
not paid the amount. He has stated that, he can identify the
accused No.1 and 2.
10. PW4 has stated in his evidence that, he cannot identify the
persons. One Ramananna has introduced the persons of Forever
Living Products company in the year 2008 and he has purchased
medicines from the company and they have issued bills for that.
He has given bills to the police and got marked the original bill as
per Ex.P.8.
7 CC.NO.12799/2008
11. PW5 has stated in his evidence that, he was working as PC in
Commercial Street police station from 2003 to 2009 and on
5.3.2008 at about 5.00 p.m. when he was on duty PSI has directed
him to bring the accused working in Forever Living Products India
Limited and he had been sent along with CW10 and CW11. He has
stated that he can identify the accused persons. In his cross-
examination has stated that, the complainant has not shown the
accused persons to him and has stated that he has given any
statement before the investigation officer and one Ravichandra
Reddy was the Chief Manager of the said company. Further he has
denied that, he had not produced the accused before the police
station and has denied the suggestions made by the defence
counsel.
12. On perusal of the documents produced by the prosecution,
they have got marked the complaint as per Ex.P.1, Spot Mahazar
as per Ex.P.2, certificate issued by the Chartered Accountant of
Vishnu Daya & Complaint as per Ex.P.3 and reconciliation
statement as per Ex.P.4, petty cash verification as per Ex.P.5,
counter verification as per Ex.P.6, cash and cheques on hand
verification as per Ex.P.7, Tax invoice as per Ex.P.8.
13. On perusal of the contentions raised by the prosecution side,
it is the allegation against the accused that the accused in
collusion with each other have committed criminal breach of trust
of stocks to the tune of Rs.8,13,593/- and on verification of the
stocks it was found that actual physical stocks were not tallying
with the book stocks. The stocks worth several Lakhs were missing
and internal auditor was immediately called to do complete
8 CC.NO.12799/2008
verification and auditor on verification have confirmed that stocks
were missing to the tune of Rs.8,13,593/-.
14. On perusal of the oral evidence, PW1 has admitted in his
cross-examination that on daily basis the accused were sending
inventory report as well as cash collection report to their Head
Office and it is also admitted that, the accused were depositing
cash collection to the back account. PW2 the signatory of Ex.P.3
though has stated that, there is variance in the physical stock and
cash with that of the book stock and cash furnished to them by the
company, in his cross-examination has admitted that he was not
personally present at the time of physical verification of the stocks.
Further he has admitted that, as he was not present at the spot
and he had not signed the document on the spot. Further he has
stated that, prior to February 2008 he has also verified the stocks
of the complainant company in the month of January and has
stated that at the time of such verification they would not take
down as to any stocks were damaged. Further he has stated that,
they would not verify as to the expiry date of the stock materials.
15. PW3 and PW4 have been examined by the prosecution have
stated in their evidence that, accused No.1 and 2 were going to
their shop in order to get recharge their mobile and PW4 has stated
that he had purchased paste and tablets from the Forever Living
Products India Ltd., company and they have issued bills for having
purchased the said articles from the said company. So, the
evidence of PW3 and PW4 is not helpful to the prosecution to prove
the guilt levelled against the accused though they did not cross-
examined by the defence counsel. Even the evidence of PW5 who is
9 CC.NO.12799/2008
a police witness is not helpful to prove the guilt levelled against the
accused persons.
16. Though the complainant has produced the conciliation
statement as per Ex.P.4, endorsement has been made on the said
document that 'Verified physical stock and the details of physical
stock as given here are correct'. The variance or difference
regarding the stocks is not endorsed in the statement. The
documents produced by the complainant as per Ex.P.4 to Ex.P.7
are not sufficient to prove the guilt levelled against the accused.
Though the conciliation statement has been produced by the
complainant as per Ex.P.4, the said statement does not disclose as
to the period during which the stocks were misappropriated by the
accused. Further the prosecution failed to adduce the evidence of
material witness i.e. students of PW2 who have verified the physical
stocks of the complainant company. So, looking to the evidence
and the oral evidence adduced by the prosecution, I am of the
opinion that the materials placed on record are not sufficient to
hold that the accused have misappropriated the stocks of
complainant company to the tune of Rs.8,39,593/-. So, the
prosecution has failed to prove the guilt levelled against the
accused beyond all reasonable doubt. Hence, I proceed to pass the
following :
ORDER
Accused No.1 to 3 are not found guilty for the offences punishable u/s.408, 420 of IPC.
10 CC.NO.12799/2008Accused No.1 to 3 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bond of the accused and that of their surety stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 28th Day of November 2016) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Ameer Sheikh PW.2 : D.Shankar PW.3 : M.Somashekar Babu PW.4 : M.Raghavendra PW.5 : S. Arunkumar
List of exhibits marked for prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Spot Mahazar Ex.P.3 : Certificate issued by Chartered Accountant Ex.P.4 : Reconciliation statement Ex.P.5 : Petty cash verification statement Ex.P.6 : Imprest cash at counter verification Ex.P.7 : Cash and cheques verification statement Ex.P.8 : Tax invoice
List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
11 CC.NO.12799/200828.11.2016 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused No.1 to 3 are not found guilty for the offences punishable u/s.408, 420 of IPC.
Accused No.1 to 3 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bond of the accused and that of their surety stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 28th Day of November 2016)) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, 12 CC.NO.12799/2008 Bangalore.