Bangalore District Court
The State By Police Inspector vs Muddukrishna.T.L. S/O Late ... on 20 February, 2023
Digitally signed by
veeranagouda
veeranagouda somashekharagouda
KABC031003122017 somashekharagouda patil
patil
Date: 2023.02.20
17:50:11 +0530
Presented on : 23-09-2017
Registered on : 23-09-2017
Decided on : 20-02-2023
Duration : 5 years, 4 months, 27 days
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 20 th day of February, 2023
C.C. No.23418/2017
Complainant:
The State by Police Inspector
B.M.T.F. Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
Versus
2 C.C.No.23418/2017
Accused:
Muddukrishna.T.L. s/o Late T.A.L.Naidu,
Age: 78 years, R/at No.25, 2nd Stage,
1st main road, Okalipuram, Bengaluru-21,
Mobile No.9341906199.
(By Sri V.Manjunath, Advocate)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 23418/2017
2. The date of commission Prior to 30-05-2014
of the offence (As per F.I.R.)
3. Name of the complainant C.Nataraj
4. Name of the accused Muddukrishna.T.L.
5. The offence complained of U/s.436(A) of KMC Act
or proved
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused Convicted
8. Date of such order 20-02-2023
3 C.C.No.23418/2017
J UD GME N T
The Police Inspector of B.M.T.F. Police Station has
filed final report against accused for the offence punishable
U/s.436(A) of KMC Act.
2. The prosecution case is that the accused being the
owner of BDA Site No.25, New Municipal No.75/73,
situated at 1st main road, Okalipuram, BBMP Ward No.96,
Bengaluru had encroached the Rajakaluve belonging to
BBMP prior to 30-05-2014 and constructed the building.
Accordingly, CW1 being the Joint Director of Town
Planning lodged first information before the B.M.T.F.
Police. The said police have registered the case and issued
FIR. After investigation, the I.O. has filed final report
against accused for the above said offence.
4 C.C.No.23418/2017
3. This Court took cognizance against accused for the
alleged offence. In pursuance of summons, the accused
appeared before this court and obtained bail by moving
application. The prosecution papers furnished to him in
compliance of sec.207 of Cr.P.C.
4. After hearing both the sides, my predecessor in office
has framed the charge, read over and explained to the
accused, where he pleaded not guilty and claimed to be
tried.
5. To substantiate its case, the prosecution has
examined in all six witnesses as PW.1 to 6 and got marked
five documents as per Ex.P.1 to 5. CW5 is given up by the
prosecution. Despite issuance of summons the concerned
police have not secured CW2, so the learned Sr. APP has
closed the prosecution side evidence.
5 C.C.No.23418/2017
6. Thereafter, accused was examined U/Sec.313 Cr.P.C.
to enable him to explain the incriminating evidence
appeared against him in the evidence of prosecution. He
denied the same and did not choose to lead any defence
evidence. Thus the defence of the accused is denial of
prosecution story.
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 all
reasonable doubt that the accused being
owner of BDA Site No.25, New Municipal
No.75/73, situated at 1st main road,
Okalipuram, BBMP Ward No.96, Bengaluru
had encroached the Rajakaluve belonging to
BBMP prior to 30-05-2014 and constructed
the building and thereby committed the
offence punishable U/sec.436(A) of KMC Act?
2. What order?
6 C.C.No.23418/2017
8. My findings on the above points are as under:
Point No.1 : In the affirmative
Point No.2 : As per final order for the following:
R EAS O N S
9. Point No.1: Before adverting into the factual matrix
of the case, it is pertinent to mention Section 436A(1) of
Karnataka Municipal Corporation Act, 1976, which reads
thus-
Prohibition of unauthorised
occupation of land.- (1) Any person who
unauthorisedly enters upon and uses or
occupies any land belonging to the
Corporation to the use or occupation of
which he is not entitled or has ceased to
be entitled, shall, on conviction, be
punished with imprisonment for a term
which may extend to three years and with
fine which may extend to five thousand
rupees.
7 C.C.No.23418/2017
10. After having gone through the above provision, it is
necessary to discuss the oral as well as documentary
evidence placed by the prosecution. In order to prove its
case, the prosecution has examined in all six witnesses as
PW1 to 6 and got marked five documents as Ex.P1 to 5.
11. PW2/C.Nataraj being the then Joint Director of Town
Planning and first informant has deposed that on 11-11-
2013, CW2 had lodged complaint that the accused is
constructing building by encroaching the government
space. In that regard, he had made letter correspondence
to concerned department seeking details. He lodged first
information as per Ex.P2 to take action against the
concerned for not leaving the set back and encroaching
upon the BDA site No.25.
8 C.C.No.23418/2017
12. During cross-examination, PW2 has denied the
suggestions put to him and nothing worth was elicited, so
as to dis-believe his evidence.
13. PW1/Vishwanath.H.R. being the then Town Planner
has deposed in his evidence that on the basis of complaint
lodged by CW2, there was orders for them to inspect the
spot. By giving intimation to A.E.E. of BBMP to come to
spot on 22-03-2014, they had inspected the spot and
reported to A.D.G.P. as per Ex.P1, where it was found that
there was encroachment and the building was constructed
in contravention to the plan.
14. PW1 has not been subjected to cross-examination, so
his evidence remained unchallenged.
15. PW4/Natesh Babu being the then A.E.E. of Bruhath
Rain Water Drain, Jayanagar, Bengaluru has deposed that
9 C.C.No.23418/2017
on the requisition of BMTF police, during February 2014
they had been to Okalipuram, 2 nd main road, BDA site
No.25, where they could know that the same belonged to
accused and there was encroachment on the Rajakaluve.
Accordingly they made letter correspondence to Survey
Department and got measured the same, who gave report
as per Ex.P3 along with sketch at Ex.P4.
16. During cross-examination, PW4 has denied all the
suggestions put to him. To the suggestion that accused has
not constructed the building in violation of law, he has
answered that it does not comes under his purview.
17. PW5 Rekha being the then Supervisor in the office of
Assistant Director of Land Records, Urban Measurement-
1, Bengaluru has deposed that on 03-02-2017, there were
directions from the Deputy Director's office to submit
10 C.C.No.23418/2017
report as there is a complaint regarding encroachment of
the Rajakaluve by the BDA Site No.25, CTS No.1330. As
such she along with the Assistant Director and Surveyor
had visited the spot, where they could see that there was
encroachment of 11 x 30 feet. That sketch as per Ex.P4
was prepared and submitted to superior officer.
18. During cross-examination, PW5 has denied all the
suggestions put to her and nothing worth was elicited to
dis-believe her evidence.
19. PW6 Sumarani.V. being the then PSI of BMTF P.S.
has deposed that on 30-05-2014 on the basis of Ex.P2
report given by PW2, she registered FIR as per Ex.P5
and handed over the case file to PW3 for further
investigation.
11 C.C.No.23418/2017
20. PW3/Savitha being the then P.I. of BMTF P.S. has
deposed that on 22-09-2016, she received the case file
from P.I. - Parameshwar and continued the investigation.
As per the directions given, the Executive Engineer of
concerned department has given Ex.P3 report and Ex.P4
sketch, on the basis of which she filed final report against
accused.
21. During cross-examination, PW3 and 6 have denied
the suggestions put to them. PW3 has stated that before
filing charge sheet she has not measured the property.
22. I have carefully gone through the oral as well as
documentary evidence placed on record. The first
informant/PW2 has categorically stated about receiving of
complaint from CW2 about construction of building by the
accused without permission and by encroaching upon the
12 C.C.No.23418/2017
government land. Upon receiving the same, he got
surveyed the said Site No.25 and came to know about the
construction of building without leaving any set back, by
way of encroaching the government land and accordingly
lodged his first information. On the basis of same, PW6
registered this case and issued F.I.R. and handed over
further investigation to PW3.
23. PW1 has categorically stated that as per the order on
account of the complaint lodged by CW2, he went to the
spot on 22-03-2014 by giving notice and he has inspected
the spot, wherein he found that in the spot, the building
was constructed by violating the sanctioned plan and also
by encroaching the government land. Accordingly, he has
reported to ADGP as per Ex.P1. The accused has not
bothered to cross-examine this witness and the oral as well
13 C.C.No.23418/2017
as documentary evidence produced by this witness
remained uncontroverted.
24. In corroboration to the version of PW1, PW4 has also
stated that he has also inspected BDA site No.25 in the
year 2014 and came to know that the same belongs to
accused and on verification he got it surveyed through the
survey department and on 28-04-2017, he received the
survey report as per Ex.P3 and the sketch annexed to it is
marked at Ex.P4. PW5 who has conduced the said survey
has also categorically stated that as per the direction of
concerned department, she along with Assistant Director
and Surveyor went to the spot and surveyed the site,
wherein it is noticed that the area of 11' x 30' has been
encroached, accordingly she has prepared the sketch as
per Ex.P4.
14 C.C.No.23418/2017
25. Though the accused got cross-examined all the
witnesses except PW1 through his counsel, but nothing
worth was elicited, so as to doubt their version. Except
formal denial, nothing was placed on record by the accused
during the cross-examination of above witnesses.
26. On careful perusal of Ex.P4, the sketch prepared by
PW5, the encroached area is shown in yellow colour
towards northern side of CTS No.1330 by its owner. The
said encroachment also tallies with Ex.P1.
27. Of course the prosecution has not got examined CW2
who has given complaint before the BBMP. But on the
basis of said complaint the PW2 has set the criminal law
into motion by filing first information statement. Therefore,
non-examination of CW2 is not fatal to the case of
prosecution. On the other hand, the prosecution is able to
15 C.C.No.23418/2017
prove its case beyond all reasonable doubt by producing
oral as well as documentary evidence.
28. The learned counsel for accused argued vehemently
that still the cases pertaining to the survey is before K.A.T.
and Hon'ble High Court and the alleged encroachment is
not yet decided. However no material is placed on record in
support of his contentions. Apart from that, in this regard
no suggestion has been put to any of the prosecution
witnesses. In that event, the contentions of learned counsel
for accused holds no water.
29. Looking to the material placed on record, the
prosecution has successfully proved that the accused being
owner of BDA Site No.25, New Municipal No.75/73,
situated at 1st main road, Okalipuram, BBMP Ward No.96,
Bengaluru has unauthorizedly encroached the Rajakaluve
16 C.C.No.23418/2017
belonging to BBMP and constructed the building and
thereby committed the alleged offence. So, I answer the
above point in the affirmative.
30. Point No.2:- For the foregoing discussion and my
findings to the above point, I proceed to pass the following:
ORDER
Accused is hereby convicted of the offence punishable U/s.436(A) of K.M.C. Act by acting under Section 248 (2) of Cr.P.C.
Call later for hearing on sentence.
(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 20th day of February 2023) (Patil Veeranagouda S.) Chief Metropolitan Magistrate, Bengaluru.
17 C.C.No.23418/2017ORDER ON SENTENCE Heard on sentence.
The learned Sr. A.P.P. submitted that the offence has been committed by accused by way of encroaching upon the property of BBMP. Hence he prayed this Court to impose maximum sentence provided for the offence proved.
On the other hand, learned counsel for accused submitted that the accused is old aged, who is having no criminal antecedents and is the first time offender. Further submitted that the accused being aged is suffering from various old age ailments. Hence he prays for lenient view and prayed to take lenient view while imposing sentence.
Having regard to the submission of both the sides, admittedly the offence committed by accused is against the State, who has encroached upon the Rajakaluve belonging to 18 C.C.No.23418/2017 BBMP. So in my considered opinion, the accused is not entitled for the benefit under Probation of Offenders Act.
Section 436-A of KMC Act is punishable with imprisonment for a term which may extend to three years and with fine which may extend to five thousand rupees.
It is settled principle of law that sentence imposed shall respond to the cry of society. Here in this case as already noted, the accused has committed offence against the State.
At this juncture it is pertinent to mention decision of the Hon'ble Apex Court reported in 2018 SCC OnLine SC 773 State of Rajasthan V/s Mohan Lal wherein it is held at paragraph No.13 which is as under:
"13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the 19 C.C.No.23418/2017 nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances, have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, in as much as both the crime and criminal are equally important in the sentencing process. The Courts must see that the public does not loose confidence in the judicial system. Imposing inadequate sentences will do harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance."
Keeping in mind the mitigating factors against the accused and considering the above ratio, I proceed to pass the following:
ORDER The accused shall undergo simple 20 C.C.No.23418/2017 imprisonment for one year for the offence punishable U/s 436-A of KMC Act and also liable to pay fine of ₹5,000/-. In default of payment of fine, he shall undergo SI for 30 days.
His bail bond stands cancelled.
Office to supply free copy of this Judgment to the accused.
(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 20th day of February, 2023) (Patil Veeranagouda S.), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Vishwanath.H.R. s/o H.N.Ramarao PW2 : C.Nataraj s/o T.C.Channaveeraiah PW3 : Savitha w/o Sabu Thomas PW4 : Natesh Babu s/o B.Ramaiah PW5 : Rekha w/o Lokesh 21 C.C.No.23418/2017 PW6 : Sumarani.V. w/o Suprith Documents marked on behalf of the prosecution :
Ex.P1 : Report and Sketch
Ex.P1(a) : Signature of PW1
Ex.P2 : First Information Statement
Ex.P2(a) : Signature of PW2
Ex.P2(b) : Signature of PW6
Ex.P3 : Report/Letter dated 28-04-2017
Ex.P3(a) : Signature of PW3
Ex.P3(b) : Signature of PW4
Ex.P4 : Sketch
Ex.P4(a) : Signature of PW5
Ex.P5 : First Information Report
Ex.P5(a) : Signature of PW6
Witnesses examined for the defence:
None Documents marked on behalf of the defence:
Nil Chief Metropolitan Magistrate, Bengaluru.
22 C.C.No.23418/2017
20-02-2023
Case is advanced. Accused
present. The learned
counsel for accused has
filed application under
Sec.70(2) of Cr.P.C. seeking to recall the warrant issued against accused.
Perused.
It is noticed that since 13-
12-2022, the accused remained absent and E.P. came to be filed on his behalf. When the case was posted for judgment also, he remained absent, as such NBW was issued against him. Grounds not satisfied.
The application is rejected and accused is taken to custody.23 C.C.No.23418/2017
Judgment pronounced in the open court vide separately ORDER Accused is hereby convicted of the offence punishable U/s.436(A) of K.M.C. Act by acting under Section 248 (2) of Cr.P.C.
Call later for hearing on sentence.
Chief Metropolitan Magistrate, Bengaluru.
20-02-2023 Orders on Sentence pronounced in the open court vide separately ORDER The accused shall undergo simple imprisonment for one year for the offence punishable U/s 436-A of KMC Act and also 24 C.C.No.23418/2017 liable to pay fine of ₹5,000/-. In default of payment of fine, he shall undergo SI for 30 days.
His bail bond stands cancelled.
Office to supply free copy of this Judgment to the accused.
Chief Metropolitan Magistrate, Bengaluru.
The learned counsel for accused filed application under Section 389(3) Cr.P.C. for suspension of sentence.
Heard both sides.
Perused the application. The accused is intending to prefer an appeal against the judgment passed by this court, before the Appellate Court.
During trial stage, the accused was on bail. He is sentenced to undergo S.I. for a period of one year and also to pay a fine of Rs.5,000/- for the offence punishable under Section 436-A of KMC Act.25 C.C.No.23418/2017
The imprisonment imposed is less than three years. Reasons are satisfied. In the result, I proceed to pass the following-
ORDER The Application filed under Section 389(3) of Cr.P.C. by accused is allowed.
Sentence is suspended till 30 days, subject to execution of bond for a sum of ₹50,000/- by the accused, as well as he shall furnish cash security of ₹10,000/-.
Office to take bond and cash security.
CMM, Bengaluru.