Bangalore District Court
( Rep. By Sr.App ) vs No.1 And 2 To Cheat The Persons Who Have on 24 February, 2021
CC.No.3538/2018
1N THE COURT OF 1 st ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY.
Dated this the 24 th day of February, 2021.
Present: Shri Bhat Manjunath Narayan,
B.Com., L.L.B.,
1 Addl. C.M.M., Bangalore.
st
C.C. No.3538/2018
State by Ashok Nagar
Police Station, Bengaluru. ...Complainant
( Rep. By Sr.APP )
Vs
1. Augustin Onima Uco @ Peter@ Madhu
S/o Ujo, aged 42 years, r/o Emo State,
Esu Dist., Orivi nagar, Nygeria Country.
present Address: No.80/2,
Sri Lakshmi Chennakeshava Dhama,
Rice Foundation Road, Herandalli village,
Virgo nagar post, Bidarahalli Hobli,
Bangalore East Tq.,
Bangalore (Splitup)
2. Ashok @ Anand, Jalahalli,
Bangalore(Splitup)
3. Jagdeesh Kumar @ Devaraj,
aged 33 years, r/o No.118,
Near Gangamma temple, Maragondanahalli,
K.R.Puram Post,
Bangalore city. ...Accused
CC.No.3538/2018
1. Sl.No. of the Case : CC No.3538/2018
2. The date of Commission : 02-11-2016
of the ofence
3. Name of Complainant : Barnard
4. Name of the accused : As stated above
5. The ofences complained : Sec.420 IPC & Sec. 66(D) IT Act
or proved
6. Plea of the accused and : Pleaded not guilty
their examination
7. Date of commencement : 11-12-2019
of evidence
8. Date of closing of : 11-12-2019
prosecution evidence
9. Opinion of Judge : Accused No.3 not guilty
10. Date of Judgment : 24-02-2021
( Bhat Manjunath Narayan )
1st Addl. CMM.,, Bangalore.
CC.No.3538/2018
JUDGMENT
That, Ashoka Nagar police have fled charge sheet against the accused No.1 to 3 stating that they have committed an ofence punishable under Section 420 of IPC R/w Sec.66 (D) of Information Technology Act.
2. The allegations made in the charge sheet are as under:-
It is alleged in the charge sheet that accused No.1 and 2 for the purpose of deceiving general public, used to take photographs of the Cars standing in the road from their mobiles and were uploading photographs in OLX a online platform for Sale of Cars and other materials. It is submitted by the prosecution that, when interested buyers approached the accused No.1 and 2, they used to get money transferred to the accounts and accused No.3 used to provide sim card to accused No.1 and 2 to cheat the persons who have approached after considering the advertisement in OLX. It is submitted by the prosecution that, on 01-11-2016 CW-1 Barnard S/o Selvaraj has contacted accused No.1 and 2 by going through the advertisement uploaded in OLX, for purchase of Car. The prosecution further alleges that on 02-11-2016 accused No.1 and 2 have called CW-1 Barnard S/o Selvaraj to the Airport and deceived and induced him to transfer an amount of Rs.4,60,000/- for the purpose of purchase of Car. The accused No.1 and 2 have stated that for the purpose of release of Car from Cargo Station and for CC.No.3538/2018 payment of parking charges, they require money and as such, on 02-11-2016 and 03-11-2016 money is transferred by CW-1 Barnard S/o Selvaraj to the diferent accounts as requested by accused No.1 and 2. The prosecution further alleges that, accused No.1 and 2 have cheated CW-1 Barnard S/o Selvaraj by not selling Car after taking amount, and as such, CW-1 Barnard S/o Selvaraj has fled complaint before Ashoka nagar police on 13-11-2016.
3. As per the frst information given by CW-1 Barnard S/o Selvaraj, a criminal case came to be registered against accused No.1 to 3 at Ashoka nagar police Crime No.408/2016. The Investigating Ofcer has visited the spot and prepared spot mahazar in the presence of CW-2 Santosh Kumar and CW- 3 Chandrashekar. Thereafter accused No.1 and 3 were arrested. The Investigating ofcer has also seized cash & documents from ICICI Bank by preparing mahazar in the presence of CW-7 Syed Sabeer Ahmed and CW-8 V.Rajan. The amount cheated and transferred by CW-1 was recovered by the I.O. & seized as per mahazar as produced by ofcial of ICICI Bank. After considering the statement of witnesses and available materials, the Investigating Ofcer CW-14 S.D.Shashidhar came to a conclusion that accused No.1 to 3 have committed an ofece punishable under Sec.420 of IPC and 66(D) of I.T. Act. Accordingly, charge sheet is fled for the above said ofences.
CC.No.3538/2018
4. After fling of the charge sheet, cognizance for the ofence punishable under Sec.420 of IPC and sec.66(D) of I.T. Act., is taken. Accused No. 1 was arrested during crime stage & is released on bail. The presence of accused No.3 secured by issuing summons & he has been released on bail. Accused No.1 was involved in other cases and after securing his presence by issuing body warrant, he was also released on bail. Accused No.2 is shown as absconding. After release of accused No.1, he has absconded and presence of accused No.1 could not be secured. Therefore, the case against accused No.1 and 2 ordered to be split up. Accordingly split up C.C. No.3883/2021 is registered. The copy of the charge sheet were supplied to accused No.3 as required under sec.207 of Cr.P.C.
5. The charge for the ofence punishable under Sec.420 of IPC and sec.66(D) of I.T. Act is framed, read over and explained to the accused No.3 and he pleaded innocence. In order to prove the guilt of the accused for the above said ofence, out of 14 witnesses cited by the prosecution, CW-1 Barnard S/o Selvaraj is examined as PW-1. In-spite of issuance of summons and NBW to other witnesses including the Investigating Ofcer, their presence is not secured. Therefore, this Court has rejected the prayer of prosecution to issue summons and NBW to Cws. 2 to 14.
CC.No.3538/2018
6. After closure of evidence of prosecution witnesses, statement of accused as required U/s.313 of Cr.P.C. is recorded. Accused No.3 has denied the incriminating materials in the prosecution evidence. The accused has not produced any documents or led any oral evidence.
7. On the basis of the charge sheet allegations, the following points arose for my consideration:
1) Whether the prosecution proves beyond reasonable doubt that on 02-11-2016 accused No.1 and 2 in collusion with accused No.3 have cheated CW-1 Barnard S/o Selvaraj stating that they are going to sell the Car for Rs.4,60,000/- and accused No.3 has helped accused No.1 and 2 by providing sim card in the name of diferent persons and thereby cheated CW-1 and committed an ofence punishable under Sec.420 of IPC and Sec.66(D) of I.T. Act?
2) What Order?
8. Heard the Counsel appearing for the accused No.3 and learned Sr.APP. Perused the available materials on record and my fndings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per fnal order, for the
following:
CC.No.3538/2018
REASONS
Point No.1:-
9. That, Ashoka nagar police have charge-sheeted the accused alleging that, accused No.3 used to provide sim card to accused No.1 and 2 in then name of diferent persons and accused No.1 and 2 by using the sim card used to cheat the people by uploading the advertisement in OLX online platform for Sale of materials. In this case, in order to bring home the guilt of accused, prosecution is able to secure the presence of CW-1 Barnard S/o of Selvaraj who is examined as PW-1. I have perused the oral evidence of PW-1 Barnard S/o Selvaraj in detail. PW-1 Barnard S/o Selvaraj deposed regarding alleged act committed by accused No.1 and 2 by uploading advertisement in OLX. PW-1 deposed that accused No.1 and 2 have cheated him by showing photo of a Car and taken money of Rs.4,50,000/- from him. If the evidence of CW-1/PW-1 is considered then, there is nothing against accused No.3 to say that he was providing sim card to accused No.1 and 2. In the cross examination PW-1 Barnard has stated that he has not made any transaction with accused No.3 & nor fled any complaint against accused No.3
10. I have perused documents and statement submitted by IO along with charge sheet. The Investigating Ofcer has not stated whose sim card was provided to accused No.1 and 2 by accused No.3. Statement of persons who's name was used to purchase sim card are not recorded by IO. Apart from CC.No.3538/2018 this no oral evidence or documents to show that accused No.3 is distributor of sim card or used buy Sim card which are seized from Accused No.1 & 2. Absolutely there is no oral or documentary evidence to show that accused No.3 used to provide sim card to accused No.1 and 2. The details of numbers provided by accused No.3 to accused No.1 and 2 is not forthcoming from the document produced by prosecution. So in the absence of oral as well as documentary evidence to show that accused No.3 was providing sim card in the name of diferent persons to accused No.1 and 2, this Court cannot come to conclusion that accused No.3 has involved in scam of cheating the people by uploading the fake photo & advertisement in the OLX, online platform. This being the case, I am of the opinion that, conviction cannot be given to accused No.3 stating that he has helped accused No.1 and 2 to cheat people by providing sim card. Hence, in my considered view, the prosecution has failed to bring home the guilt of accused for the ofence punishable Under Sec.420 of IPC and Sec.66(D) of I.T. Act. Accordingly, I answer Point No.1 in the negative.
Point No.2: -
11. In view of discussion and conclusion arrived at Point No.1, accused No.3 is entitled for acquittal. Accordingly, I proceed to pass the following:
CC.No.3538/2018 ORDER Acting under Section 248(1) of Cr.P.C., accused No.3 is hereby acquitted for the ofence punishable U/s.420 of IPC & Sec.66(D) of I.T.Act.
The bail and surety bond of
accused No.3 stand canceled.
Ofce is hereby directed to keep entire original records in split up C.C.No.3883/2021.
(Dictated to the Stenographer, transcript thereof computerized, and print out taken by her is verifed, corrected & then pronounced by me in the Open Court dated this the 24 th February, 2021) (Bhat Manjunath Narayan) 1 st ADDL.C.M.M., BANGALORE.
ANNEXURE List of witnesses examined for prosecution:-
PW-1 Burnard;
List of exhibits marked for prosecution:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW-1
Ex.P.2 Mahazar
Ex.P.2(a) Signature of PW-1
Ex.P.3 Challan Receipt
Ex.P.4 Bank statement
CC.No.3538/2018
List of material object: NIL
List of Witnesses examined for defence:- NIL List of documents marked for defence:- NIL (Bhat Manjunath Narayan) 1st ACMM., Bengaluru