Bangalore District Court
C.C./19685/2007 on 31 January, 2015
IN THE COURT OF THE XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE :
(SPL.COURT FOR CBI CASES): BANGALORE
C.C.No. 19685/2007
-: Present:-
Sri SABAPPA, B.Com., L.L.B.(Spl.)
XVII Addl.Chief Metropolitan Magistrate, Bangalore.
Dated : 31st day of January 2015
Complainant :
State by CBI/SPE. ACB, Bangalore.
[By learned Public Prosecutor, Bangalore.]
/ Versus /
Accused :
1) Smt. Uma Rao, D/o Shri N. Ramdoss,
Major, R/o at No.117,"Lavanya" Karnataka
Layout,Mahalakshmipuram Post, West of Chord
Road, Bangalore -86.
2) Shri L.Mallari Rao, S/o Shri L.Srikanta Rao,
major, R/o at No.117,"Lavanya" Karnataka
Layout,Mahalakshmipuram Post, West of Chord
Road, Bangalore -86
3) Smt. Sheeja Krishna Kumar, S/o Shri Balakrishna
Nair, major,No.69,5th Main, Lakshminarayan
Layout,Munnekolala,Marathahalli(PO).,
Bangalore-37.
4) Shri S,A. Praveen, S/o Shri Anantharaman,
Major, No.704, A-3 Block,Cauvery Block,
NationalGames Village,Koramangala,
Bangalore- 47.
5) Shri S.Umesha , S/o Shri M.Sridhar Rao,
Major, ( SPLIT UP VIDE DATED23-10-2009
/2/ C.C.No. 19685/2007
and case abated against this accused as per
order sheet dt. 05.12.12)
6) Shri Parvathi Bhuvanendra Raju, S/o Late Shri
P.C. Raju, Major, No.C.M.H.Road,Lakshmipuram,
Ulsoor, Bangalore -8. (Proceedings against
this accused is quashed by the Hon'ble
High Court of Karnataka by an order dated
03.06.2014 in Crl. R.P No. 1118/2011)
7) Shri P.Dinesh Upadya, S/o Shri P.V.Upadya,
major, No.1-29, 6th Main, 10th Sector, Jeevan
Bheema nagar, Bangalore-75.
8) Shri R.Badarinarayana S/o Shri N.Ramdoss,
major.No.117, "Lavanya", Karnataka Layout,
Mahalakshmipuram Post, Bangalore -86.
9) Shri B.J.Jagadeesha S/o Shri Janardhan,
Major, No.293, Ground floor, 17th Cross, 25th
Main, J.P.Nagar, 6th Phase, Bangalore-78.
10) Smt. Sujatha, W/o Shri B.J.Jagadeesha, Major,
No.293, Ground floor, 17th cross, 25th main,,
J.P.Nagar, 6th phase, Bangalore-78.
11) Shri B.S.Venkatesh, S/o late Shri B.R.Srinivasa
Rao, Major, No.544, 10th 'c" Main, 6th Block,
Rajajinagar, Bangalore-10.
12) Shri P.Mohan, S/o late Shri T.Papaiah Reddy,
Major, No.265/3, 6th Cross, Kaggadasapura,
C.V.Raman Nagar, Bangalore-93.
13) Shri James Anthony, S/o Shri Thambuswamy,
major, Flat No.5, 19th Cross, 22nd "A" Main (OFF),
5th phase, J.P.Nagar, Bangalore.
( By Sri CMS., Adv. for A1 and A2, Sri KSNS.,
Adv. for A3, Sri MSC., Adv for A-4, Sri KDA., Adv. For
A7, Sri SUK for A-8, Sri RR Adv. For A9 and A10 , Sri
/3/ C.C.No. 19685/2007
RR/JS/MR Adv for A11 and A12 and Sri LKVP., Adv for
A-13)
***
JUDGMENT
1. This is a charge sheet filed by the Inspector of Police, CBI, SPE,ACB/ Bangalore as against the accused persons for the offences punishable under Sections 120(B) r/w/s 420, 467, 468, 471 of IPC .
2. The brief averments of the prosecution is that, Accused No.1 is the Proprietor of M/s. Uma Builders, having its office at No.3, Prospero, Byatarayanapura, Bellari Road, Bangalore and in the business of construction of residential flats. Accused No.2 was associated with the managing the affairs of M/s. Uma Builders. Accused No.12 is the Khatha holder of property held at Katha No.315/1 at Kaggadasapura village, K.R.Puram Hobli, Bangalore and had received the said property in gift from his father Shi T.Papaiah Reddy vide Gift Deed Document No.779/01-02 dated 10-01-2001. He had entered into a joint Development agreement dated 29-01-2003 with M/s.Uma Builders for the construction of an apartment having six flats. As per the agreement owner was to sell 74% of the undivided right, title and interest in the property to the developer and handed over 26% of the Super built-up area of the apartment and proportionate Car parking /4/ C.C.No. 19685/2007 units to be constructed on the property to the owner of the land. In furtherance of the said agreement A-12 executed a General Power of Attorney in favour of M/s.Uma Builders represented by A-1 to enable the builder to sell the undivided share and super built up area to the extent of 74% in favour of the prospective purchasers. For the purpose of construction of the said apartment, the land owner had obtained town planning approval from Bangalore Mahanagar Palike vide L.P. ADTP(E)-552/02-03 dated 3-2-03 for the construction of six flats on the aforesaid land which as valid upto 02-02-2005. Accused No.1, accused No.2 and Accused No.12 entered into a criminal conspiracy during June,2003 to Nov.2003 with Shri Wilfred Sequiera who was working as the Manager, State Bank of India, Personal Banking Branch, Indiranagar, Bangalore, Shri Ramesh Rao who was working as the Deputy Manager, Advances, State Bank of India, Personal Banking Branch, Indira nagar, Bangalore and Accused No.6 in the matter of sanction and disbursal of housing loans in the names of Accused No.3,4,5,7,8, 9,10,11 and 13. In furtherance of the said conspiracy accused No.12 had executed another contract agreement with M/s.Uma Builders for constructing 12 flats and one pent house at No.315/1 at Kaggadasapura village, K.R.Puram Hobli, Bangalore in violation of the approved building plan for availing the housing loan from the State Bank of India, Personal Banking Branch, Indiranagar, Bangalore.
/5/ C.C.No. 19685/2007 Accused No.6 had issued the title clearance certificate for ten flats, when the town planning approval was only for the construction of six flats, out of which two flats were to be given to the owner of the land, as per the Joint Development Agreement.
3. That, Accused No.3, 4, 5, 7, 8, 9, 10, 13, 11 obtained housing loan from State Bank of India, Personal Banking Branch, Indira nagar, Bangalore by submitting forged salary slips, Income tax Returns etc., and diverted the proceeds of the housing loans by issuing authorization letters, in favour of M/s. Uma Builders thereby facilitating Accused No.1 and 2 to misappropriate the proceeds of loan for purposes other than for which it was sanctioned. The loan disbursed in favour of A13, A5, A8, A4, A9 and A10, A11, A-7 A-3 and one Balakrishna Pillari ( 10 borrowers ) to their loan account numbers and caused loss to SBI, PBB, Indiranagar, Bangalore to the tune of Rs.131.09 lakhs.
4. That in pursuance of the above said criminal conspiracy both A-1 and A-2 had dishonestly obtained the authorization letters from the borrowers for transferring the proceeds of the loan to their accounts with different banks and have not utilised the proceeds of the loan for constructing the flats at the Project " Maranga Enclave" but have instead utilised the loan proceeds for settling the outstanding in their loan account No.11141 held with the State Bank of India, PPB, Indira /6/ C.C.No. 19685/2007 nagar, Bangalore. A-2 had fraudulently obtained the signatures of two borrowers viz., M.N.Balakrishna Pillai and Shri V.S.Ganeshan and used the same for obtaining loans in their names without their consent or knowledge.
5. That, A-1 and A-2 had in conspiracy with Wilfred Sequeira, the then Br.Manager and Shri Ramesh Rao, the then Deputy Manager, Advances, SBI, PPB, Indiranagar, Bangalore did not submit the original title deed of the scheduled property bearing Corporation Khatha No.315/1, 19th Cross, Kaggadasapura, Bangalore building plan approved by the town planner, with a fraudulent intention of raising multiple housing loans against the same set of flats designated as ' Maranga Enclave' and did not enter into Tripartite agreement for the creation of the Equitable Mortgage on registration of the flat in the names of borrowers. By utilizing the original title deeds, A-1 and A-2 availed housing loans from different banks/financial institutions in the names of various borrowers by resorting to different nomenclature to identify the flats to make it appear as if they are a different property.
6. That in pursuance of the above said criminal conspiracy, A-1 to A-13 had dishonestly and fraudulently induced the State Bank of India, Personal Banking Branch, (PPB), Indira nagar, Bangalore to part with the funds as housing loan to the tune of Rs.129.90 lakhs without creating equitable mortgage against the flats in favour of the bank and /7/ C.C.No. 19685/2007 did not repay the loan amount and caused loss to the State Bank of India to a tune of Rs.131.09 lakhs. Hence, this chargesheet is filed.
7. After receiving the charge sheet, cognizance was taken and registered CC number and summons was issued to the accused, accused persons appeared before this Court through their respective counsel and they were enlarged on bail. Thereafter, a copy of chargesheet was served to them as required under Section 207 Cr.P.C. Accused No. 3, 4, 6 to 13 have filed discharge application U/s. 239 Cr.P.C, it is objected by the prosecution. Later on this court passed order on 30.03.11 and discharge application is dismissed. The accused have not preferred any revision. After hearing, charge was framed for the offence punishable under Section 120(B), r/w/s 420, 467, 468, 471 IPC. All the accused persons pleaded not guilty and claimed trial. Hence, case was posted for evidence . During the trial of the case, the case against A-5 was split up vide dated 23-10-2009 Thereafter, this Court has registered the case against A-5 in CC No.32346/2009. and a split up charge sheet is filed by the I.O.. In the meantime, in the said case the accused counsel files memo stating Accused No. 5 has expired and hence the case against accused No. 5 was abated. The charges leveled against A-6 is quashed by the Hon'ble High Court of Karnataka by an order dated 03.06.2014 in Crl. R.P No. 1118/2011. The trial was proceeded against the remaining accused persons. The prosecution /8/ C.C.No. 19685/2007 has examined in all 23 witnesses as PWs. 1 to 23 and got marked Exs.P.1 to P.166 and closed its side. 313 statement of accused were recorded and the accused persons have denied all the incriminating evidence adduced in this case by prosecution. Accused No.4 examined as DW-1 and got marked documents as Ex.D.1 to D-3.
8.Heard the arguments of learned APP for the CBI and Ld.Advocate appearing for the accused persons.
9. The points that arise for my consideration are :
1) Whether the prosecution proves beyond all reasonable doubt that A1 and A2 of M/s.UMA BUILDERS along with A-12 agreed to construct an apartment of six flats in the property of A-12 bearing Khatha No.315/1, Kaggadasapura Village, K.R.Puram,Bangalore in he year-2003 and entered into criminal conspiracy with A-6 who is said to have issued title clearance certificate for ten flats and further along with the criminal conspiracy of Accused No.3, 4,5,7 to 11 and 13 agreed to cheat the S.B.I. , Indira Nagar Branch, Bangalore to the tune of Rs.131.09 lakhs by availment of housing loan and diverting the same for the purpose other than for which it was sanctioned and thereby accused committed an offence punishable u/s.120(B) of IPC ?
2) Whether the prosecution proves beyond all reasonable doubt that, accused No.3,4,5, A7 to A10, 11 &13 in criminal conspiracy to cheat the S.B.I., Indiranagar Branch, in order to facilitate Accd No. 1 /9/ C.C.No. 19685/2007 and 2 to utilize the loan proceeds forged certain documents like salary slips, income-tax returns and submitted the same to the Bank so as to get loan sanctioned in their name in the form of Housing Loan to a tune of Rs.129.90 Lakhs with an intention to cheat the Bank and thereby produced forged and fabricated documents and thereby accused committed an offence punishable u/s.467 r/w Sec.
120(B) of IPC ?
3) Whether the prosecution proves beyond all reasonable doubt that Accused No. 3, 4,5, A7 to 10, 11 and 13 in criminal conspiracy to cheat the SBI., Indira nagar Branch, and in order to facilitate A-1 and 2 to utilize the loan proceeds forged certain documents like salary slips, income tax returns, and submitted the same to the above said Bank so as to get the loan sanctioned in their name in the form of Housing Loan to a tune of Rs.129.90 Lakhs with an intention to cheat the Bank to a tune of Rs.129.90 lakhs with an intention to cheat the Bank and thereby produced the forged and fabricated documents and thereby committed an offence of forgery intending that it shall be used for the purpose of cheating and thereby accused committed an offence punishable u/s.468 R/w Sec.120(B) of IPC ?
4) Whether the prosecution proves beyond all reasonable doubt that accused No.3, 4, 5, 7 to 10, 11 / 10 / C.C.No. 19685/2007 and 13 in criminal conspiracy to cheat the S.B.I., Indira Nagar Branch submitted forged salary slips, income tax returns so as to divert the proceeds of Housing Loan in favour of Uma Builders and to misappropriate the proceeds for the purpose other than for which, it was sanctioned and accused have used the forged and fabricated documents as if they are genuine for the purpose of cheating the SBI, Indira Nagar Branch, Bangalore and to have a wrongful gain of Rs.131.09 lakhs to themselves and also to Accused No. 1 , 2 and 12 and causing wrongful loss to the Bank and thereby accused committed an offence punishable u/s.471 R/w Sec.120(B) of IPC ?
5)Whether the prosecution proves beyond all reasonable doubts that Accused No. 1, 2 and 12 entered into the criminal conspiracy during the year 2003 in violation of the approved building plan, A-12 entered into another contract with A-1 and A-2 and thereby induced S.B.I., Indira Nagar Branch, Bangalore to part with housing loan to the tune of Rs. 129.90 lakhs and thereby caused wrongful loss of Rs.131.09 lakhs to the said Bank and in turn a wrongful gain to themselves of the said amount and thereby committed an offence punishable under Section 420 R/w Sec. 120(B) of the I.P.C. ?
6) What order ?
/ 11 / C.C.No. 19685/2007
10.My findings to the above points are as follows :
Point No.1 :- In the affirmative against A1 and A2 and Negative against A12.
Point No.2 :- In the negative
Point No.3 :- In the negative
Point No.4 :- In the negative
Point No.5 :- In the affirmative against A1 and A2 and
Negative against A12.
Point No.6 :- As per the final order for the following :
REASONS
11. The Ld. APP vehemently argued and submitted that A-1 and A-2 entered into criminal conspiracy with other accused. There was an agreement between A1, A2 and A12 for construction of the building in property No. 315/1, Kaggadasapura village, K.R,.Puram Hobli, Bangalore. A-1, A-2 and A-12 are entered into criminal conspiracy for construction of the building and approached the Bank Manager to sanction the loan in the name of A-3, A-4, A7 to A11 and A-13. They have also conspired with the Bank Manager in order to sanction the loan to the prospective purchasers by producing fake and fabricated salary slips and income tax returns. He further submitted that, the evidence of PW 1 to 6 clearly evident on record, the prospective purchasers of the flats are approached the bank for sanctioning the loan . All of them have colluded with each other as well as obtained loan from the different bank in order to purchase the flat belongs to A1 / 12 / C.C.No. 19685/2007 and A2 and A-12. At the same time, the evidence of PW 7 and 8 disclose that A1 and A2 have obtained multiple loans from the various Bank in order to cause loss to the bank. The documents as well as oral evidence of the prosecution witnesses are clearly indicates that, the accused No. 1 and 2 in order to cheat the bank, they have conspired with other accused person and obtained the loan from various banks and the same was misutilized by A1 and A2 in order to pay earlier loan obtained by A1 and A2 in other banks. The entire evidence adduced by the prosecution clearly show that A1 and A2 with an intention to cheat the bank and borrowers have availed loan from the bank by assuring the borrowers that they would provide flats to them. But after receiving the loan amount, A1 has not provided flats to any one of the borrowers. The evidence of PW-12, 13 and 21 corroborates the above version of the prosecution case. On the face itself, it appears that A1 and A2 by colluding with other accused committed the offence of criminal conspiracy, cheating and forgery as stated by the prosecution.
Therefore, accused may be convicted in the interest of justice and equity.
12. The Ld.counsel for A-1 and A-2 vehemently argued and submitted that though the prosecution has made allegation that A-1 and A-2 are conspired with other accused persons and tried to cheat the bank. As such, accused persons are committed offence punishable / 13 / C.C.No. 19685/2007 under Section 120(B), 420 of IPC. However, the prosecution is not able to prove the basic ingredients of Sec.420 of I.P.C. No independent witnesses are examined by the prosecution in order to prove the conspiracy as well as cheating by this accused. Though the prosecution has examined PWs. 1 to 23 in this case, no one has spoken about the conspiracy as well as cheating committed by these accused persons. At the inception stage, the prosecution has made the Bank officials as accused but during the course of submitting the charge sheet, the prosecution has left out the Bank officials. It is known to the prosecution. There is a transaction in between the accused as well as bank officials in respect of the loan availed by the prospective buyers. If any irregularities or mistake committed by the officials as well as the accused, it is the duty of the person who has suffered loss as to prosecute the accused persons in this case. The prosecution has files this case on the source information collected by the Investigating Officer. However, the I.O. is not examined by the prosecution in order to prove the statement of witnesses as well as documents collected by the I.O. There were some irregularities at the time of sanctioning the loan by the Bank officials. It is between the accused as well as Bank officials. More over, none of the prosecution witnesses spoken about the forged and fabricated documents submitted by the accused in order to secure loan from the Bank. The prosecution is not able to furnish / 14 / C.C.No. 19685/2007 any consolidate statement of the Bank Account of the accused to show how much amount was transferred by the Bank to the account of the accused as well as it is utilized by the accused persons. As per Section 61 to 65 of the Evidence Act, clearly speaks that the documentary evidence is prevail over the oral evidence of parties. In the present case, the prosecution is not able to furnish original documents executed by the accused. More over the evidence of PWs. 1 , 5 to 11 and 12 to 19 are clearly evident on record that A-1 and A-2 are not submitted any forged documents to the Bank for availing the loan. As per the prosecution case, Ex.P120 is the Panel Advocate opinion accepted by the Bank and disbursed the loan amount to the accused. However, the Panel Advocate has preferred the Writ Petition before the Hon'ble High Court of Karnataka. It is allowed and quashed the proceedings against accused No.6. Merely non - payment of loan by the accused is not an offence as per Section 420 of IPC. The prosecution is not able to furnish ledger extract of the accused persons. More over, though the prosecution has submitted that the I.O. in this case has expired however, prosecution has not examined any police officers who have conducted the part investigation. It is not done so. The entire evidence of the prosecution is not possible to hold that these accused are committed alleged offence as stated in the chargesheet. During the course of cross examination, the prosecution witnesses are given / 15 / C.C.No. 19685/2007 admission as well as contradictions are clearly shows that the prosecution is not able to prove the guilt of the accused beyond all reasonable doubt and the benefit of doubt is to be given to the accused. Therefore, A-1 and A-2 prays to acquit them in the interest of justice and equity.
13.The Ld.counsel for A-3 vehemently argued and submitted that A-3 has not executed any documents as GPA holder of the deceased Krishnakumar . As per documents marked by the prosecution at Ex.P86, the signature found on the documents itself indicates that these signatures are not at all belongs to A-3, More over, the original loan application is not produced and proved by the prosecution. The prosecution made allegation that A-3 has obtained loan from different banks and tried to cheat the bank. However, A-3 employer is not examined by the prosecution in order to prove that A-3 has submitted any forged and fabricated salary certificate as well as income tax returns etc.. More over in order to prove the signature on the documents at Ex.P86 , prosecution has not examined the Handwriting Expert as well as prosecution has not obtained any report from the Forensic. The evidence of PW 13 and 14 is not helpful to the prosecution to prove the guilt of A-3 beyond all reasonable doubt. More over, A-3 has not given any authority to the Bank Manager to transfer / 16 / C.C.No. 19685/2007 the loan amount which was sanctioned in the name of A-3 to the builders. He further submitted that prosecution has not adduced any evidence to demonstrate that A-3 had meeting of minds with the alleged co-conspirators. The prosecution has not adduced evidence of any independent Forensic witnesses to drive home the point that income-tax returns and the salary slips have been forged and fabricated. No official from the company of Krishna Kumar ,husband of A-3 has been examined to prove that A-3 forged or fabricated the salary slips of her husband with a view to fraudulently to cheat the bank. No official from the Income Tax department has deposed that returns filed before them and the return furnished before the bank authority in this case are false and forged and fabricated. Even assuming but not admitting that the salary slip and IT returns have been forged and fabricated by Sri Krishna Kumar, there is no an iota of evidence to demonstrate that A-3 participated in such action or connived with her husband or with the co-accused to cheat the bank by presenting false and forged documents. Accused NO.3 is only a GPA holder for her husband the applicant. While on vacation from his employment in Saudi Arabia. Sri Krishna Kumar and A-3 were scouting for a reasonable place to purchase and they came upon the project promoted by A1 and A2. After initial discussions, A1 and A2 sought for the signatures of K.Krishnakumar on the various loan application forms / 17 / C.C.No. 19685/2007 together with salary slips and IT returns so as to process the loan from various financial institutions which had purportedly approved of the project as represented by A1 and A2. Krishna Kumar innocently and with a view to secure an accommodation for his family executed the papers as sought for by the builders and also executed a power of attorney in favour of his wife A-3, to complete the further formalities in his absence as he was compelled to join duty after completion of his leave. A1 and A2 understanding the gullible nature of A-3, represented to her that she has to accompany A1 and A2 to the various banks at various times to secure the loan for the house which A-3 as GPA holder of her husband was negotiating to purchase. A1 and A2 in connivance with the banker obtained sanction of the several loan from several banks in respect of one property by submitting the papers already obtained from prospective purchasers and ensured that conniving officers obliged the builder by depositing the entire sanctioned amount of the many borrowers to the account of the builder despite the fact that it was mandatory for the banker to release the funds only in stages after satisfying the progress of construction which evidently was not done in this case. A-1 and A-2 after obtaining the loan application forms and several copies of genuine and true attested salary slips and IT returns from prospective purchasers without the knowledge and consent of the prospective purchasers filed seeking for loan from / 18 / C.C.No. 19685/2007 various banks . The officers of the banks in connivance with the builders and without ascertaining from the purchasers nor with their consent sanctioned loans to the various purchasers on the basis of the documents submitted by the A1 and A2 on behalf of the purchasers without ascertaining from them if they indeed want to avail of the loan and credited the sanctioned amount to the account of the A1 and A2 without adhering to established norms and precedents in the matter of sanction and disbursement of loans. As such, the evidence adduced by the prosecution is not at all connected with the A-3. More over, she was not having any intention or conspired with other accused to cause any loss to the bank. She is having two small children and she is a widow and she is not able to provide any good education for the welfare of the children. As such, she has not conspired with other accused as well as she has not committed any such offence. A-3 has submitted or furnished any single document or created or submitted single scrap paper to any bank for the purposes of obtaining the loan. A-3 further submits that none of the witnesses have implicated her and there is no evidence on record to demonstrate her complicity in the aforesaid transaction . Hence, A-3 prays that she may be acquitted in the interest of justice and equity. He has relied the citation reported in Criminal Revision Petition No.424/11 (Parshadilal Vs. State Government of NCT of Delhi 23-4-2012).
/ 19 / C.C.No. 19685/2007 Crl.Appeal No.391/01 ( Naresh sharma Vs. State of Bihar dt 13-8-2009)
14. The Ld.counsel for Accused No.4 vehemently argued and submitted that this accused has purchased three flats in the same apartment out of which, two flats were registered in the name of this accused. Another flat is under agreement between accused as well as builders. The flat which are registered in the name of this accused are not one and the same. The evidence of PW-20 as well as documents marked at Ex.P162 to 166 and Ex.P58 to Ex.P60, Ex.P84 and Ex.P159 are not corroborated with each other. More over, the evidence of PW- 20 is also not helpful to the prosecution in order to prove the guilt of the accused beyond all reasonable doubts. The documents which are marked through employer of the accused are not established by the prosecution. More over, the statement of the PW-20 as well as documents which are marked through PW-20 are contradictory with each other. Such being the case, it is not possible to say that this accused has forged the salary slips and IT returns and submitted to the bank for obtaining the loan. More over none of the Bank Official witness stated that the documents which are submitted by this accused are fabricated and forged documents. The prosecution is not able to prove the guilt of the accused beyond all reasonable doubt. He has also furnished Memo with Xerox copy of the PCR No.41/05 as well as / 20 / C.C.No. 19685/2007 GPA/sale deed. Hence, prays that he may be acquitted in the interest of justice and equity.
15. The Ld.counsel for accused No.7 vehemently argued and submitted that A1 and A2 are joined hands with bank managers in order to get the loan in the name of prospective purchasers. The loan which was sanctioned in the name of borrowers was transferred to the accounts of A1 and A2. The borrowers however neither purchased the flats nor loan proceeds were misappropriated by the prospective purchaser. The Bank Manager is examined in this case as PW 1 and 2 are categorically deposed and handed over the loan documents and stated that the loan sanctioned was for the purpose of purchase of flat in property bearing No. 315, Kaggadasapura village, K.R,Puram Hobli, Bangalore. They have further stated that the proceeds of the loan were credited and identified cheques favouring UMA BUILDERS issued by the bank. Both A1 and A2 are beneficiaries of the above said loan transaction and have not provided flats to the borrowers and siphoned of the loan amounts to their own use with an intention to cheat the bank and particularly by the innocent borrowers and the evidence of PW 12, PW 13 and PW 21 are a eloquent testimony to their criminal conspiracy, cheating and forgery punishable aforesaid section of law. Due to the clever strategy played by the A1 and A2, none of the / 21 / C.C.No. 19685/2007 borrowers have received loan amount intended for the purchase of flat they intended to buy. M/s. Uma Builders have neither shown the flat nor handed over the possession to any of them and in turn the banks have given them notice for repayment of their loans. This accused has not produced any false and forged documents as alleged by the prosecution and all the manipulations of securing loans from different banks were the handiwork of the perpetrators in incriminating them by obtaining their signature on blank papers. He was given the impression that the loan papers with SBI were not processed and he was constrained to approach another bank, but not with any concocted documents. He had filed his complaint of cheating against M/s.Uma Builders with the jurisdictional police to safeguard his rights as he is not involved in any designs of the accused in making a wrongful gain for himself. The bank officials are responsible in the conspiracy as the builders were encouraged to clear the earlier loans. They flouted the rules of sanctioning loans in collusion with Uma Builders by transferring the loan proceeds of innocent borrowers to their own personal accounts. The documents which are marked through bank manager at Ex.P88(a) to (t) and (aa) to (ff) are not proved to be false documents by any witness. Circular Ex.P113 was neglected and legal opinion is recalled on 18-7-2003 and loan sanctioned on 11-7-2003. NO tripartite agreement is submitted and no collateral security is taken. The criteria / 22 / C.C.No. 19685/2007 of disbursing loans were disregarded by the bank. Instead the borrowers should have been made witnesses to the entire episode and the investigation by the CBI cannot be said to be impartial. There is no cogent or convincing evidence as such to say that A-7 has committed any of the offences alleged against him. Therefore, A-7 prays to acquit him in this case in the interest of justice and equity.
16. The Ld.counsel for Accused No.8 vehemently argued and submitted that the prosecution fails to prove that A-8 dishonestly with an intention to cheat the bank availed loan by producing forged documents. A-8 is a bonafide purchaser approached A1 and A2 for purchase of flats and he paid the advance amount. Admittedly, flat was not provided to this accused. The loan amount was not received by him. The prosecution has not proved that this accused is the beneficiary of the above transaction. The prosecution is failed to prove that this accused is part of the conspiracy as alleged. The accused has never withdrawn any money from the above said bank. This accused is having a dream of owning a house approached A1 and A2 for purchase of flats in the project called " Maranga Enclave". It is submitted that he was told that the said apartment project was approved by several Banks and these banks will provide loan for the purchase of flat in the said project. Accused NO.8 is a bonafide purchaser out of his hard / 23 / C.C.No. 19685/2007 earned money paid advance amount for the purchase of flat No. S-01 at second floor, which is approved by the BBMP., as per plan. He has lost the advance amount paid by him and no flat was given to him and he has not received any money from the bank. As such he has not committed any of the above alleged offences as stated by the prosecution. Hence, he may be acquitted in this case, in the interest of justice and equity. He has relied upon the citation reported in Criminal Revision Petition No.861/2005 ( M.K.Razdan and Another Vs.State of Delhi )
17. The Ld.counsel for A-9 and A-10 vehemently argued and submitted that the legal opinion given by the panel Advocate is not disputed by the prosecution. The said document is marked at Ex.P120. Accused NO.10 submitted the Income tax returns. It is not disputed by the Income tax Department nor the Bank. Accused No.9 submits the salary certificate issued by the employer. The said document is also not disputed by the prosecution. More over the prosecution made allegation that the alleged salary certificate ad I.T. are forged and fabricated documents. However, the prosecution is not able to examine the employer of A-9 or I.T. officials in order to prove the documents are forged and fabricated by the accused. At the same time, the Bank officials have played active role to cheat the customers . The / 24 / C.C.No. 19685/2007 prosecution is not able to prove the ingredient of Sec. 467 and 471 of I.P.C.. The admission given by the prosecution witnesses are helpful to the accused. As such, benefit of doubt given to the accused and hence, prayed to acquit them in the interest of justice and equity.
18. The Ld.counsel for A-11 vehemently argued and submitted that the prosecution has not led any evidence against this accused as it is forthcoming from the documents produced before this Court and the oral evidence led by the prosecution. He further submits that CBI police in their objection to grant bail to this accused have clearly stated that this accused has not produced any false and forged documents to obtain loan for the same flat from Bank of Baroda prior to obtaining loan from this bank on 22-6-2003 and he has closed the loan account without availing entire sanctioned loan amount of Rs.8.50 Lakhs etc.PW-2 states in his cross examination that if any person obtains a loan from any bank if the amount is insufficient he can repay the amount and close the account and again he can approach another bank for loan. PW-3 stated that this accused was not present when he made the inspection of the construction at the site. This accused has filed criminal complaint against A1 and A2 in PCR Case No.PCR167/2011 is registered and referred for investigation for jurisdictional police. It is clear that prosecution has not led evidence against this accused during / 25 / C.C.No. 19685/2007 the trial of the case to prove the charges leveled against him. This accused is innocent of charges made against him by the prosecution. Thus the role of the A-11 is a privy to criminal conspiracy with other accused persons to commit forgery for the purpose of cheating. Hence, he prays to acquit him in the interest of justice and equity. He has submitted a copy of FIR and P.C.R. No.167/2011 and objection to the bail application and certified copy of the bail order.
19. The Ld. Counsel for A-12 vehemently argued and submitted that the prosecution has got examined several witnesses during the course of the trial and marked several documents as exhibits. However, the depositions of PW-1,2,3,11,16 & 21 are relevant for consideration to find out whether the accused No.12 has committed offences as alleged by the prosecution. It is submitted that, PW-1 then Chief Manager ,SBI has not deposed anything against A-12. In his cross examination he has not identified this accused .Though he has identified the documents marked at Ex.P-116 to Ex.P-119 are executed between A1 and this accused. This accused admits that he is the owner of the schedule property and executed the said exhibits in his capacity as the owner and the same is not disputed by the prosecution through PW-1 . Ex.P126 the Master legal opinion dated 6-2-2003 tendered by SBI bank advocate/A-6 is also not disputed by the prosecution through / 26 / C.C.No. 19685/2007 PW-1. It is clear that the A-12 neither privy to the loan transactions taken place by and between the M/s.UMA Builders, the prospective loanees and the aggrieved SBI, prior , during and after sanctioning of loans to the prospective buyers. He has not made any role to sanction loan to the prospective buyers. There is no agreement between this accused and the accused persons in order to cheat conspired with each other and tried to cheat the bank for availing the loan by the prospective buyers. He further submits that PW-11 Asst. Director, Town Planning has spoken about application for plan sanction submitted by this accused and plan sanctioned for construction of six flats. There is nothing adverse against this accused. In deed this accused admits that he filed application for plan sanctioned for construction of 6 flats at the instance of A1 and A2 and it is not illegal under the Karnataka Municipal Corporation Act, 1976 the owner is entitled to apply for building sanction plan vide Ex.P117 GPA the builder is vested with the power to obtain necessary permission from BBMP for building sanction plan etc., if it is not obtained the same the A1 and A2 i.e. M/s. UMA Builders should be held responsible. Equally the bank officials and the bank advocate who had scrutinized the documents of titles and other peripheral documents furnished by the accused No.1 and 2 and not this innocent accused, who has lost every thing including his property which is lying abandoned. He further submits that PW-16, / 27 / C.C.No. 19685/2007 then Head Quarter Sub-Registrar of K.R.Puram Sub-registrar office from May 2003 to 2006 has admitted in his cross examination that all the certified copies of 16 sale deeds vide Ex.P154 are executed by A-1 and not by A-12. By oversight in his chief examination, he has stated that A-12 has executed sale deeds vide Ex.P154 and he has also stated that he is seeing A-12 for the first time before this Court. He further submits that PW-21 stated the same set of facts which was stated by PW 16. During the cross examination, he deposed that 16 sale deeds are executed by A-1 as the GPA holder of accused No.12. He has also admits that even in Ex.P162 to 166 Encumbrance certificates it is mentioned accused No.1 has executed them as a GPA holder of A-12. He has also admits that by mistake in his evidence he has stated that A-12 sold undivided portion of the property in favour of A-4, 5 and 8 etc. The prosecution has not led any evidence against this accused during the trial of the case. This accused is innocent of the charges leveled against him by the prosecution. In fact grave worry is the A-1 has executed 16 sale deeds vide Ex.P154 in respect of the same property during 2003 and 2004 again pushing the A-12 and his family into civil litigations which cost money, time and energy and therefore, prayed to acquit him in this case in the interest of justice and equity. He has relied upon the following decisions reported in :-
/ 28 / C.C.No. 19685/2007 AIR 1965 SC 682 AIR 1988 SUPREME COURT 1883 (2012) 9 SCc 257 (2014) 9 SCC 299
He has submitted a copy of FIR No.82/12 and F.I.R. No.1/12 and P.C.R. No.3952/2012 and certified copy of the chargesheet in C.C. No.9304/2010.
20. Accused No.13 submits that he has not obtained any loan from the Bank as well he has not executed any documents. The prosecution is not able to prove the case with oral and documentary evidence. He further submits that, he has adopts the arguments submitted by the other counsels.
21. POINT No. 2,3 and 4:-As these points No.2,3, and 4 are inter-linked with each other, in order to avoid repetition of the facts and circumstances of the case, I have taken them together for discussion.
I have gone through the prosecution evidence as well as documents marked in this case. It is the specific case of the prosecution that, A-3 has submitted forged and fabricated salary slips and I.T. returns and tried to obtain the loan from the Bank as well as A-3 has conspired with A-1 and A-2 and diverted the funds to the / 29 / C.C.No. 19685/2007 account of A-1. In order to prove the same, the prosecution has adduced the evidence and got marked the documents. Now I would like to discuss the documents as well as evidence against A-3 at this stage. It is an undisputed fact that, A-3 and her husband approached the Bank for sanction of loan in order to purchase the Flat which is going to built by A-1 and A-2. I would like refer to the documents marked at Ex.P86 loan application. It is noticed that A-3 and her husband filled the loan application and submitted to the bank. Ex.P86(a) is the construction agreement held between A-1 and deceased husband of A-3. The documents marked at Ex.P86(b) is the Agreement of sale of undivided interest between A-1 and the deceased husband of A-3. Ex.P86(c) is the arrangement letter, Ex.P86(d) consent clause by borrowers , Ex.P86(e) control form, Ex. P86 (f) is the agreement to create mortgage, Ex.P86 (g) Memorandum of term loan agreement, Ex.P86 (h)is the check list, Ex.P86(i) appraisal form, Ex.P86(j) is the inspection report, Ex.P86(k) is the opinion report, Ex.P86(l) is the preliminary opinion, Ex.P86(m) is the letter of undertaking, Ex.P86(n) is the tripartite agreement, Ex.P86(o)salary slip, Ex.P86(p) is the GPA of the deceased , Ex.P86(q) is the Xerox coy of passport, Ex.P86(r)is the legal opinion of the A-6, Ex.P86(s) is the statement of loan account and Ex.P86(t)is the S.B. Account of the deceased Krishnakumar. And valuation report is marked at Ex.P91.
/ 30 / C.C.No. 19685/2007 These documents reflects that the deceased Krishnakumar executed and furnished all these documents before the Bank at the time of availing the loan for purchase of flats at "Maranga Enclave" No.315/1 at Kaggadasapura village, K.R.Puram HObli, Bangalore. More over the Bank officials examined in this case are also not disputed about the documents executed by late Krishnakumar. The evidence of PW 1 to 3 reflected that late Krishnakumar submitted the above documents before the Bank. After scrutiny the bank panel advocate has given the report . On that report, the Bank officials have sanctioned the loan to the deceased Krishnakumar as well as A-3. The evidence of PW 6 and 7 disclose that A-3 has also obtained the loan from Syndicate Bank as well as Bank of Baroda in order to purchase the flats at "Maranga Enclave" No.315/1 at Kaggadasapura village, K.R.Puram Hobli, Bangalore. Letter is marked through PW-6 at Ex.P132. On going through the said letter, it is noticed that Krishnakumar and A-3 were approached the Syndicate Bank for availment of loan of Rs.13,50,000/-. On this point, the learned counsel for the accused submitted that though PW-6 deposed that deceased Krishnakumar and A-3 approached the Bank for availing loan of Rs.13,50,000/- . However, the said Bank Manager has not furnished the original documents in order to prove the documents executed by the deceased Krishnakumar and A-3. Mere marking of the bank letter as showing the name of the accused is / 31 / C.C.No. 19685/2007 not sufficient to prove the allegations that this accused is the borrower of the Syndicate Bank. I do concede the argument canvassed by the accused counsel. At the same time, I would like to mention mere particulars of the loan transaction of accused as well as other persons marked through the syndicate Bank Manager is not enough to prove that this accused has obtained the loan of Rs.13,50,000/-. I would like to mention that the documents which are already marked through PW- 2 at Ex.P86(a) to Ex.P86(t) are clearly disclose that A-3 has put her signature on these documents as GPA Holder of Krishna Kumar. The salary slips marked at Ex.P86(a) pertaining to Krishnakumar is in the language of Arabic . However the prosecution is not able to translate the same into English language. More over, the person who has issued these salary certificates are not examined by the prosecution. Such being the case, mere marking of the salary slips through the Bank Manager is not enough to say the alleged salary certificate are forged and created by the accused. More over, in this case, the prosecution is not able to furnish the I.T. returns of the accused. The entire evidence of the bank officials as well as other witnesses discloses that the documents submitted by the late Krishna Kumar are not possible to hold that those are forged and fabricated documents. Another interesting point to be here that PW-15 stated that A-3 has submitted loan application to The LIC Housing Finance Ltd., as GPA holder of her / 32 / C.C.No. 19685/2007 husband. The loan was sanctioned to the husband of A-3. The loan amount was disbursed in favour of Builders. The borrowers have repaid the entire loan amount. It indicates that the documents which are already submitted by the late Krishna Kumar before LIC Housing Finance for sanction of the loan are genuine documents. The evidence of LIC officials never discloses that this A-3 in collusion with her husband, she has submitted the forged and fabricated salary slips in order to sanction the loan. The entire gist of the prosecution evidence as well as documents marked through the Bank officials, it does not reflect that this accused No.3 with an intention to conspire with the A-1 and A-2 she has submitted forged and fabricated documents like salary slips in order to obtain the loan. The material witnesses in this case are the Bank officials. They never deposed that this accused with an intention to cheat the Bank or in order to facilitate A-1 and A-2 to obtain the loan amount she has filed the forged and fabricated. At the same time, I would like to mention that the prosecution has not adduced any evidence to demonstrate that the A-3 had a meeting of minds with the alleged co-conspirators. The prosecution has not adduced evidence of any independent forensic witnesses to drive home the point that income tax returns and the salary slips have been forged and fabricated. More over, the evidence of official witnesses as well as other circumstantial witnesses in this case discloses that this accused / 33 / C.C.No. 19685/2007 had no intention to conspire with other accused, she has submitted forged and fabricated documents. The allegation of prosecution is that, this accused conspired with A-1 and A-2 as well as bank officials and obtained the loan by submitting forged and fabricated documents. However, the entire documents which are marked through the Bank officials never disclose that this accused has submitted the forged and fabricated documents. It is no doubt this accused has acted upon as a GPA holder of late Krishna Kumar. On entire documents Krishnakumar has signed and accused No. 3 has put her signature on the documents as GPA holder.
PW-3 is the Retired Engineer as well as Valuer deposed as per the documents marked at Ex.P91 valuation report disclose that on 25- 11-2003 he has inspected the property. At that time, the pillars, beams, roof and panel walls were completed. The stage on that day has been valued by him at Rs.9.08 lakhs including Car Parking . Before investigation of the building, the Bank officials are sanctioned the loan and disbursed. It indicates that the Bank officials are not followed the procedure prescribed under RBI Guidelines.
PW-7 is the Branch Manager in Bank of Baroda deposed that he has submitted the letter marked as Ex.P144 discloses that they have / 34 / C.C.No. 19685/2007 sanctioned the loan to this accused and issued the letter as per the request of Syndicate Bank. As such, in my opinion the evidence of bank officials are not sufficient to hold that the documents which are executed and marked are forged and fabricated documents. Accused never denied about the execution of the documents. More over the prosecution has not tried to send the documents to the experts opinion as the contents of the documents as well as signature found on the documents varies from which are submitted to the bank . It is not done so. More over, the documents which are marked in this case do not disclose that the accused has tried to forge and fabricate the document. Hence, I come to the conclusion that the prosecution is not able to prove that A-3 has submitted the forged and fabricated documents.
22. I have gone through the oral evidence of the Bank officials as well as other circumstantial witnesses and documents marked at Ex.P58 to Ex.P85 and Ex.P103 in respect of accused No. 4. The Bank officials deposed that the documents marked at Ex.P58 to Ex.P85 are submitted by the A-4 but they never deposed that these documents are fabricated by A-4. Now I would like to refer to the documents marked at Ex.P58 to Ex.P60 ie. Salary slips for the month of Dec.2003, Jan.2004 and Feb.2004. The Net salary of A-4 is mentioned as / 35 / C.C.No. 19685/2007 Rs.22,100/- and Rs.23,800/- and remaining documents are Ex.P61 to 85 are the Account statement, loan application, construction agreement, agreement of sale, arrangement letter, consent letter, control form, agreement to create mortgage, loan agreement, request letter, standing instruction, appraisal letter, inspection report, opinion, preliminary opinion , request letter by M/s.UMA Builders, S.B.I. Account opening form, agreement letter, control forms, another housing loan agreement, another housing loan application and request letter and valuation report. These documents reflects that A-4 has submitted all these documents before the Bank at the time of availing the loan. It is not disputed by both the sides. The question has to determined by this Court that, the documents which are marked at Ex.P58 to Ex.P60 are forged and fabricated documents are the important question before this court. In order to prove these three documents, the prosecution has examined PW-20. PW-20 is the General Manager in M/s. Iris Computers deposed that in 2006 as per request of the CBI he has submitted some documents like salary certificate, one salary revision letter, TDS certificate of A-4 to the Head office and they have clarified the matter as per letter dated 18-1-2006 which is marked at Ex.P159(a). As per Ex.P159 the salary slip for the month of Dec. 2002 is correct. The salary slip for the year 2003 to 2005 is not correct. Accordingly, he has submitted letter to the CBI. During the course of cross examination, he / 36 / C.C.No. 19685/2007 has deposed that, Ex.P84 is the photocopy of the salary revision letter. He further deposed that they have not produced the salary slip of Dec.2003, Jan, 2004 and Feb.2004 and he has not compared the above salary slips with the original. He has only handed over the documents Ex.P159.
Now I would like to mention the documents which are marked at Ex.P58 to Ex.P60 are issued by the competent authority. At the same time, the documents marked at Ex.P159 letter given by PW-20 to the I.O. . As per this document, it is noticed that the TDS certificate for the Assessment-year 2003-2004 is correct. Letter dated 29-9-2002 and letter dated 7-2-2004 at Sl. 5 to 7 mentioned in this document pertaining to the documents marked at Ex.P58 to Ex.P60 are not correct. The oral testimony of this witness as well as documents noticed that the documents which are marked at Ex.P58 to Ex.P60 are not issued by this Pw-20. He has issued letter as per the request of CBI marked as Ex.P159. In order to compare the contents of Ex.P58 to 60 and Ex.P159 there is something missing in these documents. However, the ld. counsel for the accused draws the attention of the court in respect of the statement made by the witness before the Investigating Officer. Now I would like to refer to the witness statement. PW-20 stated before the I.O. that letter dated 7-2-2004 signed by Sanjeev Krishna, Chairman of Iris Computers Limited. It is the letter promoting / 37 / C.C.No. 19685/2007 A-4 from the post of Business Development Manager to the post of Branch Manager with effect from 1st Feb.2004. Further, the salary of A- 4 has been revised to Rs.3,97,100/-Per Annum w.e.f. 1-2-2004. The monthly composition is as under:- Monthly salary Rs.23,800/-, Annual benefit Rs.61,500/-. The company asked him to confirm that this certificate is issued by their Chairman. This statement of witness and document marked at Ex.P60 tally with each other. The same witness stated before the Investigating officer that salary slip for the month of Dec.2003 in respect of A-4, certificate confirmed that A-4 has received net pay of Rs.22,100/- after applicable TDS amount of Rs.1,350/- from the gross pay of Rs.22,100/-. As per the letter of the Director, the salary slip is incorrect and not issued by their concerned. He further stated as per the records, the Spl.allowance amount Rs.1000/- and not Rs.1800/- as stated in the salary slip total earning for the month of Dec.2003 is Rs.19,950/- and not Rs.22,100/-. But this witness is not able to furnish letter dated 18-10-2006 as well as the person who has written the said letter is not examined by the prosecution in order to prove the special allowance amount of Rs.1,000/- and not Rs.1800/-. Except the special allowance, remaining allowances are not disputed nor varies . At the same time, the person who has issued Ex.P58 is the competent person to depose before the court . At the relevant point of time, this PW-20 has not issued Ex.P58. I would like to mention that / 38 / C.C.No. 19685/2007 only on the say of the letter issued by the Director PW-20 stated before the Investigating officer and before the Court that the salary certificate for the month of Dec.2003 is incorrect. However, he is not able to furnish the original records of A-4. At the same time, I would like to refer to the oral testimony of PW-20 and Ex.P59. It is noticed the same thing which is stated by PW-20 before the Investigating officer as well as before this court. On the say of PW-20, it is not possible to hold that Ex.P58 to Ex.P60 are forged and fabricated by A-4. The revised letter issued by the Chairman of the Iris Computers is got marked as Ex.D.3. It discloses the same set of facts which were stated by PW-20 before the I.O. These documents further speaks the case of the accused that the Chairman of the M/s.Iris Computers Ltd. has promoted the accused and revised the pay scale to Rs.3,97,100/- Per annum w.e.f. 1-2-2004. It is submitted by PW-20 during the course of statement given before the I.O. As such, it is not possible to believe that A-4 has submitted the forged and fabricated salary slips before the Bank at the time of obtaining the loan. More over, the oral testimony of DW-1 as well as documents marked at Ex.D-3 clearly noticed that the M/s.Iris Computers Limited has promoted the accused and revised the pay scale and it is not disputed by the said company. In view of the oral testimony of the Bank officials as well as PW-20 and other circumstantial witness, it discloses that the documents which are / 39 / C.C.No. 19685/2007 submitted by this accused is not possible to believe that he has forged and fabricated the salary slips. More over, the prosecution is not able to furnish any I.T. returns of the accused. As such, it is not proper to discuss in respect of the I.T. returns submitted by the accused. As per the statement of the PW-20 before the I.O. clearly reflects that TDS issued for the Assessment year-2003-2004 to the accused is true and correct. Then the question does not arise that A-4 has submitted the forged and fabricated salary slips and IT returns. Hence, I come to the conclusion that, the prosecution is not able to prove that this accused has submitted forged and fabricated documents.
23. Now I would like to refer to the documents as well as oral evidence relied by the prosecution in respect of Accused No.7 . It is the specific case of the prosecution that, Accused No.7 has submitted the forged and fabricated salary slips, IT returns at the time of availing loan from the Bank for purchase of flats. In order to prove the said allegations, the prosecution has adduced evidence and furnished documents. However, I restrict to examine the documents in respect of this accused. At this juncture of time, I would like to refer to the oral evidence of PWs1 to 7 as well as PW 21. These witnesses deposed about the documents submitted by the accused as well as they have identified the documents marked at Ex.P88 (a) to Ex.P88(t). Ex.P88 (aa) to Ex.P88(ff). It is an undisputed fact that, A-7 has submitted the / 40 / C.C.No. 19685/2007 documents before the Bank at the time of availing loan. I have gone through the entire documents. These documents never disclose that A- 7 has submitted any forged and fabricated salary slips and other documents like loan application, check list, I.T.returns, Form No.16, balance sheet, profit and loss account, construction agreement, agreement of sale, arrangement letter, agreement to create mortgage, memorandum of term loan agreement, appraisal report, inspection report, preliminary report, Account opening form, Indemnity bond, salary slip, valuation report, and Account extract etc....
It is no doubt the accused never disputes about submitting of the documents as well as signature found on these documents. It is the duty of the prosecution to prove as this accused has submitted forged and fabricated documents.
Now I would like to refer to the important documents marked at Ex.P88 (aa) and (bb). These are pay slips for the month of April, 2003, May 2003. These documents reflects that the Chief Field Officer of Core Soft Tech Ltd., issued that the accused has obtained Net salary of Rs.42,516/-. At that time, Form No.16 issued by the employer is got marked at Ex.P88(f) and income tax returns marked at Ex.P88(d)and
(e) and also reflects that this accused is an Income tax assessee. He / 41 / C.C.No. 19685/2007 has submitted income-tax returns for the relevant period to the I.T. Dept.. The contents of the documents as well as signature found on these documents, it is clearly noticed that the accused has never tried to forge or fabricate these documents. More over none of the Bank officials stated that this accused has submitted forged and fabricated salary slips and income tax returns. The entire evidence of the prosecution witnesses never disclose that this accused submitted forged and fabricated documents. The prosecution has failed to adduce any evidence against the accused as seen from the depositions of the witnesses and the documents. The documents got marked at Ex.P88(a) to (t) and Ex.P88(aa) to Ex.P88(ff) are not proved to be false documents by any independent witnesses. The criteria of disbursing the loan were disregarded by the Bank instead of parties should have been made as a witness in the entire episode. As such , I come to the conclusion that there is no evidence and documents by the prosecution as this accused has forged and fabricated the documents.
24. Now I would like to discuss the case against accused No.8 . The prosecution in order to prove the guilt of the accused examined the witnesses and furnished the documents. Before going to discuss oral evidence of the witnesses and documents, I restrict to refer to the evidence of PW 1 to 3 and 6 only. PW-1 deposed about the documents / 42 / C.C.No. 19685/2007 submitted and executed by this accused which is marked at Ex.P87. During the course of cross examination, PW-1 deposed that he had not produced the anonymous letter received by the Head office. He further stated if a person is not a salaries person we collect income tax returns for the last 3 years.. He has seen Ex.P87 (a) to (t) and these are the loan documents. But it does not contain income tax returns, photo and I.D.proof of the borrowers. The persons who are recommending and sanctioning the loan have to verify the documents. In this case, one Ramesh has recommended the loan and Wilfred Sequeira has sanctioned the loan. Except this, nothing has been stated against this accused.
Now I would like to refer to the evidence of PW-2. He has deposed about the documents submitted and executed by this accused which are marked at Ex.P87(a) to Ex.P87(t) . These documents are like loan application, construction agreement, Agreement of sale, Arrangement letter, control form, Agreement to crate mortgage, Housing loan agreement, request letter, standing instruction , another request letter, appraiser form, inspection report, opinion report, preliminary information, request letter, account opening form, Tripartite agreement, two loan account statements and valuation report. During the course of cross examination he deposed that " I am not able to say whether the loan application and documents are in order or not for / 43 / C.C.No. 19685/2007 sanctioning the loan". It is not his duty to check all the documents submitted by the borrowers before sanctioning the loan. While sanctioning the loan to this borrower in this case he has no role to assist the Manager. This indicates that this witness has not actively participated in the loan proceedings. It seems that on the request of the CBI, this witness has submitted documents and deposed as per the documents only. He is not the competent person to say that the documents which are submitted by the accused are forged and fabricated documents.
Now I would like to refer to the evidence of PW-3 Valuer. He deposed about the documents marked at Ex.P87(f) valuation report submitted by him in respect of this accused. The total super built area of the property was 853 sq.feet. The inspection was done by him on 15-6-2003. At that time, pillars,roofs and beams and panel walls were completed. The stage on that day has been valued by him at 5.01 lakhs including Car parking. He has also given the valuation of the flat when it would be ready looking into the agreement of sale and the details given therein which was 12.69 lakhs. This evidence is also not helpful to the prosecution in order to prove the forged and fabricated documents submitted by this accused.
/ 44 / C.C.No. 19685/2007 Now I would like to refer to the evidence of PW-6. PW-6 is the Chief Manager deposed that he worked as Asst.Manager is syndicate Bank, Indira nagar Br., Bangalore. He has received letter from CBI, Bangalore requesting to attend the CBI office to explain about the loan sanctioned to M/s.UMA Builders. Accordingly, he went to the CBI office and submitted the documents. He has identified the documents pertaining to loan sanctioned by the Syndicate Bank to this accused which is marked at Ex.P132 and signature is marked at Ex.P132(a). He has also identified letter issued by their bank Sr.Manager, Bank of Baroda which is marked at Ex.P133 . The two office copy of the bank letter of Bank of Baroda issued to the Manager of syndicate Bank which is marked at Ex.P134 and Ex.P135. He has also identified covering letter dated 24-11-2004 issued to the bank Manager of Bank of Baroda for sending the details of housing loan sanctioned to A-5, A7, A3 and others which is marked at Ex.P137. This witness is not cross examined by the accused counsel. However, I would like to refer to the documents marked at Ex.P.132 which is the letter issued by the Syndicate Bank reflects the name of the accused as one of the borrower appears in the letter of the said bank. This itself does not mean that he has submitted the forged and fabricated documents. It is no doubt, he has approached the Syndicate Bank for loan. However, the Bank Managers are competent persons to scrutinize the documents / 45 / C.C.No. 19685/2007 and if he is eligible for loan then, Bank has to sanction the loan. Mere on Ex.P132 letter itself is not possible to hold that this accused has submitted forged and fabricated documents.
On the basis of the documents and evidence adduced by the prosecution, I come to the conclusion that, mere execution of the documents itself is not sufficient to hold that those documents are fabricated by this accused. At the same time, I have gone through the entire documents pertaining to this accused which are marked at Ex.P87(a) to Ex.P87(t). It does not disclose any salary slips or IT returns. Such being the case, in my opinion, the allegation made by the prosecution is not substantiate by any documentary evidence as this accused has submitted forged and fabricated salary slips and IT returns i.e. Ex.P87 marked through PW-1. But at the same time, during the course of cross examination, PW-1 deposed that there is no documents found in Ex.P87 as this accused has submitted forged and fabricated salary slips and IT returns. This itself is sufficient to hold that this accused has not submitted any forged and fabricated salary slips and IT returns. The Prosecution is not able to prove that this accused has submitted forged and fabricated documents.
/ 46 / C.C.No. 19685/2007
25. Now I would like to refer to the evidence and documents in respect of A-9 and A-10. PW-1 and 2 deposed about the execution of the documents by A-9 and A-10 at the time of obtaining the loan.
PW-1 deposed that A-9 and 10 executed Ex.P27 to Ex.P41 . These are the valuation report, loan application, construction agreement, Agreement of sale, agreement to create mortgage, request letter, standing instruction, arrangement letter, control form, request letter, appraiser of loan, inspection report, preliminary information, Tripartite agreement. During the course of the cross examination, he deposed that "It is true that A-1 is the builder of Uma Builders and A-1 has submitted the loan proposal. His predecessor has perused all the necessary documents and sanctioned the loan. One Ramesh Rao, Field Officer has verified all the documents and one Wilfred Sequiera Chief Manager sanctioned the loan. It is true that he is deposing before the court only on the basis of the documents. It seems that this witness is not present at the time of submitting the documents by the accused as well as he has not sanctioned the loan. He has deposed only on the earlier documents executed by the accused. The evidence of this witness is not helpful to prove the allegations made against this accused.
/ 47 / C.C.No. 19685/2007 Now I would like to refer to the evidence of PW-2. He has deposed the same set of facts which was stated by PW-1 as well as he has identified the documents which are already marked at Ex.P27 Ex.P41 as well as Ex.P120. During the course of cross examination by the accused counsel, he deposed that he followed the RBI guidelines at the time of sanctioning loan to A9 and A10. It is true that A9 when he obtained loan he was working in HAL. He has submitted the salary slip along with the loan application. A10 submitted income tax returns along with loan application . It is true that bank has decided to sanction loan for purchase of one flat on the basis of documents submitted by A9 and A10. The evidence of this witness is also not helpful to the prosecution to prove that A-9 and A10 are submitted false and fabricated salary slips and IT returns for obtaining the loan.
Now I would like to refer to the documents which are marked at Ex.P27 to 41. The material documents Ex.P41(b) and Ex.P41(c) are the I.T.returns of A-10 disclose that she is an Income tax Assessee. Except this document, nothing has been placed on record to show that the accused persons are submitted forged salary slip and IT returns . Accused No.9 is working in HAL as per the evidence of PW-2. However, the employer of A-9 has not been cited as witness by the prosecution in order to prove the forged and fabricated salary slips. More over, the / 48 / C.C.No. 19685/2007 salary slips is not found place in the entire documents marked through the prosecution witnesses. Mere marking of Ex.P41(b) and (c) is not enough to prove the contents of the documents. The prosecution has not cited I.T. officials as witnesses in order to prove the I.T. returns submitted by the accused are not according to the prescribed procedure. As per Ex.P48(b) and (c), the A-10 is an income ax assessee. If she has filed any forged and fabricated I.T. returns, income tax officials are the proper persons to say that the documents which are submitted by A-10 is fabricated documents. It is not done so. More over, the remaining witnesses examined as PWs 4 to 23 are not deposed any allegations against these accused persons. As such it is not required to discuss the remaining evidence in respect of these accused persons.
In over all considering the evidence of PWs 1 to 3 as well as documents, I would like to mention the documents which are executed by A9 and A10 at the time of availing loan from the Bank are not forged and fabricated documents. Another interesting point to be noted here that, if the documents submitted by the prosecution in this case are forged and fabricated by the accused. The prosecution has every right to send those documents to an expert opinion. It is not done by the prosecution. Mere executing the documents before the / 49 / C.C.No. 19685/2007 bank by the accused is not enough to prove the alleged allegations against the accused. As such, I come to the conclusion that the prosecution failed to prove the allegations against the accused No. 9 and 10.
26. Now I would like to discuss about the evidence and documents adduced by the prosecution against accused No.11 in order to prove the allegations as stated in the charge sheet. Before going to discuss about the documentary evidence, I would like to refer to the oral testimony of the Bank officials. PW-1 deposed about the documents executed by this accused marked at Ex.P42 to 57 as well as Ex.P101 and 102. He further deposed that A-11 has executed all the necessary documents at the time of obtaining the loan. At the same time, during the course of cross examination by the accused counsel, he deposed that he do not know whether A-11 and A-12 transacted at the relevant point of time when he was working as General Manager in S.B.I. He is not able to identify the accused persons before this court. PW-2 has also stated the same set of facts as stated by PW1, he has identified the documents already marked through PW-1 at Ex.P42 to Ex.P57, Ex.P101 and Ex.P102. During the course of cross examination, he deposed that A-11 had approached to the Bank for loan on 22-6- 2003 as per Ex.P42 for the first time. In general, when the documents / 50 / C.C.No. 19685/2007 are correct they take 5 to 6 days for sanctioning of the loan. It is true that their bank Manager has given the report as per Ex.P53 dated 22-6- 2003. He has not visited the property where the construction is going on. It is true that on 11-6-2003, they have released Rs.8 Lakhs to Uma Builders on behalf of A-11. It may be true that on the same day their bank has sent valuator to examine property. It is true that the valuator has examined the property and submitted the report on 15-6-2003. He has not aware of the document of release letter forged by A1 and a2 to get release of Rs.1.10 lakhs additional loan amount on behalf of A11 by builders. It is true that entire amount sanctioned in favour of A-11 is disbursed to A1 and A2 through cheques. As per Ex.P101 the valuator valued Rs.5 lakhs as 1st installment. It is true that they have sanctioned 8 lakhs on the date of application itself i.e. 22-6-2003 and released on the same day. This admission indicates that as on the date of submitting loan application by A-11 the Bank officials are sanctioned the loan and disbursed to A-1 and A-2. The Bank officials have not obtained by legal opinion from the Panel Advocate as on the date of sanction of the loan and released loan amount in favour of A-1 and A-2. Another interesting point to be noted here that the valuator examined in this case as PW-3. He has deposed that he has inspected the property and issued valuation certificate as on the first stage of the construction of the building, the Bank has to release the amount of / 51 / C.C.No. 19685/2007 Rs.Five lakhs in favour of the Builders. However, as on the date of submitting loan application itself, the Bank has released Rs.8 lakhs in favour of Builders. It is against the norms prescribed under RBI Rules. More over, the evidence of PW 1 and 2 never disclose that the documents submitted by this accused are forged and fabricated in order to sanction the loan.
Now I would like to refer to the documents marked at Ex.P42 to Ex.P57. These are the documents like loan application, construction agreement, agreement of sale, arrangement letter, control form, agreement to create mortgage, Housing loan agreement, request letter, standing instruction, appraiser , inspection report, opinion report prelim nation information , request letter of Uma builders, account opening form, request letter. These documents never disclose that A-11 has submitted any salary slip or IT returns at the time of sanctioning of loan by the accused. The documents as well as oral testimony of the bank officials noticed that there is no such documents as stated by the prosecution that the accused has submitted forged and fabricated salary slips and IT returns. At the same time, I would like to refer to the evidence of PW 13 who is none other than wife of this accused. In her evidence she has stated that she had applied for loan for purchase of the flat at "Maranga Enclave", Kaggadasapura village, KR Puram / 52 / C.C.No. 19685/2007 Hobli, Bangalore. She came to know that loan has been sanctioned to them but it is released in favour of the builders. She has not received any loan amount . A-1 and A-2 have not provided any flat to them. A-1 and A-2 have not completed the construction of the building. This witness further deposed that bank has credited loan amount to the builders account. Builders have neither shown any flat nor handed over the flat to the borrowers but they have received notice from the bank to repay the loan amount. A-1 and A-2 have cheated them. During the course of cross examination by A1 and A2 she deposed that they have applied for loan with the bank and they have submitted necessary documents to the Bank. It is true that case was pending before the court. On that reason she is not able to get the flat. It is false to suggest that loan amount was directly credited to her account. The evidence of this witness indicates that this witness as well as A-11 approached the Bank for sanction of loan for purchase of the flats. The bank officials are not obtained any salary slips, IT returns as on the date of executing the documents by the accused . More over, the documents marked at Ex.D1 and D2 are the certificate and Xerox copy of the authorization letter. It indicates that the Panel Advocate has issued the legal opinion about the documents submitted by the accused. The Panel Advocate never stated that the documents which are pertaining to the property No.315/1, Kaggadasapura village are not / 53 / C.C.No. 19685/2007 valid title documents to the property. The accused alleged that A1 and A2 are forged the signature of PW-13 and issued the letter to the Bank to transfer the loan amount. However, the accused person has never tried to send these documents to the Handwriting Expert in order to prove signature of the PW-13 is forged by A1 and A2. As such, I would like to mention it is not necessary to discuss in detail about these documents. It is unfortunate to mention that though this witness's photo is affixed on Ex.P42 loan application submitted by A-11 to the bank inspite of it, the bank has not cited this witness as the accused. It is pointed out by A-3 counsel during the course of arguments. Though A-3 as well as her husband affixed photo on the loan application , on that ground itself Accused No.3 , as she is the 2nd applicant in the loan application, she is arrayed as accused in this case. I do concede the arguments canvassed by the A-3 counsel. On the evidence of PW-13 as well as Bank official evidence it is noticed that there is no such documents available on record to show that A-11 has submitted forged and fabricated salary slips or IT returns at the time of submitting the loan application . It is further noticed that A-11 submitted the written arguments along with certified copy of FIR, PCR No.167/11 and certified copy of the bail order passed by the District Court in R.C.No.22 A/2004. The Ld. counsel for A-11 draw attention of the court during the course of arguments that as prosecution submitted the objection / 54 / C.C.No. 19685/2007 statement to the bail application specifically stated at Page No.5 para No.2 that "this accused has not produced any false and forged documents but he had obtained loan for the same flat from Bank of Baroda prior to obtaining the loan from the SBI, PPB Branch, Indira nagar . He has closed the loan account of the Bank of Baroda for availing the entire loan sanctioned amount Rs.8.5 lakhs. He do not know this entire fact at the time of availing loan from the SBI. This objection statement clearly noticed that this accused never tried to submit any forged or false documents. In the cross examination PW-2 stated that "If any person obtains loan from any bank, if the same is not sufficient, he can repay the amount and close the account and again he can approach Bank for another loan. There is no Bar to sanction the loan . In this case, the objection statement of the prosecution is fortified to cross examine the PW-2. It seems that there is no Iota of documentary evidence to show that this accused has submitted the forged and fabricated documents. More over this accused has proceeded against A1 and A2 by filing PCR No.167/11 before the jurisdictional police, it is pending for enquiry. All these factors as well as admission of the Bank officials disclose that there are no material to believe that this accused has submitted the forged and fabricated documents in order to cheat the bank .On the basis of the oral testimony of the bank officials as well as documents , one thing is / 55 / C.C.No. 19685/2007 clear that the prosecution is not able to prove the ingredients of Section 467 , 468, 471 of I.P.C.
27. Now I would like to discuss and refer to the evidence and documents relied by the prosecution against Accused No.13. I refer to the evidence of PW-1. He has deposed about the documents executed by A-13. He was not working as Manager as on the date of execution of the documents by the accused. He has deposed on the basis of the documents available in the Bank. PW-2 deposed about the documents submitted by the accused as well as sanction and disbursement of the loan. During the course of cross examination, PW-2 deposed that before sanction of the loan to any borrowers, they ascertain their income and project cost etc... On perusal of the documents like I.T. returns are not available. He has not handed over documents to the CBI . Therefore, he is not able to say the documents submitted by the borrowers are found in the records. A-13 has paid income tax to the IT Dept. of Rs.19,584/- for the year 2000-01. It is true that loan application has to be filled up the borrowers. It is true that Ex.P92 does not show the photo of the borrower. It is true that in the check list it is not mentioned that which documents are submitted by the borrower. This evidence indicates that the Bank Manager who has verified the documents is not able to collect the material document like salary slips, / 56 / C.C.No. 19685/2007 IT returns etc... The bank officials have blindly accepted the documents and sanctioned loan. It is not fault on the accused persons. It is the bounden duty of the bank officials to verify and scrutinize the documents submitted by the accused before sanctioning loan. It is not done so. More over, Panel Advocate has given the legal opinion report is also not disclose that the accused has submitted any forged or fabricated documents. The evidence of the other bank officials as well as documents do not disclose that the accused has submitted forged and fabricated documents.
Now I would like to refer to the documents which are marked at Ex.P16 to Ex.P26 and Ex.P92 (a) to (t). These are the documents like construction agreement, agreement of sale, preliminary information, opinion report, inspection report, appraisal control form, two arrangements letters, control form and loan application form etc.. These documents never disclose that the accused has submitted any salary slip or IT returns to the bank. On going through the entire evidence and documents, I would like to mention that there is no Iota of documentary evidence to show that this accused has submitted forged and fabricated salary slips and IT returns at the time of submitting loan application to the bank.
/ 57 / C.C.No. 19685/2007 The prosecution has made allegation that the accused persons have submitted forged and fabricated salary slips and IT returns. The best witness to depose about the salary slip and IT returns as to whether it is forged or genuine one, who has issued salary slip and IT returns. But the prosecution has not recorded the statement of the employer of the accused persons. The employer can state as to which is the original salary slip and IT returns and which is the forged one. The salary slip and IT returns does not even bear the signature of the employer.
In over all considering the facts and circumstances of the case as well as evidence of prosecution witnesses and documents against A- 3, A4, 7 to 11 and 13 are concerned ,in my opinion there is no such documentary evidence available on record to show that these accused persons have submitted forged and fabricated documents and in order to make conspiracy and cheating to the bank and they have facilitated A-1 and A-2 to divert the funds which was sanctioned by the bank for the purpose for which it was sanctioned. Hence, I answer Point No.2 to 4 in the Negative.
/ 58 / C.C.No. 19685/2007
28. POINT No.1 and 5:- As these two points are inter-linked to each other, in order to avoid repetition of the facts and circumstances of the case and evidence, I have taken 2 points together for discussion.
It is the case of the prosecution that, A-1 and 2 as well as A-12 are colluded with each other and created documents and obtained the loan. A-1 and A-2 have diverted the funds other than for which it was sanctioned. In order to prove the above allegations, the prosecution has examined PWs.1 to 23 and got marked Ex.P1 to 166 documents. Before going to discuss the documentary evidence, I would like to refer to the oral testimony of the prosecution witnesses. PW-1 being the Bank Manager of the S.B.I., PPB Branch, Indira Nagar Branch deposed about the execution of the documents as well as loan sanctioned and disbursed by the previous Managers to the borrowers. He further deposed that, he came to know that Syndicate Bank has also granted loan for the same flats . He has made enquiries and he has given written complaint to the Indira Nagar P.S. even before they were called by the CBI officers. The documents which were executed by the borrowers are marked through this witness at Ex.P1 to Ex.P126. I have already discussed the above documents against the other accused persons. The documents marked through this witness as loan account statement of A-2 as Ex.P110 and later given by the P.P.B. Branch to the / 59 / C.C.No. 19685/2007 C.B.I. at Ex.P110 and the signature of the witness. During the course of cross examination PW-1 deposed that " It is true that he is not personally aware of the documents marked in this case. It is true that documents are got marked since CBI requested. It is true that he has not furnished complaint before Indira nagar P.S. to the C.B.I. It is true that cheques marked Ex.P112 series are handed over to the persons who have applied for the loan. He is not aware Ex.P116 is furnished at the time of availing loan but the documents is in their custody. He is not aware of the proceedings quashed against A-6 by the Hon'ble High Court of Karnataka. This evidence indicates that he was not aware of the documents which are executed by the borrowers at the time of availing loan as well as he has furnished those documents as per the request of the C.B.I.
29.Now would like to refer to the evidence of PW-2 . He has stated the same set of facts which was stated by PW-1. Further he stated that account extract of A-2 is already marked as Ex.P110 . On looking to Ex.P110 it can find the transaction of Housing Loan amount. He now see Ex.P112 and say that these are all cheques showing the amount disbursed to M/s.UMA Builders in 30 nos. and now these are already marked at Ex.P112(a) to (z) and (aa) to (dd). This evidence noticed except the account extract as well as cheques issued in favour / 60 / C.C.No. 19685/2007 of A1 and A2 nothing has been stated by this witness. More over, during the course of cross-examination PW-2 deposed that, "It is true that he has deposed general procedure of the loan transaction. It is true that he has seen A1 and A2 for the first time before this court. He do not know what conversation held between the Deputy Manager and Chief Manager and all Loan Account Holders. He further deposed that, at the instance of the prosecutor, he has marked the documents. He further deposed that all the documents marked through him as well as referred by him are not signed by him as well as handled by him. This itself is sufficient to hold that, he has not actively participated at the time submitting the loan papers by the accused as well as sanctioned by the bank officials. He has deposed on the documents collected by I.O. at the time of investigation .
30.PW-3 is the Valuer deposed about the investigation report as well as value of the property which was constructed by the Builders at the relevant point of time. During the course of cross examination, he has not received written communication from the bank regarding the inspection of the flat. He voluntarily states whenever called by the bank to conduct inspection, he has done it.
/ 61 / C.C.No. 19685/2007 PW-4 Manager, SBI has deposed the procedure of the housing loan sanctioned by the bank whenever borrower approached to the bank. During the course of cross-examination, he deposed that he has not worked in SBI., Indira nagar Branach. He has not conducted any inspection in respect of those transaction.
PW-5 deposed that CBI requested him to come to their office pertaining to the case of Uma Builders. Accordingly, he went to the CBI office . The IO shown some cheques issued by SBI., PPB Branch in favour of Uma Builders. Those cheques are marked at Ex.P112(a), (f),
(j), (n), (q), (t), (x) and (cc) which are cheques of the SBI, Indira nagar Branch, Bangalore for different amount. The above said cheques were presented by Raghava credit Co-operative Society to their Bank to credit amount covered under the cheque to their S.B.Account maintained with their branch. Then they send the said cheques to clearing house who in return, present it to the respective bank for realization. When the amounts were realized , they have credited the amount to the SB account of Raghava Credit Co-operative Society. He has also handed over statement of account pertaining to SB account of Raghava Credit Co-operative Society. The account extract is marked at Ex.P131 and his signature is marked at Ex.P131(a). During the course of cross examination he deposed that at the relevant point of time / 62 / C.C.No. 19685/2007 when these cheques are presented by the customer, he has not handled the same. He is deposing the same on the basis of the records available in their branch. It is true that he is the Branch Head , CBI asked him to submit the documents. Accordingly, he has submitted the documents.
31. I refer to the evidence of Pw-6. He deposed that on request of the CBI officials to explain about the loan sanctioned to UMA Builders. Accordingly, he went to the CBI office and submitted documents. He has also identified letter pertaining to the loan sanctioned by their Bank to A-3, 5, 7, 8 which is now marked as Ex.P132 and signature is marked at Ex.P132(a). He has identified another letter issued by their bank Sr.Manager to Manager of Bank of Baroda which is marked as Ex.P133. He identifies signature of Sr.Manager at Ex.P133(a). He identifies two office copy of letters of Bank of Baroda issued to the Manager of Syndicate Bank which is marked as Ex.P134 and Ex.P135. He has identified letters issued by Bank of Baroda to the Sr.Manager of their branch showing the details of loan obtained by beneficiary which is marked at Ex.P136. He identifies covering letter dtd. 24-11-2004 issued to the bank Manager of Bank of Baroda for sending the details of housing loan sanctioned to A5, A7, A3 and others which is marked as Ex.P137. Details of loan which is marked as Ex.P138, the loan was sanctioned to UMA Builders / 63 / C.C.No. 19685/2007 for their residential apartment at Maranga Enclave, Kaggadasapura , Bangalore. The loan was sanctioned for purchase of flat by A3, A5 and A7. During the course of cross examination he deposed that, he is not aware the number of the flat in respect of which loan was sought by A-
7. He has not verified the documents submitted by Bank of Baroda to their branch. At that point of time he was working in deposit branch so that he has not dealt with the transaction made by the accused persons to their bank. He has not handed over any documents to the CBI. He went to the CBI office only to disclose the procedure adopted in over all business. He further deposed that he has sanctioned the loan to purchasers and not to UMA Builders. The loan was sanctioned by their Sr.Manager K.Mohan Shenoy. It is true that, he is not having any personal knowledge about the loan sanctioned to the purchasers. The evidence of this witness clearly shows that, this witness is not actively participated for the availment of loan by the borrowers as well as accused persons.
32.PW-7 deposed that he worked as branch manager in Bank of Baroda, MG Road branch, Bangalore. CBI officers had requested him to come to office pertaining to the case of Uma Builders. Accordingly he went to the CBI office. The CBI officers have recorded his statement and shown some documents . He identifies letter dt. 27.06.04 written / 64 / C.C.No. 19685/2007 by Syndicate Bank to their bank regarding the loan availed by Uma Builders and other borrowers which is now marked as Ex.P139. They have issued a reply on 09.10.04 to the above said letter which is now marked as Ex.P140. His signature is Ex.P140(a). They have sent the details of the borrowers as per this letter. He identifies Ex.P136 which shows the details of the borrowers to obtain the loan from their branch. This letter shows that, they have given loan to A3 &4. He identifies a letter dt. 09.08.04 issued from Regional office to their branch asking to verify the assets of the borrowers which is now marked as Ex.P141. He identifies letter dt. 10.08.04 issued from their office to Regional office stating that, necessary action has to taken against borrowers and builders for finding as to fraud in availing the loans which is now marked as Ex.P142. He identify the signature of Sr. Manager Salian which is now marked as Ex.P142(a).He identifies another letter dt. 10.08.04 issued from their bank to R.V. Mukund to verify EC of Uma Builders and borrowers which is now marked as Ex.P143. He identify the signature of Sr. Manager Salian which is now marked as Ex.P143
(a). They received the report from R.V. Mukund dt. 21.08.04 which is now marked as Ex.P144 in 2 sheets. Ex.P144 shows that schedule of the property is khata No. 315/1, Old property No. 92/14, Kaggadaspura village, KR Puram hobli, Bangalore East.He identifies the letter dt. 28.06.04 issued from their branch to Regional office stating that other / 65 / C.C.No. 19685/2007 banks also given loans to same builders & borrowers which is now marked as Ex.P145. He identify the signature of H.A.P. Iyer which is now marked as Ex.P145(a). He identifies letter dt. 14.07.04 issued from their branch to Sub-registrar, KR Puram, Bangalore asking them to verify the registration of flats in Maranga Enclave which is now marked as Ex.P146. He identifies letter dt. 22.07.04 issued from their branch to Regional office stating that Mallari Rao has informed their bank that he has taken loan from Syndicate Bank also which is now marked as Ex.P147. The said letter is signed by Salaian. He identify the signature of Sr. Manager Salian which is now marked as Ex.P147(a). He identifies letter dt. 04.08.04 issued from their branch to AGM, Regional office stating that Syndicate bank and SBI has already filed FIR against Uma Builders which is now marked as Ex.P148. He identify the signature of Sr. Manager Salian which is now marked as Ex.P148(a). He identifies receipt memo dt. 10.12.06 prepared by IO for handing over documents by Sr. Manager of their bank J. Shantaiah which is now marked as Ex.P149 in 3 sheets. He can identify his signature which is now marked as Ex.P149(a). He identifies letter issued from Regional office to their bank dt. 14.07.04 which is now marked as Ex.P150. He identifies one complaint written by Somashekar to Regional office informing that Uma Builders have taken / 66 / C.C.No. 19685/2007 loan from various banks and suspecting the fraud which is now marked as Ex.P151.
During the cross examination, he deposed that, he do not know the number of the flat and the loan sanctioned was credited to borrowers account. He further deposes that " it is true that Ex.P143 is also sent by Sr.Manager Salian. It is true that signature found on Ex.P142 and Ex.P143 are different. The remaining suggestion are denied by the witness .
33. I refer to the evidence of PW-8 he deposed the same set of facts which was deposed by PW-7. During the course of cross examination, he deposed that, no loan amount has been disbursed to the borrowers. He voluntarily states that as per the request of the borrowers loan amount has been disbursed to the builders.
34. I refer to the evidence of PW-9. PW-9 is the Bank consultant. He deposed that as per the instruction of the Bank of Baroda, he has verified the documents pertaining to M/s.UMA Builders and conducted verification of the documents and submitted report which is already marked at Ex.P243 . The evidence of this witness is also not much important to discuss.
/ 67 / C.C.No. 19685/2007
35. PW-11 deposed that he was working as Asst.Director, Town Planning, BBMP, Bangalore. Accused No.12 submitted application for permission to construction of the building. The plan is already marked at Ex.P115. He has scrutinized the documents and placed before committee. The committee sanctioned the Plan. As per Ex.P115 they have sanctioned to construct the building for 1 + 3 floors, 1st floor 2 houses, 2nd floor 2 houses, 3rd floor two houses. Ground floor is reserved for Car parking. The above Plan is pertaining to residential building only. This evidence is also not much important to discuss in detail as it is admitted by A-12 that he has approached BBMP for building construction permission. Accordingly, BBMP has sanctioned the Plan.
36. Now I would like to refer to the evidence of PW 12. She deposed that her husband had applied for loan before SBI., PPB , Indira nagar branch, Bangalore for purchase of flat at Kaggadasapura, Bangalore. She can identify A1 and A2 if they are shown to her. She came to know that loan has been sanctioned to them and they have got the information after 3 months. They have not received loan amount. The Bank has credited loan amount to the builders account. The builders have neither shown the flat nor handed over the possession of flat their favour. Thereafter they tried to contact the / 68 / C.C.No. 19685/2007 builder Uma Rao and they did not get the connection to their phone. Her husband expired on 17-10-2012 . During the course of cross examination, she deposed that her husband was working as Staff Nurse . It is true that she is not aware of the facts of the case. It is true that her husband applied loan in the Bank. She do not know whether the Bank sanctioned the loan or not. The earlier version of the evidence of this witness is contradictory to the evidence during the course of cross examination. More over the documents which are submitted by the deceased husband of this witness are marked in this case. However, the original borrower is no more . As such, she is not a competent person to say about the alleged transaction made by her husband. She has deposed only on the say of some other person. Her evidence is also not direct evidence . It is hearsay evidence.
37. PW-13 deposes that A-11 is her husband and she can identify A-1 and A-2if shown to her. They approached the bank and submitted loan application for the purchase of flat at Kaggadasapura. The loan has been sanctioned to them. They have not receive loan amount . The bank has credited loan amount to the borrowers account. The builders neither shown the flat nor handed over the possession of the flat in their favour. During the course of cross examination, she deposed that " It is true that she had applied for loan with the Bank. It / 69 / C.C.No. 19685/2007 is true that she has submitted all the necessary documents to the bank. It is true that case was pending before court on that reason she is not able to get the flat. Though this witness made allegation that, the A1 and A2 have cheated them however, the documents which are submitted to the bank are clearly noticed that, A11 has submitted necessary documents and availed loan for purchase of the flat. Such being the case, it is not proper to ascertain that the A1 and A2 have submitted any forged or fabricated documents while availing loan by borrowers.
38. I refer to the evidence of PW-14. He deposed that he know A1 and A2 . He has submitted loan application to SBI., PPB Branch, Indira nagar , Bangalore for the purchase of flat at Kaggadasapura , Bangalore He came to know that the loan has been sanctioned for Rs.Six Lakhs in his favour. He has entered into sale agreement with the builder-A1. He has not received the loan amount but the bank has credited the loan amount to builders account . Later he send intimation to the bank that they do not need the flat and to close the loan account. During the course of cross examination, he deposed that the loan was sanctioned in his name and the remaining suggestion has been denied by the witness.
/ 70 / C.C.No. 19685/2007
39. I refer to the evidence of PW-16. He is the Head Quarter Sub- Registrar in K.R.Puram Sub-Registrar's office. As per the request of the CBI, he has submitted some documents to the CBI. He identifies covering letter 22-8-2005 which is marked at Ex.P153 and his signature is marked at Ex.P153(a).He identified certified copy of 16 sale deeds which is marked at Ex.P154 . All the above sale deeds were executed by A12. During the course of cross examination he deposed that " It is true that he has stated before CBI police that A-1has executed sale deeds as a GPA holder of A12 at Ex.P154. The property belongs to A-12. It is true that due to oversight he has stated in his chief examination as sale deed executed by A12. He identifies Ex.P116 and
117. As per Ex.P116 only after construction A-1 entitled to sell her share 4 flats out of 6 flats. It is true that he is seeing A12 for the first time before this court.
40. PW-17 deposed that he was working as Director in Mayuri Co-operative Society Ltd., Bangalore. In 2005 the CBI requested him to submit some documents pertaining to UMA builders. Accordingly he has submitted the documents to CBI as per Ex.P155 receipt memo and his signature is marked at Ex.P155(a). The details pertaining to cheque deposited by their society which is marked at Ex.P156. It reflects that the cheque deposited by Uma Builders in their society. After clearance / 71 / C.C.No. 19685/2007 of the above cheques they handed over cash to Uma Builders. During the course of cross examination, the suggestion put by the accused counsel is denied by the witness.
41. I refer to the evidence of PW-18,practicing Advocate in Bangalore. He deposed that he know A1 and A2. He identifies Ex.P116 joint development agreement between P. Mohan and Uma Builders represented by A2. He has drafted Ex.P116 and his signature in last page is Ex.P116(a). He identifies the signature of A2 and A12 which is marked as Ex.P116(b) and (c). A1 and 2 came to his office and A2 furnished the information to prepare the joint development agreement. Accordingly he has prepared. A1 has submitted the documents i.e title deeds of the property and records of TMC & BBMP. Ex.P116 was registered in KR Puram Sub-registrar's office. The schedule of property mentioned in Ex.P116 is 315/1, Kaggadasapura village, KR Puram hobli, Bangalore South. One Vishwanath and Mallikarjunappa his staff clerks were sent as witnesses to sign the documents Ex.P116. He can identify their signatures which is marked as Ex.P116(d) and (e). He identifies Ex.P117, GPA drafted by him. The said GPA is executed between A12 and Uma builders. His signature is marked as Ex.P117(a). He identify signature of A12 and A2 marked as Ex.P117(b) and (c). One Vishwanath and Mallikarjunappa his staff clerks were sent as witnesses / 72 / C.C.No. 19685/2007 to sign the documents Ex.P117. He can identify their signatures which is marked as Ex.P117(d) and (e). The Ld. counsel for A1 and A2 cross examined this witness and tried to elicit the true facts of the case. However, the witness deposed that A-12 came to his office along with documents and A2. The document was handed over by A12. Instructions was given by A-2 and he stated that he is going to take this property on JDA in the ratio of 74% and 26% i.e. A1 is having share 74% and remaining 26% is A12. He has gone through the documents and ascertain the title deeds. The remaining suggestion denied by the witness.
42. Now I refer to the evidence of PW-21 , Sub-Registrar of K.R.Puram deposed that as per the request of the CBI, they have submitted Encumbrance certificate which is marked at Ex.P160. The property No. 315/1 of Kaggadasapura village, comes under K.R.Puram Hobli. Accordingly, he has issued E.C. pertaining to that property which are marked at Ex.P162 to Ex.P166. The above documents disclose that A12 sold undivided portion of the property in favour of A-5 Shivaram, Nataraj.R/A4,J.Shivanna/A8,Krishnakumar / husband of A-3 etc.. During the course of cross examination by the accused counsel, he deposed that " It is true that as per Ex.P154 A-1 has executed all the sale deeds as the GPA holder of A12. It is true that even in Ex.P162 to / 73 / C.C.No. 19685/2007 166 it is mentioned A1 has executed all the sale deeds as the GPA holder of A12. It is true that by mistake in his chief examination he has stated that A12 sold undivided portion of the property in favour of the accused. He further deposed that he do not have any personal knowledge about this case. He has deposed on the basis of records.
43. I refer to the evidence of PW-22. He deposed that he is doing pawn broker and money lending business. He is also doing the cheque discounting business. He know A2. A2 used to come to their shop and discounted some cheques. He used to give cash after discounting the cheques to him. Thereafter he has deposited the cheque in Mayuri Credit Co-operative Society ltd. and encashed the amount. During the course of cross examination he deposed that he is having license to do Pawn Broker and money lending business. He has not furnished the license. He do not know whether he can do the cheque discounting business on the license of money lending business. It is false to suggest that there is no transaction between him and A-2. A2 has not handed over any cheques and he has not given any cash to him .
44. PW 23 deposes that he know A1 and A2 and one M.N.Balakrishna pillai who is his brother-in law. Mrs. Chandrika is his / 74 / C.C.No. 19685/2007 sister. He can identify A2 before this court. He know A2 as they had come to his sister's house in order to arrange flat at Bangalore in the year 2003. A2 told he is having flats at Kaggadasapura village and he will provide one flat to his sister. A2 told that his brother-in-law M.N.Balakrishna pillai has to sign for some loan applications in order to obtain loan from the bank. A2 has asked M.N.Balakrishna pillai to sign in three loan applications. He also told that if his brother - in -law signs in 3 loan applications he will get loan in one bank. Therefore his brother - in -law has signed in loan applications and some blank papers. He also told his brother - in -law to issue one power of Attorney in favour of his sister M/s. Chandrika. After 3-4 months they have received a letter from Bank of Baroda stating that they have to pay the loan installments. In fact, loan amount has not come to their brother - in -law's a/c. A2 has not handed over any flat to his brother
- in -law. Thereafter his brother - in -law has got notice from SBI, PPB, Indiranagar and GIC housing finance corp. to repay the loan installments. They did not get the loan amount from these banks also. They have informed over phone to the bank that they have not received any loan amount. Thereafter they approached A2 and he told he would make arrangement to settle the loan. During the course of cross examination he deposed that "it is true that he has not applied for any bank loan. On that day A2 has obtained signature on the loan / 75 / C.C.No. 19685/2007 application , on blank papers as well as salary slips of his brother in law. Except this nothing has been taken by A-2. It is true that he has not furnished the bank letters either to the CBI or to the court. It is false to suggest that his brother in law has not applied for the loan to the bank and he has not received any loan amount. . . He is permanent resident of Kerala and he has not given any complaint in writing to the bank or to the police that A2 has cheated them .
45. On going through the evidence of PW-14, 16, 17, 18 , 21, 22 and 23 it is clearly evident on record that, there is Joint Development Agreement between M/s.UMA Builders as well as A-12 . It is not disputed by the accused. PW18 is the material witness who has prepared the document executed between Uma Builders and A12.He has categorically deposed on the instruction of A-2 as well as documents furnished by A-12 he has prepared J D A and GPA . It is registered before the K.R.Puram Sub-Registrar office in the presence of his office clerks . Though the Ld. counsel for accused cross-examined but nothing to elicit to discard the evidence of these witnesses. It is further noticed the evidence of PW-16 disclose that, the Uma Builders,Proprietor executed the sale deed in favour of accused as well as other persons. The same is registered before the Sub-Registrar office. Though initially this witness stated the 16 sale deeds are / 76 / C.C.No. 19685/2007 executed by A-12, during the course of cross examination he deposed due to oversight, he has stated sale deed executed by A12.But actually all the 16 sale deeds are executed by A-1 as GPA holder of A12. As per the JDA as well as GPA, A-1 is entitled to sell her respective share 74% as agreed by parties. However, she has executed sale deeds are reflected that she has no right to execute more than 74% of the undivided share over the property. The witness further deposed that he has seen A12 for the first time before court. It seems that A12 was not present as on the date of executing 16 sale deeds by A1 before the Sub-Registrar office, K.R.Puram. It clearly indicates that A1 and A2 are having intention to cheat the bank as well as borrowers they have executed 16 sale deeds, but as per the JDA and GPA they are not having any right to execute such sale deeds. Another point to be noted here that Bank has issued all the cheques in the name of UMA Buildeers as per the say of the borrowers . The said cheques are submitted by A1 and A2 and they have encashed the same through PW17. As per the evidence of PW-17 it is clearly noticed that A-2 handed over cheques to Mayuri co-operative Society Ld.. Accordingly the said Society has deposited cheques through their bank . Later on Mayuri Co-operative Society has given the cash to Uma Builders. It is reflected in the Ex.P155 and 156.
/ 77 / C.C.No. 19685/2007 At the same time, I refer to documents marked through PW-21 which are marked at Ex.P160 to 166 are E.Cs. reflected that A-1 has executed all the sale deeds as GPA holder of A-12. The admission given by the witness indicates that he has stated in his chief examination these documents are executed by A12 . However, during the course of cross examination, he deposed that due to mistake he has stated A-12 has sold undivided portion of the property in favour of accused. However, A-1 sold undivided portion of the property to the accused as a GPA holder , it clearly indicates that A-1 has transacted with other accused and she has received the amount through the Bank. As per the evidence of PW 23 it is noticed that A1 and A2 are obtained signature of M.N.Balakrishna pillai on the loan papers. Later on they have received the amount through bank on behalf of the Balakrishna pillai. Later on they have not provided any flat or repay the loan amount. Though Ld. counsel has cross examined this witness, however he has not elicited anything to disprove the case of the prosecution.
46. The Ld. counsel for A-1 and A-2 drawn attention of the Court that, though prosecution alleged against the accused that they have conspired with bank officials and had an intention to cheat the bank and they have committed the offence. However, before going to initiate the proceedings against the accused, the I.O. has not obtained any / 78 / C.C.No. 19685/2007 notification from the State Government in order to proceed against the accused. He has also relied upon Section 6 of the Delhi Police Special Establishment Act, 1964. It is mandatory for the CBI to obtain proper consent from the State Government to exercise its power and secure jurisdiction in order to investigate the said State. I do concede the argument canvassed by the accused counsel. On this point the prosecution has submitted Memo along with Notification dated 23-11- 2004. It is issued by the Govt. of Karnataka permitted to proceed with the investigation by the CBI against Bank Manager , M/s.UMA Builders as well as others. Such being the case, in my opinion, the contention urged by the accused counsel is not sustainable in law. More over as per the Govt. Notification , the Investigating officer proceeded and conducted the investigation and submitted the chargesheet. The Ld.Counsel for the accused draw attention of the Court mere production of Notification is not enough to prove the contents of the said documents, the prosecution has to adduce evidence and mark the documents. At this point of time, I would like to refer to Section 56 of Evidence Act- the facts judiciously noticeable need not to prove. Another Section 57 discloses that facts of which court must take the judicial notice. At the same time, the court should take judicial notice of Notification issued are published in the Gazette , the Court will take judicial notice of the same, if the State has filed copies of the relevant / 79 / C.C.No. 19685/2007 Notification before the Hon'ble High Court as additional evidence as per decision reported in AIR 1987 SCC 1713( UNION OF INDIA VS. NIHAR KANTA SEN) As such, the argument canvassed by the accused counsel is not sustainable under law. As such, in my opinion the Notification submitted by the prosecution is valid as well as the I.O. has authorized to conduct the investigation in this case.
47. The Ld. counsel for the accused draw attention of the Court that the Bank officials who are involved in the entire offence as mentioned by the prosecution in the FIR are not being chargesheeted and they were not sent for trial. It is no doubt as per FIR allegations, the prosecution has contended that the bank officials as well as Uma Builders and others are conspired with each other as well as tried to cheat the Bank have availed the loan and caused loss to the bank. During the course of investigation, the I.O. has left out the bank officials and submitted the chargesheet. The Ld.Asst.Public Prosecutor during the course of arguments submitted that, in view of the Bankers Act, the Managing Director of the Bank has not given permission to prosecute the bank officials. They have conducted separate enquiry against the bank officials. As such, the prosecution has not filed chargesheet against the bank officials. It is no doubt, whereas the permission is necessary under Bankers Act. The person who has authorized to issue permission to prosecute the bank officials has not / 80 / C.C.No. 19685/2007 granted permission. It is not proper to submit chargesheet by the prosecution. Mere the bank officials are not charge sheeted by the prosecution itself does not mean that, the accused persons are not involved in commission of the offences. The materials available on record clearly disclose that, the A1 and A2 are conspired with bank officials and encouraged the prospective buyers and submit loan application as well as obtain the loan in various banks on behalf of borrowers. The entire loan amount was misutilized by the accused No.1 and 2 as per document Ex.P112(30 cheques). The remaining witnesses in this case as well as bank officials have clearly stated in the evidence that, Uma Builders are encashed all the cheques issued by the bank through Mayuri Co-operative Society Ltd.. This fact is never denied by A1 and A2 during the course of cross-examination. The Ld. counsel for the accused draw attention of the court that merely A1 and A2 are received the amount from the bank, it does not constitute offence u/s.420, 120(B) of I.P.C. The act of A1 and A2 itself indicate that though they have one property situated at No.315/1, Kaggadasapura village, KR Puram, Bangalore measuring 62.5 X 48 feet the original owner i.e.. A-12 has obtained permission from the B.B.M.P. for construction of the apartment i.e.. six flats in the said property. However, as per the GPA and JDA, the A1 and A2 do not constructed six flats in the said property as per the Plan. Again they have obtained / 81 / C.C.No. 19685/2007 contract Agreement at Ex.P119 by A12 for construction of 13 flats in the same property obtaining permission from BBMP. However, A1 and A2 as GPA holder of A12 have not submitted Ex.P119 before the BBMP and obtained the further construction permission. Merely A-12 put the signature on these documents itself is not sufficient to hold that, he has involved in the conspiracy as well as cheating to the bank. The entire episode of this case disclose that, A1 and A2 are very clevers by obtaining all the signatures from the borrowers on the loan applications along with the relevant documents submitted to the bank. The bank officials acted on the documents submitted by the borrowers. The entire evidence of the bank officials disclose that, they were credited the entire loan amount sanctioned of the borrowers to the account of A1 and A2. The accused who are in this case as A-3 A-4, A7 to 11 and 13 are also contended in the written arguments that, they have submitted loan application to the bank for purchase of flats. However, the bank has sanctioned the loan and proceeds were credited to the account of Uma Builders. Borrowers have not received the loan amount but they are liable to pay the amount to the bank. It is unfortunate to mention that the remaining accused submitted loan application to the bank for availment of the loan but they have not benefited from the loan amount or provided with any flat. As per the evidence of the prosecution witnesses indicates that even A1 and A2 are the builders / 82 / C.C.No. 19685/2007 have not tried to construct the building as per the first sanctioned Plan. More over, A1 and A2 are encashed the entire loan amount as per Ex.P112 (30) cheques. In this case, A1 and A2 are benefited as per the documentary evidence marked at Ex.P112 (30 cheques). On this point accused counsel never tried to elicit anything to disbelieve that A1 and A2 do not benefited from the loan amount. As such, the intention of A1 and A2 is clearly indicates that they have conspired with each other as well as with an intention to cheat the bank, they have obtained multiple loan from the SBI., Syndicate Bank, Bank of Baroda, G.I.C. etc.. The bank has sanctioned the loan and credited to the account of A1 and A2 is clearly noticed that the A1 and A2 are benefited the loan amount as well as they are not tried to repay the loan amount or construct the flats. The accused counsel draw attention of the court that, the main accused are bank officers as per FIR they are not charge sheeted. As such A1 and A2 are not possible to hold that, they have made any conspiracy or cheating to the bank. On this point, I would like to mention that there is sufficient materials on record as well as oral testimony of the bank officials disclose that the accused NO.1 and 2 are encashed the loan amount as per Ex.P112 document. As such, the argument advanced by the accused counsel is not helpful to the A1 and A2. At the same time, accused counsel never tried to put any suggestion to the Syndicate Bank and Bank of Baroda officials that the / 83 / C.C.No. 19685/2007 A1 and A2 are not encashed any amount as per loan sanctioned by the bank. It clearly indicates that accused NO.1 and 2 are benefited by the loan amount of the accused persons who have submitted loan application before the Bank of Baroda and Syndicate Bank. As such, I would like to mention that there is some omission and admission of PW 1 and 2 during the course of evidence is not helped the accused in order to disprove the case of prosecution. The Ld. counsel for accused draw attention of the court that , prosecution has not examined the Investigating officer in order to prove the documentary evidence as well as the oral evidence of the prosecution witnesses. It is unfortunate to mention that during course of trial the I.O. who has conducted the investigation has expired . As such prosecution is not possible to examine him. At the same time, another CBI police officer has registered the FIR, later on the matter was handed over to CW-76. It is further noticed that, prosecution is not able to cite him as a witness who has registered the FIR in this case. This itself is not possible to hold that, prosecution is not able to prove the case. Even for the sake of assuming that a person who has registered the case is examined as a witness, at the most he can depose on the basis of the documents and statement recorded by the deceased I.O. Cw-76. The non-examination of the I.O. is not fatal to the case of prosecution . The other evidence of the bank officials as well as material documents / 84 / C.C.No. 19685/2007 is sufficient to prove the guilt of the accused NO.1 and 2. As such, the argument advanced by the Ld.counsel for accused is not helpful to A-1 and A-2.
48. Now I would like to refer to the decisions relied by Ld.Counsel for A-1 and A-2 reported in :
2008 Crl.L.J.4598( State, Inspector of Police, Visakhapatnam, Vs.Surya Sankaram Karri) Wherein, it is held that;
No-explanation offered by Investigating Officer(I.O.) for not filing authorising letter-
Further non-consideration of relevant documentary evidence by I.O. also not explained- Respondent accused had suffered miscarriage of justice as Investigation made by I.O. was not fair-Investigation illegal. I have gone through the above respected judgment. However, the facts discussed in the above respected judgment and the facts and circumstances of the present case are not one and the same. In this case, the prosecution has furnished the Notification issued by the State Government. Such being the case, in my opinion, the principles laid down in the above respected judgment is not applicable to the facts of the present case.
Another decision reported in - 1995 CRL.L.J.4181 ( SUPREME COURT ) (B.H.Narasimha Rao, Vs.Government of Andhra Pradesh, rep. by CBI.
/ 85 / C.C.No. 19685/2007 (A) Penal Code (45 of 1860) S.120.B-
Conspiracy-Accused charged for commission of offence in conspiracy with seven other- All other co-accused acquitted- Accused cannot be convicted for offence under S.120-B-Conviction under S.120-B on mere ground that accused was head of section of branch where fraud was alleged to be committed-Cannot also be sustained.
I have gone through the principles laid down in the above respected judgment. The facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are not one and the same. More over in the above respected judgment, accused is a Government officer. One accused is convicted and remaining other accused are acquitted by the trial court. On that point, the Hon'ble Apex Court has discussed in detail and reversed the judgment of the trial court and High Court. However, in the present case, A1 and A2 are the private persons as well as they are builders. They have benefit with loan sanctioned by the bank as well as they have encashed the loan proceeds on behalf of the borrowers. It is not disputed by A1 and A2. It clearly indicates that A1 and A2 are having an intention to cheat the Bank as well as borrowers and they have misutilized the loan amount. As such, the decision relied by the accused is not applicable to the facts of the present case. Another decision reported in 1985 Crl.L.J.1479 = AIR 1985 Supreme Court 1224 ( State of U.P. Vs/ Sukhbasi and others.
/ 86 / C.C.No. 19685/2007 Wherein, it is held that ; (A) Penal Code (45 of 1860), S.120B-Criminal conspiracy must be established.
To substantiate a charge under S.120B of the Code, there must be a criminal conspiracy at least between two or more persons.
In the present case, A-1 and A-2 are the husband and wife conspired with the Bank officials and they have obtained multiple loan from the different banks on the same property bearing No.315/1, Kaggadasapura village, K.R,Puram HObli, Bangalore. One can understand if the accused persons are deposited the title deeds of the different property in different bank, it would have been different one. A-1 and A-2 are influenced the bank officials to sanction the loan on the property which is already mortgaged in earlier banks. Inspite of it, it is not disclosed to the SBI., PPB Branch, Indira nagar. The intention of the accused NO.1 and 2 is clearly indicates that, they have not disclosed the true facts . They have tried to conspire with each other as well as had an intention to cheat the bank. It is no doubt in every case criminal conspiracy cannot be established by direct evidence. The said charge has to be established by circumstantial evidence . In this case, the bank officials of Syndicate Bank, Bank of Baroda as well as S.B.I., PPB Branch, Indira Nagar are categorically deposed that the Uma Builders ie. A1 and A2 deposited the title deeds of the same / 87 / C.C.No. 19685/2007 property and obtained multiple loan and it is encashed by them as per the oral and documentary evidence. Therefore, I come to the conclusion that the facts which are discussed in the above respected judgment as well as the facts of the present case are not one and the same. As such, the decision relied by the accused counsel is not applicable to the facts of the present case. Another decision reported in I.L.R.1995 KAR 2266 ( Basappa Vs/ State of Karnataka ) Wherein it is held that,CRIMINAL TRIAl- Non-examination of material witnesses. In the absence of examination of vital witnesses proceedings must fail and the benefit doubt must go to the accused.
I agree with the principles laid down in the above respected judgment. However, in the present case, the evidence of the bank officials are clearly established the case of the prosecution. Such being the case, as I.O. is dead, the prosecution is not possible to examine which is not fatal to the case of prosecution and the decision relied by the accused is not applicable to the facts of the case. Another decision reported in (2204) 11 Supreme Court Cases 291 ( SAKATAR SINGH AND OTHERS VS. STATE OF HARYANA) Wherein it is held that, "Hearsay evidence- Statement of witness and based on his personal knowledge but on what he heard from others- Held inadmissible".
/ 88 / C.C.No. 19685/2007 I agree with the principles laid down in the above respected judgment as well as arguments canvassed by the accused counsel. However, the bank officials are categorically deposed on the basis of documents submitted by the accused persons merely on the basis of documents deposed by the bank officials does not mean that their evidence is hearsay evidence. The evidence of circumstantial witnesses also supports the case of the prosecution. The facts and circumstances discussed in the above judgement as well as facts of the present case are not one and the same. As such the decision relied by the accused counsel is not applicable to the facts of the present case. Another decision reported in : (2005) 10 Supreme Court Cases 336 ( UMA SHANKAR GOPALIKA Vs. STATE OF BIHAR AND ANOTHER).
Wherein it is held that, "S.420/120-B-
Cheating - Requisites to Constitute an offence of - Breach of contract, held, would amount to cheating only if intention to cheat was existing at the very inception."
The principles laid down in the above respected judgement as well as the facts and circumstances of the present case on hand are not one and the same. More over, whereas the SBI., PPB came to know that A1 and A2 are availed loan in some other bank i.e. Syndicate Bank, Bank / 89 / C.C.No. 19685/2007 of Baroda , G.I.C etc. they could have immediately proceeded to take action against the accused persons. As such, in my opinion, the principles laid down in the above respected judgment is not applicable to the facts of the case.
I have gone through the other decisions relied by the accused counsel. The facts which are discussed in the above respected judgment as well as facts of the present case are not one and the same. As such, the decision relied by the accused are not applicable to the facts of this case.
The Ld.counsel for the accused submitted written arguments in page No.10 para (d), it is submitted that, " mere securing the loan is not an offence. Further the prosecution has not way proved that there is no bar for a borrower to secure the loan from multiple financial institutions. Infact it is for the financial institutions to insist upon the documents that is required by them to grant loan. Mere depositing of amount in the account of the A1 and A2 does not in any way constitute an offence under Sec. 420, 467,468 of IPC. NO allegation against A-1 and 2 that they have induced the said bank and produced the forged documents in order to secure loans is made. "
On this point, this Court has clarified that mere securing loan is not an offence. However, the person who has secured loan has to / 90 / C.C.No. 19685/2007 deposit the title deeds as well as the material documents. In the present case, A1 and A2 are availed loan from the Syndicate Bank, PPB Br., by depositing the title deeds . However, they have not disclosed the same fact before SBI, PPB., Br. It clearly indicates that A1 and A2 are having intention to cheat the SBI , they have not disclosed their earlier documents as well as availment of the loan on the same property. In general, the bank officials are scrutinize the title deeds as well as believed the legal opinion issued by the Panel Advocate. It is no doubt the documents which are pertaining to the property No.315/1, Kaggadasapura village, K.R.Puram Hobili, which stands in the name of Accused No.12 . There is no dispute about the title of the property.
However, in order to deceive the borrowers as well as bank, the accused No. 1 and 2 are deposited the title deeds in Multiple bank and obtained loan. This itself is sufficient to hold that A1 and A2 are conspired as well as had an intention to cheat the bank; they availed multiple loan on the same property and caused loss to the bank. The entire evidence placed by the prosecution clearly shows that Accused No. 1 and 2 with an intention to cheat the bank and borrowers have availed loan from the bank by assuring the borrowers that they would provide flats to them. But after receiving the loan amount they have not provided the flat to any one of the borrowers. As such, in my / 91 / C.C.No. 19685/2007 opinion, the prosecution is able to prove the guilt of the offence against Accused No. 1 and 2 by oral and documentary evidence.
49. Now I would like to discuss about the evidence and documents against accused No.12. Before going to discuss the oral evidence of the prosecution witnesses as well as documents, I would like to mention some admitted facts of the case. It is undisputed fact that A-12 is the owner of the property bearing No.315/1, Kaggadasapura village, K.R.Puram Hobli, Bangalore. It is an undisputed fact that there was Joint Development Agreement between A12 and A1- and A2. It is an undisputed fact that there was registered G.P.A executed by A-12 in favour of A1 and A2. It is an undisputed fact that A-12 had obtained the construction permission from the BBMP. It is the case of the prosecution that, this A-12 has also made criminal conspiracy with an intention to cheat the Bank and he has colluded with A1 and A2 and obtained loan amount and caused loss to the Bank. In order to prove the said allegations, the prosecution has examined in this case all the bank officials as well as other circumstantial witnesses and got marked Ex.P1 to Ex.P166. However, the evidence of the bank officials never discloses that this A-12 has submitted any forged or fabricated documents as well as he was benefited from the loan sanctioned by the bank. At the same time, once this accused has / 92 / C.C.No. 19685/2007 executed registered G.P.A. and J.D.A. in favour of A1 and A2 to proceed for construction of Apartment in his property, then the question does not arise that this accused as to conspiracy or cheating to the bank to submit any documents. It is the duty of the builder to secure any loan or permission for construction of the building. In this case, none of the bank officials deposed that this accused present before the bank and submitted any documents. More over the bank officials have not identified this accused person and some of the witnesses deposed that they have seen him for the first before this court. Equally the bank officials and bank advocate had scrutinized the documents of title deeds and other documents furnished by A1 and A2 are correct, this accused has lost everything including his property which is lying abundantly that there was any plan for construction of 12 flats. The bank official should have asked for the same from A1 and A2 who has submitted all the necessary documents for sanction of the loan to the prospective buyers of the flats. But for the reasons best known to them, they did not choose to do it. At the same time the evidence of the bank officials and other circumstantial witnesses examined by the prosecution do not disclose that this accused has conspired with A-1 and A-2 and tried to cheat the bank . This accused has submitted documents, during the course of arguments it is noticed that this accused has lodged complaint against A1 and A2 and others. The / 93 / C.C.No. 19685/2007 matter is referred for C.O.D. enquiry. Later on the COD police had filed the chargesheet against A1 and A2 and others. The Court has registered the case as CC.No.9304/2010 against A1 and A2 and others. As per the evidence and documents relied by the prosecution, one thing is clear that, this accused being the owner of the property, he has executed the Joint Development Agreement as well as General Power of Attorney and Contract Agreement . These documents are never disputed by the bank at the time of sanction of loan. More over, the second Contract Agreement between this accused as well as A1 and A2 is not acted upon by A1 and A2. Such being the case, on the basis of the Ex.P118, it is not possible to hold that this accused is having any intention to cheat the bank and conspired with A1 and A2. More over the Sub-Registrars are examined as prosecution witnesses. They deposed that this accused has executed 16 registered sale deeds. However, during the course of cross examination by accused counsel, all the Sub-Registrars deposed that due to oversight they have deposed in the chief-examination as this accused has executed sale deed. But, A-1 has executed all the sale deed as GPA holder of this accused. This indicates that though A1 and A2 are not having right over the property to execute such sale deeds inspite of it, they have executed 16 sale deeds in favour of prospective buyers and obtained amount from the bank. As per the document marked at Ex.P116 registered J.D.A. only / 94 / C.C.No. 19685/2007 six flats were to be constructed and A-1 was only to execute four sale deeds as per the documents Ex.P12, Ex.P37, Ex.P44 and Ex.P86(b) and Ex.P64(a). Accused NO.1 has executed 09 Agreement of Sale. Accused No.1 has not at all acted upon J.D.A. and G.P.A. executed by A-12. This itself indicates that as per the documentary and oral evidence adduced by the prosecution, A-1 and A-2 are benefited on the documents executed by this accused. From the evidence it is clear that this accused No.12 neither benefited to the loan transaction taken place between A-1 and A-2 as well as prospective buyers after sanction of the loan to the prospective buyers i.e. A-3 to A-5, A7 to 11 and A13. The loan amount is directly credited to the account of the builders as per the authorization letter given by the prospective buyers. The role of this accused as a privy to criminal conspiracy with other accused does not arise at all. Since all the title deeds of the property are genuine as stated by the Panel Advocate. As such, it is not possible to hold that this accused person has submitted any forged or fabricated documents.
50. The entire gist of the prosecution case as well as evidence and admission given by the prosecution witnesses clearly go to show that the bank officials who are to make preliminary examination on the validity of the documents i.e. title deeds of property marked at Ex.P116 / 95 / C.C.No. 19685/2007 to 119 thereby they were further referred for further legal opinion as per Ex.P126 by their advocate against the legal opinion tendered at Ex.P126 opined all the documents are genuine and can be acted upon. More over as per the evidence and documents , this accused never benefited from the loan sanctioned by the bank. He has lost his property as on today. As such, I come to the conclusion that, there is no evidence against this accused No.12 that he has committed the alleged offence.
51. In considering the over all facts and circumstances of the case the oral and documentary evidence, I come to the conclusion that, the prosecution is able to prove the guilt of the accused NO.1 and 2 for the offences punishable u/s.120-B and 420 of I.P.C. beyond all reasonable doubts. Hence, I answer Point No.1 and 5 in the affirmative against A-1 and A-2 and negative against A-12.
52. Point No.6 :- In view of my findings to the Point Nos. 1 to 5 as above, I pass the following :
/ 96 / C.C.No. 19685/2007
ORDER
Acting U/s.248(2) of the Cr.P.C. Accused No.1 and 2 are found guilty for the offences punishable under Sec. 120(B), 420 of I.P.C. and they are convicted.
Acting U/s.248(1) of Cr.P.C. Accused No.3, 4, A-7 to 13 are hereby acquitted for the offences punishable under Sec. 120(B) r/w/s 420, 467, 468, 471 of IPC The bail bonds and surety bonds of A-3, A4, A7 to A13 are stands cancelled.
For hearing on sentence.
[Dictated to the Stenographer, transcribed by her, and some text of the Judgment is dictated directly on computer, transcript corrected and then signed and pronounced by me in the open Court, this the 31st day of January, 2015.] (SABAPPA) XVII Addl. Chief Metropolitan Magistrate, Bangalore.
**
/ 97 / C.C.No. 19685/2007
ANNEXURE
I. List of witnesses examined for the prosecution :-
PW 1 : Shantaram Shenoy PW2 : Lokesh PW3 : K.V.Srinivasa murty PW4 : N.G.Jayaprasad PW5: B.Krishna kamat PW6 : K.S.Ngabhushan PW7 : Arun Shanbhag PW8 : C.Suresh PW9 : R.V.Mukund PW10: T.P.Chandrababu PW11: S.Nagaraj PW12: Smt. Latha Ganeshan PW13: Smt.Nagamani Venkatesh PW14: Akash Agarwal PW15: Smt. Subhasini V. PW16: N.Ananda kumar PW17: K.S.Gouthamchand PW18: G.V.Kumar PW19: S.Ayyappan.
PW20: Pramod P.P. PW21: C.J.Prabhakara PW22: Dharamchand PW23: K.Nagraj II. List of witnesses examined for the defence :-
DW-1: S.A.Praveen(A4) III. Documents exhibited on behalf of the prosecution:
Ex.P.1: Appraisal / 98 / C.C.No. 19685/2007 Ex.P.2: opinion report Ex.P.3: Inspection report Ex.P.4: arrangement letter Ex.P.5: Control form Ex.P.6: request letter Ex.P.7: preliminary report Ex.P.8: request letter Ex.P.9: construction agreement Ex.P.10: agreement of sale Ex.P.11: control form Ex.P.12: agreement of sale Ex.P.13: construction agreement Ex.P.14: appraisal form Ex.P.15: preliminary information Ex.P.16: construction agreement. Ex.P.17: agreement of sale Ex.P.18: preliminary information. Ex.P.19: opinion report Ex.P.20: inspection report Ex.P.21: appraisar Ex.P.22: control form Ex.P.23 & 24: two arrangements letters Ex.P.25: control form Ex.P.26: loan application form Ex.P.27: valuation report Ex.P.28: loan statement Ex.P.29: loan application form Ex.P.30: construction agreement Ex.P.31: agreement of sale Ex.P.32: agreement Ex.P.33: request letter Ex.P.34: standing instruction Ex.P.35: arrangement letter Ex.P36: control form Ex.P37: request letter Ex.P38: appraisal loan / 99 / C.C.No. 19685/2007 Ex.P39 inspection report Ex.P40; preliminary information Ex.P41: Tripartite agreement Ex.P42: loan application Ex.P43: Construction agreement Ex.P44: Agreement of sale Ex.P45; arrangement letter Ex.P46: control form Ex.P47: agreement Ex.P48: Memorandum of term loan agreement Ex.P49: request letter.
Ex.P50: standing instructions Ex.P51: loan appraisal Ex.P52: inspection report Ex.P53: opinion report Ex.P54: preliminary information Ex.P55: request letter Ex.P56; a/c opening form Ex.P57: request letter Ex.P58 To 60: 3 salary slips Ex.P61 & 62: 2 loan statements Ex.P63: loan application Ex.P64: construction agreement Ex.P65: arrangements letter Ex.P66: control form Ex.P67: agreement Ex.P68: Memorandum of term loan agreement Ex.P69: request letter Ex.P70: standing instruction Ex.P71: loan appraisal Ex.P72: inspection report Ex.P73: opinion report Ex.P74: preliminary information Ex.P75: request letter Ex.P76: a/c opening form / 100 / C.C.No. 19685/2007 Ex.P77: arrangement letter Ex.P78: control form Ex.P79: appraisal form Ex.P80: inspection report Ex.P81: Memorandum of term loan Ex.P82: loan application Ex.P83: letter of undertaking Ex.P84: CC of loan statement Ex.P85: cc of loan statement Ex.P86: loan papers of krishnakumar Ex.P87: loan documents Ex.P88: loan documents Ex.P89: loan documents Ex.P90: statement of account and And valuation report Ex.P91:
Ex.P92: LOAN Documents Ex.P93: loan application.
Ex.P94: valuation report Ex.P95: agreement Ex.P96: Memorandum of term loan agreement Ex.P97: standing instruction Ex.P98 &99:2 request letters. Ex.P100: Loan statement Ex.P101: Valuation report Ex.P102: loan statement Ex.P103: valuation report Ex.P104: request letter Ex.P105: account opening form Ex.P106: standing instruction Ex.P107: Loan statement Ex.P108: Housing loan application. Ex.P109: valuation report. Ex.P110: loan statement Ex.P111: letter Ex.P112; bunch of documents.
/ 101 / C.C.No. 19685/2007
Ex.P113
& 114: 2 circulars
Ex.P115: plan
Ex.P116: Xerox coy of E.C.
Ex.P116a: Signature of PW18
Ex.P116(b)
(c ) :Signature of A2 and A12
Ex.P116(d)
(e) :signatures
Ex.P117: GPA
Ex.P117a: Signature of PW 18
Ex.P117(b)
&© : Signature of A12 and A2
Ex.P117(d)
(e) : Signatures
Ex.P118; contract agreement
Ex.P119: contract agreement
Ex.P120: legal opinion
Ex.P121
To 126: legal opinions
Ex.P127
& 128: 2 construction agreements
Ex.P129
& 130: 2 agreements
Ex.P131: account extract
Ex.P131a signature of pw-5
Ex.P132: details pertaining to the loans
Ex.P132a; signature of pw-6
Ex.P133: letter
Ex.P133a: signature of Sr.Manager
Ex.P134
&135: 2 office copy of letters
Ex.P136: letter dtd 24-6-04.
Ex.P137: covering letter dtd 24-11-04.
Ex.P138: details of loan
Ex.P139: letter dtd. 27-6-04.
/ 102 / C.C.No. 19685/2007
Ex.P140: Reply
Ex.P.140a: signature of pw-7
Ex.P141: letter dtd 9-8-04
Ex.P142: letter dtd. 10-8-04.
Ex.P143: letter dtd.10-8-04
Ex.P143a: signature of Sr.manager
Ex.P144: report
Ex.P145 Letter dtd 28-6-04.
Ex.P145a: signature
Ex.P146: letter dtd. 14-7-04.
Ex.P147: letter dtd 22-7-04.
Ex.P148: letter dtd 4-8-04
Ex.P149: memo dtd. 10-12-06.
Ex.P149a: signature
Ex.P150: letter
Ex.P151: complaint
Ex.P152: mahazar
Ex.P152a: signature.
Ex.P153: Covering letter dtd.153(a)
Ex.P153(a):signature
Ex.P154: Sale deed
Ex.P155: Receipt dtd.18-10-2005.
Ex.P155(a) Signature
Ex.P156: Details pertaining to cheque.
Ex.P157: Covering letter dated 9-3-2006
Ex.P157(a): signature of PW 19
Ex.P158: Statement of account
Ex.P159: letter dated 18-1-2006.
Ex.P159(a) signature of the then Director
Ex.P160: Covering letter dated 6-7-2006
Ex.P160(a): signature
Ex.P161: EC Form No.15.
Ex.P161a: Signature of PW 21
Ex.P162
To 166: 5 Form No. 15
/ 103 / C.C.No. 19685/2007
IV. List of documents exhibited for defence :- Ex.D-1 : Certificate issued by the panel advocate.
Ex.D-2 : Document
Ex.D-3 : Confidential letter
XVII Addl. A.C.M.M.,
Bangalore.
/ 104 / C.C.No. 19685/2007
07-02-2015.
ORDERS ON HEARING OF SENTENCE.
Accused No.1 and 2 are present. The Learned counsel Sri.C.M.S. for the accused No.1 and 2 is present and submitted argument regarding the sentence that the accused No.1 and 2 are having health problem like heart as well as B.P. and sugar and spinal cord problem. They are permanent resident of Bangalore. If they are sentenced to imprisonment, it would cause greater hardship to them.
Accused No.1 and 2 were already in judicial custody about 03 months. Therefore prayed to take lenient view while passing sentence.
APP is also present. Heard the arguments. Learned APP for the prosecution submitted that, the accused No.1 and 2 are found guilty for the offences which are serious in nature and therefore maximum punishment may be imposed and the accused No.1 and 2 be sentenced accordingly.
/ 105 / C.C.No. 19685/2007 On hearing the arguments addressed by the Ld. Counsel for the accused No.1 and 2 and also learned APP, and also on hearing the accused No.1 and 2 regarding the sentence, I am of the opinion that the accused No. 1 and 2 who are found guilty for the offences under Sections-120-B, r/w/s 420 of IPC., which are all the offences touching the economy of the State. I have also perused Section 3 and 4 of Probation of Offender's Act. In my opinion, in such a case benefit under P.O. Act cannot be extended. Therefore, considering the above circumstances and as the accused No.1 and 2 are found guilty for the offences mentioned above, I hold that a period of jail sentence is necessary in the present set of facts.
On perusal of the Ordersheet, the I.O. has submitted the FIR before the Hon'ble 21st Addl.City Civil & Sessions Judge Court (Spl.Court for CBI cases) (CCH-4) At the initial stage, the A1 and A2 were arrested and produced before the 21st Addl.City Civil & Sessions Judge Court. A-1 and 2 applied for bail application u/s.437 of Cr.P.C. and the same / 106 / C.C.No. 19685/2007 was rejected by the said Court and remanded the accused No.1 and 2 to the judicial custody. Later on the accused No.1 and 2 have moved bail application u/s.167(2) of Cr.P.C. The Hon'ble Spl.Court for CBI Cases(CCH-04) allowed the said bail application vide R.C.No.22(A)/2004 dated 16-1- 2007 and released the A1 and A2 on bail. Later on prosecution submitted the chargesheet for the offence punishable u/s. 120(B),R/w/s 420, 467, 468, 471 of IPC., before this Court. As such , the A1 and 2 who are in judicial custody for a period of 80 days are entitled benefit u/s.428 of Cr.P.C. for the said period.
In the present set of facts, on hearing the arguments submitted by both sides and considering the ailments suffering by the accused No.1 and 2, this Court has taken the lenient view and pass the following order :
ORDER
1) Accused No.1 and 2 are sentenced and they shall undergo simple imprisonment for a period of six months for the offence punishable / 107 / C.C.No. 19685/2007 under section 120-B of IPC and to pay a fine of Rs.2000/- each and in default of payment of fine amount, they shall undergo S.I. for 02 months.
2) Accused No.1 and 2 are sentenced and they shall undergo simple imprisonment for one year for the offence punishable under section 420 of IPC and to pay a fine of Rs.2000/- each and in default of payment of fine amount, they shall undergo S.I. for 03 months.
In all the accused No.1 and 2 shall pay a total fine of Rs.8,000/- ( Rs.Eight thousand only).
All the substantive sentences shall run concurrently.
The period of judicial custody already spent by the accused No.1 and 2 from 26-10-2006 to 16-01- 2007 ( 80 days) shall be set-off.
Supply a free copy of Judgment to the accused No.1 and 2 forthwith.
[Dictated to the Stenographer directly on computer, script corrected and then signed and pronounced by me in the open Court, this 7th day of February,2015.] [SABAPPA] XVII Addl. Chief Metropolitan Magistrate, Spl.Court for CBI Cases: Bangalore.
/ 108 / C.C.No. 19685/2007
31-01-2015
Judgment pronounced in the Open Court
( vide separately)
ORDER
Acting U/s.248(2) of the Cr.P.C. Accused
No.1 and 2 are found guilty for the offences
punishable under Sec. 120(B), 420 of I.P.C.
and they are convicted.
Acting U/s.248(1) of Cr.P.C. Accused
No.3, 4, A-7 to 13 are hereby acquitted for the
offences punishable under Sec. 120(B) r/w/s
420, 467, 468, 471 of IPC
The bail bonds and surety bonds of A-3,
A4, A7 to A13 are stands cancelled.
For hearing on sentence.
( SABAPPA)
XVII Addl.Chief Metropolitan Magistrate,
Bangalore.