Bangalore District Court
Whereas Accused No.4 Stood As ... vs No.1 To 4 Shared The Loan Amount Of Rs.6 ... on 27 April, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 27th day of April 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. 14447/2008
2. The date of commission
of the offence : 24.12.2003 to 23.9.2006
3. Name of the complainant : State by Cubbonpark PS
4. Name of the accused : A1: Pradeepkumar Fathepuria
(Split up)
A2: Kum.B.G.Srividya, 29 Yrs.,
D/o Gururaju
A3: Smt. Sumithra Gururaju, 52 Yrs.,
W/o Gururaju
A2 & A3 are residing at No.274/A,
37th 'A' cross, 11th main road,
4th T block, Jayanagar,
Bengaluru.
A4: K.Raju Samuel
(Dead)
5. The offences complained : U/s.406, 409, 468, 471, 420
or proved r/w 34 IPC
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
2 CC.NO.14447/2008
8. Date of order : 27.04.2016
Sub Inspector of Police, Cubbonpark police station placed
charge sheet against accused No.1 to 4 for the offences punishable
u/s.406, 468, 471, 420 r/w 34 of IPC.
2. A private complaint at PCR No.5340/2006 came to be filed by
CW1 against accused No.1 to 4. It was referred for investigation to
SHO, Cubbon Park police station. On the basis of PCR, FIR has
been registered at Crime No.160/2006 of Cubbonpark police
station.
3. During the course of investigation accused No.2 & 3 had
obtained anticipatory bail and appeared before this court. They
were enlarged on bail. Accused No.1 and 4 have been shown as
absconding accused in the charge sheet. Accused No.4 appeared
before this court and enlarged on the bail. During the pendency of
the case, accused No.4 is reported to be dead. Hence, case against
accused No.4 stands abated. Inspite of issuance of NBW, accused
No.1 remained absent. Case against accused no.1 was split up and
ordered to register a separate case.
4. Copy of charge sheet was furnished to accused No.2 and 3 as
required u/s.207 of Cr.P.C. Charge was framed against accused
No.2 to 4 for the offences punishable u/s.406, 409, 468 471, 420
r/w 34 of IPC. Accused N.2 and 3 pleaded not guilty and claimed
to be tried.
5. CW1 to CW11 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.21(a) got marked.
3 CC.NO.14447/2008
6. After closure of the prosecution side evidence, statement of
accused No.2 & 3 was recorded u/s.313 of Cr.P.C. Accused No.2 &
3 did not adduce any defence evidence.
7. Heard arguments of Senior APP and advocate for the accused.
8. According to the prosecution accused No.1 is the owner of
Sneha Apartments, Bangalore. It is further stated that, CW1 is a
Housing Finance company and used to finance for the purpose of
construction of building, apartment etc. It is further stated that,
accused No.1 as a GPA holder entered into Joint Development
Agreement with CW6 in respect of the schedule properties situated
at Cholanayakanahalli, Aiyappa Block, Sultan Palya main road,
Bangalore. It is further alleged that, accused No.1 had sold Flat
No.202, G-1 in favour of CW8 under registered sale deed dated
11.11.2002. It is alleged that, accused No.1 to 4 with an intention
to cheat CW1 had availed a loan of Rs.6 Lakhs. Accused No.1
represented that he was the owner of the said flat and executed a
sale deed in favour of accused No.2 by creating forged documents
though he was not the owner of the said flat. Accordingly a forged
sale deed has been executed by accused No.1 in favour of Accused
No.2 on 24.12.2003. It is alleged that, accused No.1 had changed
the name of this apartment as Neha Apartment. Accused No.2 had
applied loan application for Rs.6 Lakhs. Accused No.3 was co-
applicant whereas accused No.4 stood as guarantor. Title deed has
been mortgaged in favour of CW1. According to prosecution
accused No.1 to 4 shared the loan amount of Rs.6 lakhs unlawfully
and failed to repay the loan amount. It is alleged that, all the
4 CC.NO.14447/2008
accused by creating forged documents committed offence of
criminal breach of trust and cheating.
9. CW1 was examined as PW1. PW1 was working as Asst.
General Manager of Weizmann Homes Limited, Bangalore branch
at the relevant point of time. PW1 has deposed regarding the loan
transaction of accused No.1 to 4 as well as execution of sale deed
by accused No.1 in favour of accused No.2 and other related
particulars. The evidence of PW1 is confined regarding the failure
of installment amount of the loan taken by accused No.2 and other
accused. In sum and substance PW1 has deposed to the effect that
accused No.2 is the loanee and accused No.4 stood as guarantor.
According to PW1 accused No.1 represented that he sold the
schedule property in favour of accused No.2 under registered sale
deed. The schedule property has been mortgaged in favour of
Weizmann Homes Limited as security. Title deed has been
deposited and other loan papers got executed.
10. CW4 was examined as PW2. PW2 is a practicing advocate.
PW2 has deposed regarding the legal opinion given by him as per
Ex.P.18. According to PW2 before sanctioning the loan, Weizmann
Homes Limited submitted documents for the legal opinion. On the
perusal of the documents, PW2 has given his legal opinion and
thereafter loan was sanctioned. In other words, it goes to very clear
that all the documents got verified by PW2 before giving legal
opinion.
5 CC.NO.14447/2008
11. CW9 was examined as PW3. PW3 was working as Sub
Registrar, Peenya Sub Registrar office at the relevant point of time.
PW3 has deposed regarding the execution of sale deed in favour of
accused No.2 as a GPA holder of B.S.Venkatanarayana Raju and
other by accused No.1. The said certified copy of sale deed dated
21.12.2003 got marked as Ex.P.19.
12. CW6 was examined as PW4. According to the prosecution
accused No.1 had entered in to a Joint Development agreement in
respect of Sneha Apartment with CW6. However, PW4 did not
support the prosecution during the course of trial. PW4 was
treated as hostile witness and cross-examined by Senior APP.
13. CW10 was examined as PW5. PW5 was working as PSI of
Cubbonpark Police Station from 1.3.2004 to 12.1.2007. PW5 has
deposed regarding receipt of PCR 5340/2006 and registration of
FIR.
14. Now the question for consideration is whether on the basis of
evidence of PW1 to PW5, prosecution is able to prove the alleged
charges against the accused. Ex.P.2 is the copy of loan application
applied by accused No.2. It discloses that, accused No.3 is the co-
applicant. There is material to show that, a sum of Rs.6 Lakhs has
been sanctioned in favour of accused No.2. According to PW1 the
said amount was taken by accused No.1. It goes to very clear that
loan papers have been executed between accused No.2 and
Weizmann Homes Limited. In other words, the relationship
between Weizmann Homes Limited and accused No.2 is Creditor
and Debtor.
6 CC.NO.14447/2008
15. Now the question for consideration is whether loan
transaction amounts to entrustment of the property. In catena of
decision it is held that, loan transaction does not amount to
entrustment of the property. In order to attract offence of criminal
breach of trust, two essential conditions are to be fulfilled. One is
entrustment of the property and second is dishonest
misappropriation of the property. It can be noticed that, before
sanctioning the loan Weizmann Homes Limited had obtained legal
opinion from PW2. In other words, there is no inducement by the
accused to advance loan amount by Weizmann Homes Limited.
One of the essential ingredients of offence of cheating i.e.
fraudulent inducement to deliver the property is missing in the
evidence of PW1 to PW5. If at all accused No.2 and accused No.4
as principal debtor and guarantor failed to repay the loan amount,
the remedy lies for the recovery of the loan amount. In other
words, remedy lies before Civil Court. Absolutely there is no iota of
evidence to establish the charge of forgery. Evidence of PW1 is
totally silent in what manner accused No.1 and other accused
forged the documents and used it as genuine document. A
registered sale deed has been executed by accused No.1 in favour of
accused No.2. It is alleged that, much earlier to the execution of
this sale deed, accused No.1 had executed similar sale deed in
favour of CW8. But prosecution could not able to secure the
presence of CW8 inspite of sufficient opportunity. There is no
expert opinion regarding the creation of documents by the accused.
Moreover, a sale transaction does not amount to entrustment of the
property. Hon'ble Supreme Court in State of Gujarath Vs.
Jaswanth Lal (AIR 1968 SC 700) held that, a transaction of sale
7 CC.NO.14447/2008
cannot amount to an entrustment. Considering all the
documents and disputed facts, I am of the view that, the dispute is
essentially a civil dispute. There is distinction between breach of
contract and breach of trust. Breach of trust and breach of
contract are distinguishable. Breach of contract is failure to
perform the contract and breach of trust occurs by doing
contrary to the mode provided in the trust created by contract.
Inspite of sufficient opportunity, prosecution could not able to
secure the presence of other charge sheet witnesses. Since the
dispute is essentially a civil dispute, no criminal action lies against
the accused. Merely because the name of the apartment has been
changed from Sneha Apartment to Neha Apartment, on that ground
alone offence of cheating is not established. Moreover, the role of
accused No.2 and 3 in changing the name of apartment is
considerably less. So, looking from any angle, none of the offences
as stated in the charge sheet has been constituted or disclosed.
Unless there is legal and acceptable evidence, it cannot be held
that, prosecution proved the guilt of the accused beyond reasonable
doubt. Accordingly, there is no alternative except to acquit the
accused for want of substantive evidence. In the result, I proceed
to pass the following :
ORDER
Accused No.2 & 3 are not found guilty for the offences punishable u/s.406, 409, 468, 471, 420 r/w 34 IPC.
Accused No.2 & 3 are acquitted u/s.248(1) of Cr.P.C. for the offences 8 CC.NO.14447/2008 punishable u/s.406, 409, 468, 471, 420 r/w 34 IPC.
Bail bond of accused No.2 & 3 stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 27th Day of April 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : C.S.Upadhya PW.2 : Rajeev Kumar Jha PW.3 : K.P.Shankaralingaiah PW.4 : Ramachandra PW.5 : C.S.Anand
List of exhibits marked for prosecution:-
Ex.P.1 : Private complaint Ex.P.2 : True copy of loan application Ex.P.3 : True copy of letter of offer Ex.P.4 : True copy of loan agreement Ex.P.5 : True copy of Promissory note Ex.P.6 : True copy of Power of Attorney Ex.P.7 : True copy of letter evidencing deposit of title deeds Ex.P.8 : True copy of Deed of Guaranteee Ex.P.9 : True copy of sale deed Ex.P.10: True copy of agreement to sell undivided interest Ex.P.11: True copy of construction agreement Ex.P.12: Legal notice Ex.P.13: Postal cover Ex.P.14: Original postal receipt Ex.P.15: True copy of Under Certificate of Posting Ex.P.16: True copy of notice regarding cancellation of loan to accused No.2 to 4 9 CC.NO.14447/2008 Ex.P.17: Postal receipts Ex.P.18: Legal opinion Ex.P.19: True copy of sale deed Ex.P.20: Statement of PW4 Ex.P.21: FIR 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.10 CC.NO.14447/2008
27.04.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused No.2 & 3 are not found guilty for the offences punishable u/s.406, 409, 468, 471, 420 r/w 34 IPC.
Accused No.2 & 3 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 409, 468, 471, 420 r/w 34 IPC.
Bail bond of accused No.2 & 3 stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 27th Day of April 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.