Bangalore District Court
S/O Amarnarayan vs By Kengeri Police Station on 17 May, 2023
KABC010292262019
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 17th day of May, 2023
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1998/2019
Accused/ Sri.Gurushankar
Appellant: S/o Amarnarayan,
Aged about 29 years,
R/At No.10, 1st Main, 4th Cross,
Shivalayout, Mariyappanapalya,
Jnanabharathi, Bengaluru.
(By Sri.Munibyregowda S., Advocate)
-V/S-
Complainant/ The State of Karnataka
Respondent: By Kengeri Police Station,
Bengaluru.
(By learned Public Prosecutor)
JUDGMENT
The appellant has filed the present appeal u/Sec.374 of Cr.P.C. praying to set aside the judgment of conviction and sentence dated 23.08.2019, passed by 2 Crl.A.No.1998/2019 learned 56th ACMM, Bengaluru in C.C.No.4148/2018 and praying to acquit him.
2. Appellant of this appeal was the accused No.1 before the trial court. The Respondent of present appeal was the complainant before the trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. Brief facts of the case of the appellant before the trial court which leads to file this appeal in brief are as follows:-
The complainant police have registered FIR in Cr.No.402/2017 against the accused No.1 and 2 alleging the offences punishable u/Sec.420 and 511 r/w Sec.34 of IPC, on the basis of information given by one Smt.Urmila Sathyanarayana. The complainant police after conducting investigation of the case have filed charge sheet against accused No.1 and 2 before the learned 56th ACMM, Bengaluru. After filing of the charge sheet, the Learned Magistrate took cognizance for the offences punishable u/ Sec.420, 511 r/w Sec.34 of IPC against the accused No.1 and 2 and registered criminal case bearing CC.No.4148/2018 and issued summons to the accused. It is alleged in the charge sheet that the accused No.1 procure fake gold coin from accused No.2 and the accused 3 Crl.A.No.1998/2019 No.1 knowing fully well that the said gold coins are fake gold coins, trying to sell the said fake gold coins on 10.10.2017 at about 9.30 a.m. to Attica Gold Private Limited Company, stating that those gold coins are real gold coins and thereby attempted to commit the offence of cheating.
4. After filing of the charge sheet, the trial court took cognizance for the offences punishable u/Sec.511 r/w Sec.420 r/w Sec.34 of IPC against the accused No.1 and 2 and ordered to register criminal case against the accused No.1 and 2. Accordingly, CC.No.4141/2018 was came to be registered against the accused No.1. Since accused No.2 was absconded, separate charge sheet was ordered to be file against the accused No.2. Since accused No.1 was on bail. The trial court has complied the provisions of Sec.207 of Cr.P.C. and frame the charge against accused No.1 for the offence punishable u/Sec.511 r/w Sec.420 r/w Sec.34 of IPC. Since accused No.1 has denied the charge leveled against him and thereafter the trial court posted the matter for hearing the accused on charge. The Learned Magistrate, after hearing the accused on the charge, framed the charge against the accused for the alleged offence. The accused pleaded not guilty and claimed to be tried. Then, the Learned Magistrate posted the matter for evidence of the prosecution.
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5. The prosecution in order to prove the guilt of the accused, examined five witnesses before the trial court as P.W.1 to P.W.5. The prosecution has produced 5 documents and got them marked at Ex.P.1 to Ex.P.5. Thereafter, the matter was posted for recording the statement of the accused u/Sec.313 of Cr.P.C.
6. The Learned Magistrate has recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence appearing against him and the accused has given his defence in writing without adducing his defence evidence. Then the matter was posted by the trial court for arguments.
7. The learned magistrate after hearing the arguments of learned Public Prosecutor and learned counsel for the accused was pleased to pass judgment on 23.08.2019 by convicting the accused No.1 for the offences punishable u/Sec.511 r/w Sec.420 of IPC. The Learned Magistrate has sentenced the accused to undergo simple imprisonment for a period of three months and to pay fine of Rs.2,000/- and in default of payment of fine, he shall undergo simple imprisonment for 7 days.
8. The accused being aggrieved by the said judgment of conviction has preferred this appeal.
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9. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:
(a) The appellant is innocent and he has not committed the alleged offences and he has got valid and tenable defence on his behalf.
(b) The judgment of conviction and sentence passed by the trial court is contrary to facts, materials and evidence placed on records.
(c) The complainant has not examined any independent witnesses to corroborate the claim of the complainant.
(d) The Learned Magistrate has committed grave error in not exercising his judicial mind in appreciating the evidence of prosecution witnesses in the cross- examination.
(e) P.W.1 the mahazar witness has not supported the prosecution case. The evidence of P.W.2 who is the material witness was also came to be dropped by the trial court. P.W.3 has not supported the prosecution case.
P.W.4 has partly supported the prosecution case. P.W.5/ Investigating Officer has admitted that he has not recorded the statement of employees of Attica Gold company and other independent witnesses. The trial court has not considered all these facts at the time of passing the impugned judgment of conviction.
(f) The trial court has not considered the written statement submitted by the appellant / accused No.1 at the 6 Crl.A.No.1998/2019 time of recording his statement u/Sec.313 of Cr.P.C. The trial court has not considered the defence of the complainant that it is the accused No.2 who has tried to sell fake gold coins with intention to obtain Rs.10,000/- in order to gave the said amount to accused No.1 as he took hand loan of Rs.10,000/- from accused No.1. The police have not made any efforts to arrest the accused No.2 during the time of investigation. The trial court has not considered the said fact.
(g) The Learned Magistrate without looking the evidence and cross-examination has convicted the accused. No independent witnesses has been examined by the prosecution. There is fit case for acquittal of the appellant.
On these among other grounds, the appellant has prayed to set aside the impugned judgment of conviction passed by the trial court.
10. After filing of the appeal, it is numbered as Crl.A.No.1998/2018 and notice was issued to respondent. After service of notice, the learned Public Prosecutor has appeared on behalf of the respondent police. After appearance of the respondent, the trial court record was called for. After securing the trial court record, the matter was posted for arguments.
11. Heard the arguments of the Learned counsel for the Appellant and Learned Public Prosecutor. Perused 7 Crl.A.No.1998/2019 the grounds urged in appeal memorandum, lower court record and other materials on record.
12. Having done so, the following points will arise for my consideration:
Point No.1 Whether the appellant proves that the learned magistrate is erred in convicting him and sentencing him for the offences punishable under Section u/Sec.511 r/w Sec.420 of IPC?
Point No.2 Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
Point No.3 Whether the appeal filed by the appellant is deserves to be allowed?
Point No.4 What order?
13. My answer to the aforesaid points are as follows:
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
14. Points No.1 to 3:- These three points are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.8
Crl.A.No.1998/2019
15. The PSI of Kengeri police station has filed the charge sheet before learned 56th ACMM, Bengaluru against the accused No.1 by alleging the commission of offences punishable u/Sec.420 and 511 r/w Sec.34 of IPC. One Smt.Urmila Sathyanarayana had given report to the complainant police against the accused No.1 by alleging that the accused No.1 has tried to sell the fake gold coins with intention to cheat Attica Gold Company. On the basis of said complaint, Kengeri police have registered Cr.No.402/2017 against the accused / appellant by alleging the offences punishable u/Sec.511 and 420 of IPC. The said police, after conducting the investigation of the case have filed charge sheet before the court against two accused by alleging the offences punishable u/Sec.511 and 420 r/w Sec.34 of IPC. The appellant of this appeal is shown as accused No.1 in the charge sheet. It is alleged in the charge sheet that the accused No.1 has procured fake gold coins from accused No.2. The accused No.1 having knowledge that the gold coins are fake gold coins has tried to sell the said fake gold coins on 10.10.2017 at about 9.30 a.m. to Attica Gold company situated at 80 feet road, 1st main road, building No.865 in 2nd floor in the presence of C.W.4 and 5 by making them to believe that those gold coins are the pure gold coins and thereby attempted to cheat the informant company.
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16. In order to prove the aforesaid allegations made against the accused, the prosecution had examined 5 witnesses before the trial court as P.W.1 to P.W.5 out of the six witnesses mentioned in the charge sheet. Among them P.W.1 is the mahazar witness. P.W.2 is the business officer in Attica Gold company. P.W.3 is the branch manager in Attica Gold Company. P.W.4 is the transaction executive in Attica Gold Company. P.W.5 is the Investigating Officer.
17. P.W.1 in his examination-in-chief has not supported the prosecution case. He has stated that about 3 to 4 months back on one day police have drawn mahazar in Attica Gold Company in his presence and he had signed the mahazar. He has stated that he do not know for what reasons mahazar was conducted and he do not know the contents of Ex.P.1 mahazar. Hence, he was treated as hostile and was cross-examined by learned PP. But nothing has been elicited during the course of cross- examination of P.W.1 to prove that mahazar as per Ex.P.1 was conducted in his presence and at that time accused No.1 was also present and he has signed Ex.P.1/ mahazar after knowing its contents. Hence, evidence of P.W.1 is not helpful to the prosecution.
18. P.W.2 in his examination-in-chief has stated that on 10.10.2017, at about 9.30 a.m., accused No.1 was 10 Crl.A.No.1998/2019 came to Attica Gold Company to sell gold coins. Accused No.1 in all brought 326 gold coins. Out of the said gold coin, one coin was given for checkup to the C.W.5. P.W.2 has further deposed in his chief-examination that the said gold coin was original and other 325 coins examined by C.W.5 were fake gold coins. P.W.2 has further deposed in his chief-examination that C.W.5 has intimated him about the same and thereafter he had informed the same to his company and as per the direction of the company, he has handed over the accused No.1 to the police. P.W.2 has further deposed in his chief-examination that police have drawn mahazar as per Ex.P.1 in his presence. P.W.2 did not keep himself present for cross-examination. Hence, his evidence was dropped as per order dated 26.06.2019. As such, there is no necessity of discussing about the evidence of P.W.2.
19. P.W.3 in his examination-in-chief has deposed that on 10.10.2017, at about 9.30 a.m. accused No.1 came to Attica Gold company to sell gold and he brought in all 326 gold coins and gave one coin for examination. P.W.3 has further deposed in his chief-examination that he found the said coin is original gold coin. P.W.3 has further deposed in his chief-examination that thereafter he checked other coins and they were found fake coins. P.W.3 has further deposed in his chief-examination that thereafter, he informed the same to C.W.4 and C.W.4 11 Crl.A.No.1998/2019 handed over accused No.1 to the police. P.W.5 has identified the accused No.1 and photos of the coins.
20. P.W.4 in his examination-in-chief has deposed that on 10.10.2017, at about 2.00 p.m. or 2.30 p.m., police have drawn mahazar in Attica Gold Company, Kengeri Branch and the police have taken fake gold coins. P.W.4 has further deposed in his chief-examination that accused No.1 was present at the time of conducting mahazar and identified the accused No.1 and the photos of the gold coin and his signature on Ex.P.1 mahazar.
21. P.W.5 in his examination-in-chief has deposed that on 10.10.2017, he has received written complaint of C.W.1 through e-mail and registered Cr.No.402/17 and on the same day he has conducted mahazar as per Ex.P.1 in the place shown by C.W.4 in the presence of C.W.2 and 3. P.W.5 has further deposed in his chief-examination that C.W.4 has produced one original gold coin and duplicate gold coins and those were seized by him by conducting mahazar. P.W.5 has further deposed in his chief- examination that he has arrested the accused No.1 and recorded his voluntary statement and statements of the witnesses. P.W.5 has further deposed in his chief- examination that since accused No.2 was absconded, he after completing the investigation of the case, he has filed charge sheet against accused No.1 and 2.
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22. Based upon the aforesaid evidence adduced on behalf of the prosecution the learned magistrate has come to the conclusion that accused No.1 i.e. the present appellant has involved in the commission of the alleged offence and convicted the accused No.1 for the offence punishable u/Sec.511 r/w Sec.420 of IPC and sentenced the accused No.1 to undergo simple imprisonment for the period of three months and to pay fine of Rs.2,000/-. In this appeal, the accused has challenged the said order of conviction and sentence passed by learned magistrate.
23. The learned counsel for the appellant has argued that the prosecution has not examined any independent witnesses to corroborate its case. It is further argued that the material witness i.e. P.W.2 has not supported the prosecution case and punch witness has also not supported the prosecution case. It is further argued that I.O. has admitted in the cross-examination that he has not recorded the statement of employees of Attica Gold company and other independent witnesses. It is further argued that the appellant/ accused No.1 has given written statement at the time of recording his statement u/Sec.313 of Cr.P.C. stating that accused No.2 has taken money of Rs.10,000/- from him and when he remanded for repayment of loan amount, the accused No.2 stated that he is having gold with him and he want to sell the gold and 13 Crl.A.No.1998/2019 after selling the gold he will pay the loan amount. It is further argued that accused No.2 took accused No.1 Attica Gold Pvt. Ltd. and accused No.2 gave gold coins and when the staff of accused No.2 noticed that the said gold coins are fake, the accused No.2 left the place without informing the appellant and the staff of Attica Gold Company have caught the accused No.1 and filed false complaint against him. Hence, the learned counsel for the accused has argued that the accused No.1 is innocent and he has not committed the alleged offences and prayed to acquit him.
24. As it is argued by the learned counsel for the accused, the prosecution has not examined C.W.1 complainant before the trial court. C.W.1 was drooped by the trial court as per order dated 26.06.2019. But only ground of non-examination of C.W.1, the accused cannot be acquitted. C.W.1 is not the eyewitness to the incident. She has only given complaint only through e-mail. C.W.1 is the director of Attica Gold Pvt. Ltd. P.W.5 the Investigating Officer in his chief-examination has clearly stated about receipt of e-mail complaint from C.W.1 as per Ex.P.2 and deposed about registering of FIR against the accused No.1 in Cr.No.402/17. P.W.5 during the coures of his cross- examination has denied the suggestion put to him that C.W.1 has not sent any complaint through e-mail. I do not find any valid reasons to disbelieve the evidence of P.W.5 14 Crl.A.No.1998/2019 regarding receipt of e-mail complaint by C.W.1 and about registering of Cr.No.402/2017 by him against accused No.1 on the basis of said e-mail complaint.
25. Even though P.W.2 was dropped by the trial court as per order dated 26.06.2019 since he did not offered himself for cross-examination, there is evidence of P.W.3 on record. P.W.3 is the branch manager in Attica Gold company, Kengeri branch, where the incident took place. P.W.3 in his evidence has clearly deposed that on 10.10.2017, at about 9.30 a.m., the accused No.1 came to the company to sell gold coins and accused No.1 was having 326 gold coins with him and also deposed that one gold coin which was given by the accused was found to be original after examination and other coins are found to be fake. P.W.3 has also clearly stated that he informed the same to C.W.4 and C.W.4 handed over accused No.1 to the police. Further P.W.3 has clearly identified the accused as person who came to his company to sell fake gold coins.
26. Since P.W.3 is the Branch Manager of Attica gold company and since he has deposed about accused visiting the company for selling fake gold coins, I am of the opinion that the evidence of P.W.2 who is the business officer of Attica gold company may not be of much importance. The accused cannot be permitted to take 15 Crl.A.No.1998/2019 advantage of dropping of the evidence of P.W.2 by the trial court. Nothing material has been elicited during the course of cross-examination of P.W.3 to disbelieve his evidence in the chief-examination about the accused No.1 visiting Attica Gold company and producing fake coins before him by stating that they are the original gold coins. P.W.3 has denied all the suggestions put to him. He has denied the suggestion put to him that the accused No.1 came to the company along with accused No.2. He has also denied the suggestion put to him that one Mallanna seized the duplicate coins from accused No.2. Suggestion was also put to P.W.3 during the course of his cross-examination that accused No.1 not visited his company.
27. The accused has given his written statement before the trial court at the time of recording his statement u/Se.313 of Cr.P.C. In the written statement given by the accused No.1, it is stated that accused No.2 took Rs.10,000/- hand loan from him and accused No.2 told accused No.1 that he has got some gold and he will sell the same and give money to accused No.1. It is further stated in the written statement by the accused No.1 that he will also accompany accused No.2 to the shop and as such, accused No.2 took him to Attica Gold company to sell gold. It is further stated in the written statement by accused No.1 that when the company was verifying the gold given by accused No.2 and when it came to know that 16 Crl.A.No.1998/2019 the gold is fake, accused No.2 ran away from the company without intimating him. It is further stated in the written statement that at that time the staff of the company have caught him and handed over him to the police.
28. The accused No.1 in his written statement submitted before the trial court, at the time of recording his statement u/Sec.313 of Cr.P.C. has clearly admitted the fact that he had gone to Attica Gold company along with accused No.2 and he was caught by the staff of the company and he was handed over to the police by the staff. The fact of presence of the accused No.1 in the Attica Gold company along with accused No.2 when accused No.2 has given the fake coins is not disputed by the accused No.1. P.W.3 in his chief-examination has also deposed that accused No.1 and 2 have came to his company along with fake coins. Further P.W.4 transaction executive staff of Attica Gold company has also deposed in his chief-examination that on 10.10.2017, the police have conducted mahazar in his presence and have taken fake gold coins by conducting mahazar as per Ex.P.1 in his presence. He has also clearly stated that accused No.1 was also present at the time of conducting mahazar. P.W.4 in the cross-examination has also clearly stated that police seized coins from accused No.1, even though he has stated that he has signed Ex.P.1 in the police station.
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29. The accused No.1 except giving his written statement before the trial court stating that accused No.2 has taken hand loan of Rs.10,000/- from him and in order to repay the said amount, accused No.2 took him to Attica Gold company to sell the gold, accused No.1 has not adduced any sufficient documents or materials to prove the said contention. It seems that the accused No.1 might have given the said statement or taken the said defence before the court only with intention to escape from the case. No such suggestions were also put to the investigating officer on behalf of the accused No.1 during the course of his cross-examination. Under these facts and circumstances, I am of the opinion that the defence of the accused cannot be believed. As such, without there being any sufficient evidence, it cannot be come to the conclusion that accused No.1 had gone to Attica Gold company along with accused No.2 only to get the amount of Rs.10,000/- which accused No.2 was getting by selling the gold. Further it cannot be come to the conclusion that there was no common intention between accused No.1 and 2 to sell fake coins to Attica Gold company. The fact that fake gold coins were offer to be sold at Attica Gold company is not disputed by accused No.1. P.W.3 has clearly deposed in his examination-in-chief about accused No.1 and 2 came to the company to sell fake gold coins. The alleged incident was took place inside the office of Attica Gold company. As such, there is possibility that only 18 Crl.A.No.1998/2019 the staff of Attica Gold company might have witnessed the incident. As such, only on the ground that the I.O. has not examined any independent witnesses as contended in the appeal memorandum, the case of the prosecution cannot be disbelieved. P.W.3 and 4 are the staff of Attica Gold company and their evidence is clear and convincing and as such, there is no reasons to disbelieve their evidence.
30. The trial court in the impugned judgment has assigned valid reasons to believe the evidence of P.W.3. The trial court on the basis of the evidence of pW.3 and on the basis of evidence of investigating officer has rightly come to the conclusion that the accused No.1 has committed the offence punishable u/Sec.511 r/w Sec.420 of IPC. Sec.511 of IPC provides for punishment for attempting to commit the offences punishable with imprisonment for life or other imprisonment. Sec.420 of IPC provides for punishment for cheating and dishonestly inducing the person deceived to deliver any property to any person, or to make, alter or destroy whole or any part of a valuable security etc. In the case before the trial court, the prosecution has adduced sufficient evidence to prove beyond reasonable doubt that accused No.1 in furtherance of common intention with accused No.2 has attempted to deceive the staff of Attica Gold company by giving fake gold coins and accused No.1 has fraudulently and dishonestly induced the staff of Attica Gold company to 19 Crl.A.No.1998/2019 receive the said fake gold coins and to give money for the same. Though the offence of cheating is not completed. But the facts and circumstances of the case before the trial court as discussed above are sufficient to come to the conclusion that accused No.1 has attempted to commit the offence of cheating punishable u/Sec.420 of IPC. As such, I am of the opinion that the trial court has rightly convicted the accused No.1 for the offence punishable u/Sec.511 r/w Se.420 of IPC. As such, I do not find any valid grounds to interfere with the finding of the trial court convicting the accused No.1 for the offence punishable u/Sec511 r/w Sec.420 of IPC.
31. The offence u/Sec.420 of IPC is punishable with imprisonment for a period which may extent to seven years and shall also liable to be fine. u/Sec.511 of IPC, the court can sentence the accused to one-half of longest term of imprisonment provided for that offence. The trial court has sentenced the accused to undergo imprisonment for the period of three months and to pay fine of Rs.2,000/- and in default of pay of fine, the accused shall undergo simple imprisonment for the period of seven days. The sentence passed by the trial court is not against to the provisions of Sec.511 of IPC. The prosecution has not challenged the sentence passed by the trial court. As such, I do not find any grounds to interfere with the sentence passed by the trial court. The appellant has failed to prove 20 Crl.A.No.1998/2019 that the trial court is erred in convicting him for the offence punishable u/Sec.511 r/w Sec.420 of IPC. I do not find any merits in the various grounds urged by the appellant in the appeal memorandum. On any of the said grounds, the prosecution case cannot be disbelieved. The prosecution has proved beyond reasonable doubt that the appellant has attempted to commit the offence of cheating on the staff of Attica gold company. As such, the trial court has rightly convicted the accused for the offence punishable u.Sec.511 r/w Sec.420 of IPC and has rightly sentenced the appellant for the said offence. As such, I do not find any valid grounds to interfere with the judgment of conviction and sentence passed by the trial court. As such, appeal filed by the appellant is deserves to be dismissed. Accordingly, I answer Points No.1 to 3 in Negative.
32. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal filed by appellant u/Sec.374 of Cr.P.C. is hereby dismissed.
The judgment of conviction and sentence passed by the learned 56th ACMM, Bengaluru, dated 23.08.2019 in CC.No.4148/2018 convicting the accused for the offences punishable u/Sec.511 r/w Sec.420 of IPC and sentencing him for the said offence is hereby confirmed.21
Crl.A.No.1998/2019 Send back the copy of judgment to the trial court along with the trial court record.
(Dictated to the Stenographer, typed by her, corrected and then pronounced by me in the open court on this the 17th day of May, 2023).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
22 Crl.A.No.1998/2019