Bangalore District Court
Had Given Two Blank Cheques At The vs Dishonestly Misappropriated And ... on 30 June, 2018
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 30th day of June, 2018
Present : Sri.Manohara.M., B.A.(Law), LL.B.,
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C.
1.CC No 20087/2003
2.Date of Offence During the year 2003
3.Complainant State by Rajagopalanagar Police
Station
4.Accused Rathnamma, w/o.Late Rajanna,
Aged about 45 yrs, No.3, 8th cross,
Mudalapalya, B.G.Shivanandanagar,
Bangalore.
5. Offences complained U/s.403, 406 & 420 of IPC
of
6.Plea Accused pleaded not guilty.
7.Final Order Accused is convicted.
8.Date of Order 30/06/2018.
- --
2 CC 20087/03
REASONS
The Sub Inspector of Police, Rajagopalnagar Police
Station, Bangalore has filed charge sheet against the
accused person for the offences punishable U/s.403, 406
and 420 of IPC.
2. The complainant - Smt.Saraswathi had filed a
private complaint against the accused person in PCR
No.1340/03 on the file of 4th ACMM court, Bangalore.
The said court vide orders dated 22/1/03, referred the
same to Police Inspector, Rajagopalnagar PS for
investigation u/s.156(3) of Cr.P.C., Accordingly, the IO
has registered a case in Cr.35/03 on his file & after
completion of the investigation, he has charge sheeted
the accused person for the aforesaid offences.
3 CC 20087/03
3. After completion of trial this Court convicted
the accused persons for offences punishable u/Sec.403,
406 and 420 of IPC, and the accused is sentenced to
undergo simple imprisonment for six months for the
offence punishable u/Sec.403 of IPC, and one year of
simple imprisonment for the offence punishable
u/Sec.406 of IPC, and two years of simple imprisonment
and a fine of Rs.3,000/- for the offence punishable
u/Sec.420 of IPC, and in default payment of the said fine
three months of simple imprisonment.
4. The accused persons preferred appeal before
the Honb'le Fast Track Court - V, Bengaluru. The said
appeal was allowed and the judgment of conviction and
sentenced set aside, and the application filed u/Sec.391
of Cr.P.C. and 311 of Cr.P.C. is allowed, and recalled the
PW.4, and the matter is remanded back to this Court
4 CC 20087/03
with a direction to secure PW.4 on the cost of accused for
cross-examination.
5. The brief facts of the prosecution case are that
the accused was running a chit transaction. She induced
the complainant to become the member of the chit
transaction of Rs.6,000/-. The each members have to
pay monthly installment of Rs.300/-, and every month
the said chit would be put into bid and there were 20
members. The chit would be auctioned in favour of
higher bidder. The complainant believed the accused
being an employee of KPTCL, and subscribed for two
chits by paying Rs.300/- each per month on every 5th of
the month till completion of the chit. The chit
transaction started on 05/01/2001, and completed on
05/03/2002. The complainant was regular in payment
of chit amount. In the month of November 2001 and
December 2001, the accused had bid for Rs.1,900/-, and
5 CC 20087/03
Rs.1,800/- respectively, and got the amount of
Rs.4,100/- and Rs.4,200/- respectively. At the time of
getting the amount accused had stated her to furnish
blank cheque for the purpose of security. Hence, the
complainant had given two blank cheques at the
residence of the complainant bearing No.018599 dated
07/11/2001, and bearing No.018600 dated 08/12/2001
of Shushruthi Sahakara Bank Niyamitha as a security.
Thereafter, the complainant paid monthly installments
till March 2002, and requested the accused to return the
said two blank cheques. The accused has stated that
the said cheques were misplaced, and she would return
on trace. But the accused misappropriated and got filled
the amount of Rs.1,70,000/- each, and handed over the
same to Anjaneya Co-operative Bank, and the said
cheques were dishonoured, and the said bank filed a
false case against the complainant, and thereby the
accused dishonestly misappropriated and cheated.
6 CC 20087/03
6. On receipt of charge sheet the 4th ACMM court
took cognizance of the above said offences. The accused
person is on bail. She has been furnished the copies of
the prosecution papers. After hearing on charges, the
said court framed the charges, for the offence
punishable u/Sec.403, 406 and 420 of IPC for which the
accused person pleaded not guilty and claimed to be
tried.
7. The prosecution in order to prove its case,
examined 5 witnesses as PW 1 to 5 and got marked 9
documents at Exs.P.1 to Ex.P.9. Since CW 4, 5 and 8
did not turn up before the said court, hence, by rejecting
the prayer of Sr.APP, they have been dropped. Learned
Sr.APP has given up CW 2, and hence the prosecution
side is closed.
7 CC 20087/03
8. Thereafter, the Statements of the accused
person U/s.313 of Cr.P.C. recorded and she denied the
incriminating evidence and submitted that she has got
defence evidence. Accordingly, the accused person
stepped into the witness box and was examined as DW
1. She has also examined 3 witnesses as DW 2 to 4 and
produced 5 documents as per Ex.D.1 to D5.
9. I have heard the arguments on both sides.
10. The PW.1 is the complainant. She stated that
she and accused were residing in the same locality, and
the accused was working as Attender in KPTCL, Kaveri
Bhavan, Bangalore, and accused came to her house, and
insisted her to invest money under the chit fund
business and hence, on 05/01/2001, she became chit
fund member and took two chits for Rs.6,000/- each,
and was paying the premium of Rs.300/- each, and on
8 CC 20087/03
05/11/2001, the first chit auctioned for Rs.4,100/-, in
her favour, and on 05/12/2001 the 2nd chit auctioned
for Rs.4,200/- in her favour, and as a security for the
said amount, she had issued two signed blank cheques
in favour of the accused, and on 05/03/2002, she had
paid all the amount pertaining to the aforesaid two chits
to the accused person, and requested her to return the
said cheques.
11. The PW.1 also deposed that during the year
2002, she received summons from the Court, and hence,
she came to know that the accused misused the said
cheques, and accused was taken loan from Anjaneya Co-
operative bank Limited, and the accused misappropriated
the said cheques, and she appeared in the said case
before the Court which was filed by the bank.
9 CC 20087/03
12. The Ex.P.1 is the complaint u/Sec.200 of
Cr.P.C. The Ex.P.2 is the mahazar. Ex.P.3 is the outer
covers of cheque book. The Ex.P.4 is the certified copy
of cheque dated 21/03/2002 of Shushuruti Sahakara
Bank Niyamitha issued in favour of Sri.Anjaneya Co-
operative Bank Limited for Rs.1,70,000/-. The Ex.P.5 is
also the certified copy of cheque dated 20/03/2002 for
Rs.1,70,000/- in favour of Sri.Anjaneya Co-operative
Bank Limited of Shruti Sahakara Bank Niyamitha. The
Ex.P.6 is the certified copy of endorsement of Shushuruti
Sahakara Bank Niyamitha stating that the funds
insufficient. The Ex.P.7 is the certified copy of judgment
in CC No.29371/2002 between Sree Anjaneya Co-
operative Bank Limited vs Smt.J.Saraswathi and
Smt.Rathnamma (complainant and accused respectively).
10 CC 20087/03
13. The Ex.D.6 is the certified copy of notice
issued to the complainant and accused from bank, and
Ex.D7 is the certified copy of the private complaint filed
by the bank against them. As there is no dispute that
the said two cheques involved in CC No.29371/2002,
much discussion on the said documents at Ex.P.1 to
Ex.P.6 and Ex.D6 and Ex.D.7 are not required.
14. The Ex.P.10 is the copy of summons issued to
the accused herein by Arbitrator of co-operative society,
Bengaluru in DIS No.2861/02 on the basis of claim
petition of Anjaneya Co-operative Bank Limited for
Rs.4,56,730/- with interest and costs. The Ex.P.11 is the
certified copy of memorandum of mortgage by depositing
of title deeds executing by Ratnamma with Anjaneya Co-
operative Bank Limited. The Ex.P.12 is the certified copy
of loan application of accused which recites that accused
11 CC 20087/03
issued the loan application to Anjaneya Co-operative
Bank Limited for Rs.4,00,000/-.
15. The Ex.P.7, being the certified copy of judgment
in CC 29371/02, it recites that the complainant
Anjaneya Co-operative bank Malleswaram branch filed
complaint u/Sec.200 of Cr.P.C. against the accused, and
PW.1 Rathnamma for offence punishable u/Sec. 138 of
N.I.Act, and the said complaint is dismissed, and,
accused and PW.1 are acquitted u/Sec.255(1) of Cr.P.C.
for the offence punishable u/Sec.138 of N.I.Act. In the
said judgment it is observed that the complainant, in his
evidence, clearly admitted that there is no liability from
accused No.1 J.Sarswathi and she had not obtained the
loan from the complainant bank and she is also not a
surety to accused No.2 Rathnamma and accused No.2
Rathnamma had already paid loan amount of Rs.4 Lakhs
with interest in May 2005. Moreover, it is the case of the
12 CC 20087/03
complainant in the said case that the accused No.2
Rathnamma borrowed loan of Rs.4 Laksh and
complainant insisted the 2nd accused to discharge the
said liability, and the accused No.1 Saraswathi issued
two cheques bearing No.018599 and 018600 dated
20/03/2002 and 21/03/2002, for a sum of
Rs.1,70,000/- each of Shushruti Sahakara Bank
Niyamitha, Shushruti Nagar, Andrahalli Main Road,
Peenya, 2nd Stage, Bengaluru.
16. In the said judgment it is also observed that
the accused No.2 Rathnamma examined as DW.3 and in
her evidence she stated that she and Saraswathi are
relatives and Saraswathi had taken loan from her many
times, and Saraswathi came to her and asked the loan
for the purpose of her use and obtained a loan of Rs.4
Lakhs from the complainant bank and out of Rs.4 Lakhs
she paid Rs.3,40,000/- to Saraswathi, and for discharge
13 CC 20087/03
of the said loan Saraswathi issued two cheques which
were given to the complainant bank, and the accused has
not produced any documents to show that she had given
Rs.3,40,000/- to Saraswathi, and hence, this contention
is not believable one.
17. In this case, the DW.1 is the accused herein
who deposed that the complainant is her relative and
they had some monetary business since 20 years, and
complainant borrowed loan from her and she is not
running any chit business nor having any license for the
said business and complainant did not issued any
cheque to her. In this way, she has categorically stated
that the complainant-Saraswathi has not issued any
cheque to her, though they had monitory business from
last 20 years.
14 CC 20087/03
18. During the course of cross-examination PW.1
has stated that she knows the accused since 1992, and
accused started a chit business on 05/01/2001 and she
became a member of two chits of Rs.6,000/- each by
paying installments of R.300/- per month, and she had
given two cheques towards the bid amount and she had
not received any receipts for the same from the accused
and when she had given two cheques, neighbour
Rangaswamy was present and accused had taken one
cheque on 07/11/2001 and another cheque on
07/12/2001 and the said cheques were blank cheques.
19. The PW.1 is suggested that she obtained the
loan from Anjaneya Co-operative bank Malleswaram
branch on the guarantee of the accused, and accused
and the bank authorities granted a loan of Rs.3,40,000/-
and she filled up the said cheques and presented the said
cheques to the bank, and she had not given cheques to
15 CC 20087/03
the accused. But, it is not suggested that the accused
borrowed loan of Rs.4,00,000/- from Anjaneya Co-
operative bank Malleswaram branch, and out of the said
amount, Rs.3,40,000/- was paid to PW.1 by accused and
towards discharge of the said loan PW.1 issued two
cheques and the said two cheques were given to the
complainant bank with the consent of PW.1. On the
other hand, it is the defence of accused that she and
bank granted loan of Rs.3,40,000/- to complainant
herein.
20. The PW.3 is the husband of PW.1. He also
deposed that accused was living in their area and she
was working in KEB Department and she was running
chit business and his wife became the member for two
chits in the year 2001, and the chit fund was for
Rs.20,000/- each month and complainant was to pay
Rs.300/- per month. He also stated that the chit amount
16 CC 20087/03
is of Rs.6,000/-, and his wife used to pay the amount is
of Rs.300/- per chit, and in the 11th month and 12th
months, his wife took chit and the accused returned the
amount deducting balance to be paid by him, and the
accused obtained cheques from him in respect of 3
months installments and he had given two cheques for
11th and 12th months, and the cheque was signed and
unfilled about the amount, and his wife was having
account in the Shrushruthi Bank and the cheques are
from the said bank and his wife paid the amount of the
later months regularly.
21. He also further deposed that though he
requested to return the said cheques accused did not
return the same stating that it was misplaced and it
would be returned after few days. Himself and his wife
went on requesting to return the said cheques even after
completion of the chit period, and accused did not return
17 CC 20087/03
the same and after one month later they received a letter
from the Court and the Court officials informed that in
the matter of loan availed from Anjaneya Co-operative
bank, his wife has to appear before the Court, and they
learnt from the records that the accused had availed loan
from the bank by misusing the cheques given by his wife.
22. During the course of cross-examination he
stated that he had not seen any documents about the
chit business of accused, and he had not given any
documents to the police when they came to the
investigation, and he does not know whether the accused
was holding any license to conduct chit business and he
knows the accused from 25 years. He also admitted that
himself and his wife have not filed complaint before the
police against the accused for non-returning of the said
cheques and after lodging of the complaint by bank also
he and his wife have not lodged the complaint before the
18 CC 20087/03
police. But non-lodging of complaint itself does not make
to disbelieve his evidence.
23. The PW.2 is a mahazar witness who deposed
that the police visited the house of Saraswathamma in
the month of April 2003, and police drawn the mahazar
Ex.P.2 at about 3.30 to 4.00 PM in the said house, and
he signed the Ex.P.2, and the said mahazar was
conducted in respect of cheque issued by
Saraswathamma to Rathnamma, and the police read over
the mahazar and prior to him one Rangaswamy signed
the said mahazar and thereafter, he signed the same and
the said Saraswathamma also present at that time. He
also deposed during the course of cross-examination that
at that time he was working in a cycle shop which was
situated within the campus of Saraswathamma. No
doubt, he deposed that he does not know the police who
came to conduct the mahazar, and the police did not give
19 CC 20087/03
a notice to him. He further stated that the police did not
shown any cheque to him or counter foil of the cheque,
and Saraswathamma did not inform him about the
money transactions. But he admitted the suggestions
that the cheques issued by Saraswathamma to
Rathanamma was told to him by her. Though he is a
mahazar witness, it is admitted that PW.2 had knowledge
of issuance of cheque in favour of accused from PW.1.
24. He also deposed that the Saraswathamma
brought him to this Court today to depose evidence, and,
the said Saraswathamma and Rathnamma are not to his
relatives. The bringing him to the Court to depose
evidence and also the situating of his cycle shop within
the campus of Saraswathamma itself cannot be
considered as a thriving force to depose in favour of CW.1
- Saraswathamma. He also deposed that his cycle's shop
building owner is one Rajanna. The Ex.P.2 is the
20 CC 20087/03
mahazar which recites that around between 3 to 4 PM in
presence of one Rangaswamy, PW.2 and the complainant
Saraswathamma, it was drawn. In this way, from the
evidence of PW.2 it is not brought any aspect to doubt his
evidence in any way.
25. The PW.5 was the then PSI of Rajajinagar
Police Station who deposed that on 02/08/2003 he took
the further investigation by receiving case file from PSI
Venkataramanappa and on 02/11/2003 he recorded the
statement of witnesses viz. Gangadhara, Ashadevi and
Shivalingaiah and also obtained the certified copy of the
cheques of XII ACMM at Ex.P.4 and Ex.P.5, and filed the
charge sheet against the accused.
26. During the course of cross-examination, he
admitted the suggestions that he came to know that
PW.4 Kumaraswamy registered a case in CC
21 CC 20087/03
No.29371/2002 against the complainant and as per the
said complaint, the complainant along with the accused
visited the bank and issued two cheques in favor of PW.4
stating to present the cheques to the bank for collection
of amount and during the investigation he obtained the
certified copies of cheques presented in CC
No.29371/2002 of PW.4, and the said two cheques
presented in the said case, and the husband of the
complainant viz. Shivalingaiah had not given the
statement to him that Rs.300/- per month for 15 months
had been paid in respect of two chits of Rs.20,000/-, and
the same way he also stated that his wife had been
paying Rs.300/- each i.e. totally Rs.600/- for two chits
per month in the house of the accused as well as in her
house.
27. The PW.5 further admitted the suggestions
that husband of PW.1 not stated, in his statement, that
22 CC 20087/03
in 11th and 12th month his wife had taken chits and after
taking the due amounts of the accused, the accused had
paid the remaining amount and the accused obtained the
two cheques for next three months premium and two
cheques issued for premium of 11th and 12th month, and
the signed blank cheques issued and thereafter his wife
had been paying the premium amount correctly and at
the time of demand of cheques the accused had stated
that the said cheques were lost and one month after
demand to return the said cheques, they received notice
of the Court and, on enquiry with Court officials, the
Court officials stated that Anjaneya Co-operative Bank
Limited instituted a case for recovery of loan, and on
perusal of the Court records the said facts noticed and
they received notice from the bank and hence they
enquired with the bank. No doubt, he also stated that
during investigation he has not attempted to send for
getting the opinion of hand writing expert on the said
23 CC 20087/03
cheques. But the said improvements in the evidence of
PW.3 itself does not make his evidence to disbelieve in
toto.
28. During her cross-examination DW.1 stated
that 7 years ago complainant had given cheque to the
Anjaneya Co-operative Bank Limited, and she visited the
bank along with the complainant and she had helped the
complainant to raise the loan from the bank, and the
said loan was raised on the security of her house for Rs.4
Lakhs, and she had given the said amount to the
complainant and she mortgaged her house bearing
No.90/3 standing in the name of her husband to
Anjaneya Co-operative Bank Limited, to give loan to the
complainant and complainant gave cheque to repay her
loan when her house was to be auctioned by the bank
and both of them have gone to the bank to repay the loan
and she does not know the amount of loan advanced by
24 CC 20087/03
her husband to the complainant. In the cross-
examination itself two versions of DW.1 are forth-coming,
as observed above. Once she has stated that she had
given the amount raised from loan to the complainant
and also she has stated that she does not know the
amount of loan advanced by her husband to the
complainant and also not asked the husband for what
purpose she was taking the loan. She also deposed that
the complainant is not the member of Anjaneya Co-
operative Bank Limited.
29. The DW.2, being a Attender at KEB office,
deposed that the complainant used to visit her house
very often and hence she knows her and the accused did
not run any chit business and as far as she knows, the
complainant used to run a chit business, and accused
used to visit to her house and accused used to take her
to the house of complainant and the complainant had
25 CC 20087/03
borrowed the loan from the accused and in that regard
the complainant issued cheque to the Anjaneya Co-
operative Bank Limited. Though the DW.1 has not stated
that the complainant had been running a chit business,
the DW.2 has stated the same.
30. The DW.3 is also stated similar facts in her
chief-examination. She stated in her cross-examination
that the complainant was doing the chit business since
1992, and the accused had paid chit amount in the year
2003 and she does not know the details of the period of
the said chit amount and the complainant had given two
cheques of Rs.3,40,000/- to the accused and accused
had borrowed a loan in the year 2002, and paid the said
amount for chit business of crackers, and in the year
2003, the accused and the complainant visited the bank
and she accompanied them to the bank. But nowhere,
the DW.1 has stated that the DW.3 also accompanied her
26 CC 20087/03
while visiting the bank with the complainant. The DW.1,
during the course of cross-examination, stated that the
complainant was suffering with loan about crackers gift
and to liquidate the said loan, she badly needed for the
money. But she has not stated that the complainant was
running the chit business.
31. The DW.4 deposed that he was working as
Journalist of Vidarsha Vani Paper and he is residing near
the house of the complainant and complainant was
running some chit business of crackers and household
utensils without any license, and he had become member
of the said chit business, and one Manjunatha also
became the member of the said chit business, and the
complainant issued the cheque to Anjaneya Co-operative
Bank Limited in the matter of business which was seen
by him and accused did not run any chit business.
During the course of cross-examination, he stated that
27 CC 20087/03
he had pacified the accused and complainant when they
were tussling in the road regarding Rs.3,40,000/-, and
he had not known when the accused advanced the said
amount to the complainant and due to the said tussle
the complainant issued cheques for Rs.3,40,000/-, and
thereafter, both visited bank and he does not know what
happened thereafter. From the evidence of DW.4 a new
fact emerged that the accused and the complainant were
tussling in the road and he pacified both of them and the
complainant issued cheques for Rs.3,40,000/- due to
said tussle of accused in the road. But he has not stated
that accused advanced loan amount and hence PW.1
issued two cheques to accused. According to DW.4,
PW.1 issued cheques for Rs.3,40,000/- in the road to
accused. Whereas DW.1 has stated that the complainant
gave cheques to repay her loan when her house was to be
auctioned by the bank.
28 CC 20087/03
32. From the above evidence of PW.1 and DW.1
and Ex.P.9, one fact is clear that two cheques of
complainant herein were presented by Anjaneya Co-
operative Bank Limited. The accused herein stated in
this case that complainant issued two cheques to bank
when bank had prepared to auction her house for the
recovery loan. Whereas, in CC No.29371/02 she deposed
that complainant issued both cheques to her to discharge
the loan of Rs.3,40,000/- and same had given to bank.
33. The PW.4 deposed that he was working in the
Anjaneya Co-operative bank as a Secretary at
Malleswaram branch from June 1975 to 30/11/2006,
and accused was the member of their branch, and she
mortgaged the immoveable property and raised the loan
was around of Rs.4,00,000/-, and she did not repay the
said amount, and a dispute was registered under 70 of
KCS Act, 1959 for recovery of the loan, and they took the
29 CC 20087/03
steps to attach the property and auctioned it for recovery
of the amount, and the accused produced two cheques at
that time, and she had not produced her own cheque,
and they were belonged to Saraswathi, and the accused
should have given her own cheque for amount, and each
cheques were written for Rs.1,70,000/-, and the said
cheques were not cleared, and the Board has directed to
file cheque bounce case against the accused, and as it is
5 years old case, he does not remember what steps were
taken by the bank. The Saraswathi was not the account
holder of the bank, and the clerks would send the
cheques for clearance and it would not come to his
knowledge, and he knows that the loan holder was wants
to clear the loan, as he has to pay the cheque of his own,
and he was retired on 30/11/2006, and he is not
remembering the case matters completely now. Since
the counsel for accused absent and cross-examination is
taken as nil.
30 CC 20087/03
34. The Hon'ble FTC-V, Bengaluru is set aside the
judgment of this Court and application filed u/Sec.391 of
Cr.P.C. before the said Hon'ble Court and application
u/Sec.311 of Cr.P.C. before this Court are allowed and
recalled the PW.4 on the cost of accused as sought for in
both application and the matter is remanded back to this
Court with a direction to secure the PW.4 on the cost of
accused for cross-examination and directed to dispose of
this case by following the observation made in the body
of judgment. On perusal of the order sheet discloses
that PW.4 was expired on 21/11/2010. Hence, the
evidence of PW.4 is incomplete evidence. Whether the
said evidence could be considered or not is to be
appreciated with other evidence.
35. The Ex.D.1 is the certified copy of deposition
of one Kumaraswamy in CC No.29371/02 which recites
that the accused No.1 Saraswathi is not the member in
31 CC 20087/03
his bank and the loan sanctioned to accused No.2
Rathnamma and the accused No.2 has given the address
of accused no.1. From the said his evidence it can also
be seen that he stated that both Saraswathi and
Rathnamma came to their bank and issued cheques.
Though he suggested that the accused no.1 had not
visited to their bank to issue cheques, he stated that both
came and both had given the said cheques. If his said
evidence relied, it could be inferred that both might have
visited the bank and both might have not given cheques
and any one of them might have given the cheques. The
bank is a legal person and though it is operated by
individual it can not accept the cheques of the others
without any authorization or any liability.
36. The Ex.D.2 is the affidavit of accused No.1
herein. The Ex.D.3 is the affidavit of one Shanthamma.
The Ex.D.4 is the affidavit of Yashodamma. But the
32 CC 20087/03
criminal trial does not provides any such procedure to
receive affidavit of any witnesses. Hence, Ex.D.2 to
Ex.D.9 are need not be considered. The Ex.D.5 is one
card stating that KST CST. Pataki Licencedararu. It
does not recite correct name of a person to whom it has
been issued. Further it recites that Manager
Sri.Shivalingaiah and Smt.J.Saraswathi. But it does not
have any signature of any person who issued the same.
Moreover, the printer of said card is not examined to
prove who has been stated to print it.
37. The learned Sr.APP argued that already the
accused had been convicted by this Court and after
remand by permitting to cross-examine the PW.4, further
trial of this case commenced and though PW.4 died his
evidence can be looked into and subsequently the
accused had taken an opportunity to lead evidence and
the Court cannot go beyond the directions and hence
33 CC 20087/03
Court is ought to consider only earlier evidence and other
evidence adduced after remand cannot be considered and
hence prayed to convict the accused person for the
alleged offences.
38. The learned counsel for accused argued that
it is established that PW.4 is died and on the specific
direction to permit to cross-examine the PW.4 this case is
remanded and PW.4 died and hence an opportunity given
to the accused has not been availed due to death of PW.4
and hence the said evidence cannot be looked into. As
per the order of this Court itself the witnesses were re-
examined. Hence, PW.3 is cross-examined by the
accused counsel and the said order of this Court
remained unchallenged and the evidence on record
clearly established that the complainant foisted the false
case against the accused though she availed loan from
the accused and for the said loan complainant issued the
34 CC 20087/03
cheques to Anjaneya Co-operative Bank Limited, and on
her consent itself the said bank accepted the said
cheques and also the bank officials are examined in the
earlier case and also stated the said facts. Hence, the
evidence on record in any way does not prove the
ingredients of the alleged offence.
39. The learned counsel for accused also relied a
decision reported in Cril.Appeal No.781/2012 of the
Hon'ble Supreme Court of India between Mrs.Priyanka
Srivastava and another vs State of U.P. & others. He
relied the para.19 of the said decision as under:
19. In Anil Kumar v. M.K. Aiyappa(3), the
two-Jude Bench had to say this: "The scope
of Section 156(3) of Cr.P.C. came up for
consideration before this Court in several
cases. This Court in Maksud Saiyed {(2008)
5 SCC 658} examined the requirement of the
application of mind by the Magistrate before
35 CC 20087/03
exercising jurisdiction under Section 156(3)
of Cr.P.C. and held that where jurisdictional
is exercised on a complaint filed in terms of
Section 156(3) of Cr.P.C. or Section 200 of
Cr.P.C. the Magistrate is required to apply
his mind, in such a case, the Special
Judge/Magistrate cannot refer the matter
under Section 156(3) against a public
servant without a valid sanction order. The
application of mind by the Magistrate should
be reflected in the order. The mere
statement that he has gone through the
complaint, documents and heard the
complainant, as such, as reflected in the
order, will not be sufficient. After going
though the complaint, documents and
hearing the complainant, what weighed with
the Magistrate to order investigation under
Section 156(3) of Cr.P.C. should be reflected
in the order, though a detailed expression of
his views is neither required nor warranted.
We have already extracted the order passed
by the learned Special Judge which, in our
36 CC 20087/03
view, has stated no reasons for ordering
investigation."
40. The learned counsel also relied on the Head
note and paragraphs 9A and 10 of a decision reported in
2009 Cri.L.J. 4452 between the State of Orissa vs
Prasanna Kumar Mohanty. Wherein, the Hon'ble
Supreme Court held as under:
9. Section 33 of the Indian Evidence Act,
1872 reads as under:-
"33. Relevancy of certain evidence for
proven, in subsequent proceeding, the truth
of facts therein stated. - Evidence given by a
witness in a judicial proceeding or before
any person authorized by law to take it, is
relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later
stage of the same judicial proceeding, the
truth of the acts which it states, when the
witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of
37 CC 20087/03
the way by the adverse party, or if his
presence cannot be obtained without an
amount of delay or expense which, under
the circumstances of the case, the Court
considers unreasonable:
Provided -
That the proceeding was between the same
parties or their representatives in interest:
That the adverse party in the first
proceeding had the right and opportunity to
cross-examine :
That the question in issue were
substantially the same in the first as in the
second proceeding."
9A. The said provision therefore, will be
applicable inter alia in a case where either
the witness who has been examined in chief
is incapable of giving evidence or is absent
without any amount of delay or expense
which the Court considers unreasonable.
10. The Criminal trial or inquiry shall
be deemed to be a proceeding in terms of the
explanation appended to Section 33 between
38 CC 20087/03
the prosecution and the accused. however,
in this case, despite the fact that two
opportunities were granted to the defence
for cross examining the said Investigating
Officer but he was, as noticed herein before,
was recalled for cross-examination.
Furthermore, since 2003 to 2006 he did not
make himself available for his cross-
examination. In that view of the matter, we
are of the opinion that Section 33 of the
Evidence Act is not applicable to the facts of
the present case."
41. It is true that PW.1 has not produced any
documents to show that she invested money in chit
transactions. However, the evidence on record clearly
establishes that her cheques were presented by Anjaneya
Co-operative Bank Limited and, initiated the proceedings
for the offence punishable u/Sec.138 of N.I.Act against
the accused and complainant in CC No.29371/02. The
contention of the defence is that she and accused had
39 CC 20087/03
some monitory business transactions since 30 years, and
complainant borrowed loan from her, and complainant
had not issued any cheques to her. However, in her
cross-examination she stated that 07 years ago
complainant had given cheques to Anjaneya Co-operative
Bank Limited, when she visited the said bank with the
complainant and she helped the complainant to raise
the loan from the bank on security of her house for
R.4,00,000/-,and she had given the said amount to the
complainant, and complainant had given the said
cheques to repay the loan when her house was to be
auctioned by the bank.
42. In this way, she specifically stated that she
raised the loan from the bank to help the complainant on
the security of her house, and she has not taken cheques
from the complainant at the time of advancing the said
40 CC 20087/03
loan to the complainant. According to her, the
complainant issued the said cheques when her house
was to be auctioned for the recovery of the said loan. She
also stated that complainant had given two cheques for
Rs.3,40,000/-. But she has given Rs.4,00,000/- loan to
the complainant. Could the accused be advanced the
loan of Rs.4,00,000/-, which was in turn availed from the
bank by mortgaging her house without any documents?
When the evidence of other witnesses considered with the
said defence of the accused the said defence is not
proved.
43. As observed above, though the DW.1 has not
stated that the complainant has been running a chit
business. The DW.2 has stated that the complainant
used to run a chit business. The DW.2 also stated that
the complainant borrowed loan from the accused and
41 CC 20087/03
hence, the complainant issued cheques to Anjaneya Co-
operative Bank Limited. The DW.3 has stated the
accused borrowed a loan in the year 2002 and paid the
said amount to the chit business of the crackers and in
the year 2003 the complainant and accused visited the
bank and she also accompanied them. But the DW.1
has not stated that the amount borrowed from bank had
been paid to chit business of the crackers and while she
and complainant visited and bank, the DW.3 also
accompanied them.
44. No doubt, DW.4 has stated that the
complainant was running the chit business of the
crackers and household utensils and he was also a
member of the said chit business. Though Ex.D.5 is
produced to show that the complainant was running the
chit business, if does not have any signature of the
42 CC 20087/03
complainant or her husband and it only contains their
names. Moreover, the printer of the said card is also not
examined to prove the contents of the same. Moreover,
the Ex.D.5 also has got alterations and strike out of
name and the name of Manjunatha is not properly
written on it and it is not recite any payment entry.
Hence, it is not proved that the said document is of the
complainant.
45. The Ex.D.1 is relied by the accused. As
observed above, it is the certified copy of the deposition
of witness Kumara Swamy in CC No.29371/02. The said
Kumara Swamy is examined as PW.4 in this case. But
the said Kumara Swamy was died. Hence, though this
case is remanded to secure the PW.4 for cross-
examination of the accused, in view of his death the PW.4
evidence is not complete evidence. But the PW.4 has
43 CC 20087/03
stated almost same facts in his chief-examination of this
case what were stated in CC No.29371/02. Since the
filing of the said case is not in dispute, it is not much
necessary to discuss his evidence.
46. Though the arguments of the learned counsel
for accused is taken into consideration, that since the
accused had not got the opportunity of cross-
examination due to death of PW.4, after remand and,
hence his evidence cannot be looked into, the Ex.D.1,
Ex.D.6 and Ex.D.7, being the documents regarding the
case in CC No.29371/02, are relied by the accused in
his evidence. It is true that the evidence of PW.4 is
incomplete and hence it cannot be relied. However, the
said documents also speak the same facts which are
stated by the PW.4 in his chief-examination in his case.
Moreover, there is no dispute regarding the filing of the
44 CC 20087/03
said CC No.29371/02 against the complainant and the
accused. Hence, though the evidence of PW.4 cannot be
looked into, in view of the decisions of the Hon'ble
Supreme Court relied by the learned counsel for accused
as above, the other evidence as discussed above is
available to appreciate the facts stated by PW.4.
47. Moreover, the decision of the Hon'ble Supreme
Court in Mrs.Priyanda Srivasava and another vs State of
U.P. & others relied by the learned counsel for accused
is no way helpful to the case on hand, as, in this case,
the trial is completed. With great respect to the above
said ratios of the two decisions, I am of the opinion that
the said ratios are in no way helpful to the arguments of
the learned counsel for accused in view of the above
discussions.
45 CC 20087/03
48. The DW.1 herself stated in her evidence that
she and complainant had some monitory business which
continued since last 20 years. She deposed the said
facts on 09/04/2009. But she had failed to prove that
she advanced the loan of Rs.4,00,000/- to the
complainant in CC No.29371/02. The Ex.P.12 discloses
that the loan application was applied by accused on
24/05/2000 to Anjaneya Co-operative Bank Limited.
The Ex.P.11 discloses that memorandum of mortgage by
deposit of title deeds was executed on 30/06/2000. The
DW.3 deposed that accused borrowed loan in the year
2002. Hence, from the above evidence it is clear that
the monitory business was in existence between them
prior to the above said loan, if the above said evidence of
DW.1 is taken into consideration. Moreover, DW.1 has
stated that on 07/05/2009 in this case that 7 years ago
complainant had given cheques to said bank. As per
said evidences the cheques had to be given in the year
46 CC 20087/03
2002. The DW.3 deposed that complainant and accused
visited bank in the year 2003. The inconsistence
evidences of DW.1 to DW.4 clearly falsify the theory of
accused. The above evidence of DW.1 and evidence of
PW.1 and PW.2 establish that in the year 2001, itself
there was a monitory business between them.
49. The accused is itself a proper person to explain
regarding the cheques which were presented by the said
bank for collection of amount of her loan. As observed
above, the inconsistence and contradictory evidences of
DW.1 to DW.4 itself falsified the defence of accused that
complainant herself had given cheques to bank when
same considered with findings in CC no.29371/02.
Moreover, from the Ex.P.7 itself and also from the
evidence on record it is established the accused failed to
prove that the complainant had given the said cheques to
47 CC 20087/03
the said bank with her consent and the complainant
discharged her liability by handing over the cheques to
the bank.
50. Moreover, it is also suggested to the PW.1 that
she obtained the loan from the Anjaneya Co-operative
Bank Limited on the guarantee of the accused, and
accused and bank authorities granted the loan of
Rs.3,40,000/- to her. It is a strange case put forth to the
PW.1. The Ex.D.1 also discloses that the said Kumara
Swamy in his cross-examination also stated that after
award as per Sec.70 of KCS Act, they visited the house of
the accused No.2(accused herein) for recovery of the
amount, accused No.2 and accused No.1 (complainant
herein) came and issued two cheques. In this way,
according to said Kumara Swamy, the said cheques
48 CC 20087/03
issued had given, when bank officials visited the house of
the accused herein.
51. The PW.1 and PW.3 categorically stated that
PW.1 issued the said cheques in respect of chit business
to the accused as a security and after payment of all the
chit amount, the accused had not returned the cheques
stating that the said cheques were misplaced. As
observed above, the accused herself stated that she and
the complainant had monitory business since 20 years as
on the date of 09/04/2009. According to PW.1 and PW.3
the chit business started in the year 2001. After
considering the above discussed evidence on record, I
believe that the complainant entrusted her cheques to
the accused, and the accused dishonestly used the said
cheques for her loan availed from the Anjaneya Co-
operative Bank Limited and thereby she misappropriated
or converted the said cheques of her own use, Hence, it
49 CC 20087/03
is also established that the accused fraudulently or
dishonestly induced the complainant to delivery the said
cheques to her and retained the said cheques
intentionally and deceived the complainant by using the
said cheques for her own purpose and converted the said
cheques as a valuable security for her loan. In result,
the prosecution proved that the accused committed for
the offences punishable u/Sec.403, 406 and 420 of IPC,
beyond all reasonable doubt. Consequently, I proceed to
pass the following:
ORDER
Acting under Section 248(2) of Cr.P.C., Accused is hereby convicted for the offences punishable U/Sec. 403, 406 and 420 of IPC.
To hear on sentence.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected & then pronounced by me in the Open Court dated this the 30th day of June, 2018.) (Manohara.M.) IX Addl.Chief Metropolitan Magistrate, Bangalore.
50 CC 20087/03ORDER REGARDING ON SENTENCE The learned Sr.APP argued that, the accused being a servant in KPTCL intentionally committed the said offences. Hence, she may be sentenced by imposing maximum punishment.
The learned counsel for accused has argued that, she is a aged woman and she being the servant in KPTCL leniency may be shown leniency.
The accused had used two cheques of the complainant and misappropriated the said cheques and committed the breach of trust and thereby she made complainant to face a criminal trial. Hence, she is not entitled for any leniency. In view of the above findings she is also not entitled for benefit of Probation of Offenders Act. Since this act of the accused has led to unnecessary facing of criminal trial by the complainant. Hence, she is not entitled for benefit of Probation of 51 CC 20087/03 Offenders Act. If leniency is given, it will pass a wrong signal to the society in general and also accused person in particular. Hence, considering all these aspects, I pass the following:
ORDER The accused person shall undergo simple imprisonment for six months for the offence punishable u/Sec.403 of IPC.
The accused person shall undergo simple imprisonment for one year for the offence punishable u/Sec.406 of IPC.
The accused person shall undergo simple imprisonment for two years and a fine of Rs.20,000/-
for the offence punishable u/Sec.420 of IPC. In default of payment of fine, she shall be undergo simple imprisonment for 3 months .
The above sentences shall run concurrently.52 CC 20087/03
Office to issue conviction warrant accordingly.
Furnish free copy of this Judgment to the accused forthwith.
(Manohara.M.) IX Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW.1 : J.Saraswathi PW.2: Mahalingappa PW.3: Shivalingaiah PW.4: Kumarasway PW.5: B.P.Jayasimha
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1: Complaint Ex.P.1(a): Signature of PW.1 Ex.P.2: Spot mahazar.
Ex.P.2(a): Signature of PW.1 Ex.P.3: Cheque book Ex.P.4 & 5: Certified copies of cheques Ex.P.6: Certified copies of bank endorsements.
Ex.P.7: Certified copy of judgment in CC No.29371/02 Ex.P.8&9: Statements of accused.53 CC 20087/03
List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of the defence:
DW.1 : Rathnamma DW.2 : Shanthamma DW.3 : Yeshodamma DW.4 : Nagaraju
List of documents marked on behalf of the defence:
Ex.D.1 to 4: Certified copies of deposition and affidavits.
Ex.D5 : Chit card Ex.D6 : Legal notice.
List of materials marked on behalf of the defence:
NIL IX ADDL.C.M.M. Bangalore.54 CC 20087/03 55 CC 20087/03 56 CC 20087/03