Bangalore District Court
Nayaz Pasha vs Pulakeshinagara Ps on 21 May, 2025
KABC0A0032542021
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE, AT MAYO HALL, BENGALURU (CCH.20)
P r e s e n t:
Smt.Sujata.M.Sambrani, B.Com. LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 21st day of May, 2025
Crl.Appeal No.25180/2021
Appellant/ Sri. Nayaz Pasha,
Accused:- S/o Mohammed Ghouse,
Aged about 60 years,
R/at No.2116, Near Jumma Masjid,
Sanjaynagara, Geddalahalli, Bengaluru.
(Rep by Sri. Jayaprakash H- Adv.)
V/S
Respondent/ State of Karnataka by
Complainant:- SHO, Pulakeshinagara PS, Bengaluru City,
Rep by Public Prosecutor,
Bengaluru.
[By Learned Public Prosecutor]
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Crl.A. No.25180/2021
JUDGMENT
The Appellant who is Accused before trial court, being dissatisfied with judgment of conviction and order of sentence dtd.27.09.2021 passed in CC.No.52086/2015 on the file of XI Addl. CMM, Mayohall Unit, Bengaluru, preferred this appeal U/Sec. 374(3) of Cr.PC., in which, he has challenged the legality, proprietary and correctness of impugned judgment and prayed for setting aside the same by acquitting accused.
2. The Parties to this appeal will be referred to as per their ranking before trial court for the purpose of convenience and for better appreciation of their contentions.
3. The brief facts leading to this case may be stated as under:
The Complainant/ Respondent Police Pulakeshinagar Police Station have filed this chargesheet against the 3 Crl.A. No.25180/2021 accused for the offence punishable U/Sec.420 of IPC. The brief facts averred in complaint are that, the Complainant by name Mr. Ghouse Pasha, is a Senior Manager and Authority holder of the Corporation Bank, Bangalore, and the accused has availed loan of Rs.1,27,000/- to purchase a Bajaj Auto Vehicle Deluxe Re-205-4 Stroke LPG Autorickshaw for an amount of Rs.1,70,400/- on 03.11.2012, executed hypothecation agreement, term agreement, letter of undertaking etc., purchased autorichshaw but inspite of issuance of intimation in favour of the accused, he has not brought to the notice of RTO about hire purchase agreement in the registration book in favour of the bank with ulterior motive and also not repaid the loan amount, thereby the accused has cheated the Bank and breach of trust. After knowing the said fact, he lodged the complaint before the Pulakeshinagar Police Station and thereby the said accused 4 Crl.A. No.25180/2021 has committed the offence punishable U/Sec.406 and 420 of IPC.
4. On the basis of the above charge sheet allegations, Trial court has taken cognizance and summoned accused person/respondent. After service of summons, the accused has appeared before the trial court and released on bail. After compliance of Sec.207 of Cr.PC , charge was framed for the offence punishable U/Sec.420 of IPC. Accused pleaded not guilty and claimed to be tried.
5. Thereafter, the prosecution in order to prove the case, examined two witnesses as PW1 and PW2 and got marked one document, which is marked as Ex.P1. Inspite of issuance of summons and warrants and also proclamation, CW2, 4 to 10 were not secured and not examined before the court. The statement of accused under Sec.313 of Cr.PC was recorded, wherein the accused has denied the entire evidence of the prosecution and submitted 5 Crl.A. No.25180/2021 that, he has no defence evidence. Based on the available evidence, the Learned XI ACMM, Bengaluru has convicted the accused person/appellant for the offence punishable u/s.420 of IPC. Hence, the accused has challenged the said judgment of conviction by filing the present criminal appeal on the grounds that without any evidence, the charges levelled against the accused cannot be taken as not proved. That without proper consideration of the documents and also other materials the learned Magistrate has convicted the accused and thereby committed miscarriage of justice. Therefore, the impugned Judgment of conviction is not sustainable. On the said grounds the prosecution/appellant has sought for setting aside the judgment and order of conviction.
6. The T.C.R. has been secured.
7. Heard and perused.
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8. Now the points that arise for my consideration are:-
1) Whether the impugned judgment and order of conviction suffers from patent illegality and infirmity and calls for interference?
2) What order?
9. My answer to the above points are as follows:-
Point No.1:- In the Negative Point No.2:- As per final order for the following R E A S O N S
10. Point No.1:- The accused being aggrieved by the judgment of conviction passed in CC No.52086/2015 filed by the Pulakeshi Nagar Police Station for the offence punishable U/Sec.420 of IPC has filed this appeal seeking setting aside the order of conviction of sentence and fine compensation by the XI Addl.CMM, Bengaluru, vide judgment dtd.27.09.2021.
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11. The Pulakeshi Nagar Police Station have registered this case against the accused for the offence punishable U/Sec.420 of IPC, on the complaint lodged by the Complainant by name Mr. Ghouse Pasha, who is a Senior Manager and Authority holder of the Corporation Bank, Bangalore. It is alleged that, the accused has availed loan of Rs.1,27,000/- to purchase a Bajaj Auto Vehicle Deluxe Re- 205-4 Stroke LPG Autorickshaw for an amount of Rs.1,70,400/- on 03.11.2012, executed hypothecation agreement, term agreement, letter of undertaking etc., purchased autorichshaw but inspite of issuance of intimation in favour of the accused, he has not brought to the notice of RTO about hire purchase agreement in the registration book in favour of the bank with ulterior motive and also not repaid the loan amount, thereby the accused has cheated the Bank and commited the breach of trust. After knowing the said fact, the bank manager lodged the 8 Crl.A. No.25180/2021 complaint before the Pulakeshinagar Police Station. The Sub-Inspector of Police, after investigation, submitted the charge sheet against the accused for the offence punishable U/Sec.406 and 420 of IPC.
12. The learned Magistrate has taken cognizance of the offence and registered criminal case and framed charges against the accused, wherein the accused plead not guilty and claimed to be tried. In order to prove the guilty of the accused, the prosecution examined 02 witnesses as PW1 & PW2 and produced 01 document, which is marked as Ex.P1. After recording statement U/Sec.313 of Cr.Pc and after hearing the arguments, the learned Trial Judge has passed judgment of conviction and sentence and fine vide judgment dtd.27.09.2022. The accused being aggrieved by the said judgment of conviction is before this court challenging the validity and correctness of the said judgment of conviction. 9
Crl.A. No.25180/2021 As already stated above, the offences alleged against the accused U/Sec.420 of IPC.
13. Inorder to establish the alleged offence U/Sec.420 of IPC, the prosecution is required to establish the ingredients of dishonesty as stated U/Sec.415 of IPC and ingredients of cheating as stated U/Sec.420 of IPC, which are as follows:-
"Sec.415:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat".
Sec.420:- Whoever cheats and thereby dishonestly induces the person deceived 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 10 Crl.A. No.25180/2021 which may extend to seven years, and shall also be liable to fine."
14. The simple definition of cheating is punishable U/Sec.417 of IPC, but where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of the person deceiving this section comes into operation. For an offence under this section, it must be proved that the complainant parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outset. The offence of cheating can be made out only if it has been shown that damage or harm has been caused to the person so deceived. Therefore in this background, it is necessary to go through the facts and evidence of this case.
15. Admittedly, the accused has purchased the Bajaj Auto Vehicle Deluxe Re-205-4 Stroke LPG Autorickshaw for 11 Crl.A. No.25180/2021 an amount of Rs.1,70,400/- on 03.11.2012 by availing bank loan from the Corporation Bank, Bengaluru by executing hypothecation agreement, term agreement, letter of undertaking etc., for the purchase of said autorichshaw.
16. It is the main allegation of the complainant the Corporation Bank that, inspite of issuance of intimation in favour of the accused, he has not brought to the notice of RTO about hire purchase agreement in the registration book in favour of the bank with ulterior motive to deceive the Corporation Bank and also not repaid the loan amount availed from the Corporation Bank, thereby the accused has cheated the bank and he has also breached the trust. As per the banking rules, after availing loan on installments and executing hypothecation or hire purchase agreement, it has to be intimated to the RTO and the same has to be mentioned/entered in the document of the vehicle(RC Book), 12 Crl.A. No.25180/2021 through which it has to brought to the notice of competent authority that the vehicle which is under hypothecation with the bank, in which the loan was borrowed for purchase of said vehicle. It will be an indication to the prospective buyer that, the loan is pending on the vehicle, to that effect said vehicle is hypothicated with the Bank in the relevant documents such as registration document of the said vehicle. Thereby the accused being the purchaser of the Bajaj Auto Vehicle Deluxe Re-205-4 Stroke LPG Autorickshaw was required to bring it to the notice of the RTO about hypothication of the vehicle in the registration book, after availing the loan from the Corporation Bank and also get the entry of said hypothication and repay the loan.
17. In this regard, the prosecution has examined the Bank Manager, who is mentioned in the charge sheet as CW1 Mr. Goush Pasha as PW1. During the course of his evidence, PW1 is testified about accused availing of loan of 13 Crl.A. No.25180/2021 Rs.1,27,000/- from the complainant Bank for the purpose of purchase of the Bajaj Auto Vehicle Deluxe Re-205-4 Stroke LPG Autorickshaw. As a security of the said loan, the autoricshaw was hypothecated in favour of the bank. At the time of availing loan, the accused has furnished ration card, gas connection book etc., in support of his residential address. He has also executed a letter of undertaking and consent letter, agreement of hypothecation. As per the consent letter, the loan which was going to be granted to the accused and directly deposited to the vehicle dealers. After the sanction of the loan and registration of the vehicle, the accused has to furnish the original registration certificate to the bank as the vehicle was hypothecated to the bank. On 24.11.2012, an amount of Rs.1,27,000/- was released in favour of M/s Bajaj Auto Lrd., through RTGS by the bank through the loan account of the accused bearing No.CVHI:1:120005.
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18. Thereafter the accused was required to pay Rs.5694/- towards the 1st installments as on 24.12.2012. But the accused has not repaid the said amount. Inspite of calling him to pay the amount, he has not repaid loan the amount. Thereafter the Corporation Bank has issued notice to the accused to repay the loan amount, inspite of that the accused has not repaid the loan amount. After one month of the same, the accused being the borrower of the loan came to the bank and stated that, even after one month of purchase of the vehicle, he has not registered the vehicle and after registration, he will bring the original RC document and repay the loan amount. Thereafter the accused has not turned back to the bank. After few days of purchase of the said auto vehicle by availing bank loan from the Corporation Bank, the accused has sold the said auto without informing the bank.
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19. After coming to know the said selling of the Auto, the bank authorities have lodged the complaint before the police. Therefore, though these documents are not marked, but due to presumptive under law, it can be accepted that, the accused has borrowed the loan from the Corporation Bank, for the purpose of purchase of Bajaj Auto Vehicle Deluxe Re-205-4 Stroke LPG Autorickshaw. Even the accused has not disputed the purchase of said vehicle by availing loan from the Corporation Bank.
20. During the course of cross-examination, the Bank Manager has testified that, after lending the loan to the accused, they have informed the RTO authorities about the lending of loan to the vehicle. Even it is admitted by the defence that, the said vehicle was owned by the accused. After the sale of the said auto, the information was received from the RTO byway of sale letter to the banker about the said autoricshaw. As per the cross-examination of PW1, it 16 Crl.A. No.25180/2021 can be ascertained that, after granting the loan, the bank authorities has to issue intimation to the RTO, about the sanction of loan and after issuance of said sale letter, the RTO would registered the vehicle. Only on furnishing of the said sale letter, the RTO authorities would register the vehicle. In this case, the said sale letter was produced by the accused after 3-4 months. Even there is nothing produced by the accused to show that, immediately after release of the said loan, he obtained the sale letter and handover the same to the RTO authorities for registration. Thereby, it can be ascertained from the cross-examination version of the PW1 that, the accused, after availing loan has not performed his obligations of either documentation or repayment of loan, as required by law. This conduct of the Accused reveals that, he had an intention to deceiving the bank authorities and thereby caused financial loss to them.
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21. Further the prosecution has examined another Bank Manager by name Biju R D S/o P. Damodaran as PW2, who testified that, in the year 2012-16, he was working as a clerk in the Corporation Bank. At that time, the accused has borrowed the loan of Rs.1,27,000/- from the Corporation Bank in the month of November 2012 for the purpose of purchase of auto. After the purchase of autoricshaw, the accused has not registered the said vehicle with the RTO authorities and also he has not get hypothecation entry of the vehicle from the RTO and informed the bank. Therefore the complainant/PW1 has informed about the non-registration of the vehicle and also not getting of hypothecation entry in the RTO documents. He was also cross examined by the defence counsel.
22. During the course of cross-examination, he testified that, generally after availing loan for the purpose of 18 Crl.A. No.25180/2021 purchase of vehicle, the bank has to sent request for hypothecation of the vehicle. They were not knowing for a period of three years, where that vehicle was moving. He did not know for what purpose, the said auto was not registered and hypothecation before the hire authorities. Nothing worth is elicited to disbelieve their version. These two witnesses have testified about, the purchase of the vehicle by the accused and later, the accused has not registered the vehicle before the RTO authorities and not made entry in the RTO, the documents about the hypothication of the vehicle. The complainant has deposed in accordance with the contents of the first information.
23. Further on perusal of prosecution papers it is noticed that, copies of the loan application filed by the Accused before the Corporation Bank seeking to grant loan, check list, DL in the name of the Accused, ration card, 19 Crl.A. No.25180/2021 quotation issued by the Popular Motor Corporation dtd.30.07.2012, HP gas receipt, evaluation sheet, final summary report, loan sanction inspection report given by insurance company, credit sanction intimation issued by the bank, agreement of hypothecation of vehicle deed executed by the Accused, agreement for term loan, Memorandum of agreement, declaration form given by the Applicant/ Accused in favour of the Bank while availing loan, letter of undertaking, sale certificate issued by the Popular Motor Corporation, letter written by the bank in favour of Regional Transport Office, Bangalore with a request to register the said auto in their office, copy of permit, gas agency bill, fitness certificate and credit voucher, which are bearing the bank seal. As per Bankers book of Evidence Act, these documents are having presumptive value.
24. On going through the above said entire documents coupled with oral evidence, it can be accepted that, the 20 Crl.A. No.25180/2021 Accused has availed loan of Rs.1,27,000/- in the month of October 2012 from the Complainant bank, to purchase an auto from Popular Motor Corporation by way of executing various documents, including the hypothecation deed. After the purchase of the auto bearing chasis No.MD2A45BX2CWH12607 and Engine No.AFZWcH39163 in his name, used the said auto. But, later he has not repaid the any loan amount as agreed by him. Even, he has not approached the RTO Bangalore, registered the said auto in their office, and also not made entry about the hire purchase agreement. Later, without repayment of loan to the complainant bank and without the relevant entry of hypthication of the vehicle, he has sold out said auto in favour of one Arvind with the assistance of CW4 Tulasiram, agreeing to register the said auto and received amount of Rs.34,500/- from them, but he has failed to register the auto and not repaid the money. On the other hand, the 21 Crl.A. No.25180/2021 Accused has not produced any contrary evidence/ documents to disbelieve the evidence of prosecution.
25. On going through the entire records, it is noticed that inspite of issuance of warrant, the investgating Officer who investigated the case, has not tendered for evidence. But based on the documents available on record, it can be clearly held that, Accused has though availed the loan from the Complainant bank for the purchase of Auto Riksha, but not repaid the same. Even the Accused has not registered the auto before the RTO and sold out in favour of 3 rd person for meager amount assuring to register the same within span of the time and he failed to do so.
26. During the course of recording his statement U/Sec.313 of Cr.PC, accused has denied entire evidence of the prosecution and not placed any evidence to show that, he has registered the said vehicle before the RTO office and 22 Crl.A. No.25180/2021 intimated about the hypothecation agreement and repaid the loan amount.
27. Under such circumstances, It is clear from the records about the availment of the loan by the accused from the Complainant bank and the purchase of the auto by him by execution of various documents before the Complainant bank while availing the loan. During the arguments, the Accused himself submitted that he has not repaid the loan and not registered the said auto before the registering authority, it goes to show that he has not only cheated the Complainant bank but, also cheated the Government without registering the said auto before the Regional Transport Office, without paying the registration charges with malafide intention to cheat the Bank and Government. Therefore, it is can be very well held that, the Accused has intentionally with full knowledge cheated the Complainant bank as well as subsequent purchaser thereby, caused loss 23 Crl.A. No.25180/2021 to them. This act of the accused covered under the definition of cheating and it is clearly reveals from the conduct of the Accused that, he had the dishonest intention to cheat the Complainant bank, which is proved by the prosecution beyond reasonable doubt and the Accused has committed the offence punishable U/Sec.420 of IPC.
28. Therefore, having regard to the facts and circumstances, I am of opinion that, the Trial Court has properly appreciated the evidence and come to the right conclusion which is in accordance with law. Hence, the impugned judgment of conviction, holding the accused guilty for the offence punishable U/Sec.420 of IPC, has to be confirmed. The impugned judgment and order of conviction do not suffers from patent illegality and infirmity and do not calls for interference of this court. Consequently, Point No.1 is answered in the Negative.
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29. Point No.2:- For the foregoing reasons, I pass the following:-
O R D E R The Criminal Appeal filed by the Appellant/ Accused under Sec.374(3) of Cr.P.C., is dismissed.
The judgment of conviction passed against Appellant/Accused by name Sri. Nayaz Pasha S/o Mohammed Ghouse dtd.27.09.2021 in C.C.No.52086/2015 by the Learned XI Addl. CMM, Mayohall Unit, Bengaluru, is hereby confirmed.
Re-transmit the TCR along with a certified copy of this judgment to the Trial court, immediately.
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(Dictation given to the Stenographer, typed by her and then corrected and pronounced by me on this the 21st day of May, 2025) (SUJATA.M.SAMBRANI) XXVI Addl.CC & SJ, Mayo Hall Unit, Bengaluru.