Bangalore District Court
The State Of Karnataka Through vs Smt. Jabunnissa W/O Syed Mastan on 1 March, 2021
0 CC.No.27701/16
IN THE COURT OF XXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
DATED THIS THE 1st DAY OF MARCH 2021
C.C. No.277012016
Present: SRI. BALAGOPALAKRISHNA
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
Yeshwanthpura Police Station
(State by Sr. A.P.P.)
V/s.
Accused 1. Smt. Jabunnissa W/o Syed Mastan
(abated)
2. Syed Khadir S/o Syed Mastan,
aged about 26 years, R/at No.81, 3rd
Cross, Pampanagar, Yeshwanthpura,
Bengaluru.
3. Syed Mohinuddin
4. smt. Harmathunnissa
5. Syed Mastan
6.Vasim Ahamed
(case against accused No.3 to 6 are
dropped)
1 CC.No.27701/16
: 1672013
DATE OF COMMENCEMENT OF
OFFENCE
DATE OF ARREST OF THE : Accused No.2 is on bail.
ACCUSED
OFFENCES ALLEGED : U/s.420, 120(b) r/w 34 of IPC
Sec.3, 4 and 76 of Chit Fund Act
DATE OF COMMENCEMENT OF : 12-02-2020
EVIDENCE
DATE OF CLOSING OF : 12-02-2021
EVIDENCE
OPINION OF THE JUDGE : Accused No.2 is found not guilty
(BALAGOPALAKRISHNA)
XXIV A.C.M.M., BENGALURU.
JUDGMENT
The PSI of Yeshwanthpura Police Station has filed charge sheet against accused No.2 for the offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chit Fund Act. Case against accused No.1 is abated, in respect of accused Nos.3 to 6 dropped.
2. The case of the prosecution in brief is as under:
It is the case of the prosecution that, deceased accused No.1 and accused No.2 being a mother and a son residing at house No.81, 3rd Cross, Pampanagar, Yeshwanthpura. It is further alleged that during life time of the accused no.1, 2 CC.No.27701/16 accused no.2 having common intention in furtherance of the same without obtaining Licence they were running chit business and they were collected installments from the chit members from 16072013 till 1782015 and failed to repay the chit amount to the members. On 1782015 the accused No.1 committed suicide. The accused are liable to pay the following amount to the C.Ws. C.W.1 Rs.12,80,000/ C.W.4 Rs.80,500/ C.W.6 Rs.41,500/ C.W.7 Rs.54,000/ C.W.8 Rs.3,58,000/ C.W.9 Rs.1,04,000/ C.W.10 Rs.14,41,560/ C.W.11 Rs.1,50,000/ C.W.12 Rs.1,50,000/ C.W.13 Rs.75,000/ C.W.14 Rs.4,95,000/ C.W.15 Rs.2,80,000/ C.W.16 Rs.1,29,000/ C.W.17 Rs.1,68,000/ C.W.18 Rs.78,000/ C.W.19 Rs.52,500/ C.W.20 Rs.2,10,000/ C.W.21 Rs.4,20,000/ C.W.22 Rs.1,68,000/ 3 CC.No.27701/16 in all the accused are liable to pay Rs.56,83,060/. When the said C.Ws demanded for said amount, the accused failed to repay the same and deceived the said C.Ws and thereby accused has committed an offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chit Fund Act.
3. In pursuance of the complaint given by the complainant by one Smt. Parvez Banu, the Police have registered crime in Cr.No.468/2015 for the offence punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chi Fund Act. After conclusion of the investigation, the Investigating Officer has filed charge sheet against the accused No.2 for the said offences.
4. This court has taken cognizance for the offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chit Fund Act against accused No.2 and issued summons to the accused and accused No.2 is on bail.
5. The copy of the charge sheet and other material documents has been supplied to the accused No.2 as required U/s. 207 of Cr.P.C.
6. Heard before framing charge and charges was framed for the offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 CC.No.27701/16 4 and 76 of Chit fund Act and read over and explained to the accused No.2 in the language known to him. Accused pleaded not guilty and claimed for trial.
7. In order to prove the case of the prosecution, the prosecution has got examined PW.1 to 3 and got marked Ex.P.1 to Ex.P.4 and closed their side.
8. Statement of the accused as required U/s.313 of Cr.P.C. is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution as false. No defense evidence on the side of the Accused.
9. Heard both side.
10. The following point arises for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, deceased accused No.1 and accused No.2 being a mother and a son residing at house No.81, 3rd Cross, Pamapanagar, Yeshwanthpura, the accused no.1, accused no.2 having common intention in furtherance of the same without obtaining Licence they were running chit business and they were collected installment from the chit members from 16072013 till 1782015 and failed to repay the chit amount to the members.
The accused No.2 is liable to pay Rs.56,83,060/ to the chit members, whenever the said chit members demanded for said 5 CC.No.27701/16 amount, the accused failed to repay the same and deceived the said chit members and thereby accused No.2 has committed the offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chit Fund Act ?
2. What order?
11. My answer to the above points is as under;
Point No.1 In the Negative.
Point No.2As per final order for the following;
REASONS
12. POINT NO.1 :
It appears from the complaint/information that mother of accused no.2, accused No.2 and other accused were running chit business without taking licence/permission from the Government. At the time of filing charge sheet, abated charge sheet filed against accused No.1 i.e., mother of accused No.2. remaining accused Nos.3 to 6 are concerned Investigating Officer in the charge sheet has stated that no materials found against them during investigation and accordingly their name is dropped. Thus the case is only against accused No.2.
13. The prosecution has stated that accused Nos.1 and 2 having common intention and infurtherance of the same have started the chit business, collected the chit installment from the members and finally without paying the 6 CC.No.27701/16 chit amount they have deceived them. Admittedly mother of the accused No.2 is no more, after complaint she has committed suicide. Now, the prosecution in order to attract ingredients of Sec.34 of IPC, they have to prove meeting of minds prior to commission of offence i.e., in this case accused Nos.1 and 2 being a mother and son have hatched plan to commence the chit business with an intention to deceive the chit members. If that ingredients has been proved the court can attract Sec.34 of IPC. Here, during investigation the I.O., has not stated what is the role of accused No.2. Therefore, the court has to consider the complaint given by the C.W.1which is marked at Ex.P2. It reveals that the complainant had become a member of chit with accused No.1Smt. Jaibunnissa, accused No.2 Syed Khadar, Harmathunissa, Syed Vasim. It further reveals that the joint owner Jaibunnissa committed suicide and then the C.W.1 enquired with accused no.2 and another and they have not replied properly, so she forced to give complaint. Even in the Ex.P2 also role of accused No.2 is not clear, but one thing is clear the mother of the accused No.2 is also one of the joint owner to the chit transaction. In this regard I.O., has not collected any material. Therefore, the role of accused no.2 cannot be termed as a one of the owner. Under such circumstances, the court has to consider the evidence of C.W.1, her presence is not secured by the police and finally her evidence was dropped. One of the victim/beneficiary of 7 CC.No.27701/16 the chit i.e., C.W.5 is examined as P.W.1. In his examinationinchief he has deposed that he was a member of chit with the mother of accused no.2, but accused No.2 has no connection with chit business of her mother. He also turned hostile to the case of the prosecution that in his presence the police were drawn any seizure mahazar and seized any books and claimed ignorance about the contents and also stated that he has put his signature to the Ex.P1 in the station. At the request of Ld. Sr.APP P.W.1 treated as hostile witness and permission was accorded to cross examine him, in the cross examination case of the prosecution has been suggested, same is denied by the witness and nothing worthy is elicited.
14. P.W.2 who is I.O., of this case, he has given his evidence from the date of receiving the complaint, registered in F.I.R and forwarded the same to the court and his Higher officer. He further deposed that he has drawn the panchanama, recorded the statement and seizing of documents etc. In the crossexamination it is just denial of chief examination.
15. P.W.3 is also a P.S.I. of Yeshwanthpura Police Station and filed charge sheet since investigation was completed. In the crossexamination it is also just denial of chief examination.
8 CC.No.27701/1616. The victim/beneficiary of the chit transaction has not been examined before this court and finally her evidence was dropped. Therefore, the contents of complaint has not been proved. One of the beneficiary and witness to the seizure mahazar i.e., P.W.1 has not supported the case of the prosecution, in his evidence he has categorically deposed that he was a chit member under the mother of the accused No.2 and accused No.2 has no connection. Therefore, the prosecution utterly failed to prove the nexus between the accused No.2 and the chit transaction. Thus Sec.34 of IPC is not attracted. Even this witness is act as a witness to the seizure mahazar of seizing of some documents from the house of accused No.1, but he has stated that he has put his signature to Ex.P1 in the police station. Therefore, seizure mahazar is also not been proved in accordance with law.
17. The evidence of Investigating Officer is not helpful, because the evidence of I.Os i.e. P.W.2 and P.W.3 , is only a corroboration to the evidence of complainant/P.W.1. In this case as discussed above, P.W.1 has not been examined and another chit member turned hostile to the case of the prosecution stating that accused No.2 has no connection with the chit running by his mother i.e., deceased accused No.1. Hence, the prosecution has utterly failed to prove the guilt against the accused beyond all reasonable doubt. Hence, in my opinion it is a fit case to extend benefit of doubt to the accused.
9 CC.No.27701/16Accordingly point under reference answered in the Negative.
18. POINT NO.2 :
For the aforesaid reason and discussion, I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C. Accused no.2 is hereby acquitted for the offences punishable U/s.420, 120(b) r/w 34 of IPC Sec.3, 4 and 76 of Chit Fund Act. He is set at liberty.
The bail bond and surety bond executed by the accused no. 2 is stands cancelled. However, Accused no.2 shall execute personal bond of Rs.50,000/ by undertaking to appear before the appellate Court, if any appeal is filed.
It is not a fit case to award victim compensation as provided U/s.357(1) of Cr.P.C. (Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 1 st day of March 2021).
(BALAGOPALAKRISHNA) XXIV A.C.M.M., BENGALURU.10 CC.No.27701/16
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Ayub Khan S/o Fayaz Khan PW 2 : Venkatesh S/o Thimmegowda PW3 : Narasimhan S/o Krishnaswamy
Documents marked for the Prosecution:
Ex.P1 : Spot Panchanama Ex.P1(a) : Signature of P.W.1 Ex.P1(b) : Signature of P.W.2 Ex.P2 : Complaint Ex.P2(a) : Signature of P.S.I.Nijalingappa Ex.P3 : F.I.R. Ex.P3(a) : Signature of P.S.I.Nijalingappa Ex.P4 : Spot Mahazar Ex.P4(a) : Signature of P.W.2
Witnesses examined for the accused: NIL Documents marked for the accused: NIL (BALAGOPALAKRISHNA) XXIV A.C.M.M., BENGALURU.