Bangalore District Court
Niranjan K M vs Santhosh Kumar B R on 1 April, 2024
KABC030879412019
Presented on : 29-11-2019
Registered on : 29-11-2019
Decided on : 01-04-2024
Duration : 4 years, 4 months, 3 days
IN THE COURT OF THE XXXII ADDL., CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
PRESENT:
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M,
Bengaluru.
Dated this the 01st day of April, 2024
C.C.No.28506/2019
Complainant: The State through
Police Sub Inspector
Madivala P.S, Bengaluru.
(By Asst. Public Prosecutor)
V/s
Accused : 1). Santhosh Kumar.B.R,
S/o.Rajegowda.B.N,
Aged about 36 years,
R/at. No. 24, 2nd floor, 36 A Main,
17th cross, J.P.Nagar 6th Phase,
Bengaluru.
2). SaiSharan.J,
S/o.Janardhan Reddy N.K,
Aged about 29 years,
R/at. No. 145, 7th main, 5th
Block, Jayanagar,Bengaluru.
(By Sri. B.N.B...Adv.,)
2 C.C.28506/2019
Date of commencement of : 10.04.2018
offence
Date of report of offence : 10.04.2018
Arrest of the Accused : ---
Name of the Informant : Niranjan.K.M, AEE
Date of commencement of : 15.07.2023
recording evidence
Date of closing of evidence : 21.08.2023
Offences complained of : U/S.171(E),171(H),171(F)
and Sec. 420 r/w Sec.34
of IPC
Opinion of the Judge : Accused No.1 and 2 are
found not guilty
Date of Judgment : 01.04.2024
XXXII A.C.M.M.,
Bengaluru.
JUDGMENT
The Police Sub Inspector of Madivala P.S has submitted the Charge Sheet against the accused No.1 and 2 for the offences punishable U/s. 171(E), 171(H), Sec.171(F) and Sec. 420 r/w Sec.34 of IPC.
2. The brief facts of the Prosecution case are as follows: 3 C.C.28506/2019
That, the complainant/C.W.1 Niranjan- AEE was appointed as Flying Squad officer at BTM Layout nominated by the Election Commission for Vidhana Sabha Elections. On 10.04.2018 when C.W.1 and his squad came near the check post, which was constituted near Service road, HSR layout ring road and were checking the vehicles and at that time the accused No.1 & 2 came in silver colour car bearing Reg.No.KA-05-MM-9455, on inspection of the above said car by C.W1 and his staff, they found blue and orange colour bag full of cash i.e. total Rs.42,40,000/- with no documents. When on enquiry about the cash with the accused No.1 and 2, they did not give proper explanation and thereby the accused No.1 and 2 violated the rules of Assembly Election and accused No.1 and 2 with an intention to cheat the State Government did not pay the tax to the Government and was found in possession of Rs. 42,40,000/-during Assembly Election time and thereby the accused No.1 and 2 have committed the offences punishable u/s 171(E),171(H), 171(F) of IPC and Sec. 420 r/w Sec.
34 of IPC.
3. On the basis of the Statement of CW1, the Madivala Police have registered a case under Crime No.148/2018 for the offences 4 C.C.28506/2019 punishable u/s 98 of Karnataka Police Act against the accused No. 1 and 2 and submitted the FIR before the court. Thereafter the investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused No.1 and 2 for the offences punishable u/s 171(E),171(H), 171(F) of IPC and Sec. 420 r/w Sec. 34 of IPC. On the receipt of the police report, this court has taken cognizance for the said offences.
4. On the appearance of the accused No.1 and 2, the accused No.1 and 2 appeared before court and were released on bail. The copies of prosecution papers were furnished to the accused No.1 and 2 as contemplated U/Sec.207 of Cr.P.C. After hearing both the parties, the charge was framed against the accused No.1 and 2 for the offences punishable u/s 171(E),171(H), 171(F) of IPC and Sec. 420 r/w Sec. 34 IPC and read over to them. Accused No.1 and 2 pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused No.1 and 2, the prosecution has got examined 04 witnesses as PW1 to PW4, out of the 5 C.C.28506/2019 total charge sheet witnesses as CW1 to 11 and got marked documents as Ex.P1 to P.11.
Learned Sr.APP has given up the examination of C.W.4 to 8. Inspite of sufficient issuance of summons, NBW and proclamation to CW 9 and 10, these witnesses have not been secured. Hence the evidence of CW-9 and 10 is dropped.
6. After closure of prosecution evidence, the accused No.1 and 2 are examined U/s.313 of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused No.1 and 2 is separately read over to the accused No.1 and 2. The accused No.1 and 2 denied all such circumstances as false. The accused No.1 and 2 did not choose to adduce defense evidence and no documents are got marked, on their behalf.
7. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused No.1 and 2.
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
6 C.C.28506/2019
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 10.04.2018 when C.W.1 and his squad came near the check post, which was constituted near Service road, HSR layout ring road and were checking the vehicles and at that time the accused No.1 & 2 came in silver colour car bearing Reg.No.KA-05-MM-9455, on inspection of the above said car by C.W1 and his staff, they found blue and orange colour bag full of cash i.e. total Rs.42,40,000/- with no documents, on enquiry about the cash with the accused No.1 and 2, they did not give proper explanation and thereby the accused No.1 and 2 have violated the rules of Assembly Election and thereby the accused No.1 and 2 have committed the offences punishable u/s 171(E),171(H), 171(F) R/w section 34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the same date, place and time the accused with an intention to cheat the State Government did not pay the tax to the Government and was found in possession of Rs.
42,40,000/-during Assembly Election time and thereby the accused No.1 and 2 have committed the offence of "cheating" punishable u/s 420 r/w Sec. 34 of IPC?
7 C.C.28506/2019
3. What Order?
9. My findings to the above Points are as under:
Points No.1 and 2 : In the Negative.
Point No.3 : As per final order, For the following: -
REASONS
10. Points No.1 and 2: - As these points are interlinked with each other and also similar evidence is led on all these points, I have taken all these points together for common discussion in order to avoid repetition of facts and discussion.
11. It is the allegation that the accused No.1 and 2 have committed the offences punishable U/Secs.171(E),171(H), 171(F) of IPC and Sec. 420 r/w Sec. 34 IPC.
12. In order to prove its case, the prosecution has got examined the informant/CW1 of crime by name Niranjan.K.M as P.W.2, C.W.3- Neelappa-police constable is examined as P.W.1, C.W.2- Mohammed Shadab Hyder is examined as P.W.3 and C.W11/Sanjeev Kumar-PSI is examined as P.W.4.
8 C.C.28506/2019
Out of the documents marked for the prosecution Ex.P1 is the seizure mahazar, Ex.P.2 to 7 are the photos of the car (six in numbers), Ex.P2 is the complaint (due to oversight same number has been given as Ex.P2 which was given to the photos), Ex.P3(a) is the C.D, Ex.P.9 is the permission letter, Ex.P.10 is the FIR and Ex.P.11 is the Letter from the IT Department.
13. During the course of trial, the accused No.1 and 2 took up defence that no incident took place as alleged and the complainant has filed this false case.
14. C.W.1/P.W.2-Niranja.K.M and C.W.2/P.W.3-Mohammed Shahbad .H in their evidence deposed that on 10/04/2018 they were deputed to work as MCC Flying Squad during Karnataka VidhanaSabha Assembly Election and at 6.40P.M, the accused persons came in a silver colored Volkswagen Vento TDI car bearing No.KA05-MM-9455 in front of Mathew Hospital Service road, Teacher's colony, Ring Road, HSR Layout and on inspection of the boot (dikki) of the said car they found a blue and orange colored bag of Nike company containing cash of Rs.42,40,000/- and on enquiry the accused persons did not produce any documents and did not give any explanation about the possessing of cash. Further P.W.2 and 3 9 C.C.28506/2019 deposed that they drew seizure mahazar as per Ex.P.1 in the presence of the panchas and seized the cash of Rs.42,40,000/- and P.W.2 lodged a complaint as per Ex.P.2.
15. During the cross examination made by the Learned Counsel for the accused No.1 and 2, P.W.2 deposed that he has not produced any documents to show that he was nominated as Flying squad during Karnataka VidhanaSabha Assembly Election. Other than the accused persons, they did not find any banners, pamphlets and election related articles in the car. He did not make any efforts to make note as to which political party the car belonged to. He denied the suggestion that the accused persons were cinema distributors and though the accused persons told them that the money they possessed came from the collection in the cinema theatres, they filed a false case against the accused persons. The police videographed the incident and he deposed that he does not know to which video/incident the Ex.P.3(a) pertains to. He further deposed that he does not remember who wrote the mahazar and he signed on Ex.P.1 in the police station.
16. During the cross examination made by the Learned Counsel for the accused No.1 and 2, P.W.3 deposed that he has not produced 10 C.C.28506/2019 any documents to show that he was nominated as Flying squad during Karnataka Vidhana Sabha Assembly Election. He further deposed that other than the accused No.1 and 2, they did not find any banners, pamphlets and election related articles in the car. He further deposed that he did not make any efforts to make note as to which political party the car belonged to. He denied the suggestion that the accused persons were cinema distributors and though the accused persons told them that the money they possessed came from the collection in the cinema theatres, they filed a false case against the accused persons. He further deposed that the police did not videograph the incident and he deposed that he does not know to which video/incident the Ex.P.3(a) pertains to. He denied the suggestion that he is deposing false evidence to help C.W.1.
17. C.W.3/P.W.1-Neelappa- Constable- in his evidence deposed that he was on vehicle inspection duty on the Service Road in front of Mathew Hospital at Teachers Colony himself along with C.W.1, 2 and other staff stopped the vehicle bearing No. KA05-MM-9455 and on inspection of the boot(dikki) of said the car he found a blue and orange colored bag of Nike company containing cash and he reported the same to C.W.1 and 2 and they enquired the accused persons and 11 C.C.28506/2019 they did not produce any documents and did not give any explanation about possessing cash of Rs.42,40,000/-.
18. During the course of cross examination of PW1 he deposed that at the time they inspected the vehicle, they did not find banners, pamphlets or election related articles in the vehicle. To the question whether the accused persons belongs to any political party the witness deposed that they checked the vehicle and there was money in the vehicle and the MCC flying squad who was with them did the investigation.
19. C.W.11/P.W.4- Sanjeev Kumar- PSI is his evidence deposed that on 10.04.2018 while he was at Madivala P.S at about 9.50P.M, C.W.1 lodged a complaint which is at Ex.P.2 and he registered the complaint and sent the FIR to the court and on 04.01.2019 after investigation he submitted the charge sheet against the accused No.1 and 2.
20. During the cross examination made by the Learned Counsel for the accused No.1 and 2, this witness deposed that he has not drawn seizure mahazar of the cash seized by C.W.1 after the FIR was registered. When he seized the car of the accused persons he did not find any banners, pamphlets or election related articles in the car. He 12 C.C.28506/2019 deposed that he does not know to which political party the accused persons and the money belonged to. He admitted that he has not recorded the voluntary statement of the accused persons. He denied the suggestion that though there were documents for possessing of cash by the accused persons, they were not aware of it, since they did not seize the car under process of law. He deposed that he has not done any correspondence to the Income tax department relating to evasion of tax by the accused persons. He denied the suggestion that the accused persons possessed suitable documents to show that the father of accused No.2 is a cinema distributor and as such the accused persons possessed the cash received from the theatre collection. He denied the suggestion that he has not recorded the statement of any witnesses. He denied the suggestion that he is deposing false evidence against the accused persons though they have not committed the alleged crime. He denied the suggestion that he has not investigated the matter and due to help CW.1 he filed false charge sheet against the accused persons.
21. On careful perusal of the evidence placed on record, it is evident to note that except the interested witnesses (P.W 1 to 4) the 13 C.C.28506/2019 prosecution has not examined any public or other independent witnesses.
22. Now the question which arises before court is whether the evidence placed on record is sufficient to establish the case of the prosecution. The evidence of P.W.1 to 4 who are interested witnesses is to be scrutinized carefully. Under these circumstances, in the reported decision it is held as under:
" Where the witnesses are interested, their evidence should be scrutinized with great caution"
The law laid down in the said decision is aptly applicable to the case on hand.
23. Further relying on the decision reported in 1999 Crl.L.J 19 (SC) (Sanspal Singh Vs State of Delhi)
-It is evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether, had there been No public witness available or none was willing to associate here as stated above, public witnesses were available but No explanation on these lines is forthcoming. Thus it 14 C.C.28506/2019 would be unsafe to maintain conviction of the appellant for the offences charged"
The above said decision is aptly applicable to the case on hand.
24. The prosecution failed to secure the presence of other public or independent witnesses ie., witnesses where the alleged incident took place. Non examination of independent witnesses is fatal to the case of prosecution. This aspect creates doubt in the mind of the Court as to why public witnesses are not examined on behalf of the prosecution case.
25. Furthermore the decision reported in (2017)11 SCC 195- Yogesh Singh Vs Mahabeer Singh and others.. At para 16 Hon'ble Supreme Court observed as under:
"16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
The above said decision is aptly applicable to the case on hand. 15 C.C.28506/2019
26. Moreover the prosecution has made allegation that the accused persons in order to avoid paying tax had possessed the said amount, the prosecution in order to prove the said allegation ought to have examined the Income tax officials, this lapse on part of the prosecution creates doubt as to believe that the accused persons have committed the offence of Sec. 420 of IPC. The P.W.4 also in his cross examination admitted that he has not made any correspondence with the IT officials, as such this lacuna goes to the root of the prosecution case and the allegation of tax evasion is not proved.
27. Further more in the instant case the alleged offences are U/s 171-E, 171-H and 171-F of the IPC. Though these section speak about bribery, undue influence and illegal payments during elections, the prosecution has not placed any iota of evidence to prove or establish that the accused persons had done any illegal payments or caused undue influences on any person or political party. During cross examination of all the prosecution witnesses the witnesses have admitted that they did not find any banners, pamphlets or election related articles in the car and they do not know to which political party the accused persons and the money belonged to. Further the IO/P.W.4 admitted that he has not recorded the voluntary statement 16 C.C.28506/2019 of the accused persons and as such the prosecution has utterly failed to prove its case.
28. Considering the facts and circumstances of the present case, it is clear that the prosecution has failed to prove the guilt of the accused No.1 and 2 beyond all reasonable doubts. For the reasons stated above, it is clear that number of serious doubts arises in the mind of the court as to the evidence and circumstances of the case on hand. Under these circumstances, no doubt the accused No.1 and 2 is entitled for benefit of doubt. Hence this court held that the evidence placed on record is not pointing out towards guilt of the accused No.1 and 2 only and accused No.1 and 2 as a matter of right is entitled for benefit of doubt and prosecution failed to prove the guilt of the accused No.1 and 2 beyond all reasonable doubt. Under these facts and circumstances of the case, the above Points No.1 and 2 is answered in the 'NEGATIVE'.
29. Point No.3: - In view of the findings of Point Nos.1 and 2, this court proceed to pass the following:
ORDER Acting U/Sec.248(1) of Cr.P.C. accused no.1 and 2 are acquitted of the offences 17 C.C.28506/2019 punishable U/S. 171(E), 171(H) and 171(F) of IPC and Sec. 420 r/w Sec. 34 of IPC.
Bail bonds of the accused No.1 and 2 shall stand canceled.
The bail bond executed Sec.437(A) of Cr.P.C., shall be continued.
The order as to interim custody of the
Volkswagen Vento TDI silver color car to
accused No.2 is hereby made absolute.
(Judgment typed to my online dictation by the Stenographer, typed copy corrected and signed by me, then pronounced by me in the Open Court on this the 01st day of April 2024).
(Latha J) XXXII A.C.M.M, Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution:
PW-1 Neelappa C.W.3 15/07/2023
PW-2 Niranjan K.M. C.W.1 19/08/2023
PW-3 Mohammad Shadab C.W.2 19/08/2023
hyder
PW4 Sanjeev Kumar C.W.11 21/08/2023
List of the Documents exhibited for the Prosecution:
Ex.P1 : Mahazar
Ex.P1(a)(b) : Signature of PW-1, PW-2
Ex.P1(c) : Signature of PW-3
Ex.P2 to 7 : Photos in six numbers
Ex.P2(a) : Signature of PW-2
Ex.P2(b) : Signature of PW-4
Ex.P3(a) : C.D.
Ex.P9 : Permission letter
Ex.P9(b) : Signature of PW-4
18 C.C.28506/2019
Ex.P10 : F.I.R.
Ex.P10(a) : Signature of PW-4
Ex.P11 : Letter from the I.T. Departement
Ex.P11(a) : Signature of Pw4
List of the MOs Marked on behalf of the Prosecution
-- NIL --
List of the Witnesses examined for defence:
-Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
Digitally signed by LATHA LATHA Date:
J
J 2024.04.02
13:26:52
+0530
XXXII A.C.M.M,
Bengaluru.