Bangalore District Court
A B Sri Venkata vs Cbieowchennai on 29 January, 2025
KABC010024182017
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND PRINCIPAL SPECIAL
JUDGE FOR CBI CASES, BENGALURU (CCH-4)
DATED THIS THE DAY OF 29th OF JANUARY, 2025.
PRESENT: SRI. SHRIDHAR GOPALAKRISHNA BHAT
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Criminal Appeal No.110/2017 with
Crl.A.No.248/2017
Appellant : Sri. S. Nagaprasad
(Accused No.2) S/o. Late. R.Shivaram,
in Aged 51 years,
Crl.A.110/2017 No.253, 1st Floor,
7th Main, KSRTC Layout,
JP Nagar II Phase,
Bengaluru.
No.401/1, Subedar Chatram Road,
Sheshadripuram,
Bengaluru - 560 020.
(By Sri.R.Nagendra Naik, Advocate)
Appellant : Sri. A.B.Srivenkata
(Accused No.5) S/o. Arunachalam Balakrishnan,
in No.19, 1st Cross,
Crl.A.248/2017 Bhashyam Nagar,
Srirampuram,
Bengaluru - 560 021.
(By Sri.B.Rajendra Prasad and
Sri. S.M.Darshan, Advocates)
Vs
2 Crl.A.110/2017 c/w. 248/2017
Respondent : State by CBI/EWO/Chennai.
(By Sri.Shivanand Perla,
Learned Sr. Public Prosecutor)
COMMON JUDGMENT
The appellants (accused Nos.2 and 5) being
aggrieved by the judgment of conviction dated
24.01.2017, passed by the learned 17 th Addl.
Metropolitan Magistrate Bengaluru, in CC No.273/2014
filed the present appeals under Section 374(3) of the
Cr.P.C., praying to set aside their conviction and thereby
to acquit them for the charges leveled against them.
2. There were six accused persons in CC
No.273/2014 and out of them accused No.1, 4 and 6
were acquitted and accused Nos.2, 3 and 5 were
convicted by the Learned Magistrate. Now, the accused
No.2 and 5 have come up with the present appeals. The
appellant in Crl.A. No.110/2017 is accused No.2 and the
appellant in Crl.A.248/2017 is accused No.5 and the
parties are referred to as per their ranking before the
trial court.
3. The facts of the prosecution case in nutshell
are as under;
The accused No.1 Sri.B.T.Puttappa and one Sri.
Ajay Naik were partners of a Firm by name
M/s.K.Display Infrastructure, which was engaged in
providing advertisement display structures. They
approached the IDBI Bank, MSME Mission Road,
3 Crl.A.110/2017 c/w. 248/2017
Bengaluru for financial assistance and sanctioned with
cash credit facility of Rs.150 lakhs and Bank Guarantee
of Rs.50 lakhs on offering collateral security. However,
cash credit of only Rs.78 lakhs was released as title of
the collateral security of one of the properties was not
clear. Thereafter, on 07.10.2009, accused No.1 and his
wife Smt. Deepthi Nanaiah started a Partnership Firm by
name M/s. K.Urban Infrastructure located at Banaswadi
Main Road, Cox Town, Bengaluru. The said firm was
engaged in the business of erecting display structures,
sky walk etc., On 04.02.2010, accused No.2
Sri.S.Nagaprasad was inducted as partner of the said
Firm.
4. Further during the year 2009 and 2010,
accused No.1 and 2 being the partners of accused No.3
Firm M/s. K.Urban Infrastructure, accused No.4 Sri.
C.Ethiraju, accused No.5 Sri.A.B.Srivenkata and accused
No.6 Sri.Devaiah K.A. entered into a criminal conspiracy
at Bengaluru to cheat IDBI Bank Ltd., Mission Road,
Bengaluru. In pursuance of the said criminal conspiracy,
accused Nos.1 and 2 had applied for sanction of cash
credit limit in the name of accused No.3 Firm to the tune
of Rs.5 Crores and offered the property bearing No.131
(Old No. 401/1), situated at Subedar Chatram Road,
Sheshadripuram, Bengaluru, which was already
alienated in the form of sale and mortgage to different
persons as on 01.01.2010 as collateral security for
availing the said loan in the Account Number of the
accused No.3 Firm from IDBI Bank Ltd., Mission Road,
4 Crl.A.110/2017 c/w. 248/2017
Bengaluru knowing fully well that the same was already
mortgaged to the State Bank of India, Bengaluru on
14.03.1987 by the father of the accused No.2 and also
that the said property was alienated to the different
persons.
5. In pursuance of the said criminal conspiracy,
accused No.4 fraudulently managed to issue the
Encumbrance Certificate of the said property to show as
if the said property is not alienated to different persons
and thereby accused Nos.1 and 2 got sanctioned Cash
Credit limit of Rs.3 Crores from IDBI Bank, Mission Road
Branch, in favour of accused No.3 Firm. Further, in
furtherance of the criminal conspiracy, accused No.1
dishonestly requested the IDBI Bank to disburse an
amount of Rs.94 lakhs for the purpose of settling the
dues, but used the said amount for the purpose of
settlement of old loans including the loan of accused
No.2 to the tune of Rs.22 lakhs in favour of one Nagaraj
Gubba and payment of Rs.10 lakhs to accused No.4 and
also used an amount of Rs.80 lakhs dishonestly to close
the Cash Credit loan of M/s.K.Display Infrastructure and
thereby deviated the loan amount from the purpose for
which it was sanctioned. In furtherance of the criminal
conspiracy, accused No.5 impersonated Sri.S.Srinath,
the brother of accused No.2, by using forged ID Card got
prepared by accused No.6 and executed Deed of
Guarantee for the Cash Credit limit of accused No.3
Firm, for which, he received illegal consideration of
Rs.2,50,000/- by way of DD drawn on IDBI Bank Ltd.,
5 Crl.A.110/2017 c/w. 248/2017
Further, accused No.6 had used the service of
Late.Sri.Abdul Lateef @ Rakesh Sharma of Bettoli Village,
Virajpete Taluk, Madikeri District for preparing the
forged Voter ID Card bearing No.BYCO104305 in the
name of brother of the accused No.2, for which he
received an amount of Rs.2,50,000/- through DD dated
13.11.2010 in the account of Sri.Anthony Amal Rajan.
The accused Nos.1 to 3 failed to repay the loan to the
IDBI Bank and the Cash Credit loan amount of the
accused No.3 Firm was declared as NPA with
outstanding balance of Rs.3,04,02,771/- as on
30.06.2011 and thereby cheated the IDBI Bank to the
tune of Rs.4,14,33,073/- as on 31.05.2013 and thereby
the accused persons have committed the offence
punishable under Section 120B read with Sections 419,
420, 467, 468 and 471 of the IPC.
6. On the basis of the First Information
Statement lodged by CW.1, the Assistant General
Manager, IDBI Bank, on 27.06.2013 before the
Superintendent of Police, CBI, Economic Offence Wing,
Chennai, the case was registered in RC 05(E)/2013 and
the same was entrusted to CW.54 Sri.S.B.Shankar, Addl.
Superintendent of Police, CBI/EOW, Chennai for
investigation. CW.54, after holding the investigation filed
the charge sheet against the accused No.1 to 5 and also
filed Supplementary Charge Sheet against accused No.6
for the said offences.
7. After filing of the charge sheet the Learned
Magistrate was pleased to take cognizance of the offence
6 Crl.A.110/2017 c/w. 248/2017
against accused No.1 to 5 by order dated 04.01.2014 and
as against accused No.6 on 28.11.2014 after filing of the
supplementary charge sheet on 20.11.2014. The
requirement of Section 207 of the Cr.P.C., was complied
and after hearing the accused persons before framing the
charge, the learned Magistrate was pleased to frame the
charges against the accused persons, for which they did
not plead guilty and claimed for trial.
8. In order to bring home the guilt of the accused
persons, the prosecution has shown in all 54 witnesses
in the charge sheet as CW.1 to CW.54 and out of the said
witnesses examined in all 50 witnesses as PW.1 to PW.50
and got marked as many as 309 documents as per
Ex.P.1 to P.309. After completion of the prosecution side
evidence, statement of the accused under Section 313 of
the Cr.P.C was recorded. The accused persons have
denied the incriminating circumstances appearing
against them in the prosecution side evidence. The
accused No.1 was examined as DW.1 and got marked 11
documents as per Ex.D.25 to D.35 and also got marked
16 documents as per Ex.D.1, 3 to 5 D.11 to 16, D.18 to
23 during cross-examination of the prosecution
witnesses. The other accused persons have not opted to
place any defence evidence on their behalf. However,
accused No.2 got marked 7 documents as per Ex.D.2,
D.6 to 10 and D.24 and accused No.5 got marked 1
document as per Ex.D.17 during cross-examination of
prosecution witnesses.
7 Crl.A.110/2017 c/w. 248/2017
9. The Learned Magistrate, after hearing the
arguments of both sides, passed the judgment dated
24.01.2017 and thereby acquitted accused Nos.1, 4 and
6 of the offences punishable under Section 120B read
with Sections 419, 420, 467, 468 and 471 of the IPC and
of the substantive offences thereof. Further, accused
Nos.2, 3 and 5 are also acquitted of the offence
punishable under Section 467 of the IPC. However,
accused Nos.2 and 3 are convicted of the offences
punishable under Section 120B read with Sections 419,
420, 468 and 471 of the IPC and also of the substantive
offences punishable under Section 419, 420, 468 and
471 of the IPC. The accused No.5 is convicted for the
offence punishable under Section 120B read with
Section 419, 468 and 471 of the IPC and also of the
substantive offences punishable under Section 419, 468
and 471 of the IPC and sentenced them as under;
"The accused Nos.2 and 5 each are
sentenced to undergo R.I. for a period of 2
(two) years for the offence punishable
u/Sec.120B r/w Ss. 419, 420, 468 and 471
of the IPC and they shall pay fine of
Rs.10,000/- each.
In default of payment of fine amount,
they shall undergo R.I. further for a period
of six months.
The accused No.3 firm shall pay fine of
Rs.25,000/- for the offence punishable
u/Sec.120B r/w Ss. 419, 420, 468 and 471
of the IPC.
8 Crl.A.110/2017 c/w. 248/2017
The accused Nos.2 and 5 each are
sentenced to undergo R.I. for a period of 2
(two) years for the offence punishable
u/Sec.419 of the IPC and they shall pay fine
of Rs.10,000/- each. In default of payment
of fine amount, they shall undergo R.I.
further for a period of six months.
The accused No.3 firm shall pay fine of
Rs.25,000/- for the offence punishable
u/Sec. 419 of the IPC.
The accused No.2 is sentenced to
undergo R.I. for a period of 5 (five) years for
the offence punishable u/Sec.420 of the IPC
and he shall pay fine of Rs.25,000/-. In
default of payment of fine amount, he shall
undergo R.I. further for a period of one year.
The accused No.3 firm shall pay fine of
Rs.50,000/-for the offence punishable
u/Sec. 420 of the IPC.
The accused Nos.2 and 5 each are
sentenced to undergo R.I. for a period of 3
(three) years for the offence punishable
u/Sec.468 of the IPC and they shall pay fine
of Rs.10,000/- each. In default of payment
of fine amount, they shall undergo R.I.
further for a period of six months.
The accused No.3 firm shall pay fine of
Rs.25,000/- for the offence punishable
u/Sec.468 of the IPC.
9 Crl.A.110/2017 c/w. 248/2017
The accused Nos.2 and 5 each are
sentenced to undergo R.I. for a period of 2
(two) years for the offence punishable
u/Sec.471 of the IPC and they shall pay fine
of Rs.10,000/- each. In default of payment
of fine amount, they shall undergo R.I.
further for a period of six months.
The accused No.3 firm shall pay fine of
Rs.25,000/-for the offence punishable
u/Sec.471 of the IPC.
The accused No.2 in total shall pay fine
amount of Rs.65,000/-.
The accused No.3 in total shall pay fine
amount of Rs.1,50,000/-.
The accused No.5 in total shall pay fine
amount of Rs.40,000/-.
The sentences of imprisonment
imposed against the accused Nos.2 and 5
herein shall run concurrently.
The imprisonment awarded in default
of payment of fine amount against the
accused Nos.2 and 5 shall be in addition to
the substantive sentences of imprisonment.
If the accused No.3 the partnership
firm is failed to pay the fine amount, the
office is directed to register a Crl.Misc. case
u/Sec.421 of the Cr.P.C. against it for
recovery of the fine amount."
10. Being aggrieved by the said judgment of
conviction and sentence, accused No.2 has filed the
10 Crl.A.110/2017 c/w. 248/2017
Crl.A.No.110/2017 contending that- the Learned
Magistrate perfunctorily without application of mind,
having failed to consider the evidence on record,
capriciously convicted him. The approach adopted by
the Magistrate is erroneous and misdirected himself to
consider the alleged conspiracy entirely on
circumstantial evidence despite the documentary
evidence on record pointing non involvement of accused
No.2, by ignoring the primary documentary evidence
proving his innocence. The Magistrate surprisingly
convicted him by concluding theory of conspiracy only
against him and not against other persons and other
persons are scot free. The accused No.2 had genuinely
and bona-fidely believed that he made aware the Bank of
all the entries reflected in Ex.P.2 Encumbrance
Certificate and upon which, the Bank has accepted his
property by holding that accused No.2 and his family
members are having right over the property offered as
collateral security. It was well within the knowledge of
the Bank that there existed prior charge in favour of
State Bank of India on the property offered and also that
there were certain sale transactions executed by the
accused No.2 and his family. There is no question of
prior dishonesty on the part of the accused No.2 to
induce the Bank to deliver the property. Further,
accused No.2 is not the beneficiary of any sum and the
retention of any portion of money has not been proved by
the prosecution.
11 Crl.A.110/2017 c/w. 248/2017
11. It is further contended that the appellant has
no role in making of the documents and he had no any
prior dishonest intention. The finding of the Magistrate
that accused No.1 had no connection to the act of
cheating is capricious and is not based on the sound
reasoning. The accused No.2 never involved in the
discussion with the Bank officials and he never took part
in the direct affairs of accused No.3 Firm. The accused
No.1 being the Managing Partner had interaction with
Bank official and he was directly taking the decision in
the affairs of the accused No.3 Firm. Further, accused
No.2 though the partner of accused No.3 Firm, he is not
signatory to its Account Opening Form Ex.D.2. The
Bank officials, in complicity with accused No.1
completely violated the sanction terms in the matter of
pre-disbursement of Rs.94 lakhs in favour of accused
No.1. The accused No.1 has also forged and fabricated
the signature of the other partners of accused No.3 Firm
in order to illegally claim authorization by the other
partners to represent the accused No.3 Firm for
negotiating and for making direct disbursement of loan
to him. The evidence on record goes to show that
accused No.2 had never conspired and had neither any
dishonest intention nor induced the Bank to part with
valuable security. It was only accused No.1 directly
interacting and negotiating the things on behalf of
accused No.3 Firm. The conclusion drawn by the
Magistrate only on the evidence of PW.19 is highly
unjustifiable. There was no forgery or impersonation by
accused No.2. In the absence of direct or circumstantial
12 Crl.A.110/2017 c/w. 248/2017
evidence against accused No.2, he was wrongly and
illegally held guilty. Further, the sequence of chronology
of the events reveal that prior to the dates on which the
alleged forgery and impersonation took place, the
accused No.1 had succeeded in making the Bank to
release Rs.2.5 Crores which is apparent from the story of
the prosecution itself.
12. It is further contented that the charges were
framed against the accused No.2 for the offence
punishable under Section 120B, 420, 467, 468 and 471
of the IPC and as such, his conviction for the offence
punishable under Section 419 of the IPC is highly illegal
and unsustainable. Though the prosecution has utterly
failed to bring home the guilt of accused No.2, he is
convicted erroneously. Ex.P.6, P.25, P.27 and Ex.P.93
would amply prove the innocence of the accused No.2
and that the Bank was aware of sale transaction,
mortgage and prior charge existed in favour of State
Bank of India, in respect of the property offered. But all
these aspects were not considered by the learned
Magistrate. The learned Magistrate without factual basis
has not only acquitted accused No.1, but also failed to
appreciate and consider the Bank officials to be tried
under Section 319 of the Cr.P.C., as Bank officials had a
tacit role in accommodating and facilitating the
disbursement of the loan proceeds in favour of accused
No.1. The trial court has failed to consider that the
accused No.1 is the entire beneficiary of the loan
proceeds and approach of the trial court is erroneous
13 Crl.A.110/2017 c/w. 248/2017
and thereby, the findings of the trial court is liable to be
set aside. Accordingly, on these grounds prayed for
allowing the appeal and thereby to set aside the
judgment of conviction passed against him.
13. Similarly, the accused No.5, being aggrieved
by his conviction by the learned Magistrate, filed
Crl.A.No.248/2017 contending that the judgment is
contrary to the law, weight of evidence and probabilities
of the case. The judgment is based only on the
presumptions, surmises, conjunctures which are not
relevant to the circumstance of the case. The learned
Magistrate has failed to see that there is no circumstance
to connect the accused No.5 with the crime and the
prosecution has failed to prove the circumstances
against him so as to hold him as guilty. The prosecution
has failed to prove the chain link of the circumstances to
prove the guilt of the accused No.5. As per the version of
the prosecution, one Rizwan Bapand (CW.37) was a
chain who introduced accused No.5 to other accused
persons, which is the cooked up story of the prosecution
and the prosecution has not examined the said witness
who is totally stranger to accused No5. The accused No.5
is no way involved in the crime and he is innocent and
has been falsely implicated in the case.
14. It is further contention of the accused No.5
that the court has failed to consider the extra judicial
confessions of PW.32, 33 and 37, who are the real
impersonalities to the crime and have created Ex.P.133
and benefited by the same. Some persons with bad
14 Crl.A.110/2017 c/w. 248/2017
intention have misused his photographs and created
Ex.P.86. The evidence of PW.29 and 30 in that regard is
weak piece of evidence and conviction cannot be based
on their evidence. It is further contended that the
learned Magistrate failed to consider the circumstances
which reveal the innocence of accused No.5. Further,
Ex.P.85, Deed of Guarantee itself is not valid in the eye of
law which cannot be relied. The IO has purposefully
took him and got identified by PW.9. There are various
lapses in the investigation and the prosecution has failed
to prove the case beyond reasonable doubt. Accordingly,
on these grounds prayed for acquittal of the accused
No.5 by allowing the appeal.
15. Heard the argument of the learned counsel for
the appellant in Crl.A.No.110/2017 and the learned
counsel for the apparent in Crl.A.No.248/2017 has filed
his written argument. Heard the learned Senior Public
Prosecutor for prosecution.
16. Since these two appeals are arising from the
same judgment, the learned Senior Public Prosecutor
has filed memo praying for clubbing of the
Crl.A.No.248/2017 with Crl.A.No.110/2017 and thereby
to pass common judgment. The said memo was accepted
and Crl.A.No.248/2017 is ordered to be clubbed with
Crl.A.No.110/2017 by order dated 08.01.2025 and
thereby both appeals were clubbed and taken together
for disposal.
17. On hearing the learned counsels and
meticulously verifying the oral and documentary
15 Crl.A.110/2017 c/w. 248/2017
evidence including the judgment of the learned
Magistrate, the point that would arise for consideration
are ;
1. Whether the Judgment passed by the
trial court convicting the appellant-
accused No.2 for the offences
punishable under Section 120B read
with Sections 419, 420, 468 and 471
of the IPC and substantive offence
punishable under Section 419, 420,
468 and 471 of the IPC is erroneous
and against the evidence on record ?
2. Whether the Judgment passed by the
trial court convicting the appellant-
accused No.5 for the offences
punishable under Section 120B read
with Sections 419, 468 and 471 of
the IPC and substantive offences
punishable under Section 419, 468
and 471 of the IPC is erroneous and
against the evidence on record ?
3. Whether the judgment of conviction
passed by the learned Magistrate
requires any interference by this
court ?
4. What order ?
16 Crl.A.110/2017 c/w. 248/2017
18. The above points are answered as under;
Point No.1 : In the negative.
Point No.2 : In the negative.
Point No.3 : In the negative.
Point No.4 : As per final order, for the
following;
REASONS
19. Point Nos.1 to 3: Since point Nos.1 to 3 are
inter-linked and to avoid repetition of facts and for the
sake of brevity, they are taken together for consideration.
20. As already stated, the learned Magistrate was
pleased to convict the accused Nos.2, 3 and 5 and
acquitted accused Nos.1, 4 and 6. Admittedly, the
prosecution has not preferred any appeal against the
acquittal of accused Nos.1, 4 and 6. Further, accused
No.3 Firm which is convicted for the offences punishable
under Section 120B read with Section 419, 420, 468 and
471 of the IPC and also the substantive offences under
Section 419, 420, 468 and 471 of the IPC and sentenced
to pay the total fine of Rs.1,50,000/- has not preferred
any appeal. It is also noticed from the contents of the
judgment that the trial court was pleased to negate the
contention of the prosecution as to cheating of the IDBI
Bank by diversification of the loan amount as contended
by holding Point No.4 in the negative. Therefore, in the
present appeals, the point for consideration is narrow
down and it is confined only with regard to the
conviction of accused No.2 and 5 by the trial court.
17 Crl.A.110/2017 c/w. 248/2017
21. The learned counsel for the appellant in
Crl.A.No.110/2017 Sri.R.Nagendra Naik Advocate
vehemently argued in terms of the contents of the appeal
memo. The main bone of contention of the learned
counsel is found to be that the accused No.2 has not
suppressed the earlier mortgage of the property bearing
New No.131 (Old No.401/1), Swastik Complex, Subedar
Chatram Road, Sheshadripuram, Bengaluru belonged to
accused No.2 and his family members to State Bank of
India, Bengaluru for availing the loan of Rs.10 lakhs for
the purpose of constructing the building in the said
property and also the alienation/ sale of the portion of
the said property in favour of various persons. Further,
the trial court has acquitted accused No.1, who is the
real beneficiary of the loan and thereby the accused No.2
is also to be acquitted as there is no sufficient evidence
to convict him. The learned counsel for the appellant
has also argued with regard to the Power of Attorneys
i.e., Ex.P.31, 34 and 133 executed by the mother, brother
and sister of accused No.2 in favour of accused No.2.
But, the said fact is not in issue in the present case and
that is not much relevant.
22. The learned counsel further vehemently
argued that Ex.P.25 Sale Agreement dated 25.10.2004
was referred in Ex.P.6 legal opinion of Sri.Venkatesh
Dodderi and in the said Ex.P.25 Agreement, there is
reference as to charge created in favour of the SBI in
respect of the collateral property offered by accused No.2
and his mother, brother and sister and thereby the
18 Crl.A.110/2017 c/w. 248/2017
charge created on the collateral property offered was well
within the knowledge of the IDBI Bank. It is also
vehemently argued that sufficient security was given to
cover the loan of the Bank and the appellant has not
received any amount. Further, the Bank officials and
accused No.1 were colluded and accused No.2 was made
as scapegoat in the matter. The loan amount was got
released by accused No.1 in hand in glove with the Bank
officials in violation of the terms of sanction.
23. It is further argument of the learned counsel
that accused No.2 was not involved in preparing Ex.P.26
to P.30 Encumbrance Certificates in respect of the
property offered. It was only accused No.1 who had dealt
with the Bank in the matter of availment of the loan but
he was acquitted by the learned Magistrate. It is also
vehemently submitted that the accused No.2 had not
played any role in the matter of personification as put up
by the prosecution. The learned Magistrate has failed to
consider the oral and documentary evidence in its proper
perspectives and thereby reached at erroneous
conclusion in convicting the accused No.2. Accordingly,
prayed for acquittal of the accused No.2.
24. As already stated, the learned counsel for the
appellant-accused No.5 in Crl.A.No.248/2017 has filed
his written arguments and the sum and substance of his
argument is that the accused No.5 is no way involved in
the crime, he is innocent and has been falsely implicated
for the benefit of the others. He is no way connected
with other accused persons. The prosecution has
19 Crl.A.110/2017 c/w. 248/2017
concocted the story that accused No.5 was in due a sum
of Rs.8 lakhs to CW.37 one Sri.Rizwan Bapand, who
acquainted with other accused as per his statement
recorded by the IO. But the said CW.37 is not examined
before the Court as witness to establish the chain among
the accused persons. The witnesses examined by the
prosecution as PW.32, 33 and 37 are the real
impersonators arranged by accused No.2 and they
should have been made as accused in this case. There is
no required evidence to come to the conclusion that
accused No.5 has committed the alleged offences.
Accused No.5 has not committed any offence and has
not created any documents. The prosecution has failed
to prove Ex.P.86. Further, Ex.P.85 Deed of Guarantee
itself is not valid as on the date of its execution as the
stamp paper was purchased on 03.05.2010 and the said
document was executed on 23.10.2010 after lapse of 3
months from the date of purchase of the stamp paper.
The investigation is also not properly conducted. With a
mala-fide intention, the accused No.5 was taken to the
Bank just to implicate him in this crime. The Bank
officials have colluded with accused No.2 in fabricating
and forging of the documents and also for implicating the
accused No.5 in this case. Accused No.5 has no any
dishonest intention and he is not beneficiary also. He
had never impersonated anybody. There is no material
evidence to prove any of the offence against the accused
No.5. The prosecution has failed to prove the offence
against the accused No.5 and the judgment passed by
the trial court is contrary to law, weight of evidence,
20 Crl.A.110/2017 c/w. 248/2017
probabilities of the case and is based on only
presumptions, surmises, conjunctures. Accordingly,
prayed for acquittal of accused No.5.
25. The learned Senior Public Prosecutor
Sri.Shivanand Perla, vehemently argued supporting the
judgment passed by the trial court. It is meticulously
argued by him that the evidence on record placed by the
prosecution clearly establish the commission of the
offence by the accused No.2 and 5 and the trial court
has properly appreciated the oral and documentary
evidence and reached at right conclusion. He has drawn
the attention of the court with regard to the oral evidence
of the witnesses which support the case of the
prosecution. He has also brought to the notice of this
court with regard to the undisputed facts. It is his
further argument that apart from the oral evidence of the
witnesses, the documentary evidence clinchingly
establish the case against the accused persons and there
are no reasons to interfere with the judgment passed by
the learned Magistrate. The appellants have not made
out any grounds to interfere with the judgment passed
by the trial court. Accordingly, urged for dismissal of the
appeals and thereby confirming the judgment and
sentence passed by the trial court.
26. In the light of the argument addressed, for the
better understanding of the matter, before touching the
merits of the appeals, it is appropriate to refer the
undisputed facts which can be gathered from the
materials placed before this court and also the necessary
21 Crl.A.110/2017 c/w. 248/2017
ingredients to constitute the offences for which the
appellants are convicted which will be more helpful in
deciding the matter.
27. The evidence on record and the argument
addressed reveal the following undisputed facts.
a) Formation of Partnership Firm by name
M/s. K.Display Infrastructure by accused
No.1 and one Sri.Ajay Naik. Their
approach to IDBI Bank, MSME Mission
Road, Bengaluru for Cash Credit loan and
they were sanctioned with Rs.150 lakhs
cash credit facility and Rs.50 lakhs Bank
Guarantee. Out of the cash credit facility,
only Rs.78 lakhs was released due to non-
clearance of one of the properties offered
as collateral security.
b) Formation of accused No.3 Partnership
Firm M/s. K.Urban Infrastructure by
accused No.1 and his wife under the
unregistered Partnership Deed in October-
2009 and thereafter induction of accused
No.2 to the said Firm as one of the
partners by reconstituted Deed of
Partnership on 04.02.2010. Further,
before admission of accused No.2 as a
Partner, accused No.1 and his wife opened
the Current Account in the name of
accused No.3 Firm in IDBI Bank, MSME
Mission Road, Bengaluru.
22 Crl.A.110/2017 c/w. 248/2017
c) The three partners of M/s. K.Urban
Infrastructure approached the IDBI Bank
for cash credit limit of Rs. 5 Crores in the
name of accused No.3 Firm for which, the
property of one Sri.Balachand M.
Thimmaiah bearing Sy.No.53 Plot No.7,
measuring 4070 sq.ft and building with
built up area of 5804 sq.ft situated at FMC
Road, Virajpet Taluk, Kodagu District
valued at Rs.78.125 lakhs and property
bearing No.131 (Old No.401/1) belonging
to accused No.2, his mother, brother and
sister, situated at Subedar Chatram Road,
Sheshadripuram, Bengaluru measuring
9875 sq.ft with building measuring 20627
sq.ft valued at Rs.13.36 Crores were given
as collateral security.
d) The accused No.3 Firm was granted with
Rs.3 Crores cash credit limit by IDBI Bank
on the basis of the collateral security of the
said properties. The execution of the loan
documents, collateral security, Guarantee
Agreement and other documents relating
to loan are not in dispute.
e) Before mortgaging the property No.131
(Old No.401/1) to IDBI Bank the said
property was mortgaged to SBI, by the
father of accused No.2 for the purpose of
construction of the three storeyed building
23 Crl.A.110/2017 c/w. 248/2017
in the said property for a sum of Rs.10
lakhs and the said amount was still due
and the charge of the SBI was existing on
the said property.
f) The SBI has filed civil suit as per
O.S.No.10199/1993 before the Civil Court
against the legal heirs of Late. R. Shivaram
i.e., accused No.2 and his mother, brother
and sister for recovery of the said loan
amount and thereafter, the said suit was
transferred to DRT Bengaluru in OA
No.1205/1995, where an award was also
passed in favour of SBI.
g) During the years from 1987 to 2010, the
father of accused No.2, accused No.2, his
mother, brother and sister had alienated
the portion of the property No.131 (Old
No.401/1) by way of sale and mortgage to
different persons as narrated in the charge
sheet as per Sl.No.1 to 19. Source of Title
of the said property to the family of
accused No.2 is also not in dispute.
h) The cash credit limit sanctioned by the
IDBI Bank in favour of the accused No.3
firm was disbursed at the request of
accused No.1 and at the request of
accused No.1, a sum of Rs.94 lakhs was
disbursed for the purpose of payment of
Rs.22 lakhs in favour of Canara Logistics,
24 Crl.A.110/2017 c/w. 248/2017
Rs.25 lakhs in favour of Anthony Ammal
Rajan, Rs.20 lakhs to Tousif Ahmed and
Company, Rs.21 lakhs to Intergra
Outdoor, Rs.5 lakhs to Sita Paints, Pvt.
Ltd., and self drawing of Rs.1 lakhs by
accused No.1.
i) Using of Rs.80 lakhs from the cash credit
limit sanctioned to accused No.3 Firm by
accused No.1 for closing CC Limit account
of M/s. K.Display Infrastructure.
j) The cash credit loan sanctioned to accused
No.3 Firm was declared as NPA with
outstanding balance of Rs.3,04,02,771/-
as on 30.06.2011 and there was balance of
Rs.4,14,33,073/- as on 31.05.2013 from
accused No.3 Firm in favour of IDBI Bank.
k)That Ex.P.26 to P.30 Encumbrance
Certificates were furnished to IDBI Bank
while availing cash credit facility on behalf
of accused No.3 Firm and basing on the
said Encumbrance Certificate and by
considering the legal opinion Ex.P.6, IDBI
Bank had sanctioned cash credit limit in
favour of accused No.3 Firm.
Since all these aspects are not in dispute, the oral
and documentary evidence in that regard needs no much
consideration.
25 Crl.A.110/2017 c/w. 248/2017
28. As already stated, the accused Nos.2 and 5
are convicted for the offences punishable under Section
120B, 419, 420, 468 and 471 of the IPC. Now, Section
120B of the IPC is concerned, it deals with punishment
for committing criminal conspiracy. The definition of the
offence of criminal conspiracy is provided under Section
120A of the IPC which reads as under;
When two or more persons agree to do or cause
to be done,-
(1) An illegal act; or
(2) an act which is not illegal, by illegal
means, such an agreement is designated a
criminal conspiracy.
Provided, no agreement except an agreement
to commit an offence shall amount to a
criminal conspiracy unless some act besides
the agreement is done by one or more
parties to such agreement in pursuant
thereof.
29. On going through the above provision, it is
clear that the following are the necessary ingredients to
constitute the criminal conspiracy.
(i) There should be an agreement
between the parties who are alleged
to conspire.
(ii) Such agreement should be either
for doing an illegal act or for doing
an act by illegal means.
26 Crl.A.110/2017 c/w. 248/2017
The above provision does not contemplate the
agreement shall be in writing. Therefore, the
agreement may be express or implied or in part
express or implied. The agreement is the gist of the
offence. In order to constitute a single general
conspiracy, there must be a common design and
common intention of all to work in furtherance of
common design. It is also clear that the definition of
the conspiracy under Section 120A excludes an
agreement to commit the offence from the category of
such conspiracy, in which it is necessary that the
agreement should be followed by some act. The
essence of the offence of criminal conspiracy is the
fact of combination by agreement. The conspiracy
arises and the offence is committed as soon as the
agreement is made and the offence continues to be
committed so long as the combination persists. It is
clear that in a criminal conspiracy, meeting of mind
of two or more persons for doing an illegal act is a
sine-qua-non. In this regard, this court is also being
guided by the decision of the Hon'ble Supreme Court
reported in 2002 SCC (Cri) 1734 in the case of Mohd.
Khalid Vs. State of West Bengal. In the judgment of
the Apex Court, reported in (2009) 8 SCC 1, the
necessary ingredients of the offence under Section
120A of the IPC are clearly stated by referring the
decision of K.R.Purushottam Vs. State of Kerala
(2005) 12 SCC 631. Further, in the decision reported
in (2022) 7 SCC 721, the Hon'ble Supreme Court has
considered the ingredients and standard of proof for
27 Crl.A.110/2017 c/w. 248/2017
conviction under Section 120B of the IPC. In the
said decision, the Hon'ble Supreme Court has also
considered various other decisions including Mohd
Khalid Vs. State of West Bengal and another decision
reported in (2012) 9 SCC 512 and other cases.
30. So far as the offence punishable under
Section 419 and 420 of the IPC are concerned, first we
have to refer Sec.415 of the IPC, which provides
definition of cheating. Section 415 of the IPC, reads as
under;
"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".
Explanation : A dishonest concealment
of fact is a deception with the meaning
of this section.
On reading of the above provision, it is clear that,
the necessary ingredients of cheating are ;
28 Crl.A.110/2017 c/w. 248/2017
a) there must be a deception i.e. the
accused must have deceived
someone.
b) that by the said deception, the
accused must induce a person to
deliver any property or to make,
alter or destroy whole or part of the
valuable security or anything which
is signed or sealed and which is
capable of being converted into the
valuable property.
c) that the accused did so dishonestly.
31. In this regard, this court is being guided
by the decision reported in (2005) 9 SCC 15 in the
case of Devender Kumar Singla vs Baldev Krishan
Singla, wherein, the Apex Court specifically
discussed as to necessary ingredients of Section 415
and 420 of the IPC. In the said decision, Hon'ble
Supreme Court has referred the observation made in
Shivanarayana Kubra Vs. State of Madras, AIR 1967
SC 986 wherein, it is held that "it is not necessary
that a false pretense should be made in express
words by the accused. It may be inferred from all the
circumstances including the conduct of the accused in
obtaining the property. In the true nature of the things,
it is not always possible to prove the dishonest
intention by any direct evidence. It can be proved by
number of circumstances from which, reasonable
inference can be drawn."
29 Crl.A.110/2017 c/w. 248/2017
32. Section 419 of the IPC deals with
punishment for cheating by personation and Section
416 of the IPC deals with the definition of cheating
by personation. Therefore, it is necessary to refer the
provisions of Section 416 of the IPC to know the
necessary ingredients for cheating by personation.
Section 416 of the IPC provides thus;
"A person is said to "cheat by
personation" if he keeps by pretending to
be some other person or by knowingly
substituting one person for another or
representing that he or any other person
is person other than he or such other
person really is.
Explanation : Whether the individual is
personated is real or imaginary person.
33. On going through the above provision, it is
evident that in order to constitute an offence under
Section 416 of the IPC, the prosecution has to prove any
one of the following factors;
(1) Pretension by the accused to be some
other person ; or
(2) Knowingly substituting one person for
another ; or
(3) Representation that he or any other
person is a person other than he or
such other person really is.
34. As already stated, Section 419 of the IPC
provides for punishment for the offence of cheating by
30 Crl.A.110/2017 c/w. 248/2017
personation. On conjoint reading of Section 416 and
419, it is clear that, the necessary ingredients to
constitute offence punishable under Section 419 of the
IPC are (1) that the accused cheated some one (2) that he
did so by impersonation. Therefore, to bring home the
offence under Section 419 of the IPC, the prosecution has
to prove first that the accused pretended himself to be
some other person or imaginary person, or he knowingly
substituted one person for another or represented that he
or any other person is a person other than he or such
person other than what he really is. Secondly, to show
that by such process, he cheated some other person.
35. Section 420 of the IPC provides for
punishment for cheating and dishonestly inducing
delivery of property and the said Section reads as under;
"whoever cheats and thereby dishonestly
induces person deceived to deliver to any
property to any person or to make alter or
destroy the whole or any part of valuable
security or any thing which signed or
sealed, and which is capable of being
converted into valuable security shall be
punished with imprisonment of either
description for a term which may extend to
7 years, and also shall also be liable to fine".
36. From the above provision, it is clear that, in
order to constitute the offence punishable under section
31 Crl.A.110/2017 c/w. 248/2017
420 of the IPC, the following ingredients has to be
proved/complied.
a) there must be a deception i.e. the
accused must have deceived
someone.
b) that by the said deception, the
accused must induce a person to
deliver any property or to make,
alter or destroy whole or part of the
valuable security or anything which
is signed or sealed and which is
capable of being converted into the
valuable property.
c) that the accused did so dishonestly.
37. To bring the case under the ambit of Section
420 of the IPC, it is not only cheating simplicitor, but also
dishonest inducement to the person sought to be
deceived to deliver any property etc. are required to be
proved.
38. Section 468 of the IPC deals with punishment
for forgery for the purpose of cheating. Section 468 of the
IPC reads as follows ;
"Whoever commits forgery, intending that
the document or electronic record forged
shall be used for the purpose of cheating
shall be punished with imprisonment of
either description for a term which may
32 Crl.A.110/2017 c/w. 248/2017
extend to 7 years and shall also liable to
fine".
39. In order to attract the above provision, the
prosecution has to prove that ;
a. The accused committed the forgery.
b. That he did so intending that the document
or electronic record forged shall be used for
the purpose of cheating.
40. Section 463 of the IPC gives definition of
'forgery' which reads as under;
"whoever makes any false document or
false electronic record or part of a
document or electronic record with an
intention to cause damage or injury, to the
public or to any person or to support any
claim or title or to cause any person to
part with the property or to enter into any
express or implied contract, or with an
intention to commit fraud or that fraud
may be committed, commits forgery."
41. On going through the above definition of
forgery, makes it clear that it involves making of false
document or false electronic records or part of it with an
intention to cause damage, commit fraud etc., The
definition of making of false document is provided under
Section 464 of the IPC, which reads as under;
33 Crl.A.110/2017 c/w. 248/2017
"Making a false document.-- [A person is
said to make a false document or false
electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a
document or part of a document;
(b) makes or transmits any electronic
record or part of any electronic record;
(c) affixes any [electronic signature] on any
electronic record;
(d) makes any mark denoting the
execution of a document or the
authenticity of the [electronic
signature], with the intention of
causing it to be believed that such
document or part of document,
electronic record or [electronic
signature] was made, signed, sealed,
executed, transmitted or affixed by or
by the authority of a person by whom
or by whose authority he knows that it
was not made, singed, sealed,
executed or affixed; or
Secondly-- Who without lawful
authority, dishonestly or fraudulently,
by cancellation or otherwise, alters a
document or an electronic record in
any material part thereof, after it has
been made, executed or affixed with
34 Crl.A.110/2017 c/w. 248/2017
[electronic signature] either by himself
or by any other person, whether such
person be living or dead at the time of
such alteration; or
Thirdly.-- Who dishonestly or
fraudulently causes any person to
sign, seal, execute or alter a document
or an electronic record or to affix his
[electronic signature] on any electronic
record knowing that such person by
reason of unsoundness of mind or
intoxication cannot, or that by reason
of deception practised upon him, he
does not know the contents of the
document or electronic record or the
nature of the alteration.]
42. On conjoint reading of the above provisions, it
is clear that in order to bring home the guilt punishable
under Section 468 of the IPC, the prosecution has to
establish that ;
i. the document has been forged as
contemplated under Section 463 of
the IPC.
ii. the accused forged the said
document and
iii. that the accused did so for the
purpose of cheating.
43. The last provision under which the accused
persons are convicted is Section 471 of the IPC which
35 Crl.A.110/2017 c/w. 248/2017
deals with using of forged document or electronic records
as genuine and punishment prescribed for it. Section
471 of the IPC reads as under;
"Whoever fraudulently or dishonestly
uses as genuine any [document or
electronic record] which he knows or
has reason to believe to be a forged
[document or electronic record], shall be
punished in the same manner as if he
had forged such [document or electronic
record]."
44. On going through the above provision, the
necessary ingredients of the said offence are that ;
i. the document or electronic record
concerned was forged one to the
knowledge of the accused, or is having
reason to believe it to be a forged
document ; and
ii. the accused used such document/
electronic record as genuine
fraudulently or dishonestly.
45. The forged document/ electronic record is
defined under Section 470 as -
"a false document or electronic record
made wholly or in part for forgery is
designated 'a forged document or
electronic record."
36 Crl.A.110/2017 c/w. 248/2017
46. In this regard, this court is also being guided
by the decision of the Hon'ble Supreme Court reported in
(2004) 11 SCC 576, wherein, it was held that "the
essential ingredients of Section 471 are (i) fraudulent or
dishonest use of the document as genuine (ii) knowledge or
reasonable belief on the part of the person using the
document that it is forged one. The act need not be both
dishonest and fraudulent. The use of the document as
contemplated by Sec.471 must be voluntary."
47. With the above aspects, now the case of the
prosecution as against accused Nos.2 and 5 is to be
analyzed. It is pertinent to note that if we consider the
contentions of accused No.2 during cross-examination of
the prosecution witnesses, it clearly appears that accused
No.2 admits the commission of the offence but alleges
against accused No.1 and Bank officials claiming his
innocence. Similarly, accused No.5 also admits that
Ex.P.86 Election ID Card is created by misusing his
photograph. The prosecution has contended that the
accused Nos.1 and 2, being the partners of accused No.3
Firm and accused Nos.4 to 6 entered into criminal
conspiracy at Bengaluru to cheat IDBI Bank Ltd.,
Mission Road, Bengaluru. In pursuance of the said
criminal conspiracy, accused Nos.1 and 2 had applied for
sanction of cash credit limit in the name of accused No.3
Firm to the tune of Rs.5 Crores and accused No.2 offered
the property bearing No.131 (Old No.401/1) Swastik
Complex situated at, Subedar Chatram Road,
Sheshadripuram, Bengaluru as collateral security,
37 Crl.A.110/2017 c/w. 248/2017
knowing fully well and by dishonestly concealing that the
said property was already alienated and mortgaged to
different persons including the mortgage to the SBI,
Bengaluru on 14.03.1987 by his father and also that the
said property was alienated to different persons by
producing false Encumbrance Certificate which was got
prepared by him to show that as if the said property is
not alienated and thereby got sanctioned and released
the cash credit loan by deceiving the IDBI Bank and
thereby committed the offence punishable under Section
420 read with Section 120B of the IPC. It is also the
case of the prosecution against accused No.2 having
knowledge of the false, forged Encumbrance Certificate
made use of the same dishonestly as genuine to cheat the
Bank and thereby committed an offence punishable
under Section 471 of the IPC.
48. To prove the offence against the accused No.2,
the prosecution has placed oral and documentary
evidence. At the outset, it is to be noted that as already
stated, there is no dispute as to the fact that the property
bearing No.131 (Old No.401/1) situated at Subedar
Chatram Road, Sheshadripuram, Bengaluru, was given
as collateral security by accused No.2 towards cash
credit loan sanctioned in favour of accused No.3 Firm by
IDBI Bank and the same was accepted by IDBI Bank
along with another property and on the said basis,
sanctioned the cash credit limit of Rs.3 Crores in favour
of accused No.3 Firm. It is also admitted by accused
No.2 that the said property was mortgaged by deposit of
38 Crl.A.110/2017 c/w. 248/2017
Title Deeds in favour of SBI, Jayanagar, for availing Term
Loan of Rs.10 lakhs for the purpose of putting up a
commercial complex in the said property by his father on
14.03.1987. Further, the evidence on record reveals that
the accused No.2 admits the alienation of the portion of
the said property in favour of various persons as stated
by the prosecution in Charge Sheet under Sl.No.1 to 19
in between 1987 to 2010.
49. It is clear from the prosecution evidence that,
while availing the cash credit loan by accused No.3 Firm,
the accused No.2 had furnished Encumbrance Certificate
relating to the collateral property offered by him as per
Ex.P.26 to P.30. The contents of the said Encumbrance
Certificates are verified, they reveal that Ex.P.26 to P.30
are the Encumbrance Certificates relating to property
No.131 of Subedar Chatram Road, Bengaluru for the
period from 01.04.2009 to 09.03.2010, 01.04.1980 to
31.03.2004, 01.04.1989 to 31.01.2004, 01.01.1980 to
31.03.2000 and from 01.01.1986 to 05.10.2002
respectively. On going through the said Encumbrance
Certificates, it is clear that there is only limited entries as
to how the said property was acquired by father of
accused No.2 and his family members, mortgage of the
said property in favour of Grameena Merchant Co-
operative Bank Ltd., for Rs.25 lakhs by mother of
accused No.2, discharge of the said liability and
regarding Cancellation of an Agreement executed in
favour of Sri. Nagaraj Gubba and nothing more. However,
the prosecution has also produced the Encumbrance
39 Crl.A.110/2017 c/w. 248/2017
Certificates relating the said property as per Ex.P.2 for
the period from 01.01.1986 31.03.2004 which discloses
various alienation/sale made by father of accused No.2
and his wife and children. It is pertinent to note that the
various transactions shown in Ex.P.2, which is also
stated in the charge sheet as per Sl.No.1 to 19 are
admitted. Therefore, the conjoint reading of ExP.2 and
P.26 to P.30, there remains no doubt that Ex.P.26 to P.30
do not reveal the real Encumbrance on the said property
and in the said Encumbrance Certificate, various
alienation were suppressed and concealed.
50. It is also noticed from the evidence that
admittedly, the property bearing No.131 of Subedar
Chatram Road, Bengaluru was the subject matter of
equitable mortgage in favour of the SBI Jayanagar
Branch, for a term loan of Rs.10 lakhs availed by the
father of accused No.2 and the said property was
attached by SBI for recovery of the Term Loan due
amount. The said fact is also not forthcoming either from
Ex.P.2 or from Ex.P.26 to P.30. However, the said fact is
not in dispute and admitted by accused No.2. Therefore,
it is clear that as on the date of offering of the property
No.131 of Subedar Chatram Road, Bengaluru as
collateral security in favour of IDBI Bank, the said
property was subjected to various alienation and charges,
but the same was not disclosed by accused No.2. On the
other hand, as argued by the learned Senior Public
Prosecutor, the oral and documentary evidence makes it
40 Crl.A.110/2017 c/w. 248/2017
clear that the accused No.2 had dishonestly concealed
the said fact though he is having knowledge of the same.
51. With regard to the above aspects, now oral
evidence on record is considered, PW.19 Sri. Jagadeesh,
who prepared Ex.P.27 Encumbrance Certificate, deposed
that he had written EC and got signature of the Sub-
Registrar and thereafter handed over it to the party. He
further deposed that in 2010, accused No.2 had come to
him and told that he had applied for EC through
Advocate in Gandhinagar and asked him to prepare the
same. Accused No.2 asked him to prepare EC as to
reflect 3 transactions. He prepared the EC reflecting only
3 entries, submitted before the SRO and obtained his
signature. It is also his evidence that accused No.2
asked him to enter the name of Sri. Nagaraj Gubba in the
column of the Encumbrance and accused No.2 had paid
Rs.5,000/- to him as he had done his work. Therefore,
on going through the evidence of PW.19, it is clear that
on the basis of Ex.P.93 application filed by the Advocate
on behalf of accused No.2, he prepared Ex.P.27 EC as per
the instruction of accused No.2 himself by concealing
other entries so as to assist the accused No.2 for which
he had received Rs.5,000/-. Though the learned counsel
for accused No.2 cross-examined the said witness,
nothing was elicited from his mouth so as to disbelieve
his evidence. During cross-examination also he has
specifically denied the suggestion put to his mouth to the
effect that he did not know accused No.2 and deposing
falsely to help accused No.1 and CBI Officers. He has
41 Crl.A.110/2017 c/w. 248/2017
also denied the suggestion denying the receipt of
Rs.5,000/- from accused No.2 and accused No.2 did not
tell him to enter the name of Sri. Nagaraj Gubba. If the
entire evidence of PW.19 is analyzed, definitely it
supports the case of the prosecution as to creation of
Encumbrance Certificate at the instance of accused No.2.
There are no such grounds to disbelieve the evidence of
PW.19 and no reasons are elicited from his mouth so as
to depose falsely against accused No.2. Therefore, on
meticulous reading of the evidence of PW.19, it is clear
that the accused No.2 has got prepared Ex.P.27
Encumbrance Certificate to suit his convenience by
suppressing the real fact.
52. So far as Ex.P.26 Encumbrance Certificate is
concerned, there is evidence of PW.18 Smt.
R.Prabhavathi, then SRO of Malleshwaram, Bengaluru,
who issued the said document. She had also identified
her signature as per Ex.P.26(a). It is her evidence that as
per Ex.P.105, accused No.2 had sought for Encumbrance
Certificate for the property No.401/1, SC Road,
Sheshadripuram Bengaluru for the period from
01.04.2004 to 09.03.2010 and the said EC was verified
and prepared by one FDC Rekha and Vijayalakshmi and
she had not personally verified the records. The
prosecution has also got marked EC of the said property
for the period from 01.04.2004 to 02.10.2013 as per
Ex.P.106, which discloses in all 5 entries. Therefore, it is
clear that Ex.P.26 is also created Encumbrance to suit
the accused No.2. Even PW.18 during her cross-
42 Crl.A.110/2017 c/w. 248/2017
examination specifically stated that Ex.P.26 issued by
their office is a fake EC. The accused No.2 has not cross-
examined the said witness. Therefore, on conjoint reading
of Ex.P.26, 106 and evidence of PW.18, there remains no
doubt that Ex.P.26 Encumbrance Certificate produced by
accused No.2 before the Bank is fake and created one.
53. Now, the evidence of PW.4 Sri. Ravindra
Lokapur, who was the AGM of IDBI Bank, MSME, is
looked into, he deposed regarding communication of loan
sanction letter to accused No.3 Firm. He further deposed
that he had called the borrowers for execution of the
documents. They have offered two properties for
collateral security, one from Subedar Chatram Road,
Bengaluru and another from Virajpete. He identified the
Declaration-cum-Undertaking executed by accused No.2
as per Ex.P.14 and stated that accused No.2 had declared
that the property offered by him was not having any
encumbrance and himself and his family members are
the owners of the said property. The accused No.2 has
not disputed the execution of Ex.P.14. Now, the contents
of Ex.P.14 Declaration-cum-Undertaking given by
accused No.2 on his behalf and also on behalf of his
mother, sister and brother being the GPA Holder, in
favour of IDBI Bank Ltd., with regard to the loan
sanctioned to accused No.3 firm are analyzed, in the said
declaration, he has specifically stated that they have not
created any charge or encumbrance on or in respect of
the schedule property i.e., Southern half portion of the
property bearing New No.131 (Old No.401/1) situated at
43 Crl.A.110/2017 c/w. 248/2017
Subedar Chatram Road, Sheshadripuram, Bengaluru,
which was offered as collateral security. The said
undertaking was given on 26.04.2010. But, it is
pertinent to note that as on the said date as found in
Ex.P.2, there are various charges and alienation in
respect of the said property. Therefore, it is also clear
that accused No.2 has given false Declaration-cum-
Undertaking in favour of the Bank.
54. The prosecution has got marked the affidavit
dated 11.03.2010 executed by accused No.2, his mother,
brother and sister in favour of the Bank as per Ex.P.32,
wherein also, accused No.2, his mother, brother and
sister have confirmed that they have not mortgaged or
offered the said property to any bank, financial
institutions, firms or to any individuals. Once again, in
the light of the Encumbrance Certificates produced, the
affidavit of accused No.2 and his family members is also
false. Therefore, the conjoint reading of evidence of PW.4,
Ex.P.2, P.14 and P.32, it is clear that the accused No.2,
having knowledge of the alienation and charge existing
over the property has given false information to the Bank
to avail the loan in the name of accused No.3 Firm and
offered the property as collateral security by suppressing
the existence of other charges on the said property.
55. At this stage, it is pertinent to note that the
accused No.2 has specifically contended that the Bank
was well aware of the fact that the property offered by
him as collateral security was already encumbered to SBI
and some portion of the building was sold in favour of
44 Crl.A.110/2017 c/w. 248/2017
one Surana. In that regard, it is contended that in the
legal opinion secured by IDBI Bank as per Ex.P.6 by its
Panel Advocate before accepting the collateral security,
there is reference as to Ex.P.25 Sale Agreement dated
25.10.2004 executed by accused No.2 and others in
favour of Sri.Nagaraj Gubba (CW.18), wherein, the
attachment of the schedule property for recovery of the
due amount in favour of SBI was stated. Hence, it cannot
be said that accused No.2 had suppressed the charge of
the SBI on the collateral property offered to IDBI Bank.
No doubt, if the contents of Ex.P.6 are analyzed, the
Panel Advocate of IDBI Bank, Sri.H.Venkatesh Dodderi,
while giving his opinion as per Ex.P.6, has referred
Ex.P.25 Sale Agreement entered into between CW.18
Sri.Nagaraj Gubba and accused No.2 and his mother,
brother and sister in respect of the schedule property i.e.,
Southern portion of the property bearing No.131 of
Subedar Chatram Road, Sheshadripuram, which was
offered as collateral security in favour of IDBI Bank. But
it is pertinent to note that the legal opinion as well as the
Encumbrance Certificate furnished as per Ex.P.26 reveal
as to cancellation of the said Sale Agreement. The
cancellation deed is also produced as per Ex.P.24. In
Ex.P.24, though there is reference as to attachment of the
property by SBI for recovery of due amount, in the said
Agreement itself, it is stated that the vendors have
assured the purchaser that they would settle the claim of
SBI and deliver the Title Deeds available with SBI to the
purchaser. Along with this, the Encumbrance Certificates
produced as per Ex.P.26 to P.30 are looked into, there is
45 Crl.A.110/2017 c/w. 248/2017
no entry as to attachment of the said property. Under
these attending circumstances, just because there is
reference as to Sale Agreement Ex.P.25 in the legal
opinion and in the Sale Agreement, there is reference as
to the attachment of the property by SBI, it does not
mean that the existing charge of the SBI was known to
the IDBI Bank as contended by the accused. In fact, the
accused No.2 should have revealed the same while
tendering his Undertaking/ Declaration as per Ex.P.14. If
he has declared the same, then, definitely, the contention
of the accused No.2 would have been appreciated.
Therefore, this court did not find any substance in the
said contention of the accused and thereby to hold that
he is innocent in that regard as contended.
56. Along with the above aspects, on going
through the evidence on record, it is also noticed that,
accused No.2 is also beneficiary of the loan availed in the
name of accused No.3 Firm. The suggestions put to the
mouth of PW.1 and PW.3 on behalf of accused No.2
himself reveal that an assurance was given to him to
clear SBI Loan. That implies, aimed at certain benefits
only, accused No.2 had offered the property as collateral
security in favour of the Bank. Apart from that, if the
evidence of PW.17 Sri. Lakshmi Narayan Gubba is looked
into, it is clear that accused No.2 was the beneficiary of
the loan availed. PW.17 in his evidence stated that in
2002, he availed loan of Rs.12 Crores from Canara Bank,
for doing Sugar Business in his company name, for that
the property bearing No.401/1, Swastik Complex,
46 Crl.A.110/2017 c/w. 248/2017
Subedar Chatram, Sheshadripuram belonging to accused
No.2 and his family members was given as collateral
security. He had paid consideration of Rs.27.50 lakhs to
accused No.2 as interest free loan. Whenever, he pays
the entire loan amount to the Bank and releases the
documents, accused No.2 has to pay Rs.27.50 lakhs to
him. In 2004, he had released the property documents to
accused No.2, but accused No.2 had not paid Rs.27.50
lakhs to him and assured him to pay the same.
57. It is further evidence of PW.17 that on
25.10.2010, CW.18 (Sri.Nagaraj Gubba) entered into an
Agreement of Sale with accused No.2 and his family
members as per Ex.P.99 (Original Agreement is produced
as per Ex.P.25) for repayment of the amount. As per the
Agreement, accused No.2 and his family members have to
repay the loan amount to SBI. Thereafter, accused No.2
did not pay the amount and he was not ready to register
the property. Then, accused No.2 introduced accused
No.1 to him and told that if he releases the Agreement of
Sale document, then accused No.1 is ready to pay the
amount of Rs.27.50 lakhs, then he released the
Agreement document. Accused No.1 has paid Rs.22
lakhs by cheque/ DD and also issued two cheques for
Rs.60 lakhs and Rs.10 lakhs dated 12.03.2010 and
15.03.2010 as per Ex.P.100 and 101 respectively in
favour of his brother. It is also his evidence that accused
No.1 has assured that remaining balance will be paid
after release of the loan amount.
47 Crl.A.110/2017 c/w. 248/2017
58. During evidence of PW.17, the prosecution
has also got marked the certified copy of the Cancellation
of Sale Agreement dated 08.03.2010 as per Ex.P.102
(original is marked as Ex.P.24). The contents of the said
Cancellation Agreement are verified, there is clear
reference as to payment of Rs.70 lakhs in favour of
CW.18 through cheques i.e., Ex.P.100 and 101 and
thereby the Sale Agreement got cancelled. It reveals that
the accused No.2 is benefited by payment of Rs.70 lakhs
towards cancellation of Sale Agreement and also payment
of Rs.22 lakhs in favour of PW.17. The accused No.2 has
not opted to cross-examine PW.17. Therefore, it is clear
that the accused No.2 is a beneficiary of the transaction
and it cannot be said that he had not received any pie as
contended.
59. Thus, for the reason discussed above, the oral
and documentary evidence, coupled with undisputed
facts, clinchingly establish that the accused No.2 had
given the collateral security of the property bearing
No.131 which belongs to himself, his mother, brother and
sister in favour of IDBI Bank by suppressing the real fact
as to its alienation and charges existing on the said
property including mortgage to the State Bank of India,
Bengaluru. It is also clear that the accused No.2 has
placed forged and fake Encumbrance Certificates to his
knowledge as per Ex.P.26 to 30, making it to believe that
the property offered as collateral security had no any
encumbrance and thereby, induced the Bank to accept
the said property as collateral security and thereby to
48 Crl.A.110/2017 c/w. 248/2017
grant cash credit loan in favour of accused No.3 Firm. In
the said process, he has also made use of fake and forged
document i.e., Ex.P.26 to 30 as genuine with fraudulent
and dishonest intention to cheat the Bank. Therefore,
the material placed before the court clearly establish the
case against accused No.2 as to commission of the
offence punishable under Section 420 as well as 471 of
the IPC.
60. So far as the case against accused No.5, as
stated by the prosecution is that, in furtherance of the
criminal conspiracy to cheat IDBI Bank Ltd., Mission
Road, Bengaluru, accused No.5 impersonated
Sri.S.Srinath, the brother of accused No.2 by using
forged ID Card got prepared by accused No.6 and
executed deed of guarantee for cash credit loan of
accused No.3 Firm, for which he received illegal
consideration of Rs.2.5 lakhs by way of DD drawn on
IDBI Bank Ltd., and thereby, committed the offence
punishable under Section 120B, 419, 468 and 471 of the
IPC. In this regard, it is pertinent to note that during
cross-examination of the prosecution witnesses, it was
suggested to the mouth of the prosecution witnesses on
behalf of accused No.2 to the effect that the Bank official
and accused No.1 colluded with each other and made
accused No.5 to impersonate Sri.S.Srinath to secure his
Guarantee Agreement and to disburse the loan amount
in favour of accused No.1. The said suggestion was
denied, but the said suggestion reveals that accused No.2
admits that accused No.5 impersonated Sri.S.Srinath,
49 Crl.A.110/2017 c/w. 248/2017
the brother of accused No.2 in the matter of executing
Guarantee Agreement as put up by the prosecution.
61. Now, the evidence placed on record by the
prosecution with regard to the impersonation of
Sri.S.Srinath by accused No.5 is concerned, there is
evidence of PW.9 Sri. G. Basant Chakravarthi, Manager of
the IDBI Bank, Mission Road, Bengaluru. He in his
evidence has stated that, he is aware of the loan
transaction of accused No.3 Firm and M/s. K.Display. It
is his further evidence that, at the time of executing the
documents, accused No.2 brought his mother and sister.
Accused No.2 told that his brother is out of station and
he is in USA. The said witness has also identified
accused No.1, 2, 5 and 6 before the court. Through the
said witness, the prosecution has got marked Guarantee
Agreement dated 31.05.2010 executed by
Smt.S.Sumithra and Sripriya in favour of the Bank as per
Ex.P.82 and it is the evidence of the said witness that, at
the time of execution of the said Guarantee Agreement,
Smt.S.Sumithra and Sripriya were present and he
collected ID Card of Sripriya as per Ex.P.83 and also copy
of the passport of accused No.2 as per Ex.P.84. The
prosecution has also got marked another Guarantee
Agreement dated 23.10.2010 stated to be executed by
Sri.S.Srinath in favour of the Bank as per Ex.P.85. It is
the specific evidence of PW.9 that at the time of execution
of Ex.P.85, one person claiming to be by name Srinath,
accused No.2 and accused No.1 were present. Accused
No.2 introduced that person as Sri.S.Srinath, his brother.
50 Crl.A.110/2017 c/w. 248/2017
He verified the person who came to the Bank claiming to
be Sri.S.Srinath. Then, the said person told that he has
come from USA today only to sign the document. He
insisted to produce the passport and then the said
person told that he has not brought the passport but
having ID Card, which is marked as Ex.P.86. It is also
deposed by him that accused No.5 is the same person
who came as Sri.S.Srinath, to execute the document. He
has also identified the signature put by the person
claiming to be Sri.S.Srinath, as per Ex.P.86(a). It is also
deposed by him that CBI called him for identification of
accused and he identified accused No.5 who came for
executing the document in the place of Sri.S.Srinath.
62. PW.9 has also deposed regarding execution of
Undertaking to Guarantee Agreement dated 23.10.2010
executed by Sri.S.Srinath, in favour of the Bank as per
Ex.P.87. It is his specific evidence that the said document
was signed by a person claiming to be Srinath and that
person's signature is marked as Ex.P.87(a). He has
further deposed that the person present before the court
as accused No.5 is that person. It is also deposed by him
that on 23.10.2010, he prepared transaction sheet as per
Ex.P.89 and the person claiming as Srinath, himself,
Priya and accused No.2 had signed the same. He also
identified the signature of the person claiming to be
Srinath as per Ex.P.89(a). Therefore, on going through
the evidence of PW.9, before whom the Guarantee
Agreement and Undertaking to Guarantee Agreement
dated 23.10.2010 were executed, it is clear that accused
51 Crl.A.110/2017 c/w. 248/2017
No.5 impersonated Sri.S.Srinath, the brother of accused
No.5 in the matter of executing the Guarantee Agreement
and Undertaking to Guarantee Agreement as per Ex.P.85
and Ex.P.87. Though the learned counsel for accused
No.5 has cross-examined the said witness, nothing much
was elicited from his mouth so as to disbelieve his
evidence. In the cross-examination also, PW.9 has
specifically stated as to identification of accused No.5,
who came in the place of Sri.S.Srinath to execute the
document. Further, he has specifically denied the
suggestion put to his mouth that accused No.5 has not
signed Ex.P.85, 86, 87 and 89 and not produced Ex.P.86
ID Card. It is also noticed that the accused No.6 has not
contended that he had not been to IDBI Bank on
23.10.2010 to execute the document in the place of
Sri.S.Srinath. Absolutely, there are no reasons
forthcoming for disbelieving the evidence of PW.9 and no
grounds are made out to show any reason to depose
falsely by the said witness against accused No.5. On the
other hand, the entire evidence of PW.9 is verified, it
appears to be natural, acceptable and inspiring the
confidence of the court.
63. Along with the evidence of PW.9, the evidence
of PW.43 Sri.S.Srinath, the brother of accused No.2 is
analyzed, he has specifically stated that he has not
executed Ex.P.85 and the signature shown in Ex.P.85 is
not of his signature and he had not been to IDBI Bank.
He has also specifically stated that Ex.P.86 does not
belong to him. The said evidence remained unchallenged
52 Crl.A.110/2017 c/w. 248/2017
by accused No.5. It is not the case of the accused No.5
that Sri.S.Srinath himself signed the Guarantee
Agreement.
64. Added to the above aspects, it is also noticed
from the evidence of PW.41 and PW.42 that accused No.5
had received Rs.2.50 lakhs for representing himself as
Srinath. PW.42 Sri.V.R.Shekhar, the President of Arjun
Souhardha Pattina Sahakari Niyamitha, who in his
evidence deposed that about 6 years back, one Srinath
came to their Bank for discounting a DD for Rs.2.50
lakhs. Srinath has filled the form and subsequently he
discounted the DD. One Srinivas introduced the said
Srinath. Through the said witness, the prosecution got
marked Statement of Account as per Ex.P.232, which
clearly disclose payment of Rs.2.50 lakhs in the name of
S.Srinath, who is none other than accused No.5 as per
the evidence of the said witness. During cross-
examination of the said witness, accused No.5 got
marked Ex.D.17 Account Opening Application Form. As
per the said witness, Ex.D.17 Form is used for
discounting purpose. The contents of the said document
are analyzed, it reveals that one Sri.B.G.Srinivas (PW.41)
introduced accused No.5 to the society for discounting
the DD. Further, PW.41 Sri.B.G.Srinivas, Member of
Arjun Souhardha Pattina Sahakari Niyamitha,
Malleshwaram, deposed that one Rizwan told over
telephone that he is going to send one DD for Rs.2.5
lakhs to be discounted and to give amount. One Srinath
gave the DD to their society and he discounted the DD
53 Crl.A.110/2017 c/w. 248/2017
and gave the amount. During his evidence, he has also
identified the photo found in Ex.P.86, stating that the
same person came to their society and identified accused
No.5 and further deposed that he told his name as
Srinath and gave the DD. This evidence of PW.41 and
PW.42 makes it clear that accused No.5 having
represented himself as Srinath got the DD amount of
Rs.2.50 lakhs. Though the learned counsel for accused
No.5 cross-examined the said witnesses, nothing was
brought from their mouth so as to disbelieve their
evidence, which support the case of the prosecution as to
payment of Rs.2.50 lakhs in favour of accused No.5 for
having impersonated Sri.S.Srinath.
65. Therefore, on conjoint reading of evidence of
PW.9, PW.41 to PW.43 and the documentary evidence
placed before this court, there remains no doubt that
accused No.5 impersonated Sri.S.Srinath, the brother of
accused No.2 for executing Guarantee Agreement and
executed Guarantee Agreement as per Ex.P.85 in favour
of IDBI Bank and also Ex.P.87 Undertaking to Guarantee
Agreement. It is also clear that, at the time of execution
of the said Guarantee Agreement, accused No.2 was very
well present and he himself introduced accused No.5 as
Srinath, his brother to PW.9. It is also clear that accused
No.5, having represented himself as S.Srinath, got the
DD amount of Rs.2.50 lakhs. Therefore, the evidence on
record clinchingly prove that accused No.5 impersonated
Sri.S.Srinath, the brother of accused No.2 and accused
No.2 brought him to represent his brother S.Srinath for
54 Crl.A.110/2017 c/w. 248/2017
the purpose of executing the Guarantee Agreement in
favour of the Bank.
66. As already stated, it is also the case of the
prosecution that accused No.5 had used forged ID Card
to execute the Personal Guarantee Deed on behalf of
S.Srinath and the copy of the said ID Card is produced as
per Ex.P.86. At this stage, it is pertinent to note that the
accused No.5 himself contended that some persons with
bad intention have misused his photograph and created
such sham document i.e., Ex.P.86 (Para 8 of the Appeal
Memo). Therefore, it is clear that to the knowledge of
accused No.5, Ex.P.86 is a sham and forged document
containing his photograph. At this juncture, even the
unchallenged evidence of PW.29 Sri. Avinash Babu,
Revenue Officer, Banashankari and PW.30 Sri.Lokesh T,
Postman of Banashankari Post Office, which covers
Jayanagar 7th and 8th Block also reveal that Ex.P.86 is
forged and created document and the same was not
issued by Jayanagar Electoral Office. The evidence of
PW.9 and PW.43 makes it clear that accused No.5 made
use of said forged ID Card as genuine so as to represent
S.Srinath, the brother of accused No.2. Therefore, on
going through the entire evidence on record, it is clear
that accused No.5 had impersonated Sri.S.Srinath, in the
matter of executing the Guarantee Deed and executed the
said Guarantee Deed by impersonating S.Srinath in
favour of IDBI Bank by using forged ID Card. It is also
certain that accused No.5, by using forged ID Card,
received DD amount of Rs.2.50 lakhs from Arjuna
55 Crl.A.110/2017 c/w. 248/2017
Souhardha Pattina Sahakari Niyamitha. Hence, it is
clear that the evidence placed by the prosecution clearly
establish the offence punishable under Section 419 and
471 of the IPC by accused No.5.
67. The learned Magistrate had convicted accused
Nos.2 and 5 for the offence punishable under Section 468
of the IPC. In this regard, it is pertinent to note that as
discussed above in detail, the accused No.5 having
impersonated the brother of the accused No.2
Sri.S.Srinath, dishonestly and fraudulently executed the
Guarantee Deed and Undertaking to the Guarantee Deed
as per Ex.P.86 and P.87 and thereby he has created a
false document falling under the definition of forgery
under Section 463 of the IPC and accused No.5 has done
the said act for the purpose of cheating the Bank in the
matter of execution of the Guarantee Deed in the name of
S.Srinath at the instance of accused No.2. Therefore, he
has committed the offence punishable under Section 468
of the IPC.
68. The accused Nos.2 and 5 are also convicted
for the offence of conspiracy under Section 120B read
with Section 419, 420, 468 and 471 of the IPC. In this
regard, it is appropriate to refer the decision of the
Hon'ble Supreme Court in Crl.A.2256/2011 in the case of
Balla @ Farhat Vs. State of Madhya Pradesh, wherein it is
held that "There cannot be a conspiracy by only one
accused and it is necessary for the applicability of
Sec.120B of the IPC that there must be two or more
persons agreeing for the purpose of conspiracy".
56 Crl.A.110/2017 c/w. 248/2017
69. At this stage, it is appropriate to refer the
decision of the Apex Court reported in 2022 Live Law(SC)
709 in the case of Ram Sharan Chathurvedi Vs. The
State of Madhya Pradesh, wherein, the Hon'ble Apex
Court has considered the link necessary for proving the
charge of conspiracy. In Para 22 to 25 of the Judgment,
the Hon'ble Supreme Court of India has observed as
under:
"The principal ingredient of the offence of
criminal conspiracy under Sec.120B of the
IPC is an agreement to commit an offence.
Such an agreement must be proved through
direct or circumstantial evidence. Court has
to necessarily ascertain whether there was
an agreement between the Appellant and A-
1 and A-2. In the decision of State of Kerala
v. P. Sugathan and Anr.2, this Court noted
that an agreement forms the core of the
offence of conspiracy, and it must surface in
evidence through some physical
manifestation"
"12....As in all other criminal offences, the
prosecution has to discharge its onus of
proving the case against the accused
beyond reasonable doubt. ...A few bits here
and a few bits there on which the
prosecution relies cannot be held to be
adequate for connecting the accused with
57 Crl.A.110/2017 c/w. 248/2017
the commission of the crime of criminal
conspiracy...
13. The most important ingredient of the
offence being the agreement between two or
more persons to do an illegal act. In a case
where criminal conspiracy is alleged, the
court must inquire whether the two persons
are independently pursuing the same end or
they have come together to pursue the
unlawful object. The former does not render
them conspirators but the latter does. For
the offence of conspiracy some kind of
physical manifestation of agreement is
required to be established. The express
agreement need not be proved. The evidence
as to the transmission of thoughts sharing
the unlawful act is not sufficient..."
(emphasis supplied)
23. The charge of conspiracy alleged by
the prosecution against the Appellant must
evidence explicit acts or conduct on his
part, manifesting conscious and apparent
concurrence of a common design with A-1
and A-2. In State (NCT of Delhi) v. Navjot
Sandhu, this Court held:
"101. One more principle which deserves
notice is that the cumulative effect of the
proved circumstances should be taken into
account in determining the guilt of the
58 Crl.A.110/2017 c/w. 248/2017
accused rather than adopting an isolated
approach to each of the circumstances. Of
course, each one of the circumstances
should be proved beyond reasonable doubt.
Lastly, in regard to the appreciation of
evidence relating to the conspiracy, the
Court must take care to see that the acts or
conduct of the parties must be conscious
and clear enough to infer their concurrence
as to the common design and its execution."
(emphasis supplied)
24. In accepting the story of the
prosecution, the Trial Court, as well as the
High Court, proceeded on the basis of mere
suspicion against the Appellant, which is
precisely what this Court in Tanviben
Pankajkumar Divetia v. State of Gujarat4,
had cautioned against:
"45. The principle for basing a conviction on
the basis of circumstantial evidences has
been indicated in a number of decisions of
this Court and the law is well settled that
each and every incriminating circumstance
must be clearly established by reliable and
clinching evidence and the circumstances
so proved must form a chain of events from
which the only irresistible conclusion about
the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is
59 Crl.A.110/2017 c/w. 248/2017
possible. This Court has clearly sounded a
note of caution that in a case depending
largely upon circumstantial evidence, there
is always a danger that conjecture or
suspicion may take the place of legal proof.
The Court must satisfy itself that various
circumstances in the chain of events have
been established clearly and such
completed chain of events must be such as
to rule out a reasonable likelihood of the
innocence of the accused. It has also been
indicated that when the important link goes,
the chain of circumstances gets snapped
and the other circumstances cannot, in any
manner, establish the guilt of the accused
beyond all reasonable doubts. It has been
held that the Court has to be watchful and
avoid the danger of allowing the suspicion
to take the place of legal proof for
sometimes, unconsciously it may happen to
be a short step between moral certainty and
legal proof. It has been indicated by this
Court that there is a long mental distance
between "may be true" and "must be true"
and the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa
(1991) 3 SCC 27)" (emphasis supplied).
25. It is not necessary that there must be a
clear, categorical and express agreement
60 Crl.A.110/2017 c/w. 248/2017
between the accused. However, an implied
agreement must manifest upon relying on
principles established in the cases of
circumstantial evidence. Accordingly, in the
majority opinion of Ram Narayan Popli v.
CBI, this Court had held:
"354. ... For the offence of conspiracy some
kind of physical manifestation of agreement
is required to be established. The express
agreement need not be proved. The evidence
as to the transmission of thoughts sharing
the unlawful act is not sufficient..."
70. In the light of the above guiding principles
and the ingredients necessary to constitute the offences
under Sec.120A punishable under Sec.120B of the IPC,
the facts of the present case as to conspiracy between
accused Nos.2 and 5 are analyzed, there is no any
written agreement between them and the case of the
prosecution is entirely based on the circumstantial
evidence, which has to be gathered from the materials
placed before the Court.
71. As already discussed in detail, accused No.5
impersonated brother of the accused No.2 at the
instance of accused No.2 for the purpose of executing the
Guarantee Agreement in favour of IDBI Bank for availing
the loan. The circumstances established by the
prosecution side evidence makes it very clear that the
accused No.2 and 5 have conspired together in the
61 Crl.A.110/2017 c/w. 248/2017
matter of executing the Guarantee Agreement in favour
of IDBI Bank by impersonating the brother of accused
No.2 S.Srinath, so as to avail the loan from IDBI Bank in
the name of accused No.3 Firm. The very act and
conduct of the accused No.2 and 5 as discussed earlier
clearly indicate and link the chain of circumstances of
committing criminal conspiracy in the matter of
executing the Guarantee Agreement by impersonating
the brother of the accused No.2 for the purpose of
cheating the Bank. Therefore, on going through the
entire evidence on record, it is clear that the prosecution
has proved the offence of conspiracy, punishable under
Section 120B read with Section 419, 420, 468 and 471 of
the IPC.
72. Thus, on meticulously analyzing and
considering all the above aspects along with the
judgment passed by the trial court, this court is of the
considered view that the learned Magistrate has rightly
appreciated the oral and documentary evidence in its
proper perspective and convicted the accused Nos.2 and
5. The judgment of conviction passed by the trial court
as against accused Nos.2 and 5 is found to be proper
and is based on the oral and documentary evidence
placed before the court. It is also noticed that in the
appeal memo, it is contended that without framing the
charge against accused No.2 for the offence under
Section 419 of the IPC, he is convicted for the said
offence and conviction for the said offence is illegal.
However, in this regard, it is pertinent to note that since
62 Crl.A.110/2017 c/w. 248/2017
the offence punishable under Section 120B read with
Section 419 of the IPC is proved by the prosecution
against accused No.2 and 5, the accused No.2 is also
convicted for the offence under Section 419 of the IPC.
Therefore, this court did not find any error or illegality on
the part of the learned Magistrate, in convicting the
accused No.2 for the offence punishable under Section
419 of the IPC, in the light of the provisions of Section
120B of IPC as against accused No.2 and 5.
73. Thus, for the reasons discussed above, this
court did not find any such grounds to interfere with the
judgment of conviction passed by the trial court as
against the appellants accused Nos.2 and 5. On the
other hand, the judgment passed by the learned
Magistrate is found to be proper and based on the
appreciation of oral and documentary evidence in its
proper perspective. There are no grounds made out so
as to interfere with the judgment of conviction passed by
the learned Magistrate against the accused Nos.2 and 5.
Even, there are no grounds made out to hold that the
sentence passed by the trial court is excessive and on
the higher side. Therefore, this court did not find any
grounds to interfere with the judgment of conviction and
sentence passed by the learned Magistrate. Hence, the
Point Nos.1 to 3 are required to be answered in the
Negative and answered accordingly.
74. Point No.4 : For the reasons discussed for
point Nos.1 to 3 and findings given thereon, this court is
proceed to pass the following;
63 Crl.A.110/2017 c/w. 248/2017
ORDER
The Appeals filed by accused No.2 and accused No.5 are dismissed.
Consequently, the judgment of conviction and sentence dated 24.01.2017 passed against accused Nos.2 and 5 is hereby confirmed.
Office to keep the copy of this judgment in Crl.A.No.248/2017.
Send the copy of this Common Judgment to the trial court along with the trial court records forthwith.
(Dictated to the Stenographer Gr.I directly on the computer, corrected and then pronounced by me in the Open Court on this the 29th day of January, 2025) (Shridhar Gopalkrishna Bhat) XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.