Bangalore District Court
State By Cubbonpark P.S vs Is Acquitted on 7 December, 2020
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 7th Day of December 2020
Present: Sri.Vignesh Kumar, LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.20269/2012
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 20269/2012
2. The date of commission 03/05/2012
of the offence
3. Name of the complainant State by Cubbonpark P.S.
4. Name of the accused C.C.Rajanna
s/o late Chikkegowda
aged about 60 years
r/at No.433, 6th A Cross
Health Department Layout
Vishwaneedam Post
Sunkadakatte
Bangalore - 560 091.
5. The offence complained of U/s. 420 of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused is acquitted
2 C.C.No.20269/2012
8. Date of such order 07122020
For the following:
JUDGMENT
This is a charge sheet submitted by Police SubInspector of Cubbonpark PS against the accused and for an offence Punishable U/Sec. 420 of IPC.
2. The case of the prosecution in brief is as under:
Accused was working as Second Divisional Assistant in the department of Animal Husbandry and Veterinary Services and had got retired on 30042012. CW2 was proposed to be appointed on compassionate ground in the said department. It is alleged that on 03052012 accused herein had cheated CW1 Ravikumar on the pretext of helping CW2 Sridhar to obtain job on compassionate ground in the said department and induced CW1 to part away Rs.4,000/ dishonestly. Regarding the said incident CW1 had initially contacted 3 C.C.No.20269/2012 Lokayukta Office, but they refused to take action as the accused herein is already retired from government services. As such, on 03052012 at 12.00 noon near V.V.Tower CW1 met accused wherein demand for illegal gratification was made and CW1 parted away Rs.4,000/ and recorded the transaction. Thereafter he lodged the first information along with audio recording to the jurisdictional Cubbonpark Police. The concerned police after registration of FIR drew spot and seizure mahazar, recorded the statement of the witnesses, after arrest of accused recorded his confession. After the conclusion of investigation filed charge sheet against the accused for the aforementioned offences.
3. After filing of charge sheet accused was secured and he released on bail. Charge read over to the accused for the offence punishable U/s. 420 of IPC. The accused has pleaded not guilty and claimed to be tried.
4 C.C.No.20269/2012
4. The prosecution in order to prove its case got examined all together 3 witnesses as PWs1 to 3. In total the prosecution is relying upon Ex.P1 to P9 and MO1 and 2 documents. After the closure of prosecution side evidence, statement u/s 313 of CrPC was recorded. The accused had denied the incriminatory materials against him. He had not preferred to lead defense evidence.
5. Heard the arguments.
6. The point that would arise for my consideration in this case are as under:
1. Whether prosecution proves beyond reasonable doubts that on 03052012 accused who is the retired Second Divisional Assistant at Animal Husbandry and Veterinary Services Department cheated CW1 near V.V.Tower within the jurisdiction of Cubbonpark Police Station under 5 C.C.No.20269/2012 a pretext of verifying the records of CW2 to provide him job on compassionate ground and dishonestly induced CW1 to pay Rs.4,000/ and thereby committed the offence punishable U/sec.420 of IPC?
2. What Order?
7. My findings on 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: In order to prove its case the prosecution examined 3 witnesses and got marked Ex.P1 to P9 and MO1 and 2 on its behalf. During the course of trial it is reported that CW1 was dead. As such, he could not be examined before 6 C.C.No.20269/2012 this Court. The nephew of CW1 i.e., CW2 Sridhar is examined as PW1 before this Court. During his chief examination PW1 has refused to admit that CW1 was approached by the accused in connection with his employment. He has refused to admit the allegations that CW1 had paid Rs.4,000/ to the accused due to cheating. As PW1 was treated hostile learned Sr.APP has thoroughly cross examined him. In spite of it nothing material is elicited from the mouth of PW1. Unfortunately, for the prosecution in spite of issuance of several processes including proclamation, CW4 to 8 did not appear. As such, they are dropped from examination.
9. The remaining evidence is that of CW3/PW2 official from the Lokayukta Department and Investigating Officer CW9/PW3. During the chief examination PW2 has stated that CW1 had come to their office on 03052012 and informed them that the accused is demanding illegal gratification of 7 C.C.No.20269/2012 Rs.6,000/ in order to help CW2/PW1 to obtain job in Animal Husbandry Department on a compassionate ground. Since the accused had already been retired from service Lokayukta had no power to investigate the matter. As such, on humanitarian ground he had handed over a tape recorder to CW1 and directed him to record the audio when accused approaches him to pay the illegal gratification amount. It is specifically stated by PW2 that on the same day evening CW1 had come to their office and informed that with the help of Cubbonpark Police he had got the voice of accused recorded and requested to transfer it into a CD. Accordingly, MO1 CD is transferred in Lokayukta office. Unfortunately, MO1 is not played during the evidence of PW2. In the cross examination of PW2 it is specifically deposed by him that he cannot remember what is recorded in MO1 CD. MO1 CD being an electronic evidence either it should have been played during the evidence of PW2 or at least its transcript should have been produced before 8 C.C.No.20269/2012 this Court. In the present case no such transcript is available. Therefore, on the basis of MO1 CD the prosecution cannot prove its case. Moreover, at the time of recording of audio if the Cubbonpark Police had accompanied CW1 they should have had registered FIR much before the said proceeding. Especially, when the police are informed with regard to cheating committed by the accused which is cognizable offence. The Police must have had registered FIR first and thereafter proceeded to lead the accused by recording his voice at the time of handing over of the illegal gratification amount. During the chief examination of PW3 he has stated that at 8.30 p.m., CW1 had lodged first information as per Ex.P2 before him. He further states that along with Ex.P2 Sony tape recorder instrument is also produced which is seized by him as per Ex.P4. Interestingly, the said tape recorder is not produced before this Court. In fact, the said tape recorder amounts to a primary evidence when compared to MO1 CD. 9 C.C.No.20269/2012 Whatever it may be the best person to depose with regard to the recording of audio the said tape recorder or in MO1 CD is the deceased CW1. Unfortunately, due to the death of CW1 direct eye witness to the incident is not available for examination. Moreover, the tape recorder and the CD is not subjected to Forensic examination. Therefore, in the absence of expert opinion u/s 45 of Evidence Act. MO1 is not sufficient to prove the case of the prosecution. It must be noted here that on 06052012 itself tape recorder is handed over by the Investigating Officer to the Lokayukta Department.
10. Apart from CW1 there were no eye witness to the incident. The person who is directly affected, due to the alleged act of the accused is CW2/PW1. Unfortunately, the said person has completely turned hostile to the case of the prosecution. The remaining witnesses CW4 to 8 have not appeared before this Court. As such, there is no independent 10 C.C.No.20269/2012 witness in favour of the case of the prosecution. The evidence of official witness PW2 and 3 does not inspire confidence in the absence of independent corroboration. In order to constitute an offence u/s 420 of IPC, the prosecution is primary required to prove the offence of cheating and thereafter the inducement to part away with the amount must be proved. In the present case the first ingredient as to the commission of cheating itself is not proved by the prosecution. It must be noted here that the accused had admittedly retired from service on 30042012. Therefore, there was no occasion for the accused to verify any documents pertaining to the appointment on compassionate ground. In such circumstances, the prosecution has utterly failed to prove the ingredients of Section 420 of IPC beyond reasonable doubt. Accordingly, I answer point no.1 in the negative. 11 C.C.No.20269/2012
11. Point No.2: Four old currency notes available Rs.1,000/ each which is all together marked as MO2 is seized from the possession of the accused herein under Ex.P5 mahazar. Unfortunately, due to the non examination of independent mahazar witness Ex.P5 mahazar is not proved by the prosecution. Admittedly, accused has not made any claim for the said currency notes. In such circumstance, it would be proper to forfeit MO2 in favour of the government. Admittedly, MO2 currency notes are seized by the police prior to 3012 2016. As per Rule 2 of Specified Bank Notes (Deposit of Confiscated notes) Rules 2017, it is necessary to deposit the same with RBI by issuing necessary direction. In the result, I proceed to pass the following:
ORDER Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 420 of IPC. 12 C.C.No.20269/2012
Bail bonds of accused and his surety bond stands cancelled.
MO1 being worthless is ordered to be destroyed. MO2 old currency notes of value Rs.1,000/ X 4 = 4,000/ in total is ordered to be forfeited to the State after the appeal period is over as per Rule 2 of Specified Bank Notes (Deposit of Confiscated notes) Rules 2017 Office is directed to issue direction letter to RBI. (Dictated to the stenographer, transcribed and typed by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 7 th day of December 2019.) (Vignesh Kumar) VIII Addl. CMM, Bangalore.
ANNEXURE
1. Witnesses examined for the prosecution :
PW1 : Sridhar
PW2 : Manjunatha
PW3 : Ravi
13 C.C.No.20269/2012
2. Documents marked on behalf of the prosecution:
Ex.P1 : Statement of PW1 Ex.P2 : First Information Ex.P2(a) : Signature of PW3 Ex.P3 : FIR Ex.P3(a) : Signature of PW3 Ex.P4 : Seizure Mahazar Ex.P4(a) : Signature of witness Ex.P5 : Spot Mahazar Ex.P6(a) : Signature of witness Ex.P7 : Death Certificate Ex.P8 : Letter Ex.P9 : Report
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL
5. Material Objects:
MO1 : CD
MO2 : Old Currency 1000 x 4
VIII Addl. C. M. M. Bangalore.
14 C.C.No.20269/2012
Judgment pronounced in the open court
(vide separate order)
ORDER
Acting under Section 248 (1) of Cr.P.C., accused is hereby acquitted of the offences punishable U/sec. 420 of IPC.
Bail bonds of accused and his surety bond stands cancelled.
MO1 being worthless is ordered to be destroy. MO2 old currency notes of value Rs.1,000/ X 4 = 4,000/ in total is ordered to be forfeited to the State after the appeal period is over as per Rule 2 of Specified Bank Notes (Deposit of Confiscated notes) Rules 2017.
Office is directed to issue direction letter to RBI.
VIII Addl. C. M. M. Bangalore