Bangalore District Court
State By Kamakshipalya P.S vs Kt Gurumurthy on 7 June, 2016
IN THE COURT OF THE V ADDL. C.M.M., BENGALURU CITY
Dated this the 7th day of June 2016.
Present:
Sri A. Somashekara, B.A.L., L.L.M.,
V Addl., C.M.M., Bengaluru City.
CC No.13021/2015
Complainant: State by Kamakshipalya P.S.,
(Rep., by Sr. APP, Bengaluru)
Vs.
Accused: 1.KT Gurumurthy
S/o Late P Thimmaiah, 40 Yrs.,
R/a No.738, VHBS Layout, Halage
Vaderahalli Vilage,
Rajarajeshwarinagar,
Bangalore-560 094.
And also at Bettegowdana Koppaly,
KIthoor Grama, Bettadapura Hobli,
Periyapatna Tq., Mysore Dist.,
2.Mohan Kumar H
S/o Hanumantharayappa, 25 Yrs.,
R/a No.1519, 3rd Cross Road, 5th Block,
KRS Gowda, HMT Layout,
Chokkasandra, Nagasandra Church,
T Dasarahalli, Bangalore City.
(Rep. by..................., Adv.,)
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CC No.13021/2015
JUDGMENT AS PER SEC. 355 Cr.P.C.
1. Serial number of the case : CC No.13021/2015
2. Date of the commission of
the offence : 01.11.2013 to 29.12.2013
3. The name of the complainant : Smt. Jayashila
4. Name of the accused persons
and their parentage and residence: As stated above.
5. The offence complained off
are proved :U/s.465 468 471 419 & 420 of IPC
and Sec.3, 10 and 19 of Kar.,
Private Medical Establishment
Act 2007
6. The plea of the accused and :Pleaded not guilty and
their examination denied the incriminating
evidence.
7. The final order : Acquitted.
8. The date of such order : 07.06.2016
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THE BRIEF REASONS FOR FINAL ORDER:
The prosecution's case in brief is that the accused No.1
without having any permission from the Health Department
established Shrusti Global and Diagnostic Pvt., Ltd., at No.41/2-1,
I Cross Road, KHB Colony I Stage, Basaveshwaranagara, within
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CC No.13021/2015
the limits of Kamakshipalya P.S., Bangalore, and provoked the
publics to solve 100% infertility through IVF treatment to the
women's. Further the accused No.1 with an intention to cheat
CW.1 Jayasheela and CW.2 Rajashekar gave false publication,
without displaying the board showing the expenditure to the said
treatment, details of the Doctors, and the facilities available in the
said hospital. Further the accused No.1 without having any
educational qualifications related to IVF, created the false
educational certificates, made believe that the same are originals,
even though he is not the Doctor, impersonated as doctor.
Further the accused No.1 and 2 falsely assured CWs.1 and 2 that
they will get child through IVF, and intimated them if they deposit
Rs.3,50,000/- they will provide treatments for about three times
through IVF, and on 29.12.2013 received Rs.3,00,000/- from
CWs.1 and 2, and issued a receipt for Rs.1,50,000/- as donation
given to the Shrusti Medicare and Research Foundation, and
issued receipt for the remaining amount as Base Fertility Center
for IVF, and made believe CWs.1 and 2 to solve 100% infertility
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CC No.13021/2015
and cheated them without providing IVF treatment, without
solving the infertility and without returning the amount. Further
the accused No.1 and 2 abused and put threat to the life of
CWs.1 and 2, when they demanded to return the amount.
Therefore, the accused persons have committed an offences
punishable U/s.465, 468, 471, 419 and 420 of IPC and Sec.3, 10
and 19 of Kar., Private Medical Establishment Act 2007. Hence,
the charge sheet.
. 2.During crime stage the accused persons are enlarged on
regular bail. After submission of this charge sheet, this court has
taken cognizance of the aforesaid offences against the aforesaid
accused persons. Copies of the charge sheet have been furnished
to accused persons as per Sec. 207 of Cr.P.C., With no objection
from the Counsel for the accused persons, this Court framed
charge for the aforesaid offence against them. The same read
over and explained to the accused person in the language known
to them. They pleaded not guilty. The prosecution has examined
the complainant and CW.2, as PWs.1 and 2, and it has got
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CC No.13021/2015
marked three documents as Ex.P-1 to P-3. Statement of the
accused persons has been dispensed since no incriminating
evidence placed against them.
3.Heard the arguments of both sides, perused evidence
placed before the court.
4.The following points that would arises for my
determination:
1.Whether the prosecution proves beyond all-
reasonable doubt that the accused No.1 without
having any permission from the Health Department
established Shrusti Global and Diagnostic Pvt., Ltd.,
at No.41/2-1, I Cross Road, KHB Colony I Stage,
Basaveshwaranagara, within the limits of
Kamakshipalya P.S., Bangalore, and provoked the
publics to solve 100% infertility through IVF
treatment to the women's. Further the accused
No.1 with an intention to cheat CW.1 Jayasheela
and CW.2 Rajashekar gave false publication,
without displaying the board showing the
expenditure to the said treatment, details of the
Doctors, and the facilities available in the said
hospital. Further the accused No.1 without having
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CC No.13021/2015
any educational qualifications related to IVF,
created the false educational certificates, made
believe that the same are originals, even though he
is not the Doctor, impersonated as doctor. Further
the accused No.1 and 2 falsely assured CWs.1 and
2 that they will get child through IVF, and intimated
them if they deposit Rs.3,50,000/- they will provide
treatments for about three times through IVF, and
on 29.12.2013 received Rs.3,00,000/- from CWs.1
and 2, and issued a receipt for Rs.1,50,000/- as
donation given to the Shrusti Medicare and
Research Foundation, and issued receipt for the
remaining amount as Base Fertility Center for IVF,
and made believe CWs.1 and 2 to solve 100%
infertility and cheated them without providing IVF
treatment, without solving the infertility and without
returning the amount. Further the accused No.1
and 2 abused and put threat to the life of CWs.1
and 2, when they demanded to return the amount
and thereby committed an offences punishable
U/s.465 468 471 419 and 420 of IPC and Sec.3, 10
and 19 of Kar., Private Medical Establishment Act
2007 as alleged?
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CC No.13021/2015
2.What order?
5.My findings on the above points are as under:
Point No.1 - in the negative
Point No.2 - As per final order
for the following:-
REASONS
6.POINT NO.1:-
This case has been registered in view of Ex.P1 complaint
that submitted to the then SHO of Kamakshipalya P.S., Bangalore
by the complainant-Smt. Jayasheela C/o S Rajashekar, on
16.10.2014 at about 12.00 noon. Thereafter, the then SHO of
Kamakshipalya P.S., has got registered the case, submitted FIR to
the Court, visited the spot and conducted Ex.P2 spot mahazar on
17.10.2014 in the presence of the complainant and other two
panch witnesses in between 14.15 hours to 14.45 hours at Shrusti
Global and Diagnostic Pvt., Ltd., at No.41/2-1, I Cross Road, KHB
Colony I Stage, Basaveshwaranagara, that lies within the limits of
Kamakshipalya P.S., Bangalore City. Thereafter, the I.O., has
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CC No.13021/2015
recorded statements of witnesses, collected the documents, and
after completion of the investigation has submitted the charge
sheet against the accused person before this Court.
In this background, now let us examine whether the
prosecution is able to prove the following essential ingredients to
constitute the offence punishable U/s.420 of IPC.
Whoever cheats and thereby
dishonestly induces the person deceived
to deliver any property to any person, or
to make, alter or destroy the whole or
any part of a valuable security or
anything which is signed or sealed, and
which is capable of being converted into
a valuable security.
7.In the complaint marked as per Ex.P-1, PW.1 has
specifically stated to the IO by reiterating almost all the facts as
averred in the Cl. No. 7 of Charge sheet and in para No.1 of this
judgment. Whereas, during the course of his oral evidence, PW.1
has not stated the evidence as stated in the complaint marked as
per Ex.P-1 or in Cl. No. 7 of charge sheet or in para No.1 of this
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CC No.13021/2015
judgment. PW.1 has stated that she knows the accused persons,
about three years back, she took treatment for infertility, and she
has not been cheated from the institution of accused persons,
and because of angry with the accused persons, she lodged
complaint against the accused persons. She has further deposed
before the Court that she did not know the contents of the
documents marked at Ex.P-1 and P-2 and now she compromised
the case with the accused. PW-1 has further deposed that she
did not know that for when, where and for what reason she put
her signature on the documents that are marked as Ex.P-1 and P-
2. The evidence of PW.1 is not in accordance with Ex.P-1
Complaint and Ex.P-2 Mahazar.
8.PW.2 is the husband of PW.1 he has also deposed that he
knows the accused persons, two years back his wife took
treatment for infertility in the diagnostic center of the accused,
the accused persons have not cheated them, he didn't know filing
of the complaint by his wife, because of angry with the accused
persons, and he didn't made any statement to the police. PWs.1
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CC No.13021/2015
and 2 are treated as hostile witnesses at the request of the
prosecution. They were subjected to cross examination on behalf
of case of the prosecution. But nothing is elicited in support of
the case of the prosecution in the evidence of PWs.1 and 2 that
recorded during the course of their respective cross-examination.
Further PWs.1 and 2 have admitted in their respective cross-
examinations that they have received the amount through DD
from the accused in two installments, which they have paid to the
accused, and now they are not interested to prosecute the case
against the accused, as they have compromised the matter with
the accused. The said evidence of PWs.1 and 2 did not disclose
that the accused persons have committed the offences as alleged
against them. Since the complainant/victim turned as hostile,
other witnesses have been discharged, since no purpose would be
survived if they were examined in view of the judgment of
Hon'ble Apex Court that reported in 1996(3) Crime 85.
Further, in this case the prosecution has failed to establish the
essential ingredients to constitute the offences as alleged against
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CC No.13021/2015
the accused persons. Therefore, I am of opinion that the
prosecution has miserably failed to prove its case as alleged
against the accused persons beyond all reasonable doubt. The
accused persons are entitled for acquittal. Accordingly, I answer
Point No.1 in the Negative.
9.Point No.2:- In view of the aforesaid discussion, this
court proceed to pass the following:-
ORDER
By acting U/s 248(1) Cr.P.C. the aforesaid accused No.1 and 2 are hereby acquitted of the offences punishable U/s.465, 468, 471, 419 and 420 of IPC and Sec.3, 10 and 19 of Kar., Private Medical Establishment Act 2007.
They shall be set at liberty forthwith if they are not required to other cases. However, their bail and surety bonds are hereby extended for a period of 6 months from this date in view of Secs.437(A) of Cr.P.C., (Dictated to the Stenographer through computer, printout taken by him is verified, after corrections made by me and then pronounced by me in the Open Court on this the 7th day of June 2016).
(A. Somashekara) V Addl.C.M.M., B'luru.
Judge Sign 12 CC No.13021/2015 ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION PW.1 : Smt. Jayasheela PW.2 : Rajashekar
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Complaint dtd., 16.10.2014 Ex.P. 2 : Mahazar dtd., 17.10.2014 Ex.P. 3 : Statement of PW.2.
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE: NIL.
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION: NIL.
(A. Somashekara) V Addl. C.M.M., B'luru.
Judge Sign 13 CC No.13021/2015 07.06.2016 State by Sr. APP Case called. A1 and A2 Pt., /Abt., A1 and A2 on bail Judgement pronounced in the open For Judgement. Court as under vide separate Judgement kept in the file.
By acting U/s 248(1) Cr.P.C. the aforesaid accused No.1 and 2 are hereby acquitted of the offences punishable U/s.465, 468, 471, 419 and 420 of IPC and Sec.3, 10 and 19 of Kar., Private Medical Establishment Act 2007.
They shall be set at liberty forthwith if they are not required to other cases. However, their bail and surety bonds are hereby extended for a period of 6 months from this date in view of Secs.437(A) of Cr.P.C., (A. Somashekara) V Addl. C.M.M., B'luru.
Judge Sign 14 CC No.13021/2015 Judge Sign 15 CC No.13021/2015 Judge Sign