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Bangalore District Court

The State By P.S.I vs S.P.Shankar S/O S.T.Perumal Naikar on 6 July, 2022

     IN THE COURT OF THE CHIEF METROPOLITAN
              MAGISTRATE, BENGALURU
                         Present:
              Sri.Patil Veeranagouda S.
                                    B.Com. LL.M.
             Chief Metropolitan Magistrate,
                       Bengaluru.
         Dated this the 06th day of July, 2022
                   C.C. No.18560/2017
Complainant:
              The State by P.S.I.,
              B.M.T.F. Police Station,
              Bengaluru.

              (By Sr. Assistant Public Prosecutor)
                         Versus
Accused:
              1. S.P.Shankar s/o S.T.Perumal Naikar,
                 Age:65 years,
              2. S.Ashok s/o S.P.Shankar,
                 Age:36 years,

              3. S.Arun s/o S.P.Shankar,
                 Age:31 years,

              All are R/at No.2, Property No.14,
              Katha No.519, Whitefield Village,
              K.R.Puram Hobli, Bengaluru East Taluk.

              (By Sri Srinivasa.N., Advocate)
                                 2              C.C.No.18560/2017




      PARTICULARS U/S 355 OF THE Cr.P.C. 1973.

   1. Sl. No. of the Case           18560/2017

   2. The date of commission        Prior to 03/06/2015
      of the offence                (As per F.I.R.)
   3. Name of the complainant       D.K.Madhusudhan

   4. Name of the accused           S.P.Shankar & Two Others

   5. The offence complained of U/s.436(A) of KMC Act and
      or proved                 Sec.420 of IPC

   6. Plea of the accused and       Pleaded not guilty
      his/her examination

   7. Final Order                   Accused No.1 to 3 acquitted

   8. Date of such order            06­07­2022


                        JUDGMENT

The Police Sub­Inspector of B.M.T.F. Police Station has filed the final report against the accused for the offences punishable U/s.436(A) of KMC Act and Sec.420 of IPC. 3 C.C.No.18560/2017

2. The prosecution case is that the accused No.1 with an intention to cheat the Corporation had got registered 1,800 square feet instead of 01­03 guntas (1415.7 square feet) purchased by him, in favour of his sons accused No.2 and 3 before the Sub­Registrar, K.R.Puram on 26­05­2006. Further, it is alleged that there was 8 feet road towards the west of said property and the building constructed by accused measures 6.2 feet on the one side and 6.4 feet on the other side by encroaching the road. That the accused have encroached 1.8 x 30 = 54 feet road and constructed the compound and erected the Gate. Accordingly, CW1 lodged first information statement before the B.M.T.F. Police. The said police have registered the case and issued FIR. After investigation, the IO has filed the charge sheet against the accused persons for the above said offences. 4 C.C.No.18560/2017

3. During crime stage, the accused No.1 to 3 obtained anticipatory bail and thereafter by appearing before this court, they have obtained regular bail. This Court after taking cognizance issued summons to the accused. In pursuance of summons, the accused have appeared before the court. The prosecution papers furnished to them in compliance of sec. 207 of Cr.P.C.

4. After hearing both the sides, my predecessor in office has framed the charges, read over and explained to the accused persons, wherein they pleaded not guilty and claimed to be tried.

5. To substantiate its case, the prosecution has examined five witnesses as PW.1 to 5 and got marked twelve documents as per Ex.P.1 to 12. CW2 is given up by the 5 C.C.No.18560/2017 prosecution. Inspite of taking coercive steps the concerned police have not secured CW4, so the side of the prosecution evidence was taken as closed.

6. Thereafter, accused No.1 to 3 were examined U/Sec.313 Cr.P.C. to enable them to explain the incriminating evidence appeared against them in the evidence of prosecution witnesses. They denied the same and chosen to lead defence evidence. The accused No.3 got examined himself as DW1 and got marked documents as per Ex.D4 to

19. During cross­examination of prosecution witnesses, the accused have got marked three documents as per Ex.D1 to 3.

7. Heard both sides and perused the material available on record, the points that arise for my determination are:

1. Whether the prosecution proved beyond reasonable doubt that the accused No.1 with an intention to cheat the Corporation had got registered 1,800 square feet instead of 01­03 guntas (1415.7 square feet) purchased by him, in favour of his sons accused No.2 and 3 before the Sub­Registrar, K.R.Puram on 26­05­2006, though there was 8 feet road towards the west of said property, the building constructed by accused measures 6.2 feet on the one side and 6.4 feet on the other side by encroaching the road, the accused have encroached 1.8 x 30 = 54 feet road and constructed the compound and erected the Gate and thereby committed the offences punishable U/sec.436(A) of KMC Act and 420 of IPC?

2. What order?

8. My findings on the above points are as under:

Point No.1: In the negative 7 C.C.No.18560/2017 Point No.2: As per final order for the following:

REASONS

9. Point No.1: In this case, the person who has given complaint before the S.P., Special Task Force, BMTF is examined as PW1, the first informant is examined as PW2, the mahazar witness is examined as PW3, the I.O. who has completed the investigation and filed the final report is examined as PW4 and the I.O. who has registered the case and handed over the case file for further investigation to PW4 is examined as PW5.

10. PW1/Julies has deposed in his evidence that accused Shankar has erected staircase by encroaching 3 feet on the road, as a result of which there was difficulty for the movements. That he has lodged complaint as per Ex.P1 and the police visited spot and conducted mahazar. Even after 8 C.C.No.18560/2017 issuance of notice, the accused did not demolish the staircase, so the BMTF police have demolished it and he has identified the photographs as per Ex.P2 to 7.

11. During cross­examination, PW1 admitted that Nanjamma had purchased 1.35 guntas of land under registered Sale Deed on 24­01­1981 from Muniyamma, the certified copy of same was marked at Ex.D1. He also admitted that the said Nanjamma has executed the Sale Deed in favour of his mother Shantha Mary, wherein the area of 1,740 sq. feet has been mentioned and the certified copy of said Sale Deed is marked at Ex.D2. He expressed his ignorance that in Ex.D1, it has been mentioned that 8 feet of property was kept by Muniyamma for herself. He also expressed his ignorance that with regard to said property, Muniyamma has filed the suit in OS No.800/2010. Further he admitted 9 C.C.No.18560/2017 that 1.35 guntas will comes to 1,470 sq. feet. He denied the rest of suggestions put to him.

12. PW2/Madhusudhan being the Assistant Executive Engineer working in BBMP Office and first informant has deposed that during the year 2015, a letter was received from the BMTF Police stating that the accused have encroached the road. When he along with others visited the spot, they came to know that 1 feet 8 inches of road has been encroached by the accused. Accordingly, he told the accused to vacate the same and lodged first information as per Ex.P8 and also prepared sketch map as per Ex.P9. He further deposed that the police visited spot and conducted mahazar as per Ex.P10 and he has also identified the photographs taken at spot, which were already marked as Ex.P2 to 7. 10 C.C.No.18560/2017

13. During cross­examination, PW2 has categorically admitted that they have already intimated to close this case, the said document is marked at Ex.D3. He further admitted that he has not saw the village map of Whitefield Village and he has not seen single document to show that the accused have encroached upon the government land. He also admitted that as per Ex.P9, the complainant is in possession of the property measuring 2,059.75. He also admitted that the villagers have given an application alleging that the PW1 has encroached the property of BBMP. However, he denied that the said PW1 in collusion with BMTF police got this case lodged through him. He denied the other suggestions put to him.

14. PW3/Anilkumar.G. being the mahazar witness has deposed that on 20­07­2015, PW2 visited the spot along with 11 C.C.No.18560/2017 BMTF police, wherein it was found that the accused had encroached upon public place to an extent of 54 sq. ft. Accordingly, they have drawn mahazar as per Ex.P10.

15. During the cross­examination, PW3 has denied all the suggestions put to him by the advocate for accused.

16. PW5/Srinivas, being the earlier I.O. has deposed that on 03­06­2015, he received the first information, on the basis of which he has registered the case and issued FIR as per Ex.P12 and handed over the case file to PW4 for further investigation.

17. PW4/Krishnakumar being the further Investigating Officer has deposed that he has received the case file from PW5 and conducted further investigation, prepared the spot panchanama as per Ex.P10 in the presence of panchas and 12 C.C.No.18560/2017 collected necessary documents from the ARO, Whitefield and after completion of investigation submitted charge sheet against accused. It is his further evidence that the ARO had produced Ex.D1 to 3 and the photocopy of sketch was marked as Ex.P11.

18. During cross­examination, PW4 and 5 have denied all the suggestions posed to them by the counsel for accused.

19. In order to defend their case, the accused No.3 got examined himself as DW1 and got marked Ex.D4 to 19. He has deposed in his evidence that his father had purchased two properties in Sy.No.14 and 14/B from Guruswamy and Nagaraj, measuring 1.5 and 2 guntas, the original owner of the said properties is Muniyamma, who had left road to ingress and egress on her property. So there was no 13 C.C.No.18560/2017 encroachment made by them. On the other hand, six civil suits are pending with regard to the said property. When the police have conducted mahazar, the PW1 was in possession of 2,000 sq. feet, whereas in his Sale Deed only 1,400 sq. feet is mentioned. Therefore, the PW1 himself has encroached the property. In this regard, he has produced photographs, which were marked at Ex.D4. The certified copies of Sale Deeds of accused No.1 and his father, interim order passed in OS No.800/2010, order sheet and plaint in the said suit were marked at Ex.D5 to 9. The documents pertaining to the survey and records of rights of the said property were marked at Ex.D10 to 12. The certified copy of order passed in OS No.626/2010, the requisition letter of his father and other two purchasers were marked at Ex.D13 to 15. He also produced the copy of invoice, RTI application, endorsement 14 C.C.No.18560/2017 and the copy of letter issued by BBMP as per Ex.D16 and 17. The seven photographs and the letter given by AEE of BBMP to PSI are marked as Ex.D18 and 19.

20. During the cross­examination made by learned Sr.APP, DW1 has denied all the suggestions put to him. Nothing worth was elicited from his mouth to disbelieve his version.

21. After having gone through the oral as well as documentary evidence, it clearly goes to show that the compound wall of the accused was already demolished, which was also admitted by the prosecution. The important aspect here in this case is Ex.D3, which is the letter given by PW2 to the I.O. that the accused have already demolished the 15 C.C.No.18560/2017 said compound, gate and allowed the public for movement on the said road, so he prayed to close the case. This is material admission as well as document which was elicited during the cross­examination of PW2. Even then, I failed to understand why the police have continuing with this case.

22. It is also elicited during the cross­examination of PW1 that as per the Sale Deed, they have purchased property measuring 1,740 sq. feet, whereas on perusal of the sketch prepared by PW2 as per Ex.P11, the property in which the PW1 is in possession has been shown as 2,059.75 sq. feet. The PW1 has expressed ignorance about the civil disputes pending with regard to the property. Moreover he has categorically admitted that the accused have demolished the staircase erected by them.

23. The admission of PW1 and 2 will clearly goes to show that the accused have demolished the so called encroached portion of BBMP. However the contention of the advocate for accused is appears to be having force that the PW1 in collusion with the other officials has got registered the case and still it is continuing, despite the letter given by PW2, for closure of the case.

24. The evidence of mahazar witness and other police witnesses are not so important because they have deposed as per the case of prosecution. On perusal of the evidence of DW1 and the documents produced by accused, it clearly goes to show that there are several civil cases pending with regard to the disputed property and the PW1 is appears to have in possession of in excess of the land purchased by his father as 17 C.C.No.18560/2017 per sale deed. Under such circumstances, the contention of the learned counsel for accused that only in order to harass the accused, this case has been filed cannot be ruled out. It is not forthcoming from the records that the concerned police have taken any action against PW.1 even then he is in possession of excess land than the land shown in his sale deed.

25. Looking to the material placed on record, the prosecution has miserably failed to prove the alleged offences against the accused persons beyond reasonable doubt. So, I am of the considered opinion that the prosecution has totally failed to bring home the guilt of the accused persons for the alleged offences. So, I have no hesitation to answer the above point against the prosecution. Hence, I answer the above point in the negative.

26. Point No.2:­ For the foregoing discussion and my findings to the above point, I proceed to pass the following:

ORDER Accused No.1 to 3 are hereby acquitted of the offences punishable U/s.436(A) of K.M.C. Act and 420 of IPC by acting under Section 248 (1) of Cr.P.C.

Their bail bonds stand cancelled. However, in view of Section 437­A of Cr.P.C the same shall be in force for 6 (six) months.

(Dictated to the stenographer directly on the computer, typed by him, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 06th day of July, 2022.) (Patil Veeranagouda S.) Chief Metropolitan Magistrate, Bengaluru.

ANNEXURE Witnesses examined for the prosecution :

PW1 : Julies s/o G.Augustine PW2 : Madhusudhan s/o Krishnegowda PW3 : Anilkumar.G. s/o Gopal PW4 : Krishnakumar s/o Sridharan PW5 : Srinivas.V.T. s/o Thimmaiah Documents marked on behalf of the prosecution:

Ex.P1 : First Information Statement Ex.P1(a) : Signature of PW1 Ex.P2 to 7: Photographs Ex.P8 : Complaint Ex.P8(a) : Signature of PW2 Ex.P9 : Sketch Ex.P9(a) : Signature of PW2 Ex.P10 : Spot Mahazar Ex.P10(a) : Signature of PW2 Ex.P10(b) : Signature of PW3 Ex.P10(c) : Signature of PW4 Ex.P11 : Xerox copy of Sketch Ex.P12 : F.I.R.

Ex.P12(a) : Signature of PW5 20 C.C.No.18560/2017 Witnesses examined for the defence:

DW1 : Arun s/o S.P.Shankar Documents marked on behalf of the defence:

Ex.D1 : C.C. of Sale Deed dated 24/01/1981 Ex.D2 : C.C. of Sale Deed dated 01/03/2002 Ex.D3 : Copy of letter written by PW.2 Police Ex.D4 : Nine photographs Ex.D5 : C.C. of Sale Deed dated 22/02/2007 Ex.D6 : C.C. of Sale Deed dated 07/08/2007 Ex.D7 : C.C. of IA in OS No.800/2010 Ex.D8 : C.C. of Order Sheet in OS No.800/2010 Ex.D9 : C.C. of plaint in OS No.800/2010 Ex.D10 : C.C. of Survey Measurement Ex.D11 : RTC extract of Sy.No.14/p1 Ex.D12 : RTC extract of Sy.No.14/p1 (copy) Ex.D13 : C.C. of Order Sheet in OS No.626/2010 Ex.D14 : Notarized copy of letter Ex.D15 : Notarized copy of letter dated 06­07­2015 Ex.D16 : Invoice (online RTI) Ex.D17 : RTI application along with enclosures Ex.D18 : Seven photographs Ex.D19 : Photograph of letter Chief Metropolitan Magistrate, Bengaluru.

06­07­2022 Judgment pronounced in the open court vide separately ORDER Accused No.1 to 3 are hereby acquitted of the offences punishable U/s.436(A) of K.M.C. Act and 420 of IPC by acting under Section 248 (1) of Cr.P.C.

Their bail bonds stand cancelled. However, in view of Section 437­A of Cr.P.C the same shall be in force for 6 (six) months.

Chief Metropolitan Magistrate, Bengaluru.