Bangalore District Court
State By Central Crime Branch (F And M ... vs S.V.Gaviyappa S/O Late Nanjappa on 13 January, 2017
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl. C. M. M, Bengaluru
C.C.No.6997/2014
Dated this the 13th day of January 2017
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by Central Crime Branch (F and M Squad),
N.T. Pet, Bengaluru.
(By Learned Senior Assistant Public Prosecutor)
VS
Accused:- 1. S.V.Gaviyappa s/o Late Nanjappa,
age:30 years, r/o No.12, 17th cross, 7th main,
Muneshwara Block, Srinagar, Bengaluru,
2. K.C.Navinkumar s/o Late Chikkanna, age:25 years,
r/o No.77/3, Byadarahalli, Magadi main road,
Bengaluru,
3. Swamy T.U. @ Juice Swamy s/o Ugrappa,
age:26 years, r/o K/A Gaviyappa, no.12,
2 C.C.No.6997/2014
17th cross, 7th main, Muneshwara Block,
Srinagar, Bengaluru,
(Accused no.1 by Shri B.G.S. Advocate, accused no.2
by Shri S.S.B. Advocate and accused no.3 is split up
on 08-07-2015)
Offences complained : U/secs 420 and 120(B) of the Indian Penal
Code.
Opinion of the Court : Accused no.1 and 2 are not found guilty
Date of Judgment : 13.01.2017.
JUDGMENT
That, the Police Inspector, Central Crime Branch (F and M Squad), N.T. Pet, Bengaluru, has filed the Final report against the accused for the offence punishable under sections 420 and 120(B) of the Indian Penal Code.
1. It is the case of the prosecution that, CW5 is the owner of M/s Venture Infotec Company, Bengaluru and accused no.1 is working as a Service Engineer and the accused no.2 is working as a Field Engineer in said company. That, the accused no.1 to 3 in order to make a wrongful gain colluding with each other, under the guise 3 C.C.No.6997/2014 of making the repair of BPCL petro card Reader no.0100014931 installed in Om Sairam Filling Station, Bengaluru, have obtained the secret pin no.2222 from CW2 and after making the settlement pertaining to the machine have removed the telephone line and on 15-10-2011 and 13-01-2012 by using the petro cards no.CA0000834047 of CW1 and CA0001014857 of CW4 have reloaded the petrol and diesel for sum of Rs.1,50,000/-.
2. That, on complaint being lodged the Banashankari Police, Bengaluru, have registered the case and thereafter, the matter was transferred to Central Crime Branch (F and M Squad), Bengaluru for investigation. That, the Investigating Officer after completion of investigation filed the Final report against the accused for aforesaid offences.
3. That, this court after taking the cognizance of the aforesaid offences issued summons to the accused and inpursuance of said summons the accused have appeared before this court through their Learned counsel and they were enlarged on bail. That, the provisions of section 207 of Code of Criminal Procedure, have complied here with. That, the charge of the accused no.1 and 2 has framed and 4 C.C.No.6997/2014 read over to them in language known to them and they have not pleaded guilty and claimed to be tried. That, after completion of prosecution side evidence, the statement of the accused no.1 and 2 as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over to them in language known to them and they have denied all incriminating evidence appearing against them and have not chosen to lead either oral or documentary evidence on their behalf.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the prosecution has proved beyond all reasonable doubt that, the accused no.1 and 2 along with accused no.3 in order to make a wrongful gain colluding with each other, under the guise of making the repair of BPCL petro card Reader no.0100014931 which was installed in Om Sairam Filling Station, Bengaluru, have obtained the secret pin no.2222 from CW2 and after making the settlement pertaining to the machine have removed the telephone line and on 15-10-2011 and 13-01-2012 by using the petro cards 5 C.C.No.6997/2014 no.CA0000834047 of CW1 and CA0001014857 of CW4 have reloaded the petrol and diesel for sum of Rs.1,50,000/- and thereby have committed the offence punishable under sections 420 and 120(B) of the Indian Penal Code ?
2. What order?
5. That, the prosecution to prove its above case has got examined PWs1 to 4 and got marked the documents at EXsP1 to P4(a) and closed its side.
6. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2:- As per the final order for the following:-
REASONS
7. Point No.1:- It is the case of the prosecution that, CW5 is the owner of M/s Venture Infotec Company, Bengaluru and the accused no.1 is working as a Service Engineer and the accused no.2 is working as a Field Engineer in said company and the accused no.1 and 2 colluding with accused no.3 in order to make a wrongful gain, under the guise of making the repair of BPCL petro card Reader no.0100014931 installed in Om Sairam Filling Station, Bengaluru have 6 C.C.No.6997/2014 obtained the secret pin no.2222 from CW2 and after making the settlement pertaining to the machine have removed the telephone line and on 15-10-2011 and 13-01-2012 by using the petro card no.CA0000834047 of CW1 and CA0001014857 of CW4 have reloaded the petrol and diesel for sum of Rs.1,50,000/-. It is pertinent to note here that, the prosecution to prove its above case has got examined CW3-Shri Abdul Gafar s/o Abdul Sammar- one of the petro card holder as PW1. It is pertinent to note here that, PW1 has turned hostile. It is pertinent to note here that, on being cross-examination made by the prosecution PW1 has admitted the prosecution case. It is pertinent to note here that, on cross- examination being made by the accused no.2 PW1 has deposed that in the year 2006 he had obtained the petro card and lost the same in the year 2009 and though, in the year 2009 he applied for getting the new petro card, but, till 2012 the concerned authorities have not provided him a new petro card.
It is pertinent to note here that, PW1 in his cross-examination has deposed that he has not lodged any complaint for losing the petro card. It is pertinent to note here that, from the said evidence 7 C.C.No.6997/2014 of PW1 it clearly appears that he has deposed before the court falsely. It is to be noted here that, if at all PW1 had lost the said petro card, he could have lodged complaint immediately before the concerned police, but, he failed to do so. It is pertinent to note here that, from the entire evidence of PW1 it clearly appears that the present accused have falsely implicated in present case.
8. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW5-Shri Srinivasagowda s/o Munishyamappa-the Manager of Autostad Line India Private Limited, Bengaluru as PW3. It is pertinent to note here that, PW3 in his examination-in-chief has deposed that their business is to install and maintain the petro card and skyping machines in petrol bunks and in India in BPCL petrol bunks they have provided the said machines and are also maintaining the same.
It is pertinent to note here that, PW3 has further deposed that the Manager of the BPCL i.e., Jayachandran had sent one E-mail to him and sought the information regarding the petro card bearing no.CA0000834047 and CA00225818 and for which he asked the said 8 C.C.No.6997/2014 Jayachandran for obtaining the said information from their main office.
It is pertinent to note here that, the accused have not cross- examined PW3.
9. It is pertinent to note here that, prosecution to prove its above case has further got examined CW7-Shri Chikkasiddaiah s/o Late Siddaiah-the Investigating Officer as PW4. It is pertinent to note here that, PW4 in his examination-in-chief has deposed that on 24-07-2012 CW1 had lodged the complaint in their Police Station and he received the said complaint and registered the case and on next day he visited the spot and conducted the Spot mahazar as per EXP4.
It is pertinent to note here that, though, the accused have cross-examined PW4, but, nothing much has been elicited from his mouth.
10. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW8-Shri T.Mahadeva s/o Thirumaiah-the another Investigating Officer as PW2. It is pertinent to note here that, PW2 in his examination-in-chief has 9 C.C.No.6997/2014 deposed that on 20-01-2014 he recorded the further statements of CWs1 to 4 and filed the Final report against the accused persons.
11. It is pertinent to note here that, in the instant case the accused persons are facing the trial for the offence punishable under sections 420 and 120(B) of the Indian Penal Code.
(i) It is to be noted here that, for the offence of cheating under section 420 of Indian Penal Code, there must be deception which should always precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the promise. It is pertinent to note here that, mere deceit, fraudulent or dishonest inducement will not suffice to convict the accused under section 420 of Indian Penal Code.
(ii) It is pertinent to note here that, to establish a charge of criminal conspiracy under section 120(B) of Penal Code, the prosecution must prove an agreement between two or more persons to do cause to be done some illegal act or some act which is not illegal by illegal means and this fact can be proved by direct or circumstantial evidence. It is pertinent to note here that, the offence of conspiracy cannot be 10 C.C.No.6997/2014 deemed to have been established on mere suspicion and surmises or inference with lack of support of cogent evidence.
12. It is pertinent to note here that, in the instant case the prosecution has failed to prove the said essential requisites of sections 420 and 120(B) of the Indian Penal Code. It is pertinent to note here that, in the instant case the evidence on record is not enough to hold that the accused no.1 and 2 have committed the alleged offences. It is pertinent to note here that, in the absence of any cogent evidence the accused cannot be held guilty. It is pertinent to note here that, in view of My above findings and without much discussion, point no.1 is answered in the NEGATIVE.
13. Point No.2:- That, as discussed on point no.1, I proceed to pass the following:-
ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.1 and 2 are acquitted for the offence punishable under sections 420 and 120(B) of the Indian Penal Code.
That, the bail and surety bonds of the accused no.1 and 2 are stands cancelled.11 C.C.No.6997/2014
That, the accused no.1 and 2 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure. (Dictated to the stenographer, transcript thereof, computerized and then corrected by me and then pronounced in open Court on this the day of 13th day of January 2017) Date:13.01.2017 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru.
Annexure List of witnesses examined on behalf of the prosecution PW1: Abdul Gafar s/o Abdul Sammar;
PW2: T.Mahadeva s/o Thirumaiah;
PW3: Srinivasgowda s/o Munishyamappa and
PW4: Chikkasiddaiah s/o Late Siddaiah.
List of documents marked on behalf of the prosecution EXP1: Printout of E-mail;
EXP2: Complaint;
EXP2(a): Signature of PW4;
EXP3: FIR;
EXP3(a): Signature of PW4;
EXP4: Spot panchanama and
EXP4(a): Signature of PW4.
12 C.C.No.6997/2014
List of witnesses examined on behalf of the accused no.1 and 2 Nil List of documents marked on behalf of the accused no.1 and 2 Nil Date:13.01.2017 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru. 13 C.C.No.6997/2014 13-01-2017 State by Sr.APP.
Accused no.1 and 2 C/B For judgment.
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.1 and 2 are acquitted for the offence punishable under sections 420 and 120(B) of the Indian Penal Code.
That, the bail and surety bonds of the accused no.1 and 2 are stands cancelled.
That, the accused no.1 and 2 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
(Hema Pastapur) I Addl.CMM, Bangalore.