Bangalore District Court
State By Shivajinagar Ps vs Opened S.B. A/C Bearing No.1090 In The ... on 15 February, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 15th day of February 2016
Present : Sri. Venkataraman Bhat,
B.Sc., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 12576/2006
2. The date of commission
of the offence : 28.4.2001 to 28.2.2003
3. Name of the complainant : State by Shivajinagar PS
4. Name of the accused : Ashok K.Kammar, 35 Yrs.,
S/o Late Kalappa,
R/a present No.17,
Varadaraja swamy compound,
Kodigehalli Road, Gollarahatti,
Magadi Road, Bengaluru.
5. The offences complained : U/s.420, 409, 477(A), 403, 468 IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 15.02.2016
Police Inspector, Shivajinagar police station placed charge
sheet against accused for the offences punishable u/s.420, 409,
477(A), 468, 201 of IPC.
2. According to the prosecution, accused was working as
Manager of Suvarna Co-operative Bank, Shivajinagar branch,
2 CC.NO.12576/2006
Bangalore from 28.4.2001 to 28.2.2003. According to the
prosecution during this period accused committed
misappropriation of money by creating forged challans and pay
order and committed criminal breach of trust. It is further alleged
that, accused by making falsification of accounts cheated Suvarna
Co-operative Bank. It is further alleged that, accused opened
fictitious accounts in the name of unknown person and transferred
the amount and thereby misappropriated the amount.
3. Accordingly, Secretary of Suvarna Co-operative Bank filed a
private complaint at PCR No.4469/2003 for the said offences
against the accused. It was referred for investigation to
Shivajinagar police station. On the basis of above said PCR, FIR
has been registered at Crime No.41/2003 of Shivajinagar police
station.
4. During the course of investigation accused was arrested and
produced before this court. Later he was enlarged on bail.
5. After submission of the charge sheet, cognizance of the
offences have been taken. Copy of charge sheet was furnished as
required u/s.207 of Cr.P.C. Charge was framed for the offences
punishable u/s.420, 409, 477(A), 403, 468 IPC. Accused pleaded
not guilty and claimed to be tried.
6. CW1 to CW20 witnesses have been cited in the charge sheet.
During the course of trial, PW1 to PW5 were examined and Ex.P.1
to Ex.P.40 got marked. In fact original documents got marked in
CC No.12573/2006.
3 CC.NO.12576/2006
7. After closure of the prosecution side evidence, statement of
the accused was recorded u/s.313 of Cr.P.C. Accused did not
adduce any defence evidence.
8. Heard arguments of Senior APP and advocate for the accused.
9. CW1 was examined as PW1. PW1 was working as Secretary
of Suvarna Co-operative Bank Ltd., Head Office, Bangalore. PW1
has deposed regarding the alleged misappropriation of the amount
by the accused, forgery of the documents etc.
10. CW5 was examined as PW2. PW2 was working as
Accountant, Head Office, Suvarna Co-operative Bank, Bangalore.
According to PW2, he audited the accounts of Suvarna Co-operative
Bank, Shivajinagar Branch as per the instructions of its President
along with PW1. PW2 has also deposed regarding the alleged
misappropriation of the amount by the accused as well as forgery of
the documents etc.
11. CW9 was examined as PW3. According to the prosecution
PW3 is one of the seizure mahazar witness to Ex.P.44. However,
PW3 did not support the prosecution. He was treated as hostile
witness and cross-examined by Senior APP.
12. CW4 was examined as PW4. According to the prosecution
accused opened S.B. A/c bearing No.1090 in the name of PW4 and
transferred a sum of Rs.40,000/- as loan without taking any surety
and other loan papers.
4 CC.NO.12576/2006
13. CW10 was examined as PW5. According to the prosecution
PW5 is one of the seizure mahazar witness to Ex.P.13. However,
PW5 did not support the prosecution. PW5 was treated as hostile
witness and cross-examined by Senior APP.
14. Now the question for consideration is whether on the strength
of evidence of PW1 to PW5, prosecution is able to prove the guilt of
the accused beyond reasonable doubt. Before going in to
appreciate the evidence placed on the record, it is most relevant to
extract the particular charges against the accused. It can be
noticed that, on the basis of a private complaint lodged by CW1,
PCR at No.4469/2003 came to be registered. It was referred for
investigation to Shivajinagar police station. On the basis of PCR,
FIR has been registered at Crime No.41/2003 of Shivajinagar police
station. It further discloses that, on the basis of Crime
No.41/2003, two criminal cases came to be registered against the
accused. One is at CC No.12573/2006, second is CC
No.12576/2006. As far as CC No.12573/2006 is concerned, it is
alleged that, accused had opened a fictitious S.B. A/c in the name
of one Krishnappa and transferred a sum of Rs.20,000/- into his
A/c No.601. Thereafter accused transferred this amount into S/B
A/c No.602 which stands in the name of one Anandraj Purohith.
As far CC No.12576/2006 is concerned, the following are the
charges.
i) It is alleged that, accused sanctioned a sum of
Rs.20,000/- in the name of CW2 on 28.9.2002
without taking any sureties and against the rules
5 CC.NO.12576/2006
and misappropriated the said amount. When it
was noticed in the audit, accused refunded entire
amount with interest.
ii) CW3 had deposited a sum of Rs.5 Lakhs as FD in
Suvarna Co-operative Bank, Shivajinagar Branch.
According to the prosecution Income Tax
authorities had freezed this bank account and
prohibited any transaction of this account. It is
alleged that knowing fully well that income
authorities had freezed the said amount, advanced
a sum of Rs.25,000/- as loan and transferred the
advanced sum of Rs.25,000/- as loan in the name
of CW6 and transferred the said amount into the
account of CW12 by way of pay order by creating
forged document.
iii) CW4 had opened a S.B. A/c No.1090 in Suvarna
Co-operative Bank, Shivajinagar branch. When
CW4 had filed an application for loan, it is alleged
that, accused sanctioned a sum of Rs.48,000/- as
loan without following any rules and transferred
this amount into the S/B A/c of 1162 by creating
forged documents. When it is noticed in the audit,
accused refunded the entire amount with interest.
iv) It is alleged that, accused destroyed the computer
statistics with respect to day transaction and
misappropriated the said amount.
15. Now, I would like to appreciate the evidence placed on the
record. There is a procedural defect in recording the evidence of
this case. It can be noticed that, all the original documents got
6 CC.NO.12576/2006
marked in CC Non.12573/2006. In fact no documents got marked
in this case. It appears that, evidence of PW1 and PW2 in CC
No.12573/2006 has been adopted the evidence of this case also.
When there are separate charges, prosecution ought to have
marked the documents separately. Irrespective of this, question for
consideration is whether prosecution is able to prove the charges.
It is pertinent to note that, CW11 is the auditor of Suvarna Co-
operative Bank. It discloses that, auditor was examined in CC
No.12573/2006 as PW7. But evidence of PW7 of that CC is also
incomplete. Audit report got marked as Ex.P.6 in that CC. Mere
marking of audit report is not sufficient to prove itemwise charges.
No evidence of auditor has been adduced in this case. Moreover,
on the incomplete evidence of auditor in CC No.12573/2006,
prosecution cannot rely to prove the charges. Secondly, there is no
substantive evidence to prove that accused has forged pay orders
and cheques. If at all accused advanced loan on the deposit made
by CW2 inspite of income tax authorities freezed that account, it
cannot be considered as misappropriation of the property.
Negligence on the part of the accused or in advancing loan on FD
does not amount to entrustment of the property. Likewise there is
no trust worthy evidence to prove that the accused had forged the
documents and made falsification of accounts. As per the charge
sheet itself it is a temporary misappropriation. It has come in the
evidence that, accused already reimbursed the said amount. If the
evidence of PW1 is taken into consideration, it discloses that if
reimbursed by the accused, Suvarna Co-operative Bank intended
to enter into compromise with the accused. PW1 has clearly given
an admission to that effect. Investigation Officer is not examined.
7 CC.NO.12576/2006
Most of the charge sheet witnesses left their residential address.
One of the main charge is that PW4 had filed loan application. She
had opened S.B. A/c bearing No.1090 in this bank. It is the
allegation of the prosecution that, accused advanced a sum of
Rs.48,000/- in favour of PW4 that too without taking documents,
surety. But evidence of PW4 is quite contrary on this aspect. PW4
has deposed in examination-in-chief itself as under :
"2003 gÀ°è £Á£ÀÄ gÀÆ.48,000/- ¸Á® ¥ÀqÉ¢zÉÝ£ÀÄ. CzÀPÁÌVAiÉÄÃ
DgÉÆæAiÀÄÄ gÀÆ.5000/- PÀ«ÄñÀ£ï ¥ÀqÉ¢zÀÝ£ÀÄ."
16. It discloses that, accused had received a commission of
Rs.5000/- from PW4. In other words, it discloses that, PW4 had
received the remaining amount of Rs.43,000/-. According to PW4
she has reimbursed entire Rs.48,000/- to the bank. If any amount
received by the accused as commission does not come within the
purview of offence of criminal breach of trust. PW4 has further
deposed that, the signature on the challan form is not her
signature. Absolutely there is no evidence to prove that accused
forged the signature of PW4 on challan form. Investigation Officer
did not obtain any opinion of handwriting expert on this aspect.
Certainly incomplete evidence of auditor is fatal to the prosecution.
Though large number of documents got marked in CC
No.12573/2006, but it is not substantiated by examining
concerned witnesses. In a criminal case, standard of proof is
beyond reasonable doubt. Merely on the basis of some
assumption and presumption, it cannot be held that prosecution
proved the guilt of the accused beyond reasonable doubt. Even if it
8 CC.NO.12576/2006
is considered as temporary misappropriation, prosecution must
prove that accused had the "dishonest intention" to misappropriate
the money. Inspite of sufficient opportunity, prosecution could not
able to secure the presence of other material witnesses. PW1 has
duly admitted to the effect that quarterly inspection was conducted
in the bank. PW1 admitted as under :
"During quarterly inspection we did not find
any irregularity in cash."
17. If that is the situation, how could it be possible to fix criminal
liability against the accused. It has come in the evidence that,
periodically the account would be inspected by internal auditors.
Internal auditors did not notice any misappropriation of the
amount by the accused. Merely because accused repaid the said
amount, in the absence of any substantive evidence it cannot be
held that prosecution proved the guilt of the accused beyond
reasonable doubt. Now the question for consideration is whether
deposit of the alleged amount does constitute admitting the guilty
by the accused. Hon'ble High Court of Madhya Pradesh in State
Vs. Ram Bharose (1958 MPLJ (notes) 161 held as under :
"Deposit of amount alleged to have been
defalcated cannot constitute admission of
guilt."
18. If any irregularity is committed by the accused, same cannot
be stated as accused committed offence of criminal breach of trust
and other related offences. In order to attract offence of criminal
9 CC.NO.12576/2006
breach of trust, prosecution is required to prove two essential
conditions. One is entrustment of the property and second is
dishonest misappropriation of the property. In the case on hand,
on the evidence of PW1 to PW5, it cannot be held that prosecution
proved the alleged offences. There is no evidence to prove that
accused induced any person to part with the money and thereby
cheated Suvarna Co-operative Bank. Likewise there is no
substantive evidence to prove falsification of accounts. Under these
circumstances there is no alternative except to acquit the accused
for want of evidence. In the result, I proceed to pass the following :
ORDER
Accused is not found guilty for the offences punishable u/s.420, 409, 477(A), 403, 468 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.420, 409, 477(A), 403, 468 of IPC.
Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 15th Day of February 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : K.V.Ramakrishna
PW.2 : Shivanna
10 CC.NO.12576/2006
PW.3 : K.Velu
PW.4 : Syed Gourunnisa
PW.5 : Raghu S.
List of exhibits marked for prosecution:-
Ex.P.1 to Ex.P.40 : All the documents got marked in CC No.12573/2006. List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.11 CC.NO.12576/2006
15.02.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offences punishable u/s.420, 409, 477(A), 403, 468 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.420, 409, 477(A), 403, 468 of IPC.
Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 15th Day of February 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.