Bangalore District Court
State By Yalahanka Ps vs No.4 - K.Keshavan Gave An Application ... on 27 December, 2022
KABC030104872008
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 27th day of December 2022
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 8709/2008
(Crime No.285/2007)
2. The date of commission
of the offence : 09.02.2005 to 08.08.2007
3. Name of the complainant : State by Yalahanka PS
(By Sr.APP)
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden, Geddalahalli,
Bengaluru.
(By Sri.VB, Adv.)
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
(Abated)
31 CC.NO.8709/2008
A3: Syed Aslam, 46 Yrs.,
S/o Late Abdul Syed
(Split up CC No.12162/2016)
A4: K.Keshavan, 51 Yrs.,
S/o Kuppaswamy,
A5: Smt.K.Revathi,
W/o Keshavan, 44 Yrs.,
A4 and A5 are
R/a. No.69, 4th cross, 4th main,
Upakar Layout, O Farm,
Whitefield, Bengaluru.
(By Sri. MM, Adv. For A4 & A5)
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : A1, A4 and A5 Convicted
8. Date of order : 27.12.2022
The Police Inspector, Yalahanka Police Station filed the Charge
Sheet against the accused No.1 to 5 for the offence punishable under
Sections 409, 420 read with Section 34 of Indian Penal Code
(hereinafter referred as IPC).
2. The brief facts of the prosecution case are as under :
31 CC.NO.8709/2008
The CW1 - Ramesh Rao filed written first information
statement contending that he was transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the month of January,
2007 as a Manager. Prior to his transfer, accused No.1 - Suresh
worked as Manager in the said Bank. After assuming the charges as
Manager, Head Office instructed CW1- Ramesh Rao to review the
loan accounts sanctioned by the previous Manager - accused No.1 -
Suresh. On reviewing the loan accounts he came to know that in loan
account of accused No.4 became non performing asset. Accused No.3
- Syed Aslam introduced accused No.4 to the Bank. On perusal of
documents of the property which is mortgaged to the Bank found that
accused No.4 - K.Keshavan gave an application for sanction of loan
of Rs.10,00,000/- for the purchase of house property bearing No.29-
172 situated at Agrahara, Yalahanka within the limits of TMC,
Yalahanka and his wife accused No.5 - Smt.Revathi stood as co-
obligant to the said loan. The loan was sanctioned and the total
outstanding loan as on October 2006 is of Rs.10,15,395/-. Accused
No. 4 - K.Keshavan and accused No.5 - Smt. Revathi agreed to repay
the said amount at prevailing rate of 9% interest. In order to ascertain
the authenticity of documents CW1-Ramesh Rao visited the TMC,
Yalahanka, Bengaluru and on enquiry he came to know that no such
khata is existed in respect of property mortgaged by accused No. 4 -
K.Keshavan or his vendor. He also came to know that parent deeds of
the property mortgaged i.e. Hakku Patra pertaining to the Sy. No.56,
32, 35, 48, 55 and 58 purported to be issued by the concerned BDO
31 CC.NO.8709/2008
were fabricated for the purpose of creation of equitable mortgage for
availing the said housing loan and in respect of said properties COD
enquiry is pending since 1983 in respect of issuance of Hakku Patra.
Hence, under all these circumstances the said property is mortgaged
and CW1-Ramesh Rao unable to trace the existence of the property
mortgaged. Even the empaneled valuer unable to locate the property
mortgaged and accused No.2 - H.S.Nagaraj empaneled valuer had
given valuation report knowing that such property is not existed.
Hence, first informant came to know that earlier Manager i.e. accused
No.1 - Suresh had not accompanied the valuer at the time of valuation
of the property. Hence, accused No. 4 - K.Keshavan and his wife
accused No.5-Smt.Revathi who are borrower and co-obligant, accused
No.3 - Syed Aslam the introducer, accused No.2 valuer and accused
No.1 the Manager of the said Bank in collusion with each other with
intention to defraud the Bank obtained the housing loan by depositing
the fabricated documents of the property which is not existed. On the
basis of written first information statement police registered the case
under their station Crime No.285/2007 for the offence punishable
under Sections 409, 465, 468, 420 read with Section 34 of IPC and
issued first information report.
3. During pending investigation accused No.2 to 5 appeared
through their counsel and released on bail.
31 CC.NO.8709/2008
4. The Police Inspector, Yalahanka Police Station after completion
of investigation filed the Charge Sheet against accused No.1 to 5 for
the offence punishable under Sections 409 and 420 read with Section
34 of IPC.
5. My predecessor in office had taken cognizance for the said
offences and registered the case in Criminal Case Register No.III and
issued summons to accused No.2 to 5 and NBW to accused No.1.
Accused No.2 to 5 appeared in pursuance of process. Accused No.1
appeared through his counsel and released on bail.
6. The copy of Charge Sheet furnished to accused as per Section
207 of Code of Criminal Procedure (hereinafter called as Cr.P.C.)
7. Later accused No.3 remained absent. My predecessor in office
many time issued process against accused No.3 but process is not
executed. Hence, accused No.3 is not secured even after repeated
issuance of processes and my predecessor in office split up the case
against accused No.3 and directed to register a separate split up case
against accused No.3 as per order dated 10.12.2015. Accordingly,
office registered the split up CC No.12162/2016 against accused No.3.
8. The contention of accused No.2 that he be discharged from the
said offences was rejected as per order dated 05.10.2016.
9. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused No.1,
31 CC.NO.8709/2008
2, 4 and 5 for the said offences and read over and explained in
Kannada language known to them and they did not plead guilty and
claimed for trial.
10. The prosecution in order to prove its case, examined totally 5
witnesses as PW.1 to PW.5 and got marked Ex.P.1 to P.15.
11. Accused No.2 reported as died on 05.10.2021 and case against
accused No.2 is abated as per order dated 11.05.2022.
12. As sufficient materials available on record, statements of
accused No.1, 4 and 5 under Section 313 of Cr.P.C. were recorded and
read over and explained all the incriminatory evidence available
against them in Kannada language known to them and accused denied
the same, accused No.1 submitted his written reply / statement and
accused No.1, 4 and 5 did not lead defence evidence.
13. I heard arguments of learned Senior Asst. Public Prosecutor,
Sri.VB, Advocate for accused No.1 and Sri.MM, Advocate for
accused No.4 and 5. I perused the reply / written statement of accused
No.1 and all materials available on record.
14. The prosecution examined CW1 as PW3, CW2 as PW2, CW3
as PW4, CW4 as PW1 and CW5 as PW5. The prosecution got
marked Ex.P.1 - Report of PW1, Ex.P.2 - Hakku Patra, Ex.P.3 - NOC,
Ex.P.4 - Sale deed dated 11.02.2005, Ex.P.5 - first information
statement, Ex.P.6 - transfer order of accused No.1, Ex.P.7 - certificate
31 CC.NO.8709/2008
of service of accused No.1, Ex.P.8 - Account opening form of accused
No.3, Ex.P.9 - identity card, Ex.P.10 - loan sanction letter / order,
Ex.P.11 - valuation report submitted by accused No.2, Ex.P.12 -
Statement of Loan Account of accused No.4, Ex.P.13 - Report of
PW4, Ex.P.14 - first information report and Ex.P.15 - Tata Indicom
bill.
15. Sri.VB, advocate for accused No.1 contended and argued that
prosecution alleged that accused have created No Objection
Certificate and Hakku Patra but the Investigating Officer after
completion of investigation filed charge sheet against the accused
No.1 along with other accused for the said offences and he left Section
465 and 468 of IPC. Hence, the allegations of forgery against accused
is not proved. As per investigation and materials placed on record till
this day the prosecution has not produced the Bank loan account
application form, legal opinion, memorandum of deposit of title deeds
and other documents. The accused No.1 is not having any duty to go
through the documents. But accused No.1 obtained legal opinion on
the loan documents and sanctioned loan to accused No.4 as per
Banking Rules. But the prosecution has not examined the legal
advisor or the person who gave the legal opinion on documents. The
accused have not disputed about the execution of Ex.P.4 sale deed.
The PW3 - Ramesh Rao or PW5 the Investigating Officer have not
physically verified about the existence of property mortgaged. PW2 -
Sub Registrar is a hearsay witness and he is not having any personal
31 CC.NO.8709/2008
knowledge about the facts. PW4 is not a person to speak about the
Ex.P.3 NOC and Ex.P.2 Hakku Patra. But the proper persons are the
concerned Taluk Panchayath officials to speak about the property
mortgaged to the Bank and its existence. The officials of BBMP are
not the proper persons to speak about the Ex.P.3 - NOC or Ex.P.2
Hakku Patra or the existence of the property. The entire charge sheet
is based on the report and evidence of PW4. But he is not the proper
person to speak about the existence of the property. As per Ex.P.10
loan sanction order loan amount is credited to the account of vendor
of the property mortgaged. But the Investigating Officer has not
examined the vendor of the property to prove the allegations made
against him. The prosecution has to prove the guilt of the accused
beyond all reasonable doubt. But in the present case the prosecution
has not proved the guilt of the accused. Hence, because of said
grounds benefit is to be given to the accused No.1. The prosecution
has not produced crucial documents and examined owner or seller of
the property and it also not examined officials of the Bank.
Absolutely prosecution has not proved the nexus between the accused
No.1 with accused No.3 to 5. In the present case nothing is entrusted
to accused No.1. Accused No.1 discharged his duties as per Banking
Rules. Accused No.1 has not cheated any person. Hence, prays to
acquit the accused No.1.
16. Sri.MM, advocate for accused No.4 and 5 contended and argued
that Ex.P.2 - Hakku Patra issued by Block Officer, Bengaluru North
31 CC.NO.8709/2008
Taluk, but the Investigating Officer has not examined him or collected
evidence from the said office. As per contents of Ex.P.4 - sale deed
all the original documents are handed over to accused No.4 after
execution of Ex.P.4 - sale deed. But the Investigating Officer has not
examined the owner or the vendor of the property mortgaged as to the
existence of the property. Ex.P.13 - report is issued by PW4 -
Thippeswamy of Taluka Panchayath. But as per Ex.P.2 - Hakku
Patra it is issued by Block Development Officer, Bengaluru North
Taluk. Under such circumstance the prosecution failed to examine the
relevant witnesses to prove its case. The loan amount is credited to
the vendor or original owner but Investigating Officer has not
examined the original owner or vendor of the property or arrested and
made him as a accused in the present case, because accused No.4 and
5 received the said documents from original vendor or owner of the
property mortgaged. The Investigating Officer also not debit freezed
or seized the account of the original vendor or owner of the property.
Hence, under all these circumstances the prosecution failed to prove
its case against accused beyond all reasonable doubt and prays to
acquit the accused No.4 and 5.
17. It is the case of the prosecution that the accused No.4
approached to the accused No.1 - Suresh, Branch Manager, Karnataka
Bank Limited, Sahakara Nagar branch, Bengaluru that he want to
purchase the house property bearing site No.172, khata No.29 situated
at Agrahara, Yalahanka and applied for loan in the first informant
31 CC.NO.8709/2008
Bank. The accused No.4 opened the Bank account in the first
informant Bank and prosecution produced Ex.P.8 - account opening
form. Accused No.3 introduced accused No.4 to the first informant
Bank and introduction column is not filled. Even then accused No.1
allowed his application and opened the account in the first informant
Bank as Account No.1217001800005801. The accused No.4
furnished his Ex.P.9 ID cards as his address proof. The accused No.4
mentioned his wife accused No.5 as a nominee in Ex.P.8 - Account
opening form. In the Ex.P.8 - account opening form, account number
is not filled up. Even then allotted the said account in the name of
accused No.4.
18. The accused No.4 in order to obtain loan from the said Bank he
produced the Ex.P.2- Hakku Patra, Ex.P.3 - No Objection Certificate
of Block Development Officer, Bangalore North Block, Yalahanka,
Bengaluru. Hence, on the basis of these documents accused No.4
want to purchase house site No.172, khata No.29 situated at Agrahara,
Yalahanka. Accused No.1 - Branch Manager of Karnataka Bank
Limited, Sahakara Nagar branch and accused No.2 Valuator of the
property in the said Bank without visiting the property and verifying
as to the existence of said property issued Ex.P.11 - valuation report.
Hence, on the basis of Ex.P.2 Hakku Patra, Ex.P.3 no objections
certificate and Ex.P.11 valuation report accused No.1 sanctioned the
loan of Rs.10,00,000/- as per Ex.P.10 - loan sanction order and
credited to the account of accused No.4. Accused No.5 who is wife of
31 CC.NO.8709/2008
accused No.4 and stood as co-obligant to the said loan. In order to
show that the said amount is credited to the account of accused No.4
produced the Ex.P.12 statement of account of accused No.4.
19. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru produced
Ex.P.6 transfer order of accused No.1 and Ex.P.7 Letter/certificate of
service issued by the then Branch Manager, Karnataka Bank Limited,
Sahakaranagar branch certifying that accused No.1- Suresh M.
worked as a Branch Manager of said branch from 28.03.2004 to
12.12.2006.
20. Deputy General Manager, HR & IR, Karnataka Bank Limited
transferred accused No.1 from the said branch. Thereafter PW3 -
Ramesh Rao assumed the charge of Branch Manager, Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru city. In the Ex.P.5 - first
information statement and also in the evidence of PW3 stated that
after transfer of accused No.1, he assumed the charge of Branch
Manager of the said Bank. The Head Office, Karnataka Bank Limited
instructed and directed PW3-Ramesh Rao, Manager, Kanarataka Bank
Limited, Sahakaranagar Branch to review the Non Performing Assets
loan accounts which sanctioned during the period of accused No.1.
Accordingly PW3-Ramesh Rao reviewed all loan accounts sanctioned
during the service of accused No.1 and he came to know that 25 loan
accounts which are relating to the housing loan found that property
31 CC.NO.8709/2008
khata are not existed and among them one of the present loan account
of accused No.4. Hence, PW3 specifically deposed as
"ನನನ ಒಒದನನ ಆರರನಪಯ ಅವಧಯಲ ನನಡಲದ ಮನ
ಸಲದ ಖತಗಳನನ ನ ಪರಶನಲನ ಮಡನವ ವನಳಯಲ
ಯಲಹಒಕ ಸರಹದದ್ದಿನಲ ಬರನವ ಟಿಎಒಸ ಗ ಹರನಗ ದಾಖಲೆಗಳನನ
ನ
ಪರಶನಲನ ಮಡಿದ. ಆ ರನತ ಪರಶನಲನ ಮಡಿದಾಗ ಆ ಆಸಸ್ತಿಗಳನ
4 ನನ ಆರರನಪಯ ಹಸರಗ ಇಲಲದರನವ ಬಗಗ ಕಒಡನ ಬಒತನ.
ಪರಶನಲನ ಮಡನವ ವನಳಯಲ ಸನಮರನ 25 ಸಲದ
ದ್ದಿ ಸದರ
ಖತಗಳನ ಮನಯ ಸಲಕಕ ಸಒಬಒಧಪಟಟ ಖತಗಳಾಗದನ
ಸಸತಸ್ತಿಗ ಸಒಬಒಧಸದಒತ ಯಾವುದನ ಖತಗಳನ ಇಲಲ ಎಒದನ ಕಒಡನ
ಬಒದವು."
21. PW3 - Ramesh Rao visited the TMC, Yelahanka office to verify
the khata of site No.172 and he came to know that Ex.P.2 - Hakku
Patra is not issued by the B.D.A, Bengaluru and created Ex.P.2 -
Hakku Patra. He also came to know that Ex.P.3 no objection
certificate is also not issued by concerned office and it is also created.
Accordingly, PW3 - Ramesh Rao, Branch Manager of said branch
informed the same to the Head Office. The Head Office instructed
and directed to file first information statement against accused
persons. PW3 - Ramesh Rao, Branch Manager lodged the Ex.P.5 first
information statement stating that accused No.1 and 2 without
physically visiting and verifying the existence of the property
submitted Ex.P.11 - valuation report and sanctioned the loan and
thereby committed the said offences.
22. PW3 in his evidence specifically stated and deposed as
31 CC.NO.8709/2008
"ಬಡಿಎ ಕಛನರಯಲ ಹಕನ
ಕ ಪತ ತ ಮಒಜರರಗದನ ಇರನವುದನ ಕಒಡನ
ಬಒತನ. ಸದರ ದಾಖಲೆಗಳನನ
ನ ಸಲ ಪಡಯನವ ಉದಶಕಕಗ
equitable mortgage ಮಡನವ ಸಲನವಗ ಸಸಷಟಸದರ ಎಒದನ
ಕಒಡನ ಬಒತನ. ಆನಒತರ ಸಸಳಕಕ ಹರನಗದನ ಆಸಸ್ತಿಯ ಬಲೆ ಬಗಗ
valuation report ಕರಟಿಟದರ ಎಒದನ ಮಹತ ಗರತಸ್ತಿಯತನ.
ಎರಡನನ ಆರರನಪ valuator ಎಒದನ ಗರತಸ್ತಿಯತನ. Valuator
ಜರತ ಬಬಒಕ ಮಬನನಜರ ಹರನಗ ನರನಡಿಲಲ. ಆಗ ಒಒದನನ
ಆರರನಪ ಬಬಒಕಮಬನನಜರ ಆಗದದ್ದಿರನ."
23. The PW3 identified the Ex.P.5 first information statement and
his signature in it. Here the prosecution in order to show that the first
informant Bank sanctioned the loan in favour of accused No.4 and 5
produced the Ex.P.10 loan sanction order which discloses the fact that
Rs.10,00,000/- credited to the account of accused No.4. Hence, in
order to show that the loan amount of Rs.10,00,000/- credited to the
account of accused No.4 produced the Ex.P.12 statement of loan
account of accused No.4. The prosecution produced the Ex.P.2 Hakku
Patra and Ex.P.4 sale deed dated 11.02.2005 and Ex.P.3 no objection
certificate.
24. Here, on the basis of Ex.P.2 and Ex.P.3 accused No.4 and 5
applied for sanction of loan from the first informant Bank alleging that
they want to purchase the house property bearing site No.172, khata
No.29 of Agrahara, Yalahanka. The prosecution examined the PW2
Retired Sub Registrar, Bengaluru. In his evidence stated that, Chandra
wanted to sell the house site No.172, khata No.29, Agrahara,
31 CC.NO.8709/2008
Yalahanka TMC in favour of accused No.4 and produced the Ex.P.2
and Ex.P.3 and received Government Fee on Ex.P.4 and he registered
the Ex.P.4 Sale deed. The PW2 identified his signature in Ex.P.4 sale
deed which is marked as Ex.P.4(a). Later the Investigating Officer
enquired him and then he came to know that in order to obtain loan
from the first informant Bank Ex.P.2 - Hakku Patra and Ex.P.3 no
objection certificate are created. The advocate for accused No.1, 4
and 5 cross-examined the PW2 but nothing is elicited in order to show
that Ex.P.2 - Hakku Patra and Ex.P.3 no objection certificate are
genuine and said property is in existence. In the cross-examination of
PW2 it is suggested that he has not visited the property and verified
the existence of the property. But the duty of Sub Registrar is only to
register the deeds which have been presented to him after receipt of
Government charges. Hence, it is not the duty of the Sub Registrar to
visit each of the properties before he registers the deed. Hence, the
Ex.P.4 sale deed shows as if Chandra S/o S.V.Ramareddy executed the
sale deed in respect of house site No.172, khata No.29, Agrahara,
Yalahanka TMC in favour of accused No.4 - K.Keshavan. In fact the
said property is not existed at all even then accused No.4 presented it
for registration and got registered the sale deed as per Ex.P.4. Further
accused No.4 used the Ex.P.4 sale deed as if it is genuine and the said
property is existed and on the basis of it and other document obtained
loan of Rs.10,00,000/- from the first informant Bank. Hence, for the
said loan accused No.5 stood as a co-obligant. All these illegal acts of
accused show that in order to gain wrongfully and to cause wrongful
31 CC.NO.8709/2008
loss to the first informant Bank and with dishonest intention obtained
the loan from the first informant Bank.
25. Hence, looking at the evidence of PW3 and PW2 coupled with
Ex.P.2 - Hakku Patra, Ex.P.4 sale deed and Ex.P.3 no objection
certificate, it is clear that Ex.P.2 - Hakku Patra and Ex.P.3 no
objection certificate are created and they are not issued from the office
of PW4. Here, the PW3 deposed that after transfer of accused No.1
from the Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru,
he assumed the charge and Head Office directed him to verify the loan
accounts sanctioned by accused No.1 during his period which are non
performing assets. Accordingly, after verification PW3 - Ramesh Rao
came to know that 25 loan accounts which are non performing assets
out of which the present loan account is also one among them. PW3
specifically deposed that when he verified the documents and visited
the concerned Government office he came to know that Ex.P2 and
Ex.P.3 are created. He tried to search the site No.172 but such
property is not existed at all. Hence, the accused No.1 and 2 with
common intention without visiting the spot issued Ex.P.11 - Valuation
Report and thereby sanctioned the loan in favour of accused No.4. On
perusal of Ex.P.11 it is specifically mentioned that accused No.2
visited the spot i.e. site No.172, Sy. No.24 at Agrahara village,
Yalahanka Hobli, Bengaluru North Taluk on 09.02.2005 with accused
No.1 and in the Ex.P.11 valuation report of the property mentioned as :
31 CC.NO.8709/2008
"I have inspected the property belonging to Sri.Chandra and the report of
valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 29 years
panel
2. Date of visit : 09.02.2005
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at : Sri.Keshavan
the site proposed buyer of the property
6. Details of the property : : Sri.Chandra S/o Sri. S.V.Ramareddy,
a) Name and address of the owner Agrahara, Yelahanka, Bengaluru-560064.
b) Complete address of the property : Site No.172, Sy. No.24, Agrahara village,
Yalahanka Hobi, Bangalore North Tq.
Door No. / site No. / Sy. No. : Site No.172
Proposed buyer of the property : Sri. Keshavan,
S/o K.A.Kuppuswamy, No.223, 4th cross,
O Form, Whitefield, Bangalore 560 066.
c) Extent of land : North to South : 40'0"
East to west : 30'0"
= 1200.00 sft.
d) Boundaries of property : North by : Site No.173
South by : Vacant Land
East by : Road
West by : Site No.182
e) Type / class of construction : Class II
7. Details of the building
i) Whether building constructed strictly : Yes
according to the sanctioned plan
Area of building : GF = 900.00 sft.
FF = 300.00 sft.
Total = 1200.00 sft.
ii) year of construction : 2002
iii) If building under construction (give : Building already constructed
full details)
iv) Any additions improvement carried : Nil
31 CC.NO.8709/2008
out
vii) Cost of construction : Rs.7,80,000.00
viii) Amount of depreciation written : Nil
down
ix) Present value : Rs.7,80,000.00
x) Present condition / state of building : Good
7. Present market value :
Land 1200.0 sft. @ 500/- : 6,00,000.00
Building 7,80,000.00
Compound wall, sump tank, OHT 50,000.00
Total Rs.14,30,000.00
Basis of present value :
a. Present depreciated value : Rs.14,30,000.00
b. Market value : Same as above
c. Rate adopted : Rs.500.00 per sft. - Site
Rs.650.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site in
this area and construction cost of building
as on that date
e. In case of sale by the bank what will
be the distress sale value : Rs.13,00,000.00
f. whether whole or part of the property
notified for acquisition : No
h. Location of the property : This is located very near to the main road
in a middle class residential area
i. Classification of locality : Middle class
j. Civil amenities : Available
k. Proximity to surface communication : Good
l. Distance from city / corporation limits : Inside Yelahanka CMC limits
m. Distance from central bus stand : 17 kms
n. Distance city railway station : 17 kms
o. Distance from Corporation office : 19 kms
p. Distance from Sahakaranagar Branch : 8 kms
Details of tax paid Year of Assessment Amount Date of tax paid
CMC tax 2004-2005 Rs.111/- 11.01.2005
Particulars of insurance : Not yet done
31 CC.NO.8709/2008
10. Since how long owing the property : 01.01.1975
12. Type of ownership : Sole
15. Purchase price : Has been allotted by the government free
of cost
16. Whether self occupied : Yes
17. No. of tenants : Na
18. Total monthly income : Na
19. Whether independent house : Independent house
20. In which floor is located : GF + First
21. Service items available : CMC water connection is provided
22. If the property is residential : Yes
23. a) Any encroachment tenancy and
other negative aspects : No
b) Are there any slums around this
property : No
c) Is there any burial ground or lake near
by : No
24. Whether the property valued earlier, If : No
so
Details of construction :
Foundation : Size stone masonry in CM has been done
Super Structure : Table moulded brick masonry in CM, plastered on both side in CM
has been done.
Roofing : RCC slab has been laid for both the floors
Flooring : Mosaic flooring has been done
Doors & windows : Mathi & honne wood doors and windows are provided.
Electrification : AEH wiring has provided.
Water supply : CMC water supply is provided
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Fourteen lakhs thirty thousand only.
Declaration :
a. I hereby declare that the information furnished above is true to the best of my
31 CC.NO.8709/2008
knowledge and belief.
b. I have no direct or indirect interest in the property valued
c. I have inspected the property personally on 09.02.2005
d. I have not been found guilty of misconduct in my professional capacity.
CERTIFICATE
I have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same."
26. Hence, looking at the contents of Ex.P.11 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the site
No.172, Sy. No.24, Agrahara village, Yalahanka Hobli. It is also
important to note that accused No.2 signed to it and accused No.1
signed the certificate. Hence, the accused No.1 who is Manager and
accused No.2 who was Valuator of the property of Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru without visiting the spot
issued Ex.P.11 valuation report. Further accused No.1 sanctioned loan
of Rs.10,00,000/- in favour of accused No.4 as per Ex.P.10 - loan
sanction order to which accused No.5 stood as co-obligant and
credited the said amount in the account of accused No.4 and the same
is mentioned at Ex.P.12 loan account statement of accused No.4.
Here, the advocate for accused cross-examined the PW3 but nothing is
elicited in order to prove the fact that said house property bearing site
No.172 is in existence. In the cross-examination PW3 specifically
stated that he visited the concerned Government officers and tried to
locate the property but said property is not existed and he unable to
locate the property and thereby accused cheated first informant and
misappropriated the said amount. He also deposed that when loan
31 CC.NO.8709/2008
account of accused No.4 became non performing asset it revealed that
accused No.1 to 5 cheated Bank. He also deposed in the cross-
examination that valuator of the Bank valuing the property which
showed by the borrower. Hence, the fact remains as it is that accused
No.1 and 2 issued Ex.P.11 valuation report as if they visited the site
No.172, khata No.29, Agrahara village, Yalahanka Hobli, Bengaluru
North Taluk as mentioned and extracted above from Ex.P.11 and
which itself speaks that as if accused No.1 and 2 visited the spot and
prepared the valuation report of the said property. Ex.P.11 contains
the declaration and signature of accused No.2 and certificate of
accused No.1. Hence, looking at the evidence of PW3 with PW2 and
Ex.P.8 - account opening form, Ex.P.10 - loan sanction order, Ex.P.11
- valuation report, Ex.P.2 - Hakku Patra, Ex.P.3 - No Objection
Certificate, Ex.P.12 - statement of account of accused No.4 and
Ex.P.13 - report establishes the fact that accused No.1 and 2 without
visiting the said site property prepared Ex.P.11 valuation report and on
the basis of Ex.P.2 - Hakku Patra and Ex.P.3 - No Objection
Certificate sanctioned loan of Rs.10,00,000/- in favour of accused
No.4 and 5 for the purchase of said site property as per Ex.P.4 sale
deed and said property is not existed at all.
27. On the basis of Ex.P.5 - first information statement PW5
registered the Ex.P.14 first information report. PW5 deputed PW1 for
the search of accused who were absconded. PW1 in his evidence
deposed that he searched accused but he did not find accused and on
31 CC.NO.8709/2008
enquiry he came to know that after registration of this case accused
were absconded and to that effect he gave his Ex.P.1 - report.
28. PW5 in his evidence specifically stated that he recorded the
restatement of PW3 on 09.08.2007. He arrested accused No.2, 4 and
5 and released on bail as per order of Hon'ble Court. He also deposed
that he received Ex.P.6 appointment and transfer order of accused
No.1 to the Karnataka Bank Ltd., Sahakara Nagar Branch, Bengaluru,
Ex.P.7 - certificate of service of accused No.1 in the said Bank, Ex.P.8
- account opening form, Ex.P.9 - ID cards, Ex.P.10 - loan sanctioned
order, Ex.P.11 - valuation report, Ex.P.3 - NOC, Ex.P.2 - Hakku Patra,
Ex.P.4 - sale deed and Ex.P.12 statement of loan account of accused
No.4. He also deposed that he received Ex.P.13 report from the PW4
wherein it is stated that Ex.P.2 - Hakku Patra and Ex.P.3 NOC are not
issued from the Block Development Office, Bengaluru North Block.
Hence on the basis of investigation accused persons to get the amount
from the Bank on the basis of created document obtained loan and
cheated Bank. Accused No.1 on the basis of created documents
sanctioned loan and thereby accused persons misappropriated the
amount and cheated the Bank. He filed charge sheet against accused
No.1 to 5. Here, advocate for accused cross-examined the PW5 and in
cross-examination he specifically deposed that he asked information
from PW4 as to the Ex.P.2 - Hakku Patra and Ex.P.3 - NOC whether
they are original or duplicate. PW4 stated that they were not issued
from his office. But he has not examined Chandru who gave them to
31 CC.NO.8709/2008
accused No.4 and 5. In the cross-examination, in order to disprove the
case of prosecution accused have not elicited any of material facts
except the denial of his evidence. Here the PW5, who is Investigating
Officer after investigation came to know that on the basis of created
documents accused No.4 and 5 obtained the loan and accused No.1
and 2 without visiting the site issued Ex.P.11 - valuation report and
accused No.1 sanctioned the loan. Hence, looking at all the materials
placed on record accused No.1 is entrusted with property i.e., money
and he is having dominion over the money of the Bank to sanction
loan to the customers who fulfills the conditions of Bank. He is
having duty towards the Bank while sanctioning the loan. The
accused No.2 was the Valuator of the Bank. Hence, accused No.1
and 2 under duty to visit the spot and submit the valuation report to
the first informant Bank. But accused No.1 and 2 with dishonest
intention concealed the fact of non existence of said property and also
deceived the first informant Bank as if they visited the property and
prepared the Ex.P.11 - valuation report and submitted to the first
informant Bank. Hence, on the basis of false Ex.P.2 - Hakku Patra,
Ex.P.3 - No Objection Certificate sanctioned loan of Rs.10,00,000/- in
favour of accused No.4. Accused No.1 knows that in order to open
the account in Bank one of its customers shall introduce and sign as
introducer in the account opening form. But accused No.1 knowing
the fact that in the Ex.P.8 introduction column is not filled even then
opened the account of accused No.4 in the first informant Bank.
31 CC.NO.8709/2008
Hence, the accused No.1 who is employee of first informant Bank
caused wrongful loss to the first informant Bank by disbursing loan in
favour of accused No.4. Here accused No.4 who borrowed loan of
Rs.10,00,000/- from the first informant Bank he did not repay the said
loan amount to the Bank and account became NPA. Accused No.5
stood as a co-obligant to the said loan. Here accused No.4 obtained
the loan on the basis of Ex.P.2 - Hakku patra, Ex.P3 NOC and Ex.P.4
sale deed. Hence, PW2 deposed that he registered Ex.P.4 sale deed.
Accused No.4 who knew that Site No.172, Khata No.29 is not existed
at all even then he applied for the loan to first informant Bank and
obtained loan of Rs.10,00,000/-. Hence, to show the same prosecution
produced Ex.P.10 Loan Sanction order and Ex.P.12 statement of loan
account of accused No.4. Hence, as per evidence of PW3 and looking
at Ex.P.5 first information statement and Ex.P.12 statement of loan
account of accused No.4 as on date of filing of Ex.P.5 first information
statement outstanding loan is of Rs.10,15,395/-. Here as per Ex.P.11
valuation report it is stated and mentioned that as if accused No.1
and 2 visited the site No.172, Agrahara village but in fact the said Site
property is not existed. Hence, accused No.1, 2, 4 and 5 with common
intention to cheat the first informant Bank Accused No.1 sanctioned
the loan in favour of accused No.4. Hence, accused No.4 knowing
that said property is not at all existed even then applied for a loan and
obtained loan from the first informant Bank and thereby cheated the
first informant Bank. Hence, expression entrusted in Section 409 of
31 CC.NO.8709/2008
IPC is used in wide sense and include in all cases in which property is
voluntarily handed over for a specific purpose and is dishonestly
disposed of contrary to the terms on which possession has been
handed over. Hence accused No.1, 2, 4 and 5 knowing well that said
property is fictitious even then as per Ex.P.10 loan was sanctioned and
credited in the account of accused No.4 which is shown at Ex.P.12 -
statement of loan account of accused No.4. Hence, to the said loan
accused No.5 stood as a co-obligant. Hence, accused No.4 and 5 did
not repay the loan amount and thereby caused wrongful loss to the
first informant Bank. Hence, accused No.1 and 2 with accused No.4
and 5 cheated the first informant Bank. Hence, prosecution proved
through its oral and documentary evidence essential ingredients of
Sections 409 and 420 read with Section 34 of IPC against accused
No.1, 4 and 5. Hence, prosecution proved its case beyond all
reasonable doubt and in view of above stated facts, circumstances,
evidence and reasons I proceed to pass the following :
ORDER
Acting under Section 248(2) of Code of Criminal Procedure accused No.1, 4 and 5 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Looking at facts and circumstances of case and nature of offences accused No.1, 4 and 5 are not entitled for benefits under Probation of Offenders Act.
31 CC.NO.8709/2008Hence, case is posted for hearing on sentence.
Office shall not destroy the records of this case till adjudication of split up CC No.12162/2016.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 27th day of December 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 submitted that he visited the spot with accused No.2 valuator and prepared the valuation report. Thereafter obtained the legal opinion from penal advocate. As per Banking Rules sanctioned the loan and thereafter DD was issued in the name of seller. Accused submitted he has not committed any offence. Hence, accused No.1 submitted to impose minimum sentence or fine only.
Accused No.4 submitted that he approached the Bank for the purpose of obtaining industrial loan. But Aslam Syed introduced him to the Bank and assured that he provide site to him. Accused No.4 paid Rs.1,75,000/- in cash to Syed but Syed has not given site. The Bank has not sanctioned industrial loan of Rs.25,00,000/-. The Bank officials obtained his signatures on papers and he has not 31 CC.NO.8709/2008 received any amount from the Bank. He also submitted that at the time of signing the document all the documents were blank and they were not filled up. He is a heart patient and accused No.5 is a cancer patient. He has not committed any of the alleged offence. He is aged about 70 years and attending the court regularly. Hence, prays to impose minimum sentence or fine only.
Accused No.5 submitted that she is the cancer patient and she has not committed any of the alleged offence. Hence, prays to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1, 4 and 5 and prays to impose maximum sentence on accused No.1, 4 and 5.
This is a 2008 case. Accused No.1, 4 and 5 appeared through out trial. Accused No.1, 4 and 5 are aged persons. Hence, taking into note of age of accused No.1, 4 and 5, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1, 4 and 5 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
31 CC.NO.8709/2008:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years, accused No.4 and 5 are hereby convicted and sentenced to undergo simple imprisonment for a period of 1 year each and accused No.1, 4 and 5 shall also pay fine of Rs.10,000/- each for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1, 4 and 5 shall undergo simple imprisonment of 2 months each.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years, accused No.4 and 5 are hereby convicted and sentenced to undergo simple imprisonment for a period of six months each and accused No.1, 4 and 5 shall also pay fine of Rs.10,000/- each for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1, 4 and 5 shall undergo simple imprisonment of 2 months each.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused 31 CC.NO.8709/2008 No.1 during the investigation and trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1, 4 and 5 immediately at free of cost.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 27th day of December 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Puttaswamy PW.2 : H.P.Ramanjanaiah PW.3 : Ramesh Rao PW.4 : Thippeswamy PW.5 : M. Prabhushankar
List of exhibits marked for prosecution:-
Ex.P.1 : Report of PW1
Ex.P.1(a) Signature of PW1
Ex.P.1(b) Signature of PW5
Ex.P.2 : Hakku Patra
Ex.P.3 : No Objection Certificate
Ex.P.3(a) Signature of PW5
Ex.P.4 : Sale deed
Ex.P.4(a) Signature of PW1
Ex.P.4(b) Signature of PW5
Ex.P.5 : First information statement
31 CC.NO.8709/2008
Ex.P.5(a) Signature of PW3
Ex.P.5(b) Signature of PW5
Ex.P.6 : Transfer order of accused No.1 Ex.P.6(a) Signature of PW5 Ex.P.7 : Certificate of service of accused No.1 Ex.P.7(a) Signature of PW5 Ex.P.8 : Account opening form of accused No.4 Ex.P.8(a) Signature of PW5 Ex.P.9 : Identity card Ex.P.10 : Loan sanction letter / order Ex.P.10(a) Signature of PW5 Ex.P.11 : Valuation report submitted by accused No.2 Ex.P.11(a) Signature of PW5 Ex.P.12 : Statement of Loan Account of accused No.4 Ex.P.12(a) Signature of PW5 Ex.P.13 : Report of PW4 Ex.P.13(a) Signature of PW4 Ex.P.13(b) Signature of PW5 Ex.P.14 : First information report Ex.P.14(a) Signature of PW5 Ex.P.15 : Tata Indicom bill.
Ex.P.15(a) Signature of PW5 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.