Bangalore District Court
K Doddanna vs B Ramaiah on 22 August, 2024
KABC030646472014
Presented on : 17-09-2014
Registered on : 17-09-2014
Decided on : 22-08-2024
Duration : 9 years, 11 months, 5 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 22nd Day of August, 2024
C. C. No.25616/2014
State by Chandra Layout Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri. B.Ramaiah
Aged about 55 years,
S/o Late Sri. Bettaiah,
R/at No.78, 3rd Main Road,
Sanjeevini Nagara, Moodalapalya,
Nagarabhavai Main Road,
Bengaluru. ... Accused
(Represented By Sri. S. Venkatesh Advocate)
KABC030646472014 CC No.25616/2014
1. Date of commission of 22-9-1983 to 30-8-2012
offence
2. Name of Complainant Sri K.Doddanna
3. Offences complained of Under Section 465, 468,
471, 420 of IPC
4. Charge Pleaded not guilty
5. Final Order Accused is not found
guilty
6. Date of order 22-08-2024
JUDGMENT
The Police Sub-Inspector of Chandra Layout Police Station submitted charge sheet against accused for the offences punishable under Section 465, 468, 471, 420 of IPC
2. Prosecution Case: CW1 is the owner and is in possession of the site No. 49 and 50 carved out from Nagarbhavi Village in survey No. 48/8 (Old No.48) situated at Maruti nagar, 6th Main Road, Chandarlayout, Bangalore each measuring 30 x 50 feet within limits of Chandra Layout Police Station, 2 KABC030646472014 CC No.25616/2014 Bangalore, the accused in order to obtain the aforesaid property illegally, the signature of CW1 Sri K. Doddanna and CW2 Sri Ramaiah and late father of CW1 namely Sri Kempanna was forged on the General Power of Attorney and used the document as genuine and prepared sale deed and presented the same before BBMP in order to transfer the aforesaid property belonging to CW1 and CW2 in his name and thereby cheated the CW1 and 2 as well as BBMP.
3. First Information Report: Upon the receipt of first information from CW1/PW1, CW9/PW5/PI of Chandra Layout Police Station Sri Ravikumar registered a Crime No.334/2024 against the accused for the offences punishable under Section 420, 465, 468, 471 of IPC, prepared FIR and sent the same to the Court and to his superior officers.
4. Investigation: During the course of investigation, CW9/PW5, on the receipt of complaint registered FIR as per Ex.P14, secured the documents from informant and sent the Power of attorney to the FSL for examination of signature and obtained the FSL report, recorded the statements and submitted the charge sheet against the accused for the alleged offences.
5. Charge: On receipt of charge sheet, this Court took cognizance of offences alleged against the accused. The accused is enlarged on bail. Copies of 3 KABC030646472014 CC No.25616/2014 prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused. After hearing learned Sr.APP and counsel for accused, charge for the offences punishable U/Sec.420, 465, 468, 471 of IPC of Indian Penal Code has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
6. Prosecution Evidence: The prosecution in order to establish its case cited 9 witnesses, examined 6 witnesses and exhibited 22 documents and closed their side. Witness summons to CW2 and CW3 returned with shara as dead and hence given up from examination as per order dated 05-04-2022. The examination of CW4 and CW7 were given up despite execution of proclamation by the order dated 26-08- 2022.
7. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence however during the course of cross examination of PW1, the accused has confronted the documents as per Ex.D1 to 3.
4KABC030646472014 CC No.25616/2014
8. Heard the arguments. Perused materials on the record.
9. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that CW1 is the owner and is in possession of the site No. 49 and 50 carved out from Nagarbhavi Village in survey No. 48/8 (Old No.48) situated at Maruti Nagar, 6th Main Road, Chandarlayout, Bangalore each measuring 30 x 50 feet within limits of Chandra Layout Police Station, Bangalore, the accused in order to obtain the aforesaid property illegally, the signature of Cw1 Sri K. Doddanna and CW2 Sri Ramaiah and late father of CW1 namely Sri Kempanna was forged on the General Power of Attorney thereby resulted in commission of an offence punishable under Section 465 of IPC?
5KABC030646472014 CC No.25616/2014
2. Whether the prosecution proved beyond all reasonable doubt that accused created the fake GPA and produced the same before the Sub-registrar for the purpose of registration of sale deed thereby resulted in commission of an offence punishable under Section 468 of IPC?
3. Whether the prosecution has proved beyond all reasonable doubt that the accused used the said GPA as genuine knowingly well that the GPA is forged document thereby resulted in commission of an offence punishable under Section 471 of IPC?
4. Whether the prosecution has proved beyond all reasonable doubt that the accused with dishonest intention to make wrongful gain, on the basis of forged GPA illegally prepared sale deed and presented the same before BBMP in order to get transfer the property belonging to CW1 and 2 in the 6 KABC030646472014 CC No.25616/2014 name of accused thereby cheated BBMP as well as CW1 and 2, thereby resulted in commission of an offence punishable under Section 420 of IPC?
5. What order?
10. The court's findings on the above points are as under:
Point No.1-4 : In the Negative
Point No.5 : As per final order
REASONS
11. Point No.1 to 4: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 9 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Sri. K. Doddanna being informant himself examined as PW1 and deposed in his evidence that his father Sri Kempanna died in the 7 KABC030646472014 CC No.25616/2014 year 1984. Sri Ramappa, his father and the brother of his father after the death of his father forged their signature on GPA on 22/09/1983. Based upon the said forged GPA, sale deed was executed in the year 1998 in favour of Nagarathana and Kenchappa and thereafter submitted the application for transfer of katha in his name. In the year 1999, OS No. 3585/1999 was filed against Nagarathana and Kenchappa and Anjenayalu. In the year 2001, the said Nagarathana and Kenchappa sold the property to one Sri K. Ramamurthy wherein he filed objection again for not to change the katha. In he year 2004, the accused purchased the two sites in his name and submitted application for change of katha wherein he raised his objection. There is a shed in those two sites and Mahadevamma and Savitramma are in possession of sites as tenants. In 2012, the accused has forged two lease agreements and rent agreements that one Sri Chikkaveeragowda and Sri Vijay is in possession of the property as tenants and filed the civil suit. He lodged the complaint before the police for having forged the signature of his father, CW2, Cw3. He identified the signature on the complaint and the same is marked as Ex. P. 1 and his signature as Ex. P. 1A. Based upon the complaint, the Police have drawn spot Panchaname and the same is marked as Ex. P.2 and his signature as Ex. P.2A. He identified the certified copy of sale deed wherein Sri Thimmaiah and Sri Nanjappa has executed sale deed in favour of his father Sri Kempanna. Photocopy of general power of attorney is marked as Ex. P. 4 and 8 KABC030646472014 CC No.25616/2014 the Ex. P. 4 does not bear the signature of his father and their uncle CW2 and Cw3. He affixed his signature on six sheets and the same are marked as Ex. P. 5 to Ex. P. 10. He produced the death certificate of his father and the same is marked as Ex. P. 11.
ii. CW8/PW2, Sri Ravikumar, the then HC of Chandra Layout PS deposed in his evidence that, on 17-02-2014 he handed over the two envelopes to FSL and received acknowledgment and reported to CW9 as per Ex.P13.
iii. CW5 Sri R.Byrappa examined as PW3 deposed in his evidence that on 05-04-2014 at Maruthinagara, 6th Cross, the police conducted spot mahazar as per Ex.P2 in respect of site of CW1. He identified his signature on Ex. P. 2 and the same is marked as Ex.P2(a).
iv. CW6 Sri Jayaram examined as PW4 deposed in his evidence that the police conducted spot mahazar as per Ex.P2 and he affixed his thumb impression on the spot mahazar.
v. CW9Sri Manju.S.S., the then PSI of Chandra Layout Police Station examined as PW5 deposed in his evidence that on receipt of complaint, he registered the case FIR, recorded the statement of 9 KABC030646472014 CC No.25616/2014 witnesses, collected the documents and expert opinion in respect of Ex. P. 4( Ex. P. 15). After completion of investigation, he submitted charge sheet to court. Further, he identified the documents as per Ex.1,2, 3, 13 to 18.
vi. CW7Sri Syed Askar Imam, retired Asst.Director, FSL examined as PW5 deposed in his evidence that, he is an expert in examination of handwriting from 1981 to 2014. On 17-02-2014 Ex.P4 to 10 has been received from CW8 in respect of this case. After examination, he submitted opinion as per Ex.P18 and his signature is marked as Ex. P. 18b. Further he has identified the report and the same are marked Ex.P19 to 22 and signature thereon as Ex.P18(b), 20(a) to 22(a).
12. The relevant provision for forgery is
463. Forgery.--3 [Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
10KABC030646472014 CC No.25616/2014 Section 464 in The Indian Penal Code Making a false document.-- [A person is said to make a false document or false electronic record-- First --Who dishonestly or fradulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a 11 KABC030646472014 CC No.25616/2014 document or an electronic record in any material part thereof, after it has been made, executed or affixed with 342 [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his 342 [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
465. Punishment for forgery.-- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
12KABC030646472014 CC No.25616/2014 Section 468 in The Indian Penal Code
468. Forgery for purpose of cheating.
--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 470 in The Indian Penal Code
470. Forged [document or electronic record]--A false (document or electronic record) made wholly or in part by forgery is designated "a forged [document or electronic record]".
Section 471 in The Indian Penal Code
471. Using as genuine a forged [document or electronic record].-- Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall 13 KABC030646472014 CC No.25616/2014 be punished in the same manner as if he had forged such (document or electronic record) Section 420 in The Indian Penal Code
420. Cheating and dishonestly inducing delivery of property.--
Whoever cheats and thereby dishonestly induces the person de- ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Let me examine the document evidence with oral evidence whether the prosecution has proved beyond the shadow of doubt that the accused has forged the signature on Doddanna, Ramaiah and Kempanna in Ex. P. 15(Ex. P. 4) GPA dated 23/09/1983 was forged and the lease agreements in favour of one Sri Chikkaveeragowda and Sri Vijay is in possession of the subject property as tenants and produced the same in the court of law.
14KABC030646472014 CC No.25616/2014
13. The Sri Kempanna S/o. Chikkarevappa father of PW1 died on 06/04/1984 as per Ex.P11.
14. There is a specific evidence from PW1 that the accused in the year 2012 has forged two lease agreements and rent agreements that one Sri Chikkaveeragowda and Sri Vijay is in possession of the property as tenants and filed the suit as per Ex.D2 and Ex.D3 however the CW9/PW5/IO neither produce any document as lease agreement or rental agreements before this court at the time of filing of charge nor investigated about the said aspect though there is specific allegation in the complaint as per Ex.P1. There is brevity of information and no document with regard to fabrication of two lease agreements and rent agreements and the same has been produced in the court of law. However Ex.D2 and 3 order sheet and plaint in O.S. No.5808/2012 was confronted by the accused to the PW1 and specifically stated that he leased the subject property to the tenants and sought for permanent injunction and ad-interim injunction was granted against the PW1 and CW2. To invoke the Section 465 of IPC for making of false document is essential. In this case, the accused did not make any false document as the PW1 himself admitted that he purchased the subject property from his vendor namely Sri Ramamurthy through registered sale deed dated 17/09/2004 wherein he acquired the ownership based upon the sale deed and hence he has executed the lease 15 KABC030646472014 CC No.25616/2014 agreement in favour of his tenants namely Sri Chikkaveeragowda and Sri Vijay. The accused has an authority to enter into the lease agreement with Sri Chikkaveeragowda and Sri Vijay and hence the same is admitted by the accused in the Ex.D1.
15. That the allegations in the complaint as per Ex.P1 seems to be false one because the accused has not made any false document in favour of his tenants with regard to the subject property as he acquired the subject property by way of sale deed dated 17.09.2004 and it clearly exposes the fact that he did not make any false document in his favour. In this context, it is relevant to mention, the Hon'ble Supreme Court of India in the case of Sheila Sebastian vs R.Jawaharaj and Ors reported in AIR 2018 SUPREME COURT 2434 held that for invoking the penal provision under Section 465 of IPC making of false document is essential. In this case, the accused did not make any false document and therefore, no case is made out under Section 465 of IPC, hence the offence under Section 420 of IPC being a consequential one equally cannot be sustained as far as the allegation is concerned with the regard to lease 16 KABC030646472014 CC No.25616/2014 agreements created in favour of his tenants as he acquired the subject property by way of sale deed dated 17/09/2004.
The principle stated by the Hon'ble Apex Court in Shelia Sebastian (supra) is reproduced hereunder for better appreciation:
"19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery Under Section 463 of Indian Penal Code. Therefore, we can safely deduce that Section defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction Under Section 465 , first it has to be proved that forgery was committed Under Section 463 , implying that ingredients Under Section should also be satisfied. Therefore unless and until ingredients Under Section 463 are satisfied a person cannot be convicted Under Section 465 by solely relying on the ingredients of Section , as the offence of forgery would remain incomplete."17
KABC030646472014 CC No.25616/2014
16. It is observed in the case of Mohammed Ibrahim and others Vs State of Bihar and others reported in 2009(8) SCC 751 held that "a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
To examine forgery of a document purporting to be a valuable security (467 of IPC) and using of forged document as genuine (Section 471 of IPC) while considering the basic ingredients of both the offences, this Apex Court has observed that to attract the offence of forgery as defined under Section 463 of IPC depends upon creation of a document as defined under Section of Code. It is further observed that mere execution of a lease deed for his property does not amount to commission of offences punishable under section 467 and 471 of IPC when the title of property stands in the name of accused as on the 18 KABC030646472014 CC No.25616/2014 date of alleged lease agreement was said to have executed by the accused.
17. It has been held in the case of Mir Nagvi Askari Vs Central Bureau of Investigation reported in (2009) 15 SCC 643 wherein the Apex Court observed as follows:
"A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.19
KABC030646472014 CC No.25616/2014 The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation that he did not purchase the subject property in question from the vendor Sri Ramamurthy.
Therefore, in the opinion of this Court, the second criteria of the said section is also not applicable to the present case.
The third and final condition of Section deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case.
18. PW5 did not investigate the said Sri Chikkaveeragowda and Sri Vijaya about their possession in the subject property. Such being the case, the accused has created the false lease agreements in favour of tenants does not amount to forgery when he purchased the Subject Property. The possession of the PW1 in the Subject Property is a matter of civil trial and this court cannot decide this 20 KABC030646472014 CC No.25616/2014 aspect when the prosecution did not produce any single document except the averment in the complaint that PW1, CW2 and father of CW1 Sri Kempanna was raising objection before the revenue authorities for mutation of katha in the name of accused. The pendency of O.S. No. 3585/1999 cannot come to a conclusion that the PW1, CW2 and father of CW1 Sri Kempanna are in possession of subject property.
19. However the prosecution through PW5 was mainly concentrated before this court that the signature of Doddanna, Ramaiah and Kempanna in Ex.P15(Ex.P4) GPA dated 23/09/1983 was forged.
20. It appears from the record that the PW1 had knowledge about the execution of Ex. P. 15(Ex. P. 4) GPA dated 23/09/1983 way back in the year 1998. The relevant provision of cross examination of PW1 that ನಿಪಿ.4 ಫೋರ್ಜರಿಯಾದ ಬಗ್ಗೆ ನನಗೆ 1998 ರಲ್ಲಿ ತಿಳಿಯುತ್ತು . 1998 ರಲ್ಲಿ ಸದರಿ ವಿಚಾರ ನನಗೆ ತಿಳಿದ ನಂತರ ನಿಡಿ.1 ರಂತೆ ದಾವೆಯನ್ನು ಸಲ್ಲಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನಿಪಿ.4 ಪೋರ್ಜರಿಯಾದ ಬಗ್ಗೆ ನನಗೆ 1998 ರಲ್ಲಿ 21 KABC030646472014 CC No.25616/2014 ತಿಳಿದ ನಂತರ ನಾನು ಪೊಲೀಸ್ ಠಾಣೆಗೆ ಹೋಗಿ ದೂರು ನೀಡಿಲ್ಲ .
Thus, the CW1 to CW3 failed to take any criminal action against the GPA Holder namely Sri Anjenayalu and was silent for 18 years and lodged a complaint against the 3rd Purchaser.
21. As on the date of alleged date of execution of GPA dated 22/09/1983, CW9/PW5 did not investigate the pivotal role of accused with the execution of GPA dated 22/09/1983.
22. Complaint as per Ex.P1 was lodged by PW1 before the Chandra Layout PS on 29-08-2012 wherein the relevant extracts has been reiterated as follows:
"That we are the owners in possession of the properties forming part of Sy.No.48/8 of Nagarabhavi Village, One Anjaneyalu claimed that he is the power of attorney holder in regard to site No.49 and 50 formed in the said survey number. The said Anjeneyulu claimed that a power of attorney is executed in his favour by my father Kempanna and myself and my uncle Ramappa on 22 KABC030646472014 CC No.25616/2014 22-09-1983. I submit that we have never executed any such power of attorney in favour of Anjeneyalu. The alleged power of attorney is created by the said Anjeneyalu. On the basis of the said power of attorney the said Anjeneyalu created two sale deeds in favour of H.N.Nagarathan and Kenchappa. The sale deed dated 12-08-1998 in respect of H.N.Nagarathan is created for site No.49 and the sale deed dated 12-08-1998 is created in respect of site No.50 in favour of Kenchappa. Thereafter the said Kenchappa and the said Nagarathna have created a sale deed in favour of K.Ramamurthy respectively dated 10-12-2001. The aforesaid Ramaiah has created a sale deeds in his favour purported to have executed by Rama Maurthy dated 17-09-2004 in respect of the said two sites".
The above extract in the complaint emerges that power of attorney dated 22-09-1983 was alleged to be forged by PA Holder Sri Anjaneyalu and thereafter the said Sri Anjaneyalu executed two sale deeds in favour of Smt. H. N. Nagarathan and Sri Kenchappa in respect site No.49 and No.50 respectively. Thereafter, the said Sri Kenchappa and Smt. Nagarathna sold the 23 KABC030646472014 CC No.25616/2014 property in favour of one Sri Rama Murthy. Such being the case, the question of accused forged the signature of PW1, father of PW1 and CW2 does not arise.
23. The learned counsel for accused relied upon the Ex.D1 wherein the father of CW1/PW1 himself has filed the suit in OS No.3585/1999 on the file of City Civil Judge (CCH-16), Bengaluru against one Sri Kenchappa, Smt. H.N.Nagarathna and Sri Anjaneyulu, claiming that the alleged power of attorney was created by Sri Anjaneyulu and sold the subject property to Sri Kenchappa and Smt. H.N.Nagarathna and sought for permanent injunction and also declaration that the sale deed executed in favour of defendants No.1 and 2 by defendant No.3 Anjaneyulu are null and void and not binding on the plaintiffs. Such being the case, accused being 3rd purchaser, how he could have involved with alleged forgery of signature on power of attorney dated 12- 09-1983 was not explained by the prosecution.
24. In this regard, the prosecution has secured FSL report as per Ex.P18 to 20 from PW6 (the expert in examination of handwriting) however PW5 did not placed the original Ex.P15 for examination of the signature with Ex.P12. In this regard, the learned counsel for the accused has cross-examined the PW6 who in turn admitted 24 KABC030646472014 CC No.25616/2014 DS-1 to DS-12 ಎಂದು ಪ್ರಶ್ನಿತ ಸಹಿಗಳನ್ನು ಇರುವ ಜಿ ಪಿ ಏ ನಿಪಿ.4 ಮೂಲ ಪ್ರತಿ ಆಗಿರುವುದಿಲ್ಲ. ನನಗೆ ಕೆಂಪಯ್ಯ ಮತ್ತು ರಾಮಯ್ಯ ಮಾದರಿ ಸಹಿಗಳನ್ನು ಕಳಿಸಿ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ.
Thus Ex.P18 lacks credential value as PW6 has given his opinion that the signatures of one of author i.e., PW1 Sri Doddanna, CW2 and Sri Kempanna does not belong to their signatures based upon the signatures available in Ex.P5 to 10 and Ex.P12. (copy of Cancellation of GPA)
25. The PW5 collected the signature of PW1, CW2 and Sri Kempanna father of CW1 i.e., the copy of cancellation of GPA dated 22/09/1983 (Ex.P12) and sent the copy of Ex.P4 GPA dated 22/09/1983 for comparison/examination of the signature a question arises whether the said Ex.P12 came into existence in the year 1983 itself and was acted upon by the PW1, CW2 and father of CW1 was not proved by any supporting document by the prosecution. The examination of signature of PW1, CW2 and father of CW1 Sri Kempanna with the copy of Ex.P4 and 12 by the Expert is a fatal to the prosecution case
26. There is all possibility that the PW1 could have signed differently as per Ex.P6 to 10 otherwise to make the signature differently from the signature in Ex. P. 4 and the same cannot be ruled out.
25KABC030646472014 CC No.25616/2014
27. PW5/IO did not make any efforts to investigate about PA holder Sri. Anjaneyulu. Ex.P4 GPA dated 22/09/1983 when the power of attorney was given to Sri Anjaneyulu who in turn based on Ex.P4 sold the subject property to Sri Kenchappa and Smt. H.N.Nagarathan.
28. PW5/IO did not obtain the signature of accused that he could have forged the signature on Ex.P4 GPA dated 22/09/1983.
29. The main witness has not been investigated/examined by PW5/IO or by the prosecution after charge sheeted is Sri Anjaneyulu in this case as he sold the subject property to Smt. H. N. Nagarathan and Sri Kenchappa. The learned counsel for accused has cross examined PW5/I.O. which has been extracted as below:
"ನಾನು ಚಾಸಾ 1 ರವರಿಂದ ದೂರು ಪಡೆದು ಸಂಪೂರ್ಣವಾಗಿ ಓದಿರುತ್ತೇನೆ. ಚಾಸಾ 1 ರವರ ದೂರಿನ 1ನೇ ಪ್ಯಾರಾದಲ್ಲಿ Anjaneyalu claimed that a Power of Attorney is executed in his favour by my father Kempanna and myself and my Uncle Ramappa on 22-09-1983 ಎಂದು ಇದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ಆಂಜನೇಯಲು ಅವರನ್ನು ನಾನು ವಿಚಾರಣೆ ಮಾಡಿರುತ್ತೇನೆ 26 KABC030646472014 CC No.25616/2014 ಆದರೆ ಅವರ ಹೇಳಿಕೆ ದಾಖಲು ಮಾಡಿಕೊಂಡಿರುವುದಿಲ್ಲ. ಸದರಿ ವ್ಯಕ್ತಿಯನ್ನು ಈ ಪ್ರಕರಣದಲ್ಲಿ ಸಾಕ್ಷಿದಾರನಾಗಿ ಅಥವಾ ಆರೋಪಿಯನ್ನಾಗಿ ಸೇರಿಸಿರುವುದಿಲ್ಲ. ಸದರಿ ವ್ಯಕ್ತಿಯ ಹೇಳಿಕೆಯನ್ನು ಪಡೆದುಕೊಳ್ಳಲು ತೊಂದರೆ ಇರಲಿಲ್ಲ."
"ಅದೇ ರೀತಿ ಚಾಸಾ 1 ರವರ ದೂರಿನಲ್ಲಿ On the basis of the said Power of Attorney the said Anjaneyalu created two Sale Deeds in favour of H.N.Nagarathna and Kenchappa ಎಂದು ಇದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ಕ್ರಯಪತ್ರದ ದಿ.12-08-1998 ಎಂದು ದೂರಿನಲ್ಲಿದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ನಾಗರತ್ನ ಮತ್ತು ಕೆಂಚಪ್ಪರವರನ್ನು ನಾನು ವಿಚಾರಣೆ ಮಾಡಿರುವುದಿಲ್ಲ. ಸದರಿ ವ್ಯಕ್ತಿಗಳನ್ನು ವಿಚಾರಣೆ ಮಾಡಿ ಹೇಳಿಕೆಯನ್ನು ಪಡೆದುಕೊಳ್ಳಲು ತೊಂದರೆ ಇರಲಿಲ್ಲ."
Thus, it emerges out that the accused had knowledge of pendency of the case or not was not proved to show that he was in connivance with earlier vendor purchased the subject property when he purchased the subject property under sale deed dated 17-9-2004.
27KABC030646472014 CC No.25616/2014
30. In this regard, the accused has cross- examined the PW1 who is none other than informant, which reads as follows:
"ನಿಪಿ.4 ದಾಖಾಲತಿಯನ್ನು ಪೊಲೀಸರಿಗೆ ನಾನು ನೀಡಿಲ್ಲ, ಅದನ್ನು ಪೊಲೀಸರೇ ಸಂಬಂಧಪಟ್ಟ ಇಲಾಖೆಯಿಂದ ಪಡೆದಿರುತ್ತಾರೆ. ಸಿ.ಆಂಜನೇಯಲು ಎಂಬುವವರು ನಿಪಿ.4 ಅಧಿಕಾರ ಪತ್ರದ ಮೇಲೆ ನಾಗರತ್ನಮ್ಮ ಹಾಗೂ ಕೆಂಚಪ್ಪ ಎಂಬುವವರಿಗೆ ನಿವೇಶನ ಸಂಖ್ಯೆ 49 ಹಾಗೂ 50ನ್ನು ಮಾರಾಟ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಸೃಷ್ಟಿಸಿಕೊಂಡು ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಸದರಿ ಎರಡು ನಿವೇಶನಗಳಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ನಾನು ಮತ್ತು ನನ್ನ ಚಿಕ್ಕಪ್ಪನಾದ ರಾಮಪ್ಪ ಇಬ್ಬರೂ ಸೇರಿ ಒಂದು ಸಿವಿಲ್ ದಾವೆ ಸಂಖ್ಯೆ ಓಎಸ್ 3585/1999 ದಾವೆಯನ್ನು ಘೋಷಣೆಗಾಗಿ ಸಲ್ಲಿಸಿದ್ದೇವೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ದಾವೆಯಲ್ಲಿ ನಾನು ನಾಗರತ್ನಮ್ಮ, ಕೆಂಚಪ್ಪ ಹಾಗೂ ಆಂಜನೇಯಲು ಎಂಬುವವರನ್ನು ಪ್ರತಿವಾದಿಯನ್ನಾಗಿ ಮಾಡಿದ್ದೇವೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ದಾವೆಯನ್ನು ಸಲ್ಲಿಸುವಾಗ ನಮ್ಮ ವಕೀಲರಿಗೆ ಸಂಪೂರ್ಣ ಮಾಹಿತಿಯನ್ನು ನಾನು ನೀಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ, ನ್ಯಾಯಾಲಯದ ಮುಂದಿರುವ ಆರೋಪಿಯ ಚಿತಾವಣೆಯಿಂದ ನಿಪಿ.4 ದಾಖಲಾತಿಯನ್ನು ಸೃಷ್ಟಿಸಲಾಗಿದೆ ಎಂದು ಸದರಿ ದಾವೆಯ ವಾದಪತ್ರದಲ್ಲಿ ಎಲ್ಲಿಯೂ ನಮೂದಾಗಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸದರಿ ದಾಖಲಾತಿಯನ್ನು ಸಾಕ್ಷಿ ನೋಡಿ ಗುರ್ತಿಸಿದ ಮೇರೆಗೆ ಅದನ್ನು ನಿಡಿ.1 ಎಂದು ಗುರ್ತಿಸಲಾಯಿತು. xxxxx ನಾಗರತ್ನಮ್ಮ ಹಾಗೂ ಕೆಂಚಪ್ಪನವರು ಇಬ್ಬರೂ ಕೂಡಿ ದಿಃ10-12- 2001ರಲ್ಲಿ ರಾಮಮೂರ್ತಿಯವರಿಗೆ ನಿವೇಶನ 49 28 KABC030646472014 CC No.25616/2014 ಮತ್ತು 50 ನ್ನು ನೊಂದಾಯಿತ ಕ್ರಯ ಪತ್ರದ ಮೂಲಕ ಮಾರಾಟ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ದಾವೆ ಚಾಲ್ತಿಯಲ್ಲಿದ್ದಾಗ ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಸದರಿ ರಾಮಮೂರ್ತಿ ಎಂಬುವರು ದಿಃ 17-09-2004 ರಂದು ಸದರಿ ಮೇಲೆ ಹೇಳಿದ ಎರಡು ನಿವೇಶನಗಳನ್ನು ಆರೋಪಿಗೆ ನೋಂದಾಯಿತ ಕ್ರಯ ಪತ್ರದ ಮೂಲಕ ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ.
Thus, the averments in the complaint as per Ex. P. 1, cross examination of PW1, PW5 and PW6 makes it very clear that the accused did not forge the signatures of PW1, CW2 and Sri Kempanna in the Ex.P15 (GPA dated 22/09/1983).
31. Merely, the accused purchased the subject property from the second vendor namely Sri Ramamurthy who in turn purchased from his erstwhile vendor Smt. H.N.Nagarathan and Sri. Kenchappa cannot charged that he forged signature of PW1, CW2 and Kempanna.
32. The best witness to the prosecution is Anjaneyulu who could speak about execution of Power of attorney-Ex.P4 dated 22/09/1983 as he sold the subject property to Smt. H.N.Nagaratham and Sri. Kenchappa but the best known reasons why the prosecution was not examined him at all.
29KABC030646472014 CC No.25616/2014
33. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, this court is of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
34. Prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record for the conviction of the accused. Conviction can be based on the sole testimony of the informant /PW1 provided it lends assurance to his testimony. However, in case the court has reason not to accept the version of informant /PW1 on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutor /PW1 is found to be improbable, the prosecution case becomes liable to be rejected.
35. It is a settled principle of law that testimony of informant /PW1 is sufficient enough to convict the accused if it inspires confidence and the said principle is appreciated in the case of Rajesh Patel Versus State of Jharkhand, (2013) 3 SCC 791 and State of Rajasthan Versus Babu Meena, (2013) 4 SCC
206) however in this case, it appears that the 30 KABC030646472014 CC No.25616/2014 informant /PW1 has lodged this complaint dated 29/08/2012 with tainted motive to dislodge the right of accused acquired under the sale deed dated 17/09/2004 only after the filing of suit by the accused as per Ex. D. 2 and 3 on 10/08/2012 when he is fully aware that the PW1 aware about the existence of Ex. P. 4 way back in the year 1998 itself. Therefore, PW1 has lodged false complaint against accused that the accused forged the signature thereby the accused is at liberty to prosecute the PW1 for malicious prosecution. PW5 without proper investigation has filed charge sheet. Thus, it is safe to hold that, the prosecution failed to prove the charges against the accused beyond all reasonable doubt thereby this court answer the above point No.1 to 4 in the negative.
36. Point No.5:- For the foregoing discussion and the findings to the above point No.1 to 4, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.465, 468, 471, 420 of IPC.31
KABC030646472014 CC No.25616/2014
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) The liberty is provided to accused to file the case against CW1 for malicious prosecution.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 22 nd day of August, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Doddanna
PW2 : Sri Ravikumar
PW3 : Sri R.Bairappa
PW4 : Sri Jayaram
PW5 : Sri Manju.S.S.
PW6 : Sri Syed Askar Imam
32
KABC030646472014 CC No.25616/2014
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Spot Mahazar Ex.P3 : C/C of Sale deed Ex.P4 : GPA dated 22-09-1983 (Copy) Ex.P5 : 6 pages of specimen signatures to 10 Ex.P11 : Death Certificate of Kempanna Ex.P12 : General Power of Attorney Ex.P13 : Report Ex.P14 : FIR Ex.P15 : General Power of Attorney (original)/ Ex.P16 : Acknowledgment Ex.P17 : Letter dated 21-1-2014 addressed
to PI, Chandra Layout PS from BBMP Ex.P18 : FSL Report Ex.P19 : Reasons for Opinion Ex.P20: Questioned Signatures to 22 Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence:
Ex.D1 : C/C of OS No.3585/1999
Ex.D2 : C/C of order sheet of OS
No.5808/2012
Ex.D3 : C/C of OS No.5808/2012
33
KABC030646472014 CC No.25616/2014
Documents marked on behalf of the defence: NIL VIII Addl. Chief Judicial Magistrate, Bengaluru City.
34KABC030646472014 CC No.25616/2014 22-08-2024 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.465, 468, 471, 420 of IPC.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) The liberty is provided to accused to file the case against CW1 for malicious prosecution.
(v) Ordered accordingly.
VIII ACJM, Bengaluru 35