Bangalore District Court
R.T.Nagar Police Station vs Surrendered Before Court On on 7 April, 2021
IN THE COURT OF XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
PRESENT: SRI.NAGARAJE GOWDA.D
B.C OM.,LL.B.,
DATED THIS THE 07th DAY OF APRIL 2021
JUDGMENT
U/Sec. 355 of the Cr.P.C Serial Number of the C.C.9257/2014 case Name of the State by Police Sub Inspector, complainant R.T.Nagar Police Station.
(Reptd. by Sr.Asst.Public
Prosecutor )
Name of the accused M.N.Santhosh @
person/s M.N.SanthoshGowda,
S/o. Nanjundegowda,
Aged about 32 years,
R/At.No.M.I.G-6,
4th cross, Kuvempunagar,
Hassan- 573201.
(Rept by Sri.H.J.P....Adv..,)
Offences complained U/Secs.420 of the IPC.
of
Charge framed for the U/Secs. 420 of the IPC.
offences
Date of In between 16.07.2011 and
commencement of 04.04.2013
offence
Date of arrest of Accused not arrested, he
accused surrendered before court on
05.05.2014
Date of release of 05.05.2014
accused
2 C.C.9257/2014
Date of 11.07.2019
commencement of
recording evidence
Date of closure of 19.10.2019
recording evidence
Plea of the accused Not Guilty
and his examination :
Offences proved Nil
Final Order : Accused Not found guilty
Date of final order 07.04.2021
I. Brief statement of reasons for the decision:
1. It is allegation against accused that the accused during the year 2011 with dishonest intention to make wrongful gain stated that one Arun Kumar possessed rare earth material(Iradium) worth Rs.100 to 200 crores and obtained Rs.12,00,000/- from C.W.1 and Rs.2,50,000/-
from C.W.4 and cheated C.W.1 and 4 without providing any rare earth material and did not return their amount and thereby the accused committed the offence punishable U/Sec. 420 of the IPC.
3 C.C.9257/2014
2. The charge sheet is filed against accused for the offences punishable U/s 420 of the IPC.
In support of the case of the prosecution, the CW.1/ informant of crime - Vinod Kumar is examined as P.W.1. This P.W.1 in his chief examination deposed that C.W.4- Malcom Bennett introduced him to one Arun Kumar and said that Arun Kumar possessed "Iradium"(rare earth material). P.W.1 further deposed that said Arun Kumar wanted to sell the said material(iradium) and accused is running is running a company under the name and style "M.M.T.C". Further P.W.1 deposed that C.W.4-Malcom Bennet introduced the accused-Santhosh to him and informed him that accused will check and verify the quality of the iradium. Further P.W.1 deposed that he himself and C.W.4 approached the accused and accused informed them that he needs Rs. 36 lakhs to meet the expenses for checking the material stating that some chemical is to be secured from Singapore and after negotiation accused agreed to contribute Rs.18 lakhs and P.W.1 and C.W.4 agreed to pay Rs. 18 lakhs together, further P.W.1 deposed that accordingly he paid Rs.12 lakhs 4 C.C.9257/2014 to the accused. Further P.W.1 depsoed that C.W.4-Malcom Bennett paid Rs. 3 lakhs to the accused and the owner of the material by name Arun Kumar arranged Rs.5 lakhs. Further P.W.1 deposed that thereafter accused checked the material and confirmed that the said material is original iradium and at the time of checking material, Arun Kumar and accused went inside the room and checked the material and at that time they did not allow him and C.W.4 Malcom Bennet to enter the room. Further P.W.1 deposed that thereafter accused expressed his willingness and approached to purchase the iradium and agreed to give Rs.200 crores. . Further P.W.1 deposed that thereafter the accused asked for Rs. 3 lakhs stating that he needs money to bring material to Mysore and assured that he would give money at Mysore. Thereafter Arun Kumar refused to take material to Mysore and thereafter negotiation was going on between the accused and Arun Kumar and finally accused left the place. Further P.W.1 deposed that he paid Rs.10 lakhs to the accused through D.D's on 02.08.2011 and he paid another Rs.2,00,000/- through another D.D. Further P.W.1 5 C.C.9257/2014 deposed that thereafter he came to know that accused and Arun Kumar colluding with each other extracted money from him and C.W.4-Malcom Bennett. P.W.1 deposed that Arun Kumar did not give material to accused since accused did not give advance amount to Arun Kumar and accused has not given material to him and accused failed to repay the money to him. Further P.W.1 deposed that he lodged complaint as per Ex.P.1 against accused Santhosh @ Santhosh Gowd and thereafter police drew mahazar in the office of the accused at Ganganagar as per Ex.P.2.
3. C.W.4-Malcom Bennett is exmained as P.W.2. This P.W.2 in his evidence deposed that one Weldar introduced Arun Kumar to him and informed him that said Arun Kumar possessed Iradium(rare earth material) and said Arun Kumar wanted to sell the material and said Weldar informed him that Rs.20 lakhs was required for purchasing chemical to remove the opposite chemical on the packed material and further the accused agreed to run the business of Iradium with him and Arun Kumar at 6 C.C.9257/2014 Madikeri. Further P.W.2 deposed that for the purpose of purchasing the chemical he paid Rs. 2 lakhs to accused through D.D. and paid Rs.50,000/- (Rupees Fifty Thousand) to the accused by cash and C.W.1 Vinod Kumar paid Rs.12 lakhs to the accused and Arun Kumar paid Rs.5 lakhs to the accused. Further P.W.2 explained that in all they paid Rs.20 lakhs to the accused and one day they went to Madikeri , wherein accused checked the material and confirmed that the said material is original material and at that time of checking the material the accused did not allow them inside the room. Further the accused agreed to pay Rs.5,00,00,000( Rupees Five Crores) to Arun Kumar but after checking the material the accused did not pay Rs.5,00,00,000/- (Rupees Five crores) to Arun Kumar and they came back to Bengaluru. . Further P.W.2 deposed that after two weeks they approached the accused, the accused informed that he requires more money, for that they replied that they are not going to pay more money and asked the accused to cancel the transaction and return the money and there after the accused started to avoid them. Further P.W.2 deposed 7 C.C.9257/2014 that thereafter they came to know that the accused cheated them.
4. C.W.5-Sri.Rajesh Bhat is examined as P.W.3. This P.W.3 in his evidence deposed that C.W.1-Vinod Kumar is his friend and he met C.W.4-Malcom Bennett through C.W.1 and accused is known person to him and accused went to purchase the iradium from Arun Kumar and accused was in need to money to buy chemical for the purpose of removing the opposite chemical on the packed material. Further P.W.3 deposed that in this connection C.W.1-Vinod Kumar has given Rs.12,00,000/- (RUpees Twelve Lakhs) to the accused and C.W.4-Malcom Bennet paid Rs.2,00,000/-(Rupees Two lakhs) to the accused through D.D and paid Rs.50,000/- to the accused by cash. Further P.W.3 deposed that thereafter one day, P.W.1, P.W.2, accused and Arun Kumar went outside Bangalore to check the material and thereafter accused did not pay money to Arun Kumar and he came to know this fact from P.W.2. Further P.W.3 deposed that P.W.1 and 8 C.C.9257/2014 2 demanded for returning of money from the accused but the accused did not repay the money.
5. C.W.6-Sri.Mahesh.M-is examined as P.W.4. P.W.4 in his evidence deposed that he was working as PSI at R.T.Nagar P.S from December 2012 to June 2016 and on 04.04.2013 he received the written complaint as per Ex.P1 from C.W.1-Vinod Kumar, he registerd the crime and submitted FIR as per Ex.P.3. On the same day he visited the spot and drew mahazar as per Ex.P.2 in the presence of C.W.2-Uma Shankar and Somashekar and C.W.1 shown the spot. Further P.W.4 deposed that on 05.04.2013 C.W.1- Vinod Kumar produced copies of six demand drafts and he recorded the statements of C.W.4 and 5 and on 18.02.2014 he recorded the voluntary statement of the accused. Further P.W.4 deposed that on 22.02.2014 he received the statement of accounts from HDFC Bank, which are marked as Ex.P.4. Further P.W.4 deposed that after completing investigation he filed charge sheet against the accused.
9 C.C.9257/2014
6. The prosecution failed to secure the C.W.2 and 3- mahazar witnesses. Repeatedly NBW was issued against the witnesses. Even after taking coercive steps, prosecution could not secure these witnesses. Considering the period of pendency and opportunities given to the prosecution to secure the witnesses , by rejecting the prayer of learned Sr.Asst. Public Prosecutor the prosecution evidence is taken as closed.
7. During course of trial, the defence of the accused is total denial of the case of the prosecution.
8. After hearing both sides, the prime question which arises for the consideration is whether the evidence placed on record is sufficient to establish the guilt of the accused. Since accused took up defence of total denial of the case of the prosecution, the entire burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt.
10 C.C.9257/2014
9. At this juncture I would like to reproduce Sec.415 and 420 of the IPC Sec.415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
After going through the above said provisions of law, it is crystal clear that in this case on hand, the prosecution has to prove beyond all reasonable doubt that the accused induced C.W.1 and C.W.4 to pay cash of Rs.18,00,000/- and accordingly he received cash from C.W.1 and 4 with intention to cheat the C.W.1 and C.W.4 11 C.C.9257/2014 and thereby committed the offence punishable U/Sec. 420 of the IPC.
10. The P.W.1- informant of crime in his cross examination deposed that he is not aware that the transaction which took place in this case relating to Iradium is against the public policy and that ignorance of law is no excuse. Further P.W.1 deposed that he has not seen Iradium personally at any point of time and he does not know for what purpose it is used. He further deposed that he has not met Arun Kumar at Mysore and whenever he tried to meet him at Bangalore, said Arun Kumar was refusing to meet him.
The P.W.1 admits in his cross examination that there is delay of two years in lodging the complaint and he admits that he signed on Ex.P.2(mahazar) in the police station and he does not know to read and write Kannada Language and he denied the suggestions that there is no any financial transaction between him and accused and he lodged false complaint against accused. 12 C.C.9257/2014
11. According to the case of the prosecution, the accused induced C.W.1 and C.W.4 to pay money for purchase of the chemical to remove the seal of the packed material and the C.W.1 and 4 paid money to the accused in the year 2011 itself and the accused refused to pay money of Rs.5,00,00,000/- to one Arun Kumar on checking the material and came back to Bangalore and when the accused demanded to pay more money , the C.W1 and 4 refused to pay more money and asked the accused to cancel the transaction. Thereafter the accused started to avoid C.W.1 and 4 and the C.W.1 lodged complaint to the police in the year 2013. The prosecution failed to explain the inordinate delay of two years in lodging the complaint.
This aspect seriously and adversely affects the case of the prosecution.
12. Further doubt arises in the mind of the court as to why the P.W.1 and P.W.2 did not get any agreement executed for the alleged payment of money, from the accused. Moreover the alleged transaction relating to 13 C.C.9257/2014 possessing rare earth material(Iradium) and doing business relating to Iradium is against the public policy and what made the P.W.1 and 2 to believe the say of one Arun Kumar regarding possession of Iradium and doing business relating to sale of Iradium is not explained by them for the reasons best known to them.
13. P.W.4-I.O in the cross examination admitted that the date of incident is not mentioned in the complaint and the I.O himself mentioned the date of incident in the FIR based on the copy of the D.D. This aspect goes against the case of the prosecution, the informant of crime has no where mentioned the date of incident or when he was introduced to one Arun Kumar and where the negotiations took place. The witnesses P.W.1, P.W.2 and P.W.3 have not stated the date of incidents in their statements also.
14. Further P.W.4 in the cross examination deposed that P.W1 got some demand drafts from his friends and he has not cited said friends of the P.W.1 as witnesses in the 14 C.C.9257/2014 charge sheet and he has not investigated as to the source of getting said demand drafts from P.W.1.
15. The P.W.4 in his cross examination admitted that he has not secured any documents as to the existence of the office of the accused on the spot as alleged and he has not enquired as to ownership of the building which housed the office of the accused as alleged. He further admitted that the no objects or documents are recovered at the spot at the time of drawing mahazar.
16. The evidence of P.W.4-I.O is not sufficient to point out the guilt of the accused. Under the circumstances, evidence of P.W.4 also not taken material role in deciding the guilt of the accused. As I have above mentioned the defence of the accused is total denial of the case of the prosecution. The accused who is facing criminal case is always having right to maintain silence. In this present case on hand, as I have above discussed in detail, both the oral and documentary evidence placed on record is not sufficient to hold the accused guilty. With these 15 C.C.9257/2014 observations this court comes to the conclusion that prosecution failed to prove the guilt of accused beyond all reasonable doubt.
II. Final Order:
Acting U/Sec.248(1) of Cr.P.C I hereby acquit the accused for the offence punishable U/Sec.420 of the IPC.
Accused is set at liberty forthwith and the bail bond of accused and that of surety stands canceled.
(Judgment typed to my online dictation by the stenographer, computerized copy thereof corrected and then pronounced by me in the open court on this the 07th day of April 2021).
(Nagaraje Gowda.D) XXXII Addl.C.M.M. Bangalore.
:ANNEXURE:
1.List of Witnesses examined on behalf of the prosecution:
P.W.1-Sri.Vinod Kumar P.W.2-Sri.Malcom Bennett P.W.3- Sri.Rajesh Bhat P.W.4-Sri.Mahesh.M-AIO 16 C.C.9257/2014
2. List of Documents marked on behalf of the prosecution:-
Ex.P.1: Complaint Ex.P.1(a,b): Signatures Ex.P.2: Mahazar Ex.P.2(a): Signature Ex.P.3:FIR Ex.P.3(a): Signature Ex.P.4:Statement of accounts Ex.P.4(a): Signature
3.:- List of witnesses and documents marked on behalf of the accused Nil
4. List of Material objects marked on behalf of the prosecution:
NIL (Nagaraje Gowda.D) XXXII Addl.C.M.M. Bangalore.17 C.C.9257/2014
Judgment pronouced in the open
Court vide separate judgment.
Acting U/Sec.248(1) of Cr.P.C I hereby
acquit the accused for the offences punishable U/Secs.420 and 466 of the IPC.
Accused is set at liberty forthwith and the bail bond of accused and that of surety stands canceled.
(Hattikal Prabhu.S) XXXII Addl.C.M.M. Bangalore.18 C.C.9257/2014
The accused is directed execute personal bond for sum of Rs.20,000/- for his appearance before appellate Court, if necessary as contemplated in Sec.437(A) of Cr.P.C.
(Hattikal Prabhu.S) XXXII Addl.C.M.M. Bangalore.