Bangalore District Court
State By Rmc Yard Police vs Vijay S/O.Shankrappa on 30 March, 2022
1 CC No.13481/2017
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 30th day of March 2022
Present : Sri.Arun Sadashiv Gudigenavar,
B.A., LL.B., (Hon's) L.L.M.,
IX Addl.C.M.M., Bengaluru.
CC NO.13481/2017
1.C.C.No. 13481/2017
2.Date of offence 10/04/2017
3.Complainant State by RMC Yard Police
Station.
4.Accused 1.Vijay S/o.Shankrappa
Aged about 38 years,
R/o. Sriraj Apartment,
Mahalakshmi Layout,
Bengaluru.
2. Ganesh
S/o.Subramani
Aged about 40 years,
R/No. 68, Super Talkies,
Good shed road,
Bengaluru.
2 CC No.13481/2017
3. Anthony S/o.Syman
Aged about 33 years,
R/No. 54, 2nd Cross,
Cocks town, Bengaluru.
4.Nagaraj S/o.Muthyala
Naidu, Aged about 43 years,
R/No. 22, 13th Main,
2nd Cross, Magadi road,
Bengaluru.
5.Suresh
S/o.Venkata Narasimha
Aged about 42 years,
R/No.36,Chennabasappa
Layout,
Mariyappanapalya
Bengaluru.
5. Offences U/Sec.420 of IPC and
complained of Sec.7 Specified Bank Notes
(Cessation of liabilities)
2017 Act.
6.Plea Accused No.1 to 5
pleaded not guilty.
7.Final Order Accused No.1 to 5 are
acquitted.
8.Date of Order 30-03-2022.
3 CC No.13481/2017
JUDGMENT
The Police Sub-Inspector of RMC Yard Police Station, Bengaluru has filed this charge sheet against the accused No.1 to 5 for the offences punishable u/Sec.420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017.
2. The brief facts of the prosecution case are as under:
It is the case of the prosecution that on 10/04/2017 at around 9.45 pm CW.1 after getting credible information he along with CW.2 to CW.8 visited the parking area of Shivabhoj Hotel situated at Guruguntepalya within the limits of RMC Yard Police Station. Further it is the case of the prosecution that CW.1 along with CW.2 to CW.8 carefully observed at the parking area and found some unknown persons were roaming suspiciously. Immediately, 4 CC No.13481/2017 CW.1 to CW.8 caught hold of five unknown persons and upon enquiry they came to know their names as Vijay S/o.Shankarappa, Ganesh S/o.Subramani, Anthony S/o.Syman, Nagaraj S/o.Muthyal Naidu and Suresh S/o.Venkat Narasimha. They also came to know that those five persons were trying to exchange the banned currency notes of denomination of Rs.1,000/- and Rs.500/- for commission to the extent of 30% by misusing the grace period given to the non-resident Indians as notified by the Government. Immediately, CW.1 to CW.8 searched the car bearing registration No.KA-01-MF-8421 and found three bags containing currency notes of denomination of Rs.1,000/- and Rs.500/- total to the value of Rs.1 Crore. Thereafter, CW.1 in the presence of panch witnesses seized the currency notes, mobile phones and car from the possession of accused No.1 to 5. In this regard CW.1 lodged complaint and based on the same FIR came to be 5 CC No.13481/2017 registered FIR in Cr.No.87/2017 for the offences punishable u/Sec.420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017. Thereafter, CW.9 conducted investigation and filed the charge sheet against the accused No.1 to 5 for the offences punishable u/Sec..420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017.
3. After registration of FIR accused No.1 to 5 have been produced before this court and later they have been enlarged on bail. After filing of the charge sheet this Court has taken the cognizance of the offences punishable u/Sec. 420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017. The copy of the charge sheet has been furnished to the accused No.1 to 5 as per Sec.207 of Cr.P.C. Subsequently, the charge has been framed and read over to them. But they have pleaded not guilty and 6 CC No.13481/2017 claimed to be tried. Hence, the case has been posted for prosecution evidence.
4. The prosecution in order to prove its case has examined in all four witnesses as PW.1 to PW.4 and got marked 4 documents as Ex.P.1 to Ex.P.4. After conclusion of the prosecution evidence the statement of the accused No.1 to 5 u/Sec.313 of Cr.P.C. has been recorded. They have denied the incriminating circumstances appearing in the prosecution evidence. They have not chosen to adduce their defence evidence.
5. Heard the arguments of both sides. Perused the entire documents placed on record.
6. The points that arise for my consideration are as under:
7 CC No.13481/2017
(1) Whether the prosecution proves beyond reasonable doubt that on 10/04/2017 at around 9.45 pm in the parking area of Shivabhoj Hotel situated at Guruguntepalya within the limits of RMC Yard Police Station, accused No.1 to 5 found in possession of specified bank notes of denominations of Rs.1,000/- and Rs.500/- worth of Rs.1 Crore and they were trying to transfer the same by misusing the benefit of grace period provided to the non-resident Indians for illegal gain and also to cheat the Government and thereby committed an offences u/Sec.420 of IPC and u/Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017 ?
(2) What order ?
7. My findings to the above points are as under:
Point No.1 : In the Negative, Point No.2 : As per final order, for the following:
REASONS
8. Point No.1:- It is the case of the prosecution on 10/04/2017 at around 9.45 pm CW.1 after getting credible information he along with CW.2 to CW.8 visited the 8 CC No.13481/2017 parking area of Shivabhoj Hotel situated at Guruguntepalya within the limits of RMC Yard Police Station. Further it is the case of the prosecution that CW.1 along with CW.2 to CW.8 carefully observed at the parking area and found some unknown persons were roaming suspiciously. Immediately, CW.1 to CW.8 caught hold of five unknown persons and upon enquiry they came to know their names as Vijay, Ganesh, Anthony, Nagaraj and Suresh. They also came to know that those five persons were trying to exchange the banned currency notes of denomination of Rs.1,000/- and Rs.500/- for commission to the extent of 30% by misusing the grace period given to the non-resident Indians as notified by the Government. Immediately, CW.1 to CW.8 searched the car bearing registration No.KA- 01-MF-8421 and found three bags containing currency notes of denomination of Rs.1,000/- and Rs.500/- total to the value of Rs.1 Crore. Thereafter, CW.1 in the presence 9 CC No.13481/2017 of panch witnesses seized the currency notes, mobile phones and car from the possession of accused No.1 to 5. As already stated supra, the prosecution has examined in all 4 witnesses as PW.1 to PW.4 and 4 documents Ex.P.1 to Ex.P.4.
9. PW.1 Sri.Mohammed Mukaram is a Police Inspector who conducted alleged raid and seized alleged currency notes by drawing panchanama as per Ex.P.1. PW.1 is first informant who lodged complaint as per Ex.P.2. He has deposed that on 10-04-2017 at around 9.15 pm he got a credible information that some unknown 4-5 persons were trying to transfer the banned currency notes near Shivabhoj Hotel, Guruguntepalya, Bengaluru. Further he has deposed that he along with panch witnesses CW.2 and CW.3 and his police staff CW.4 to CW.8 went to the spot and observed carefully there and found some five persons 10 CC No.13481/2017 were moving suspiciously near I10 car bearing registration No.KA-01-MF-8421. Further he has deposed that immediately he and his entire police staff caught hold of those five unknown persons and upon enquiry they came to know their names as Vijay, Ganesh, Anthony, Nagaraj and Suresh. Further they came to know that the accused No.1 to 5 were involved in transferring of banned currency notes in order to have illegal gain. Immediately, they searched the car and found 3 bags containing banned currency notes of denomination of Rs.1,000/- and Rs.500/- total worth of Rs.1 Crore. He has also deposed that immediately he seized mobile phones, banned currency notes and car by drawing panchanama as per Ex.P.1 in the presence of panch witnesses. He has also identified the photos of currency notes which also marked as Ex.P.3 and Ex.P.4.
10. It is relevant to note that the evidence of PW.1 has 11 CC No.13481/2017 been adduced on 12-03-2020. On that day the learned counsel for the accused has sought time for cross- examination of PW.1. Time has been granted by this Court. But thereafter, PW.1 has remained absent before this court. Hence, this court has made all endeavors to secure presence of PW.1 and issued summons to him through Commissioner of Police, Bengaluru. But in spite of it PW.1 has not been secured before this court by the concerned police or the prosecution. Therefore, this court is not inclined to believe the oral evidence of PW.1 in the absence of his cross-examination.
11. PW.2 Shankar, PW.3 Gangahonnaiah and PW.4 Anil Kumar are police officials and they are shown as participants in conducting the alleged raid. I have perused the entire examination-in-chief of PW.2 to PW.4. They have consistently deposed that on 10-4-2017 at around 9.15 pm 12 CC No.13481/2017 they conducted raid in the parking area of Shivabhoj hotel situated at Guruguntepalya, Bengaluru. Further they have deposed that they caught hold of the accused No.1 to 5 and seized currency notes in the presence of panch witnesses. The learned counsel for the accused has cross-examined the PW.2 to PW.4 at length. During the cross-examination of PW.2 he has deposed that he is not able to say how much currency notes were kept in each bag. Further he has deposed that he is not able to say the colour and company of the seized bags. He has also deposed that they did not request the persons who were present at the spot to become panch witnesses. He has also deposed that the owner of the Shivabhoj hotel or the security guard were not present at the time of drawing panchanama. Further he has denied the rest of the suggestions put to him by the learned counsel for accused No.1 to 5.
13 CC No.13481/2017
12. PW.3 during his cross-examination has admitted that during his chief-examination he noted the car registration number on his palm and by looking at it he deposed before this court. Further he has deposed that he is not able to say how much currency notes were there in the bag. He has also deposed that he did not remember the name of security guard of Shivabhoja hotel who was present at the time of alleged raid. He has also deposed that they did not request the persons who were present at the spot to become panch witnesses. Further he has deposed that he did not remember who wrote panchanama. He has also deposed that he did not remember who had put signatures on panchanama and he did not remember the exact time of drawing panchanama.
13. PW.4 during his cross-examination has admitted that during his chief-examination he noted the car registration 14 CC No.13481/2017 number on his palm and by looking at it he deposed before this court. Further he has deposed that he is not able to say how much currency notes were there in the bag. He has also deposed that he did not remember the name of security guard of Shivabhoja hotel who was present at the time of alleged raid. He has also deposed that they did not request the persons who were present at the spot to become panch witnesses. Further he has deposed that he did not remember who wrote panchanama. He has also deposed that he did not remember who had signed signatures on panchanama and he did not remember the exact time of drawing panchanama.
14. From the evidence of PW.2 to PW.4 in the light of their cross-examination it goes to show they did not know how much currency notes have been seized at the time of conducting alleged raid. Further it goes to show that they 15 CC No.13481/2017 do not know the author of Ex.P.1 panchanama. It also goes to show that they do not know about the witnesses to Ex.P.1 panchanama. Therefore, if at all PW.2 to PW.4 had participated in conducting raid, they would have definitely aware of the quantity of the currency notes seized, the author of panchanama and about the panch witnesses to Ex.P.1 and they would have definitely put their signatures to the panchanama Ex.P.1. I have perused spot panchanama and it makes clear that PW.2 to PW.4 have not put their signatures on panchanama. Therefore, the evidence of PW.2 to PW.4 is full of contradictions. Therefore, this court is not inclined to accept their evidence.
15. It is relevant to note that CW.2 Vijay Kumar and CW.3 K E Satish are shown as witnesses to Ex.P.1 panchanama. Similarly, CW.5 Chandrashekar is a police official who is 16 CC No.13481/2017 shown as participant in conducting alleged raid and CW.9 Raghu Prasad is a police official who is shown as Investigating Officer. CW.2, 3, 5 and 9 are material witnesses. These witnesses have not been secured before this court in spite of issuance of summons and proclamation against them through the concerned Deputy Commissioner of Police. Therefore, non-examination of material witnesses is fatal to the prosecution case. As already stated supra, PW.1 has not been secured before this court for his cross-examination. It is relevant to note that the prosecution or the concerned police have failed to produce seized currency notes before this court. Therefore, in the absence of direct and cogent evidence this court is not inclined to accept the version of PW.2 to PW.4. Therefore, the benefit of doubt arising out of evidence of PW.2 to PW.4 should go to accused No.1 to 5. Hence, I am of the opinion that the prosecution has failed to prove the 17 CC No.13481/2017 ingredients of Sec.420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017 and also the charges levelled against the accused No.1 to 5 beyond reasonable doubt. Accordingly, I answer point No.1 in the negative.
16. Point No.2:- For the aforesaid reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 to 5 are hereby acquitted of the offences punishable u/Sec. 420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017.
The bail bonds and surety bonds of accused No.1 to 5 stands cancelled.
The property seized in PF No.25/2017 (item 18 CC No.13481/2017 No.1 to 3) shall be confiscated to State, after appeal period is over.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 30th day of March 2022).
(Arun Sadashiv Gudigenavar) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: Mohammed Mukaram PW.2: Shankar PW.3: Gangahonnaiah PW.4: Anil Kumar.
List of documents marked on behalf of the prosecution:
Ex.P.1 : Mahazar
Ex.P.1(a) : Signature of PW.1
Ex.P.2 : Complaint
Ex.P.2(a): Signature of CW.1
Ex.P.3 & 4: Photos.
19 CC No.13481/2017
List of material objects marked on behalf of the prosecution:
- NIL -
List of witnesses examined on behalf of the defence:
-NIL -
List of documents and materials marked on behalf of the defence:
-NIL -
IX ADDL.C.M.M. Bengaluru.20 CC No.13481/2017
Judgment pronounced in the Open Court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused No.1 to 5 are hereby acquitted of the offences punishable u/Sec. 420 of IPC and Sec.7 Specified Bank Notes (Cessation of liabilities) Act, 2017. The bail bonds and surety bonds of accused No.1 to 5 stands cancelled. The property seized in PF No.25/2017 (item No.1 to 3) shall be confiscated to State, after appeal period is over.
IX ACMM, Bengaluru.21 CC No.13481/2017