Bangalore District Court
State By Vidyaranyapura Ps vs Mohan @ Gandhi on 16 July, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 16th DAY OF JULY 2015
PRESENT
Ms.Vela D.K. B.A., L.L.B., (Hon's)
IV A.C.M.M. Bangalore
CC No. 28134/2011
Complainant : State by Vidyaranyapura PS
V/s.
Accused : Mohan @ Gandhi, 27 Yrs.,
S/o Anjinappa,
R/a. Kodigehalli,
Sahakaranagar,
Bangalore.
JUDGMENT
Vidyaranyapura Police have charge sheeted the accused alleging the offence punishable u/s.229(A) IPC.
2. Facts alleged by the prosecution against the accused has been that, the accused to be an accused in the CC No.2983/2008 for the offence u/s.379 IPC. At the time of obtaining the bail, this accused is said to have given particular address but subsequently had vacated that address and thereafter to have absconded and not appeared in that case inspite of repeated issue of warrant which was said to be within the knowledge of the accused and therefore is said to have committed the offence punishable u/s.229(A) IPC.
-2- CC 28134/2011
3. On filing of the charge sheet in the above said case, cognizance was taken for the said offence and summons was issued to the accused. On appearance of the accused the mandatory provisions u/s.207 of Cr.P.C. was complied with. Accusation was framed read over and explained. Accused pleaded not guilty and claimed trial. To prove the case the prosecution has got examined the complainant as PW1, witness CW4 as PW3, I.O. CW5 as PW2 and got marked Ex.P.1 and Ex.P.2. After the prosecution submitted its side closed, the statement of the accused u/s.313 of Cr.P.C. was recorded, wherein the accused has denied all the incriminating evidence appearing against him. There is no defence evidence in the present case.
4. On hearing the merits of the case, the points that arise for consideration are as follows :
1) Whether the prosecution proves beyond all reasonable doubt that, the accused being the accused in CC No.2983/2008, absconded from the address mentioned in the bail bond knowingly about the issue of the warrant and to have not appeared in the said case inspite of repeated issue of warrant, thereby committed the offence punishable u/s.229(A) of IPC ?
2) What order ?
5. The findings on the above points are as follows:
Point No.1 : In the negative.
Point No.2 : As per the final order for the following:
-3- CC 28134/2011
REASONS
6. Point No.1 : The complaint Ex.P.1 has been filed on 4.3.2010.
The facts alleged in the complaint has been that the accused to have obtained the bail from the court in the Crime NO.50/2007 for the offence punishable u/s.379 IPC. Thereafter is said to have not appeared before the court and more than 3 times warrant was said to have been issued but he is said to have not appeared in the court and he is said to have vacated the premises the address of which mentioned in the bail bond and thereby absconded. The present address of the accused is said to be not forthcoming and therefore filed the complaint. This Crime No.50/2007 is said to have been registered as CC 2983/2008. The FIR of the present case for the offence u/s.229(A) has been marked as Ex.P.2.
7. PW1 in the oral evidence has stated that he had found out the accused to have vacated from the address as mentioned in the bail bond that was obtained in the CC No.2983/2008 registered for the offence u/s.379 IPC. Therefore he is said to have filed the complaint Ex.P.1. The ASI examined as PW3 has also stated similar to PW1 and about the registering of the case Ex.P.2. The filing of the charge sheet has been stated by the PSI, PW2.
8. Therefore in the present case, the allegation has been that, the accused to have absconded in regard to the CC No.2983/2008 and by vacating the address as mentioned in the bail bond of that case to
-4- CC 28134/2011 have committed the offence in the present case u/s.229A of IPC. At this juncture, it is necessary to be noted that, from the materials available in the file, the certified copy of the order sheet in CC No.2983/2008 shows that the accused in that case was produced on 12.11.2007 and handed over for police custody for further investigation till 14.11.2007. He has been granted bail vide order dated 14.11.2007. Thereafter the charge sheet has been filed on 8.2.2008. On the next hearing date 14.3.2008 the accused had remained absent and NBW was issued till 13.11.2008. On 23.12.2008 NBW was recalled and again on the next dated 5.2.2009 accused remained absent. The next date of hearing was 16.4.2009 and the accused had appeared and NBW recalled and matter was posted for charge. The next date of hearing was 9.6.2009 and then adjourned to 18.8.2009. On that day it was posted for evidence and the next date of hearing was 10.9.2009. From that date NBW has been issued to the accused, that was recalled on 12.11.2009 with penalty of Rs.100/-. Thereafter again NBW was issued on next 2 dates of hearing i.e. 10.12.2009, 13.1.2010. NBW was recalled on 20.3.2010 and then the last sheet of the order sheet shows that it was posted for evidence and that BW was issued to the witnesses as on 21.7.2010.
9. At this juncture, it is to be noted that, the proceedings of the case means that accused to have been issued NBW at the same time the NBW has been recalled also. In such circumstance, how can it be the accused to be not available in the address mentioned in the
-5- CC 28134/2011 bail bond. Repeatedly NBW has been recalled and the matter was posted for evidence. The gist of the complaint has been that this accused without appearing to the case, was absconding and further that the present address of the accused to be not found. No doubt this complaint as above noted is filed on 4.3.2010 but the order sheet shows that accused had appeared on 20.3.2010 and NBW was recalled and then the matter to be posted for again evidence. So, accused to be not found or not traceable is not forthcoming in the present case. The said Sec.229(A) reads as follows :
"229A. Failure by person released on bail or bond to appear in Court. - Whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
10. If the address of the accused is said to be not known as on the date of the filing of the complaint, then how can it be that the accused to be present for the purpose of the recall of warrant of the case in that case. When the accused is present for the trial, then address to be not known of the accused as mentioned in the complaint cannot be accepted. In view of the facts and circumstances of the case and nature of the evidence placed before the court, the guilty of the accused beyond reasonable doubt is not proved and the benefit of
-6- CC 28134/2011 doubt has to be given to the accused and hence the point for consideration is answered in the negative.
11. Point No.2 : In view of finding on the above point, the following :
ORDER Acting u/s.255(1) of Cr.P.C. accused is acquitted of the offence punishable u/s.229(A) IPC.
Bail bond of the accused and surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 16th day of July 2015) (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution :
PW.1 : K.G.Nagaraju PW.2: Sree Harsha PW.3: T.N.Kempaiah
List of exhibits marked for prosecution :
Ex.P.1 : Complaint
Ex.P.2 : FIR
-7- CC 28134/2011
List of M.O.s marked for prosecution : NIL List of witnesses and exhibits marked on behalf of accused : NIL (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.
-8- CC 28134/2011
16.07.2015
State by Sr.APP
Accused
For judgment
ORDER
(pronounced in open court vide separate order) Acting u/s.255(1) of Cr.P.C. accused is acquitted of the offence punishable u/s.229(A) IPC.
Bail bond of the accused and surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 16th day of July 2015) (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.