Bangalore District Court
State By Jayanagar Ps vs Has Produced The Insurance And Policy ... on 20 July, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 20th day of July 2016
Present : Smt. Roopa R. Kulkarni,
B.Com., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 5579/2011
2. The date of commission
of the offence : September 2008
3. Name of the complainant : State by Jayanagar PS
4. Name of the accused : Shankar, 46 Yrs.,
S/o Chandappa,
R/a. No.55, 2nd cross,
Saptagiri Badavane, Nagasandra,
Doddabidarakally, Tumkur Road,
Bengaluru.
5. The offences complained : U/s.406, 420 IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 20.07.2016
Police Sub Inspector of Jayanagar police station has filed
sheet against the accused for the offences punishable u/s.406, 420
of IPC.
2 CC.NO.5579/2011
2. The brief facts of the prosecution case are as under :
The accused had taken a loan of Rs.12,08,000/- from State
Bank of Hyderabad of Jayanagar Branch belonging to CW1 and he
has purchased car at Ravindu Toyota Motors Pvt. Ltd., of
Rajajinagar and in order to deceive the complainant bank he had
temporarily registered the said car under Regn. No.KA-05 TR-7375
and has hypothecated the same with CW1 bank and he had paid
the installments for 3 months and thereafter he failed to pay the
installments from January 2009 and he had not registered the car
permanently and has received the bank notice and intentionally he
had not informed the CW1 bank and he had taken hand loan of
Rs.3 Lakhs from CW3 and has furnished the car for security and
has alleged that the accused without showing the car to the bank
staff and without making repayment of the loan amount has
cheated the complainant bank and has committed the breach of
trust and thereby the accused has committed the offences
punishable u/s.406, 420 of IPC.
3. On the basis of first information statement lodged by CW1 -
the Manager of the complainant bank, FIR has been registered at
Crime No.6/2010 of Jayanagar police station.
4. During the course of investigation accused was arrested and
produced before the court. He was remanded to JC and thereafter
he was enlarged on bail.
5. After submission of the charge sheet, cognizance was taken
for the offences alleged against the accused and copy of charge
3 CC.NO.5579/2011
sheet was furnished to the accused as required u/s.207 of Cr.P.C.
Charge was framed for the offences punishable u/s.406, 420 of
IPC. Accused pleaded not guilty and claimed to be tried.
6. CW1 to CW8 witnesses have been cited in the charge sheet.
During the course of trial, CW2 was examined as PW1 and he got
marked documents at Ex.P.1 to Ex.P.18. CW1 was examined as
PW2 and he got marked documents at Ex.P.19 to Ex.P.25.
7. 313 statement of accused was recorded and it is submitted
that there is no defence on behalf of the accused.
8. Heard arguments of Senior APP and advocate for the accused.
9. On perusal of the evidence of PW1, he has stated in his
evidence that he has served at State Bank of Hyderabad, Jayanagar
Branch from May 2008 to February 2009 and during September
2008 the accused has filed an application before the bank and has
applied for loan for the purchase of car and at the time of
submitting the application the accused has produced the Income
Tax paid documents and balance sheet of Garment Factory and has
also produced the invoices issued by Ravindu Toyota Motors Pvt.
Ltd., and the wife of the accused was stood as surety for the said
loan. At the time of availing loan the accused has also produced
photograph and address proof documents and he has received the
loan application from accused and he has forwarded the same to
Processing Cell and in that month only car loan was used to be
granted under the scheme to high network customers who were
availing the said scheme. Thereafter the loan was granted from
4 CC.NO.5579/2011
their bank in favour of the accused and they have granted loan of
Rs.12,00,000/- through DD in the name of Ravindu Toyota Motors
Pvt. Ltd., and afterwards the accused took the possession of the
said car and has hypothecated the same with their bank and
accused has produced the insurance and policy certificate of the
said car and at the time of availing loan the accused has got
registered the said car temporarily and after availing the loan the
accused had paid the installments for 3 months and the accused
had paid installments for 2 times through cheque and 4th cheque
issued by the accused was returned with an endorsement that
"there is no sufficient funds" and so he had filed case against the
accused. He has also stated that, thereafter they went to the
residence of the accused but they did not found the accused nor
the car which was purchased from the loan and so the account of
the accused was converted into Non Performing Asset and
thereafter through a daily newspaper he noticed that accused was
arrested from Chandra Layout police and the accused had cheated
3 to 4 banks and he had also availed loan from MLA and so CW1
had filed complaint before Jayanagar police station and police have
seized the car from the house of MLA and thereafter he took the
possession of the said car from accused and they sold out the same
in auction sale. So, due to the act of the accused they have
sustained loss and accused has cheated the bank and he got
marked documents at Ex.P.1 to Ex.P.18 with regard to the loan
transaction and regarding the purchase of the car.
10. On perusal of the records, it appears that cross-examination
of PW1 was taken as nil as no witness batta has been paid by the
defence side.
5 CC.NO.5579/2011
11. The complainant who is examined as PW2 has stated in his
evidence that he was working as Manager in SBH of Jayanagar
Branch from June 2009 to May 2011 and on 4.1.2010 he had filed
complaint against the accused and on 8.9.2008 the accused had
availed car loan from their bank and prior to that the accused was
not the customer of their bank and at the time of availing the loan
the accused has submitted IT returns, ID proof and address proof
and business address proof documents and he had availed loan in
order to purchase the Toyota Carolla Altis car and his wife by name
Shantakumari was stood as surety for the said loan and accused
was sanctioned a loan of Rs.12,08,000/- and he has to pay the said
loan in 84 installments. The accused had paid 2 installments and
thereafter the accused absconded with his car and the notice sent
by their ban were returned without service and accused had also
furnished invoice and temporary registration RC book to them and
though they had made efforts to trace out the accused, they failed
to trace out the accused and on 4.1.2010 in a Kannada daily
newspaper the photograph of the accused was published and they
came to know that the accused is in the custody of Chandra Layout
police station and he got marked documents at Ex.P.19 i.e.
complaint filed by him and got marked his signature at Ex.P.19(a)
and he has also got indentified the document at Ex.P.1 to 18 and
he got marked the IT returns belonging to the wife of accused
Shantakumari as per Ex.P.21 to Ex.P.23 and got marked the xerox
copy of the PAN card of the accused at Ex.P.24 and got marked IT
returns, self assessment and Tax paid receipts as per Ex.P.24 to
Ex.P.28 and he got marked the Data Processing issued by their
bank as per Ex.P.29. Further he has stated that, the accused
without making repayment of the loan amount has cheated their
bank. In his cross-examination has stated that, he has filed
6 CC.NO.5579/2011
complaint on 6.1.2008 and as the accused has not made
repayment of the loan availed from their bank, he has filed
complaint against the accused. He has further stated that, after
verifying the documents and loan application the loan will be
sanctioned by their bank and they used to issue DD in the name of
company and has stated that, he has produced the documents to
show that they have issued DD in favour of the company i.e.
Ravindu Motors. Further he has stated that, he is deposing on the
basis of the documents available with the bank and has stated
that, the accused had paid last installment in the month of October
and November 2008. Further he has stated that, in the year 2009
they went to lodge complaint before the police and at that time the
police have told that they have to furnish the address and have not
received the complaint and stated that they have not stated the
said fact in Ex.P.19. Further he has stated that, he do not
remember as to number of blank cheques taken by the accused at
the time of sanctioning the loan. Further he has stated that, they
have also filed case against the accused for the offence punishable
u/s.138 NI Act and he do not know the number of the said case.
Further he has stated that, he had not enquired as to the car
purchased by the accused was having permanent registration
number of not. In his further cross-examination has stated that,
they have filed complaint against the accused as he failed to pay
the remaining installments. Further he has stated that, they have
enquired as to the car was registered or not after 3 months of the
transaction and has stated that, after the enquiry they had issued
notice to the accused and has stated that, they have obtained the
possession of the car through the court order and they have
auctioned the said car and the said car was sold out for
Rs.6,65,000/- in the auction sale. Further he has denied that,
7 CC.NO.5579/2011
accused has not committed any offence and has denied that though
there was provision to recover the loan amount from surety they
have filed false case against the accused.
12. On perusal of the evidence adduced by the prosecution side
and looking to the complaint averments, it is not disputed that the
accused has availed a loan from the complainant bank in order to
purchase a car. As per the complaint bank the accused has paid
three installments and he failed to pay the remaining installments
and he did not repay the loan amount as agreed under the terms of
the agreement. It is also alleged that, as per the terms of loan
agreement the accused was agreed to repay the loan amount within
84 installments. Admittedly, the complainant bank has auctioned
the car in auction sale for Rs.6,65,000/-. The complainant bank
has alleged that, the accused has cheated their bank by not paying
the remaining loan amount and has breached the terms of loan
agreement and thereby he has committed the offences punishable
u/s.406 and 420 of IPC.
13. As per the provisions of Sec.405 of IPC, Whoever, being in any
manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or coverts to his own use
that property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust,
or willfully suffers any other person so to do, commits "criminal
breach of trust".
8 CC.NO.5579/2011
14. In the present case there is no evidence that the accused has
dishonestly misappropriated the property in violation of the terms
of agreement. The possession of the hypothecates car was taken by
the bank from Court order and they have sold out the said car in
an auction sale. Further the evidence of PW2 discloses that at the
time of sanctioning loan in favour of the accused they have
obtained 3 to 4 blanked cheques from the accused. Non payment
of the balance loan amount as per the terms of agreement does not
amount to criminal breach of trust or cheating. So, the case made
out by the prosecution does not attracts the provisions of Sec.405
and 419 of IPC. So, the prosecution has failed to prove that the
accused has committed the offences punishable u/s.406, 420 of
IPC. In the result, I proceed to pass the following :
ORDER
Accused is not found guilty for the offences punishable u/s.406, 420 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 420 IPC.
Bail bond of accused and that of his surety stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 20th Day of July 2016) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
9 CC.NO.5579/2011ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Venkatesh Kulkarni PW.2 : Dumal Vittal Rao
List of exhibits marked for prosecution:-
Ex.P.1 : Arrangement letter Ex.P.2 : Surety agreement Ex.P.3 & 4: Form No.30 Ex.P.5 : Letter from Central Office to Bank regarding sanction of loan Ex.P.6 : Processing letter regarding loan Ex.P.7 & 8: Assets & Liabilities letter of accused and his wife Ex.P.9 : Invoice Ex.P.10: Documents submitted along with loan application Ex.P.11: Original loan application Ex.P.12: Original delivery note Ex.P.13 & Ex.P.14 : Receipts issued by Ravindu Toyota company Ex.P.15 : Hypothecation agreement Ex.P.16 : Temporary registration document of car Ex.P.17 & Ex.P.18 : Notices sent to accused. Ex.P.19 : Complaint Ex.P.20 : Xerox copy of PAN card of accused Ex.P.21 : Xerox copy of IT return of Shantakumari Ex.P.22 : Xerox copy of PAN card of Shantakumari Ex.P.23 : Xerox copy of IT return of Shantakumari for the period 2007-08 Ex.P.24 : Receipt under self asessment Ex.P.25 : Copy of IT return of accused for 2006-07 Ex.P.26 : Balance sheet of Shantakumari for the year 2008-09 Ex.P.27 : Xerox copy of IT return of Shantakumari for the year 2006-07 Ex.P.28 : Xerox copy of assessment Ex.P.29 : Document regarding data process 10 CC.NO.5579/2011 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.11 CC.NO.5579/2011
20.07.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offences punishable u/s.406, 420 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 420 IPC.
Bail bond of accused and that of his surety stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 20th Day of July 2016) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.