Bangalore District Court
Has Already Compounded The Offence vs No.2 Is Hereby Acquitted Of The Offence on 23 March, 2021
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 23rd Day of March 2021
Present: Sri.Jayaprakash D.R B.A., LL.M
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.4528/2008
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 4528/2008
2. The date of commission 30/05/2005
of the offence
3. Name of the complainant State by High Grounds P.S.
4. Name of the accused 1.Fayaz Ahamad - ABATED
2. Dr.Mohammad Khaliulla
Sharif s/o Abdul Rawat, r/at
No.23, M.V.R. Garden,
J.C.Nagara, Bangalore.
3. Jayalakshmi -
COMPOUNDED
5. The offence complained of U/s. 420, 120B of IPC
or proved
2 C.C.No.4528/2008
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused No.2 is acquitted
8. Date of such order 23032021
For the following:
JUDGMENT
This case is arising out of charge sheet submitted by the Police SubInspector of High Grounds PS against the accused No.1 to 3 for the offences Punishable U/Sec. 420, 120B of IPC.
2. The case of the prosecution in brief is as under: The accused No.2 along with accused No.1 and 3
hatched a criminal conspiracy to defraud KSFC and availed loan from KSFC by mortgaging the property of accused No.3 in the year 199697 even though the said property bearing site No.376 was sold to CW4 in the year 1992 itself. Hence, the 3 C.C.No.4528/2008 accused have committed the offences of cheating punishable u/s 420 and 120B of IPC.
3. In pursuance of summons the accused No.2 has appeared before the Court and he is enlarged on bail. The accused No.1 is reported to be dead and case against him stands abated. The complainant and accused no.3 have compounded the offence on 06062008 resulting in acquittal of accused No.3. The provision of Section 207 of Cr.P.C. was complied by furnishing charge sheet and its enclosures to the accused. The charge was read over and explained to the accused. Accused has pleaded not guilty and claimed to be tried.
4. The prosecution has examined 8 witnesses and got marked 5 documents in its favour. In spite of repeated issuance of process to CW3 the prosecution has failed to 4 C.C.No.4528/2008 secure his presence. Hence, he was dropped from examination. The provision u/s 313 of Cr.P.C. was complied by recording the statement of accused. The accused has denied the incriminating evidence against him and submitted that he has got no defence evidence.
5. Heard the arguments.
6. The point that would arise for my consideration in this case are as under:
1. Whether the prosecution proves beyond reasonable doubt that The accused No.2 along with accused No.1 and 3 hatched a criminal conspiracy to defraud KSFC and availed loan from KSFC by mortgaging the property of accused No.3 in the year 199697 even though 5 C.C.No.4528/2008 the said property bearing site No.376 was sold to CW4 in the year 1992 itself and thereby committed the offence of cheating u/sec.420 of IPC and criminal conspiracy u/sec.120B of IPC?
2. What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
for the following:
REASONS
8. Point No.1: It is the case of the prosecution that The accused No.2 along with accused No.1 and 3 hatched a criminal conspiracy to defraud KSFC and availed loan from 6 C.C.No.4528/2008 KSFC by mortgaging the property of accused No.3 in the year 199697 even though the said property bearing site No.376 was sold to CW4 in the year 1992 itself. Hence, the accused have committed the offences of cheating punishable u/s 420 and 120B of IPC.
9. In order to prove the allegation against the accused prosecution has examined in all 8 witnesses and got marked 5 documents in its favour. PW1 is the Manager of KSFC who has lodged first information at Ex.P1. PW2 is the alleged purchaser of property from accused No.3 in the year 1992. PW3 is the Manager (Legal) in KSFC who has prepared documentation of loan property. PW4 is General manager at KSFC who has sanctioned loan in the name of Indian Travels. PW5 is the Deputy Manager who has inspected the properties on 1302 1996 and given report for sanctioning of loan. PW6 is the Asst. 7 C.C.No.4528/2008 General Manager who has issued sanction letter at Ex.P3. PW7 is the PSI who has completed the investigation and filed charge sheet against the accused. PW8 is the PSI who has registered case after receiving the complaint referred by the court and filed FIR at Ex.P4 and P5.
10. Before appreciating the evidence on record it is important to note that the accused No.1 is reported to be dead and case against him stands abated. The complainant and accused no.3 have compounded the offence on 06062008 resulting in acquittal of accused No.3. Hence, now case is only against accused No.2. Therefore, this court has to appreciate whether prosecution has adduced evidence to prove the offences alleged against the accused No.2.
8 C.C.No.4528/2008
11. When the entire prosecution papers and evidence of prosecution witnesses is considered it is seen that the accused No.2 is the father of minor partners of India Travels and he is only guarantor to the loan availed by partnership firm called India Travels. Para 2 of the complaint shows that the accused No.2 has executed only personal guarantee document in favour of the complainant and it is only accused No.3 who has offered her properties as collateral security towards repayment of loan.
12. With this background it is important to note that PW1 in the chief examination states that said property was sold by accused No.3 in the year 1992 prior to offering the said property as collateral security. In the chief examination of PW1 there is no allegation against the present accused No.2. It is crucial to note that PW2 in his chief examination has stated 9 C.C.No.4528/2008 that at the time of execution of sale deed accused No.3 had not handed over the original documents to him and he came to know that said documents are produced before the bank authorities while accused No.3 stood as surety. From his evidence it is very clear that original sale deed was with accused No.3 herself. If really there was sale transaction in favour of PW2, then PW2 as a prudent purchaser would have taken original sale deed with him. In this regard production of sale deed in favour of CW4/PW2 assumes importance. Whether there was valid sale deed in favour of CW4/PW2 is a crucial aspect which has to be considered to come to the conclusion that whether accused has committed any offence alleged against him. The prosecution has not produced and marked the sale deed in favour of CW4/PW2. Therefore, the prosecution has failed to prove that there was sale deed in 10 C.C.No.4528/2008 favour of PW2 prior to mortgaging of site No.376 in favour of KSFC.
13. Further, PW3 in her chief examination states that it is accused No.3 who has furnished documents pertaining to property bearing No.376. Further, in the cross examination PW3 has stated that the accused No.2 stood as personal guarantor and amount is being deducted towards loan outstanding from the pension of accused No.2 and she did not know whether accused No.2 had any intention to cheat the KSFC. Similarly, PW4 also has not stated anything against accused No.2. On the other hand, he has stated that it is accused No.3 who has stood as surety and has produced the document to KSFC. Similarly, PW5 in the cross examination has admitted that there is no connection between the accused No.2 and the property mortgaged with KSFC and he do not 11 C.C.No.4528/2008 know whether accused No.2 had intention to cheat KSFC. Similarly, PW6 has not stated anything against accused No.2. From the evidence of PW1 to 6 it is very clear that accused No.2 stood as only personal guarantor and he has no connection whatsoever with the property mortgaged by the accused No.2 is in favour of KSFC. If at all any offence is committed then it is only accused No.3 with whom the complainant has already compounded the offence.
14. In view of the above discussion prosecution has failed to prove that accused was part of the criminal conspiracy or has cheated KSFC by mortgaging the property which was already sold by accused No.3. Accordingly, prosecution has failed to prove beyond all reasonable doubt that accused No.2 has committed the offences alleged against him. Accordingly, I hold point No.1 in the Negative.
12 C.C.No.4528/2008
15. Point No.2: In the result, I proceed to pass the following:
ORDER Acting under Section 248 (1) of Cr.P.C., accused No.2 is hereby acquitted of the offence punishable U/sec. 420 and 120B of IPC.
Bail bonds of accused No.2 and his surety bonds stands canceled after the expiry of appeal period.
(Dictated to the stenographer transcribed and computerized by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 23rd day of March 2021.) (Jayaprakash D.R.) VIII Addl. CMM, Bangalore.
ANNEXURE
1. Witnesses examined for the prosecution :
PW1 : Shivakumar S.B.
13 C.C.No.4528/2008
PW2 : Jeevananda DISCARDED
PW3 : K.M.Anuradha
PW4 : A.r.Chandra Shekhar Shetty
PW5 : B.S.Mukunda
PW6 : K.V.Shivanna
PW7 : P.Cheluvegowda
PW8 : G.S.Rabhu
2. Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : Statement of PW4 Ex.P3 : KSFC Letter Ex.P3 : Original complaint refer copy Ex.P4(a) : Signature of PW8 Ex.P5 : FIR Ex.P5(a) : Signature of PW8
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL VIII Addl. C. M. M. Bangalore.14 C.C.No.4528/2008
Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 248 (1) of Cr.P.C., accused No.2 is hereby acquitted of the offence punishable U/sec. 420 and 120B of IPC.
Bail bonds of accused No.2 and his surety bonds stands canceled after the expiry of appeal period.
VIII Addl. C. M. M. Bangalore