Bangalore District Court
The State Of Karnataka Through vs Padmababu on 6 July, 2020
1
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 6th DAY OF JULY 2020
C.C.No.20412/2010
Present: SRI. BALAGOPALAKRISHNA.
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
Vijayanagar Police Station
(State by Sr. A.P.P.)
V/s.
Accused 1. Padmababu, w/o.late.V.Babu, 64 yrs,
R/at.No.12, 14th cross, Cholurpalya, Pipeline,
Vijayanagar, Bangalore.
2. Kirankumar, s/o.Nanjaiah, 28 yrs, R/at.No.12,
14th cross, Cholurpalya, Pipeline, Vijayanagar,
Bangalore.
DATE OF COMMENCEMENT :
OF OFFENCE
DATE OF ARREST OF THE : Accused No.1 and 2 are on bail.
ACCUSED
OFFENCES ALLEGED : U/s.379, 468, 471, 420 of
IPC
DATE OF COMMENCEMENT : 02/02/2012
OF EVIDENCE
2
DATE OF CLOSING OF : 10/07/2019
EVIDENCE
OPINION OF THE JUDGE : Accused found not guilty
(Balagopalakrishna.)
XXIV A.C.M.M., BENGALURU.
: J U D G M E N T :
The PSI of Vijayanagar Police Station has filed charge sheet against
accused for the offence punishable U/s.379, 468, 471 and 420 r/w.34
of IPC.
2. The case of the prosecution in brief is as under:
It is the case of the prosecution that property bearing Municipal
No.51/32 (Bangalore City Corporation Division Old No.21) measuring
East to West 56 ft., and North to South 30 ft., situated at 21 st cross,
21st main, Marenahalli, Vijayanagar, Bangalore is the absolute property
of the CW 1 having purchased the same under registered sale deed dtd:
28/3/1987 from its earliest owner Smt. Savithri and on the date of the
sale itself, the said Savithri put the CW 1 in possession of the same. In
pursuance of the sale deed the relevant Municipal documents were
transferred in her name and accordingly, he is paying tax to the BBMP
and enjoying the said property without any hindrance.
3
It is further case of the prosecution that the CW 1 and 2 are
working in Germany. The accused No.1 being a direct sister of CW 1
and there is no relative in the Bangalore, the CW 1 allowed the accused
No.1 to reside at ground floor. It is further stated that the CW 1 and 2
were kept the original sale deed and other documents in the house. The
accused No.1 and 2 colluding together in order to deceive the CW 1 and
2, they have stolen the original sale deeds in respect of the said
property.
It is further alleged that on 11/9/95 accused No.1 and 2 have
created a GPA to execute the Sale deed as if it is executed by the CW 1
and also created affidavit. On the basis of the said created documents
made believed the CW 3 as a genuine document, on 19/7/08 the
accused No.1 and 2 sold the same in favour of CW 3 and executed
registered sale deed, thereby deceived the CW 1.
It is further alleged that on 16/11/08 the Investigating officer has
obtained the created GPA, Affidavit and other documents created by the
accused No.1 and 2 from the custody of the CW 3 and sent for expert
opinion and report reveals signature are not tallying with admitted. It is
further alleged that the accused made used the sale consideration got
from CW 3 for their personal use, thereby deceived the CW 1 and 3 and
thereby accused have committed an offences punishable U/s.379, 468,
471 and 420 of IPC.
4
3. In pursuance of the complaint given by the complainant by
name Sri.Andal Shanmuga Sundaram, the Police have registered crime
in Cr.No.421/08 for the offence punishable U/s.379, 468, 471 and 420
of IPC. After conclusion of the investigation, the Investigating Officer
has filed charge sheet against the accused for the said offences.
4. This court has taken cognizance for the offence punishable
U/s. 379, 468, 471 and 420 of IPC and issued summons to the accused
and accused are on bail.
5. The copy of the charge sheet and other material documents
has been supplied to the accused as required U/s. 207 of Cr.P.C.
6. Heard before framing charge and charge was framed for the
offence punishable U/s.379, 468, 471 and 420 of IPC and read over
and explained to the accused in the language known to them. Accused
pleaded not guilty and claimed for trial.
7. In order to prove the case of the prosecution, the prosecution
has got examined PW.1 to 6 and got marked Ex.P.1 to Ex.P.24 and
closed their side.
8. Statement of the accused as required U/s.313 of Cr.P.C. is
recorded. The accused have denied the incriminating evidence found in
the evidence of prosecution as false. No defense evidence on the side of
the Accused.
5
9. Heard both side.
10. The following point arises for my consideration:
1) Whether prosecution proves beyond reasonable
doubt that, when the CW 1 and 2 had been to
Germany, at that time, they were allowed the
accused No.1 to stay at ground floor in their house
No.51/32, at that time, they were kept the original
sale deed and other documents in respect of the
said house and accused No.1 and 2 dishonestly
taken away the original documents without
consent of the CW 1 and thereby committed an
offence of theft, punishable u/s.379 of IPC ?
2) Whether the prosecution proves beyond
reasonable doubt that, on 11/9/95 at
Vijayanagar, Bangalore, the accused No.1 and 2
had created a General Power of Attorney as if
executed by the CW 1 in order to sell the said
property and used the said created GPA as
genuine document and sold the same in favour of
CW 3 and thereby cheated the CW 1 and 3,
thereby committed an offence punishable u/s.468,
471 and 420 of IPC ?
3) What order?
11. My answer to the above points is as under;
Point No.1 In the Negative.
Point No.2 In the Negative
Point No.3 As per final order for the following;
REASONS
6
12. POINT NO.1 :
It is not in dispute that CW 1 and 2 are the husband and wife. The
accused No.1 is the elder sister of the CW 1. It is also not in dispute that
property bearing Municipal No.51/32 (Bangalore City Corporation
Division Old No.21) measuring east to West 56 ft., and north to south
30 ft., consisting a house at 21 st cross, 21st main, Marenahalli,
Vijayanagar, Bangalore is belonged to the CW 1. What is the
relationship among accused No.1 and accused No.2 is not forthcoming
either from the evidence or the documentary evidence.
13. As per the Ex.P.6 i.e., complaint reveals that the said house
consisting 3 BHK at ground floor, 2 BHK in the 1 st floor and 1 BHK in
the 2nd floor. Since CW 1 and 2 are working at Germany, they have
given the ground floor for the residence of accused No.1, she being an
elder sister of CW 1 and she had no proper income and shelter. It is
further case of the prosecution that during the said period (specific
period is not stated in the complaint) the accused No.1 joining with the
accused No.2 has theft the original documents in respect of the said
house. Therefore, it is alleged that the accused No.1 and 2 have
committed the offence u/s.379 of IPC. At this juncture, it is necessary
to mention what are all the ingredients has to be satisfied by the
prosecution in order to attract offence u/s.379 of IPC, according to the
said section, following points has to be proved :
1) That the subject matter of the theft is movable property;
2) That it was in possession of any person;
7
3) The accused moved it;
4) That he did so, without the consent of the person in possession ;
5) That he did so, intending to take it out of his possession ;
6) That he did so dishonestly.
Admittedly, as admitted by the complainant, when she and her
husband at Germany, out of the said houses, ground floor was in the
possession of the accused No.1. Thus, the relationship between CW 1
and the accused No.1 as licensor and licensee, so, it can be construed
that possession of the licensee is also possession of the licensor in
respect of the house. The evidence of PW 2 reveals that she and her
husband came to India to perform the marriage of her daughter on
23/8/07, at that time, the PW 2 smelt something wrong with the
property, so, she asked accused No.1 regarding property documents, at
that time, accused No.1 had given 6 laminated documents in the hands
of her husband i.e., PW 1 and same was accepted by him believing that
those documents are the original documents. PW 2 further stated that
during the month of March 2008, she received a phone call from her
tenant one Sri. Dr.Devendra, who informed that something is going on
with the property and he asked her to come immediately to India. The
said evidence of PW 1 and 2 reveals that they were handed over the
entire house to the custody of the accused No.1. If really without their
knowledge, if any documents were stolen by the accused No.1, definitely
the PW 1 should not have been accepted the documents and he would
have been given complaint in the year 2007. Here, as demanded by the
husband of the PW 2, the accused No.1 was handed over the some
8
documents and same was received by the husband of the PW 2 believing
that those documents are original, the question of stolen or theft the
original documents of the disputed house does not arise at all, because,
if really documents were stolen, there was no occasion for the husband
of the PW 2 to collect the document from the accused No.1. From the
evidence of PW 1 and 2 the prosecution has not established the
ingredients of the Sec.379 of IPC. Furthermore, for having received the
original document, the prosecution ought to have examined CW 3 who
had purchased the property from the accused No.1 and 2 to fortify that
at the time of selling the disputed property in her favour, they were
handed over the original and on the other hand her evidence was
dropped. In this case, Ex.P.12 and Ex.P.15 are the original sale deed
and gift deed in respect of the disputed house (the originals are returned
to the complainant keeping certified copies in their places), how those
documents was recovered and from whose custody has not been
forthcoming from the investigation papers. Further, as stated above, in
respect of the theft of original sale deeds in the house of PW 1 and 2, no
complaint was lodged before the concerned police as per the say of PW2.
The evidence of PW 5/SHO of Vijayanagar Police Station reveals that
the CW 1 had given a complaint on 3/5/07 about the lost of the original
sale deeds as per Ex.P.9. No doubt signature found on the Ex.P.9 ie.,
signature of PW 2 has been denied. In order to disbelieve the Ex.P.9,
the prosecution has not produced any material to demonstrate before
the court that on that particular day, she was at Berlin, Germany. This
circumstances clearly reveals that the CW 1 at the time of shifting the
house, she had lost the sale deeds. That is the reason why there is no
9
reason to disbelieve the Ex.P.9. Considering the above two
circumstances ie., acceptance of the sale deed by husband of the PW 2
and giving complaint as per Ex.P.9, the court can come to the
conclusion that the accused had not stolen/theft the original documents
of the disputed house kept in the almirah. Even from the evidence of
PW 1 and 2 there is no specific avernments what are all the documents
kept in the almirah was stolen. As per Ex.P.7 the Investigating officer
has conducted a spot mahazar, wherein there is no whisper about the
damaging the almirah kept in the room, if at all accused No.1 had theft
the documents by break open the almirah, definitely Ex.P.7 should have
mentioned the same by the Investigating officer. Therefore, viewed from
any angle, the prosecution utterly failed to prove the guilt against the
accused in respect of Sec.379 of IPC. Accordingly, point No.1 under
reference is answered in the Negative.
14. Point No.2:
It is further case of the prosecution that on 11/9/95 accused No.1
and 2 colluding together created a GPA as if executed by the CW 1 to
sell the said property and also created an affidavit and using the said
two documents i.e., GPA and affidavit, they were sold the disputed
property in favour of CW 3 for Rs.49,80,000/ and executed registered
sale deed at Vijayanagar SubRegistrar, Bangalore. Thereby accused
No.1 and 2 have committed an offence punishable U/s.468, 471 and
420 of IPC. So before discussing the evidence, it is necessary to
mention what are all the ingredients has to be satisfied by the
10
prosecution to attract said sections.
15. Sec.468 of IPC deals with forgery for the purpose of cheating.
The ingredients has to be satisfied is :
1) Forgery has been committed ;
2) that the forgery has been committed by the accused;
3) That forgery has been committed by the accused intending that
the document forged shall be used for the purpose of cheating ;
Sec.471 of IPC deals with using as a genuine a forged. The
ingredients has to be satisfied is :
1) There must be use of document ;
2) As genuine ;
3) Document which accused knows to be forged or which he
believes to be forged document ;
4) the use of document must be fraudulently or dishonestly;
Now comes to Sec.420 of IPC deals with using as a genuine a
forged. The ingredients has to be satisfied is :
1) That the accused cheated the another person;
2) That he thereby induced
a) Delivery of property to any person, which property did not belonged to
the accused, or
b) To make, alter or destroy the whole or any part of valuable security,
or
11
c) anything which is signed or sealed and capable of being converted to
a valuable security ;
3) That he did so dishonestly.
In order to attract the said sections, the prosecution has examined
the complainant and her husband as PW 2 and 1. They have given their
evidence on par with the avernments made in the complaint i.e., Ex.P.6
and signature of PW 2 marked at Ex.P.6(a). The PW 1 and 2 in their
evidence deposed that on 22/8/08 as per the request of the police, the
PW 2 given complaint about the offence committed by the accused No.1
and 2 and in the meantime they have verified the electricity bill in
respect of the house, wherein name of CW 3 was mentioned, so they
enquired with the concerned BESCOM officials and then applied for
relevant papers to BESCOM for having changed the meter in the name
of CW 3 on 8/8/08. It is further stated that to the application given to
the BESCOM, her signature was forged. PW 2 further deposed that
accused No.1 and 2 were sold her house on the basis of a fake GPA of
1995, that document is marked at Ex.P.1, the signature thereon is not
of her signature. Ex.P.2 is the affidavit whereon the PW 2 has not put
her signature. Further, a xerox copy of the GPA marked at Ex.P.3 which
was executed by PW 2 in favour of accused No.1, whereon she had put
her signature, same was attested by Indian Embassy, Germany.
Through the PW 1 and 2, so many documents are got marked which are
not relevant to this case, the relevant documents are :
Ex.P.13/ Ex.P.1 : Special Power of Attorney - disputed
document
12
Ex.P. 14/Ex.P.2 : Affidavit - disputed document
In the cross examination of PW 1 and 2, it is just a denial of chief
examination by the defence counsel.
16. In respect of the incident, the evidence of PW 1 and 2, there is
no consistency, at page No.3, the PW 1 has given evidence to the effect
that on 16/8/08, he and PW 2 gone to the Police Station, at that time,
he came to know that accused No.1 by handing over the original
property documents to accused No.2 had availed a loan by mortgaging
the disputed property. In the Police Station, the Inspector enquired
about the original deeds and asked the accused No.2 to produce the
original, at that time, he informed that he himself and accused No.1
have availed huge loan on the disputed property with one Smt.Vathsala
Revanna by depositing the property documents ie., CW 3. Whereas this
fact has not been deposed by the PW 2, the wife of PW 1/complainant.
From the above evidence of the PW 1, it is obviously clear that the
accused No.1 and 2 mortgaged the property to the CW 3 and taken loan,
whereas PW 2 says accused No.1 and 2 have sold the property to the
CW 3. In this regard, the Investigating officer has collected Ex.P.11 i.e.,
sale deed executed by the accused No.1 and 2, as per that, on 19/7/08,
these accused No.1 and 2 were sold the said property to CW 3
(incomplete and xerox copy of the sale deed). From this document it is
gathered that accused No.1 and 2 were sold the property in favour of
CW 3 on the basis of the Power of Attorney executed by CW 1.
According to CW 1, she has not executed any Power of Attorney in
13
favour of accused No.1, ie., Ex.P.13 and it was created by the accused
No.1 and 2 for the purpose of dealing with her property.
17. Before discussing the disputed document, earlier as per Ex.P.3
and Ex.P.8, the CW 1 had executed a Power of attorney in favour of
accused No.1 and another person, this aspect need not before the court
discussed in detail, because, those documents are admitted by the CW1.
The disputed documents are Ex.P.13 and Ex.P.14 are marked twice i.e.,
Ex.P.1 and 2. Ex.P.13 is the General Power of Attorney which is not
registered, according to the prosecution, on that basis the accused No.1
and 2 were sold the property in favour of CW 3. Ex.P.13 was Notarized
before the Notary Public Smt.R.Lalithamma on 11/9/95 and for that
one S.Krishna, Advocate identified the CW 1 as Andal Shanmuga
Sundaram. Since, the prosecution is seriously disputing the
Ex.P.13/Ex.P.1, they should have examined the Notary as well as the
Advocate, who identified the Andal Shanmuga Sundaram before Notary
at the time of executing the Ex.P.13. Here, the Investigating officer had
not shown them as a chargesheet witnesses. If the said Notary and
Advocate had been examined before the court, definitely the whole truth
should have come before the court, as to whether the C.W.1 was present
before them at the time of execution of Ex.P13 or whether she was at
Berlin, Germany. Though the eye witnesses are available, they have not
shown as a chargesheet witnesses and Investigating officer negligently
conducted the investigation and filed the chargesheet. Under such
circumstances, the prosecution has not examined eye witnesses to prove
that Ex.P.13/ Ex.P.1 is a forged document. Very same thing is
14
happened in respect of Ex.P.14/Ex.P.2the Affidavit. Under such
circumstances, citing the CW 8 to 18 except CW 13, as a witnesses is of
no use to the case of the prosecution.
18. Now comes to the evidence of PW 3, who is none other than the
brother of PW 1, he was not tendered for cross examination and
ultimately his evidence was discarded. The PW 4, who is the
Asst.Executive Engineer of BESCOM has given evidence to the effect
that he has passed the transfer order as per Ex.P.5 (Transfer of
Electricity meeter in the name of CW 3), his evidence is not helpful to
the case of the prosecution. PW 5 who is none other than the ASI of
Vijayanagar Police Station, he has given his evidence to the effect that
on 3/5/07, when he was SHO, the CW 1 came to the Police Station and
given complaint that she has lost her original documents in respect of
her house. The complaint marked at Ex.P.9 and her signature is got
marked at Ex.P.9(a). At this stage itself let me clarify that the
PW2/CW1 in her evidence denied that she has lodged the complaint in
respect of lost of original documents as per Ex.P.9. From this attitude
of the PW 2, it is gathered that she is not ready to give true picture in
respect of the incident. The PW 5 while discharging his official duty, he
has received the Ex.P.9 and also mentioned the presence of the CW 1 on
that day, to disprove the same, no other materials is produced by the
prosecution to say that at that time the CW 1 was at Berlin, Germany.
There is no reason to disbelieve the evidence of PW 5, so, court come to
the conclusion that at the time of giving Ex.P.9, the CW 1 was present
and given the complaint for lost of her original documents in respect of
15
the house. The PW 6 who has filed the chargesheet after completion of
the various stages of the investigation. In the cross examination it is just
denial of the chief examination.
19. The Investigating officer has forwarded Ex.P.13/Ex.P.1 and
Ex.P.14/Ex.P.2 to the Finger print and handwriting expert ie., Mudra
Associates who is private one, according to the records available in the
file, the expert has examined the following:
1) A4 : Investigating officer has taken a signature from
accused No.2 ie., Kiran Kumar as Andal Shanmuga
Sundaram
2) Q1 : Alleged signature of CW 1 found on
Ex.P.13(disputed)
3) Q2 : Alleged signature of CW 1 found on
Ex.P.14(disputed)
4) Q3 : alleged signature of CW 1 found on Ex.P.5
(disputed), the original is not marked, but,
signature marked at Q3
The expert comparing the signature found on the A4 with the
questioned signature marked at Q1 to Q3 arrived a conclusion that the
person who wrote the red enclosed admitted signature as Andal
Sundaram marked A4 did not write the red enclosed questioned
signature as Andal Sundaram marked Q1 , Q2 and Q3.
16
20. As stated above A4 is the specimen signature obtained by the
Expert from the accused No.2 i.e., Kirankumar to compare the signature
found on the Ex.P.13 and Ex.P.14. In fact there was no need to send
the signature of accused No.2 compare the same with the signature
found on the Ex.P.13 and Ex.P.14, because, all along it is the case of the
prosecution that accused No.1 forged her signature on the Power of
Attorney and sold the property. For the reasons best known to the
Investigating officer, same has been sent to the Expert and opinion was
sought, but, it is not useful to the case of the prosecution.
21. Now come to the A1 : is the Specimen signature obtained from
accused No.1 to write as Andal Sundaram,
A2: is the word Andal found on the Ex.P.26
A3: is the word Andal found on the Ex.P.27
Compare the same with the questioned document ie.,
Q1 : Signature found on the Ex.P.13
Q2: Signature found on the Ex.P.14
Q3: Signature found on the application given to the BESCOM
According to the prosecution, all the questioned Q1 to 3 are not
the signature of CW 1, but, it is created by the accused No.1 to deal
with the property of the CW 1. The expert has given following opinion
on the said documents :
17
The person who wrote the red enclosed contemporary writings
as 'Andal' marked 'A2' and 'A3' and admitted signature as 'Andal
Shanmuga Sundaram' marked 'A1' also wrote all the red enclosed
questioned signatures 'Andal Shanumuga Sundaram' marked 'Q1',
'Q2' and 'Q3' (Markings made on the xerox copy).
From the said opinion of the expert it is obviously clear that
signature found on the Ex.P.13 and Ex.P.14 is not the signature of the
CW 1. It appears from the record the expert compared the signature of
CW 1 found on the Ex.P.23 and Ex.P.24 (admitted), he might have given
above opinion.
22. The learned Sr.APP has argued that though the evidence of CW
13 is dropped, there is some value to the opinion given by the CW 13
and same has to be considered as a evidence against the accused
persons as per Sec.293 of Cr.P.C., The said Section reads as under :
Sec.293 of IPC. Reports of certain Government scientific experts : (1)
Any document purporting to be a report under the hand of a
Government scientific expert to whom this section applies, upon any
matter or thing duly submitted to him for examination or analysis and
report in the course of any proceeding under this Code, may be used as
evidence in any inquiry, trial or other proceeding under this Code.
(1)...........
(2)...........
18
(3)...........
(4) This section applies to the following Government scientific
experts, namely:
(a) any Chemical examiner or Assistant Chemical Examiner to
Government;
(b) the Chief Controller of Explosives;
(c) the Director of the finger print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director (Deputy Director or Assistant Director) of a Central
Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government scientific expert specified, by notification,
by the Central Government for this purpose.
The plain reading of the said section whatever the report given by
the Government Scientific expert stated above can be used as evidence
in any inquiry or trial. In a case on hand , the CW 13 is not a
Government Scientific Expert and on the other hand, he is running the
Finger Print and Handwriting under the name and style Mudra
Associates which is a private firm, therefore, the benefit under Sec.293
of Cr.P.C., cannot be extended to him. Through the Investigating officer
also, the prosecution has not got marked the said opinion of C.W.13,
therefore, no sanctity can be attached to the said opinion and on the
basis of the said opinion, under the above narrated circumstances, the
court cannot come to the conclusion that the accused No.1 forged the
19
signature of CW 1 in order to deal with the property. At this stage, it is
necessary to cite the ruling of Hon'ble High Court of Rajasthan at
Jaipur reported in 2005 Crl.L.J.105 in the matter of Chouthuram
and others v/s.The State of Rajasthan and others held that
Apart from above legal position, it appears from the evidence
produced by the prosecution itself that PW 1 Balwant Singh who
was subRegistrar at the relevant time, stated on oath before the
Trial court that the sale deed was got registered by Ramu, Mangla,
Chothu, Sua and Chhotu. He further stated that signatures of
executants and witnesses were obtained before Bhagwan Sahai, who
was the concerned clerk in the office of the SubRegistrar. The
prosecution witness PW 3 Bhagwan Sahai also stated on oath that
in the register (Ex.P.2) at S.No.401, entries were made by him in his
hand writing. He further stated that Ex.P.2 bears the thumb
impressions of Ramu, Mangla, Chothu, Sua, Chhotu, Mal Singh and
Shanker. These persons were identified by Mohan Lal, Deed Writer.
The Deed Writer Mohan Lal appeared as prosecution witness PW 4
and he stated on oath that he wrote the saledeed Ex.P.1 dated
13/7/1982 as per the instructions of Ramu, Mangla, Chothu, Sua
and Chhotu. The executants were identified by Mal Singh and
Shankar and he identified Mal Singh and Shanker in the tehsil
office. The other witnesses PW 5 Hanuman Singh, PW 6 Magan
Singh and PW 7 Ganesh turned hostile and they have not supported
the prosecution case. There is no evidence available on record to
20
prove that sale deed Ex.P.1 bears the forged thumb impressions of
Mangla and Ramu. The statement of PW 2 Kana Ram cannot help to
the prosecution because neither he was present at the time of
execution of the sale deeds nor he could have any knowledge about
the fact whether Ramu and Mangla put their thumb impression
over the sale deeds or not.
In view of the above discussions, it is clear that the courts
below merely by influence of a document available on record
though was not tendered in evidence nor proved nor any question
was put to the accused about the finger print report, reached to the
conclusion that Ex.P.1 sale deed dated 14/7/1982 bears the forged
signatures of Ramu and Mangala and by this, committed serious
error of law. Therefore, the judgment of both the courts below
deserves to be set aside.
The said ruling is aptly applicable to the case on hand, because, to
the Ex.P.13 and Ex.P.14, there is an eye witness i.e., Notary public and
advocate identified the party, they have not been shown as a witness,
therefore, though the eye witnesses are available the prosecution has
not been examined them to arrive a conclusion that the accused No.1
herself made believed as CW 1 and created the said two documents.
Secondly in order to prove the Ex.P.13 and Ex.P.14 the prosecution has
not examined the CW 13 and no opportunity to was given to the accused
21
to cross examine the CW 13. Further, privilege is not available to the
Ex.P.13 and Ex.P.14 because, those documents were examined and
given opinion by the private expert, not as stated in the sec.293(4) of
Cr.P.C.,
Further, as per the version of prosecution, the PW 1 and 2 not only
deceived the CW 1 and 2 but also CW 3. According to that, the accused
No.1 and 2 after selling the disputed house in favour of CW 3, the sale
consideration was made use their personal purpose. Thus, contended
that sec.420 of IPC is attracted. As discussed above, the prosecution
has not proved the guilt against the accused No.1 in respect of forging
Ex.P.13 and Ex.P.14 i.e., Power of Attorney and Affidavit. In this case,
real sufferer is CW 3, as stated above, she has not been examined and
her evidence was dropped. If really the accused persons were deceived
CW 3 definitely she would have come and given evidence how the
accused persons were deceived her and extracted money from her, no
such evidence is available in the file. Under such circumstances, the
prosecution has not proved anyone of the ingredients of Sec.420 of IPC.
Therefore, the prosecution utterly failed to prove the ingredients of
Sec.468, 471 and 420 of IPC from the evidence, hence, in my opinion it
is a fit case to extend benefit of doubt to the accused. Accordingly
point No.2 under reference answered in the Negative.
23. POINT NO.3 :
For the aforesaid reason and discussion, I proceed to pass the
following:
22
ORDER
Acting under section 248(1) of Cr.P.C. Accused No.1 and 2 are hereby acquitted for the offence punishable U/s.379, 468, 471 and 420 of IPC. They are set at liberty.
The bail bond executed by the accused stands cancelled. However, Accused shall execute personal bond of Rs.50,000/ each by undertaking to appear before the appellate Court, if any appeal is filed. It is not a fit case to award victim compensation as provided U/s.357(1) of Cr.P.C.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 6th of July 2020).
(Balagopalakrishna) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Shanmuga Sundaram PW2 : Andal Shanmuga Sundaram PW3 : Bhakthavathsala PW4 : Varaprasad PW 5 : Huchchaiah PW 6 : Bharath.B 23
Documents marked for the Prosecution:
Ex.P1 : Copy of GPA Ex.P2 : Affidavit Ex.P34 : Copies of GPA Ex.P5 : Application submitted to BESCOM Ex.P6 : Complaint Ex.P7 : Spot immediately Ex.P8 : Revocation and Replacement of power of attorney Ex.P9 : Complaint dtd: 5/3/07 Ex.P. 10 : Advertisement in Vijaya Karnataka newspaper Ex.P.11 : Sale deed Ex.P.12 : Original Sale deed Ex.P.13 : GPA Ex.P.14 : Fake Affidavit Ex.P.15 : Original GPA Ex.P.16 : Specimen handwriting and signatures Ex.P.17 : Specimen signature of PW 2 Ex.P.18 : Letter dtd: 18/9/08 Ex.P.19 : Letter written by CW 19 Ex.P.20 : Letter Ex.P.2124 : Specimen signature and handwriting of complainant Ex.P.25 : Specimen signature and handwriting
Witnesses examined for the accused:
NIL 24 Documents marked for the accused: NIL (Balagopalakrishna) XXIV A.C.M.M., BENGALURU.