Bangalore District Court
State By Upparpet vs Guilty on 5 September, 2015
IN THE COURT OF THE IX ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
DATED THIS THE 05th DAY OF SEPTEMBER 2015
PRESENT:
Sri J.V.Vijayananda, B.Com., L L.B.
IX ACMM, Bengaluru
J U D G M E N T U/S 355 of Cr.P.C.
1 CC Number 47018/2010
2 Date of 02-06-2010
Offence
3 Complainant State by Upparpet
Police, Bengaluru City
4 Accused 1. Shailendra Kumar s/o Arun
Prakash, 26 yrs, No.37, Mavari
Village, Koyilwan Post,
Chowrangabad District,
Bihar State.
2. Prakash Kumar - Split Up
5 Offences U/S 380, 420 IPC
Complained of
6 Plea of the Accused No-1 pleaded not
Accused Guilty
7 Final Order Accused No-1 Acquitted
8 Date of Order 05-09-2015
REASONS
The Police Sub-Inspector of Upparpet P.S., Bengaluru
City has filed this charge sheet against accused No.1 and 2 for
2 C.C.No.47018/2010
the offences punishable U/S 380 and 420 IPC. It appears
during the pendency of this case, the accused No-2 was
continuously absent before the court, and hence vide order
dated 28-02-2012, this case against accused No-2 is split up
and ordered to register separate case, but so far, the office has
not registered separate case against him.
2. The brief facts of the case of prosecution are that-
On 02-06-2010 at about 10.45 a.m., C.W.1 S.Shekar
Raju had visited the ATM counter situated adjacent to SBM
Head Office at Avenue Road, Bengaluru within the limits of
Upparpet Police Station, and had drawn cash of Rs.1,000/-
and left the place. Later on, when C.W.1 had got entered his
bank pass book, came to know that Rs.25,000/- was also got
debited in his account on the same date. In this regard, it is
the allegation of prosecution is that accused persons who were
present in the said ATM counter, at the time of drawing of
Rs.1,000/- by CW.1, immediately when CW.1 left the counter,
and before cancellation of transaction of CW.1, had illegally
drawn the said amount from the account of CW.1 and thereby
cheated him and committed the alleged offences.
3. The accused No-1 is on bail. On receipt of charge sheet,
my learned predecessor in office took cognizance of the
offences and furnished the copies of prosecution papers to the
accused No.1. After hearing on charges, my learned
3 C.C.No.47018/2010
predecessor in office has framed charge against accused No-1
for the alleged offences, read over and explained in the
language known to him, wherein he pleaded not guilty and
claimed to be tried.
4. The prosecution in order to prove its case has examined in
all five witnesses as P.W.1 to 5 and got marked nine
documents as per Ex.P.1 to 9. Thereafter, the statement of
accused No-1, as required U/S 313 of Cr.P.C., has been
recorded, wherein he has denied the incriminating evidence
appeared against him, and not opted to adduce any defence
evidence. However, thereafter, necessary application filed by
defence was allowed by this court and accordingly the accused
No-1, has been examined himself as D.W.1 and marked one
document as per Ex.D.1.
5. I have heard arguments of both sides and perused the
evidence on record.
6. It is the specific allegation of prosecution that on 02-06-
2010 at about 10.45 a.m., the complainant S.Shekar Raju
visited the ATM counter located within the premises of SBM
head office to draw cash and accordingly withdrawn amount
of Rs.1,000/- from his SB account and left the place.
Thereafter, when the complainant got entered the
particulars of transaction to his pass book, came to know
that there is an entry regarding drawing of cash of
4 C.C.No.47018/2010
Rs.25,000/- on 02-06-2010 itself, which amount he did not
drawn. Therefore, he lodged complaint to the police. Intern
the PSI of Upparpet police station investigated the matter
and laid charge sheet against accused No-1 & 2 that they
are the persons who illegally drawn cash of Rs.25,000/-
from the account of complainant on 02-06-2010 through
the above said ATM machine.
7. If we look into the allegations made in the complaint as well
in the further statement of complainant, it is seen that
there are no eyewitnesses to the act of drawing the amount
of Rs.25,000/- by this accused and another, particularly
from the account of complainant. Further, if we carefully
peruse the charge sheet, it is seen that the investigation
officer has not placed any direct evidence by way of CC TV
footage of said ATM counter to prove that on 02-06-2010 at
some point of time, accused No-1 along with split up
accused No-2, had drawn the cash of Rs.25,000/- from the
account of complainant by illegal method. It is no need to
say that, without using ATM card and pin number, one
cannot be in a position to draw the cash from ATM machine
illegally even before cancellation of transaction. Moreover,
it is not the case of prosecution that this accused and
another used the ATM card of complainant to draw cash of
Rs.25,000/- or even, by way of misrepresentation, they
came to know the pin/secret number of complainant and
5 C.C.No.47018/2010
drawn the cash. However, it appears from the prosecution
papers that the PSI of New Extension P.S., Tumkur had
arrested this accused and another, and recovered the cash
pertaining to this case based on their voluntary statement.
Therefore, the present case is, purely based upon
circumstantial evidence.
8. Now, let us consider whether the prosecution is successful
in bringing home the guilt of accused No-1 beyond all
reasonable doubts. P.W.3 Shekar Raj has almost re-iterated
his complaint averments in his examination in chief. His
testimony further indicating that on 02-06-2010, he had
drawn cash of Rs.2,000/- from the ATM counter located
adjacent to the SBM head office, Bengaluru. He confirmed
the remaining cash balance of Rs.44,000-00 from balance
sheet obtained from the said machine. As he had holiday,
he had gone to Bellary. Thereafter, on 12-06-2010, when he
checked his account balance at Bellary, came to know that
on 02-06-2010 itself, Rs.25,000/- was also withdrawn from
his account by somebody. Immediately, he lodged complaint
to the Upparpet police station. His testimony further
indicates that after lodging of the complaint, police have
visited the ATM counter and prepared mahazar. Therefore,
from the evidence of P.W.3, it is very much clear that by
virtue of complaint lodged by this P.W.3, the concerned
police set the law into motion.
6 C.C.No.47018/2010
9. It appears, in this case in spite of giving sufficient
opportunities the prosecution has not examined the
independent spot mahazar witnesses. However, I have
carefully perused the cross-examination of P.W.3 and
nothing worth is, elicited from him to doubt his testimony
in the matter of lodging of complaint and preparing of spot
mahazar.
10. As per the further case of prosecution, the New Extension
police station, police sub inspector, Tumkur, on the basis of
complaint of illegal drawing of money of one Sridhara
Acharya, in ATM which is within the jurisdiction of his
police station, had registered the case in his police station,
arrested this accused and another, and recovered cash
pertaining to this case by preparing seizure mahazar. It
appears in this case, the prosecution has produced the true
copy of said seizure mahazar as per Ex.P.2. It is to be noted
here that, the prosecution in order to prove Ex.P.2 has
examined only one witness who is the independent seizure
panch as P.W.2. But, in spite of giving sufficient
opportunities, the prosecution has not examined another
independent mahazar witness.
11. Now let us consider whether the prosecution is
successful in establishing the said seizure mahazar beyond
all reasonable doubt. The testimony of P.W.2 indicating that
7 C.C.No.47018/2010
on 21-08-2010 at 6.30 pm, the PSI and staff of New
Extension P.S., Tumkur visited his Shiva Linga Lodge
situated at Balepet, Bengaluru along with accused No-2
prakash Kumar. They enquired him about stay of accused
No-2 & another in his lodge, for which he replied that
accused No-2 along with accused No-1 stayed in his lodge.
However, he informed the said police that C.W.5 Ravikumar
was working as cashier at the time of allotment of room to
accused persons. Thereafter, the police informed him about
the illegal drawing of amount from ATM by the accused
persons from the account of some other persons. The police
had told him to accompany them, as they have to inspect
the room and to prepare mahazar. Accused No-2 led them
to the said room and asked accused No-1 to open the door.
Accordingly, accused No-1 opened the door. The police
verified the room and found cash worth Rs.54,000/-,
Reliance Mobile Phone, Two Blank ICICI Bank Cheques,
ATM Cards of ICICI & SBM. The police took the ledger
extract of room and seized the above properties under
mahazar. Though P.W.2 was cross-examined, nothing
worth elicited from him to doubt his testimony. In my
opinion, even though the prosecution has not examined
another independent seizure mahazar witness, I have no
reason to dis-believe the testimony of P.W.2 in the matter of
seizure of cash and ATM cards etc.,.
8 C.C.No.47018/2010
12. As stated above, this case is purely, based upon
circumstantial evidence. In order to connect the accused,
each circumstance has to link together like chain. If any
one link missed, accused cannot be, convicted for the
offences alleged against him. It is to be, noted here that,
four cases were registered against present accused No-1
and another including this case, wherein the other three
cases are numbered as CC No.47025/2010, CC
No.47023/2010 and CC No.47011/2010, which are pending
before this court and simultaneously posted for judgment.
It appears, the investigation officer of this case who is also
investigation officer in other three cases referred above, took
the custody of accused No-1 and 2 in one of the above
referred cases, for the purpose of investigation. During the
course of investigation, he enquired accused No-1 & 2 and
recorded their voluntary statements. Since, they disclosed
information about commission of offence of this case and
expressed that if they taken they would show the place
where they had illegally drawn the cash and accordingly,
this investigation officer took them to the ATM counter
attached to SBM head office at Bengaluru as per their
direction and prepared mahazar as per Ex.P.1. It appears
the prosecution to prove Ex.P.1 has examined only one
witness P.W.1 Basavaraj herein. The testimony of P.W.1
indicating that about two years back, the police called him
near SBM pertaining to drawing of cash from ATM,
9 C.C.No.47018/2010
prepared mahazar and obtained his signature. He further
stated that, at that time, two persons were with the custody
of said police, and he is unable to identify them. Since
P.W.1 has not supported the case of prosecution, the
learned Sr.APP treated him as hostile. In the cross-
examination, P.W.1 has admitted the suggestion that on 14-
09-2010 the police called him as panch and accused No-1
was with the custody of said police. Though P.W.1 has
admitted the said suggestion, he further stated that, he is
not definite whether the accused No-1 was with the custody
of police on that day. However, he further admitted
regarding preparing of spot mahazar in between 11 a.m. to
12 noon by the police. In the cross-examination by the
learned counsel for accused No-1, PW.1 has admitted that
he cannot exactly identify accused No-1, as the person
brought by police at the time of preparing the mahazar. In
my opinion, the testimony of P.W.1 is not trustworthy to
believe. In my further opinion, in order to believe the above
said testimony of P.W.1 more particularly in the cross
examination of learned Sr.APP, corroboration of another
witness is necessary. It appears, unfortunately in spite of
giving sufficient opportunities the prosecution has not
examined another independent mahazar witness. Therefore,
the prosecution has failed to prove Ex.P.1 beyond all
reasonable doubts.
10 C.C.No.47018/2010
13. It is pertinent to note here that in the cross-examination
of learned Sr. APP, P.W.3 the complainant has admitted
that on 14-09-2010, the police showed accused No-1 & 2 in
the police station. He came to know that the said accused
persons have illegally drawn cash from his account.
Further, in the cross-examination of learned counsel for
accused No-1, P.W.3 has admitted that accused had worn
shirt, pant and that he has seen accused No-1 for the first
time in court. In my opinion, the testimony of P.W.3 in the
matter of identification of accused No-1 is not trustworthy
to believe and moreover, he is not definite whether he
actually saw the accused No-1 in the police station or not.
Even assuming that P.W.3 has identified accused No-1 in
the police station, the said identification is on the basis of
information given by police, and the same cannot be based
to connect the accused, unless other circumstances
corroborates. In the instant case in view of my above
discussion, the prosecution has failed to prove that, by
virtue of the information given by this accused and another
the investigation officer visited the ATM counter and
prepared mahazar as per Ex.P.1. Therefore, the testimony of
P.W.3 in the matter of identification of accused No-1 cannot
be based to hold that this accused along with another
illegally drawn the amount of Rs.25,000/- from the account
of PW.3.
11 C.C.No.47018/2010
14. It appears, P.W.5 the head constable has deposed
regarding arrest of accused No-2 on suspicion grounds.
Admittedly, the case against accused No-2 is split up and
therefore the above testimony of P.W.5 is only formal one
and not requires detailed consideration. Even assuming
that P.W.5 has arrested accused No-2 on suspicion
grounds, based upon his testimony, accused No-1 cannot
be, convicted for the offences alleged against him unless
other circumstances corroborates. Further, P.W.4 the
investigation officer has deposed in his evidence in respect
of receiving the case file on transfer from New Extension
P.S., Tumkur, forwarding of first information report to the
court, visiting the spot to prepare spot mahazar, completing
the investigation and submitting charge sheet against
accused.
15. I have carefully perused the evidence on record. Though
the prosecution to prove the guilt against accused No-1 has
examined in all five witnesses, there is no link of each
circumstances to connect accused No-1 for the offences
alleged against him. It is to be, noted here that, during the
course of investigation, the investigation officer has
recovered the ATM cards of SBM and ICICI Bank from the
custody of accused persons. At the repetition of cost
without using the ATM card and pin/secret number, it
would be very difficult to draw cash from the ATM counter
12 C.C.No.47018/2010
from others account. In the instant case, though it is the
case of prosecution that, this accused and another illegally
drawn the cash of Rs.25,000/-, from the account of P.W.3,
naturally the accused persons to draw the said amount
might have used the ATM card and secret pin number or
might have used some other technique/skill to draw the
amount without using the ATM card and secret pin
number, from the account of P.W.3. But neither P.W.3 nor
any other witnesses have explained the manner in which
this accused and another, illegally drawn the cash from the
account of PW.3 through ATM Machine which is very weak
part on the side of the prosecution to prove the guilt against
the accused. Moreover, the investigation officer, has not
examined the bank officer who is an expert in ATM
machine, and who is the person to explain the nature of act
of accused persons, in illegally drawing the amount from
ATM machine and further, the investigation officer has not
sent the ATM cards, seized from the custody of accused
persons, particularly, the SBM card to the Forensic Science
Laboratory, in order to confirm whether this accused and
another by using the said ATM card, drawn the cash from
the account of P.W.3. Therefore, in my opinion, the
investigation officer has failed to conduct proper
investigation to establish the guilt of the accused persons.
In my further opinion, even though the prosecution has
examined five witnesses and almost all the witnesses have
13 C.C.No.47018/2010
supported the case of prosecution, their evidence is not
sufficient to connect accused No-1 for the offences alleged
against him.
16. As stated above, the accused No-1 has entered into
witness box and deposed that on 17-08-2010, he visited
Bengaluru to study 'B' Pharma. On 21-08-2010, he
withdrawn a sum of Rs.14,000/- from his account and as
on the same day, his brother deposited Rs.40,000/- to his
account in Delhi. Further, on the same day, he withdrawn
a sum of Rs.36,000/- in Tumkur. D.W.1 in support of his
evidence has produced his bank statement as per Ex.D.1
(kept in CC No.47011/2010), wherein we could see the
drawing of amount of Rs.10,000/-, 6,000/- and 20,000/- in
all a sum of Rs.36,000/- on three occasions on 21-08-2010.
But, the testimony of D.W.1 is not in corroboration to the
drawing of amount as per Ex.D.1. Anyhow, it is clear from
Ex.D1 that the accused No-1 has drawn a sum of
Rs.36,000/- on 21-08-2010. Admittedly, the offence taken
place on 02-06-2010. No material is placed by accused No-
1 to substantiate his contention that his brother deposited
a sum of Rs.40,000/- which is also supported by Ex.D.1.
But, in my opinion Ex.D.1 is not conclusive proof to hold
that this accused is totally innocent and police have seized
his own cash. Anyhow, the burden is heavy on the
prosecution to establish the guilt of accused No-1 beyond
14 C.C.No.47018/2010
all reasonable doubts. As already noted, though the
prosecution to establish the guilt against accused No-1 has
managed to examine five witnesses, their evidence is
insufficient to connect this accused for the offences alleged
against him. Under the circumstances, on overall scrutiny
of the evidence of witnesses examined by prosecution, this
court is of the considered opinion that the prosecution has
miserably failed to prove its case, beyond all reasonable
doubts. Accordingly, this court is of the view that accused
No-1 is entitled for the benefit of doubt. In the result, I
proceed to pass the following:
ORDER
This court did not found guilty of accused No-1 for the offences punishable under section 380 and 420 of I.P.C., and hence acting under section 248(1) of Cr.P.C., accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled. 15 C.C.No.47018/2010 Office to register separate case against A2 as per order of this court dated 28-02-2012 and retain entire case paper of this case in the said spilt up case without fail.
(Dictated to the Stenographer on Computer. The computerized print out taken by him is revised, corrected and then pronounced by me in the open court on this day i.e., 05-09- 2015) (J.V.Vijayananda), IX Addl. Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Basavaraj
PW2 : H.G.Venkusa
PW3 : S.Shekar Raj
PW4 : C.Narayanaswamy
PW5 : A.N.Sudarshan Kumar
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Mahazar
Ex.P2 : Mahazar Copy
Ex.P3 : Complaint
Ex.P4 : ATM Withdrawal Slip
16 C.C.No.47018/2010
Ex.P5 : Xerox of ATM Card
Ex.P6 : Photo
Ex.P7 : Mahazar
Ex.P8 : FIR
Ex.P9 : Report of PW5
List of Material objects produced:-
NIL List of Witnesses examined & documents marked on behalf of the defence:
DW1 : Shailendra Kumar Ex.D1 : Bank Statement of Account IX A.C.M.M., BENGALURU. 17 C.C.No.47018/2010 05-09-2015 Judgment pronounced vide separate sheets. ORDER This court did not found guilty of accused No-1 for the offences punishable under Section 380 and 420 of I.P.C., and hence acting under Section 248(1) of Cr.P.C., accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled. Office to register separate case against A2 as per order of this court dated 28-02-2012 and retain entire case paper of this case in the said spilt up case without fail.
IX Addl. Chief Metropolitan Magistrate, Bengaluru.
18 C.C.No.47018/201019 C.C.No.47018/2010