Bangalore District Court
K Divakaran vs Uma on 25 July, 2024
1 C.C.No.16967/2013
KABC030646012013
Presented on : 22-10-2013
Registered on : 22-10-2013
Decided on : 25-07-2024
Duration : 10 years, 9 months, 3 days
IN THE COURT OF THE II ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Dated this 25th day of July 2024
PRESENT : SRI.SAHEEL AHMED S. KUNNIBHAVI, B.Com.,
LL.B. (Spl.)
II Additional Chief Judicial Magistrate, Bengaluru City
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1.Sl. No. of the case C.C.No.16967/2013 Date of commission of the
2. 24.02.2010 offence (As per F.I.R.) Jayanagar Police Station,
3. Name of the complainant Bengaluru City.
4. Name of the accused 1. M.Kuppaswamy, S/o R.Mohan, Aged about 63 years, R/at No.88, 1st Main, 2nd Cross, Marappa Layout, Rajarajeshwari Nagar, Bengaluru.
2. M.Venkateshappa.
(Abeted) 2 C.C.No.16967/2013
3. L.Paul (Split Up)
4. Smt.Uma. (Abeted) Sections 120B, 420, 465, 468 The offences complained
5. and 472 of the Indian Penal of Code.
6. Plea of the accused Pleaded not guilty
7. Final order Accused No.1 is acquitted
8. Date of order 25.07.2024 The Sub-Inspector of Police, Jayanagar Police Station, Bengaluru City has filed Police Report against the accused for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code.
2. The Manager of Syndicate Bank has filed this information against the accused persons on the grounds that accused No.1 has availed housing loan to the tune of Rs.22,50,000/- for the purchase of the plot to the extent of 30 x 30 feet. The Bank has sanctioned the loan after taking the opinion of their panel Advocate and the valuer. The Encumbrance was also showing as nil and the certification of valuation is also given by the valuer. The accused No1 had 3 C.C.No.16967/2013 executed loan agreement dated 16.10.2016 agreeing to pay the amount in equated monthly installments. Accused No.2is the sureties to the said loan and accused No.3 represent himself as the owner to the property purchasing by this accused No1. The loan was released on 16.10.2006 and transferred in the name of Accused No.3. Accused No.2 has executed the Letter of Undertaking dated 16.10.2006 authorizing the Bank to deduct the monthly installment of the loan amount from their SB account. The accused has also created an equitable mortgage in favour of the Bank by depositing the Title Deeds with the Bank on 17.10.2006.
3. The informant has further alleged that, later this accused No.1 has failed to repay the installments and accordingly the Legal Notice was issued from the Branch and also issued Demand Notice and Possession Notice. During the course of investigation by the Regional Inspector Vigilance Officer, it was found that the mortgaged property belonged to one Mr. Nagendrappa and not by this accused No.3. It was came to the knowledge of the Bank on 29.08.2007 when the 4 C.C.No.16967/2013 Vigilance Officer along with the Chief Manager of the said Branch have visited the spot. Accused No.1 and accused No.3 were not having any title to the property. Accused No.1 in collusion with accused No.2 and 3 have entered into criminal conspiracy to cheat the Syndicate Bank to the tune of Rs.22,50,000/-. They were due to an amount of Rs.49,78,661/- as on 31.10.2009. To obtain the loan, they have forged and created the documents by furnishing false information to the Bank. On this information, the case was registered against the accused.
4. Based on the First Information of CW1, the crime was registered in Crime No.99/2010 at Jayanagar Police Station, Bengaluru City. During investigation, accused No.1 has appeared before the Court and enlarged on bail. As per the order sheet dated 27.06.2017, accused No.2 was reported dead. Accused No.3 was reported and case against him was split up. On 17.10.2022, accused No.4 was reported dead. On completion of the investigation, the Police Sub-Inspector of Jayanagar Police Station, Bengaluru City have filed Police 5 C.C.No.16967/2013 Report against accused No.1 alleging that he has committed the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code. After taking cognizance of the said offences, the process was issued to accused No.1. The copies of the Police Report and other prosecution papers are furnished to accused No.1 under Section 207 of Cr.P.C. After hearing, since there were grounds for presuming that accused No.1 has committed offences triable by this Court, charges for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code have been framed and read over to him in Kannada language. He has pleaded not guilty and claims to be tried.
5. To prove the charges framed against No.1, the Prosecution has examined PW1 to PW6 and got marked the documents as Ex.P1 to Ex.P7. After completion of the prosecution evidences, for the purpose of enabling accused No.1 personally to explain any circumstances appearing in the evidences of the prosecution against him, examined 6 C.C.No.16967/2013 accused No.1 under Section 313 of Cr.P.C. He has submitted that he has no defense evidence.
6. Heard the arguments of learned Senior Assistant Public Prosecutor. Perused the materials available on record.
7. The points for determination are;
1. Whether prosecution has proved the offences charged against accused No.1 for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code beyond reasonable doubts?
2. What order or sentence?
8. My answers to the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final order for the following;
REASONS
9. POINT No.1 :- To prove the guilt of accused No.1, the Prosecution has examined CW1/PW1 K. Dinakaran, wherein he has deposed that on 16.10.2006 they have sanctioned the 7 C.C.No.16967/2013 loan as per the record submitted by accused No.1 for the purchase of site to the extent of Rs.22,50,000/-. Accused No.2 was the surety of the said loan. Accused No.3 has submitted the documents to the Bank to show that he is the owner of the property. They have sanctioned the loan to the tune of Rs.12,90,000/- in the name of accused No.1 and transferred in the name of accused No.3 as he has explicited that he was the owner of the property. Later, accused No.1 has not repaid the loan. The Bank came to know that Nagendrappa was the owner of the property and accused No.3 was not the owner of the property. He has lodged the information against the accused.
10. The Prosecution has examined CW2/PW2 Suresh, the Manager of Syndicate Bank, wherein he has deposed that they have sanctioned the loan in the name of accused No.1 and the amount to the account of accused No.3. They came to know that accused No.1 in colluding with the accused No.2 and 3 has created and forged the documents and cheated to 8 C.C.No.16967/2013 the Bank. CW1 has lodged the information against the accused.
11. The Prosecution has examined CW3/PW3 Srinivas Kukilaiah, wherein he has deposed that he valued the property as per the dicrection of the Syndicate Bank. He has fixed the value of the said property on going through the entire records.
12. The Prosecution has examined CW4/PW4 Sheshadri, Retired Sub-Registrar, has deposed about the part of the investigation conducted by him.
13. The Prosecution has examined CW6/PW6 Honbalaiah, Retired Senior Sub-Registrar, wherein he has deposed that he has issued certified copy of document bearing No.3393/2006- 07 and also issued the Encumbrance Certificate marked as Ex.P5 to Ex.P7 as per the requisition of the SHO.
14. It is the case of the Prosecution that accused No.1 has borrowed a loan of Rs.22,50,000/- to purchase the site which 9 C.C.No.16967/2013 was alleged to be standing in the name of accused No.3. Accused No.2 was the surety to the said loan. The said loan was sanctioned in the name of accused No.1 and the entire amount was transferred in the name of accused No.3 as he was alleged to be the owner of the property. Later, the Bank came to know that accused No.3 was not the owner of the property and accused No.1 to 3 in colluding with each other have cheated the Bank to the tune of Rs.22,50,000/-.
15. During the course of trial the case against the accused No.2 and 4 were abated due to their death and accused No.3 was absconded. CW1/PW1 has deposed that accused No.3 was not the owner of the property. Whereas, one Mr. Nagendrappa was the owner of the property. Accused No.1 has created the forged documents and obtained the loan. But, however this CW1/PW1 has deposed that before sanctioning the loan, they have verified the entire records. Further, it is admitted by CW1 that before sanctioning the loan, they had been to the Revenue Office and obtained the certified copy of the documents produced by accused No.1 at 10 C.C.No.16967/2013 the time of taking the loan. CW3/PW3 Srinivas Kukilaiah has deposed that he has verified the entire records and fixed the value of the property.
16. It is the burden of the Prosecution to show that the said property absolutely was not belongs to accused No.3. The Prosecution in support of his claim has relied the Sale Deed as per Ex.P7. On perusal of the Sale Deed, it can be seen that the said property was alienated by this K.A.Antony in favour of the Dasappa. I have also carefully perused Ex.P5. It is the registered Sale Deed and it was registered in the name of accused No.1 Kuppuswamy and it was executed by N. Paul who is the absolute owner to the property. Ex.P6 is the Encumbrance Certificate standing in the name Kuppuswamy i.e., accused No.1. Ex.P7 is also the Encumbrance Certificate in the name of Kuppuswamy. These are the documents available before this Court to show that the property was standing in the name of accused No.1 and it was executed by accused No.3.
11 C.C.No.16967/2013
17. The Prosecution has utterly failed to show that accused No.1 was not at all the owner of the property. On going through the Sale Deed, it is very much clear that it was registered in the name of accused No.1 and accused No.3. The very basic and simple thing is forgotten by the Prosecution to show that the property was not at all standing in the name of accused No.1. But, however in contrary, the Prosecution themselves has produced the entire documents standing in the name of accused No.1. It is not the case of the Prosecution that Ex.P1 is a forged document and it was not duly registered before the Sub-Registrar. The Prosecution has examined this CW4/PW4 Sheshadri, wherein he has deposed that the said property was duly registered before their Officer. The Prosecution has filed this case against accused No.1 to 4, but however, the information was lodged only against accused No.1 to 3. The Prosecution has failed to show the role of accused No.4 before this Court.
18. This Court has issued summons to secure these witnesses CW 9 to 11 and this Court has also issued NBW 12 C.C.No.16967/2013 and proclamation and were also issued Intimation to the Police Commissioner to secure these witnesses CW9 to CW11 to depose about the investigation conducted by the Investigation Officer. But, however, on perusal of the entire order sheet, the Prosecution has failed to secure these CW9 to CW11 before this Court. More particularly, the Investigation Officer CW 11. The role of the Investigation Officer is very much vital to the case of the Prosecution to depose about how he investigated the matter and how he was able to come to the conclusion that these accused persons have forged the documents and cheated the Bank Manager. The matter is pending since 2013 and the accused No.1 has already crossed the age of 65 years. Absolutely, there is no evidence to prove the guilt of accused No.1 beyond all reasonable doubts. Under these circumstances, the Prosecution has not proved the guilt of accused No.1 for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code beyond reasonable doubt. Hence, I answer Point No.1 in the Negative. 13 C.C.No.16967/2013
19. POINT No.2 :- For the reasons stated in Point No.1, the prosecution has not proved the guilt of accused No.1 for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code beyond all reasonable doubt. Therefore, accused No.1 is not found guilty for the aforesaid offences charged against him. In the result, I proceed to pass the following;
ORDERS
Under Section 248(1) of Cr.P.C,
accused No.1 is hereby acquitted for the offences punishable under Sections 120B, 420, 465, 468 and 472 of the Indian Penal Code.
His bail bond and surety bond executed under Section 437 of Cr.P.C. will be in force till appeal period of over and thereafter, they shall stands canceled. (Dictated to the Stenographer, typed by her, corrected and then pronounced by me in the Open Court, today this the 25th day of July 2024) (SAHEEL AHMED.S.KUNNIBHAVI) II Addl. Chief Judicial Magistrate, Bengaluru City.
14 C.C.No.16967/2013ANNEXURE Witnesses Examined on behalf of Prosecution :-
PW1 : K.Diwakaran, PW2 : Suresh, PW3 : Srinivas Kukilaiah, PW4 : Sheshadri, PW5 : K.C.Vishwanath, PW6 : Hombalaiah.
Documents marked on behalf of Prosecution :-
Ex.P1 : First Information, Ex.P1(a) : Signature, Ex.P2 : Sub-Registrar Office Letter, Ex.P2(a) : Signature, Ex.P3 : Sub-Registrar Office Letter, Ex.P3(a) : Signature, Ex.P4 : Copy of document Register, Ex.P5 : Sale Deed, Ex.P6 & 7 : Encumbrance Certificate copies.
Material objects marked on behalf of Prosecution :-
NIL Witnesses Examined on behalf of the accused :-
NIL 15 C.C.No.16967/2013 Documents marked on behalf of the accused :-
NIL (SAHEEL AHMED.S.KUNNIBHAVI) II Addl. Chief Judicial Magistrate, Bengaluru City.