Bangalore District Court
Trying To Draw The Amount vs No on 5 September, 2015
IN THE COURT OF THE IX ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
DATED THIS THE 05th DAY OF SEPTEMBER 2015
PRESENT:
Sri J.V.Vijayananda, B.Com., L L.B.
IX ACMM, Bengaluru
J U D G M E N T U/S 355 of Cr.P.C.
1 CC Number 47025/2010
2 Date of 05-06-2010
Offence
3 Complainant State by Upparpet
Police, Bengaluru City
4 Accused 1. Shailendra Kumar s/o Arun
Prakash, 26 yrs, No.37, Mavari
Village, Koyilwan Post,
Chowrangabad District,
Bihar State.
2. Prakash Kumar - Split Up
5 Offences U/S 380, 420 IPC
Complained of
6 Plea of the Accused No-1 pleaded not
Accused guilty
7 Final Order Accused No-1 Acquitted
8 Date of Order 05-09-2015
2 C.C.No.47025/2010
REASONS
The Police Sub-Inspector of Upparpet P.S., Bengaluru
City has filed this charge sheet against accused No.1 and 2 for
the offences punishable U/S 380 and 420 IPC. It appears
during the pendency of this case, the accused No-2 was
continuously absent before the court, and hence vide order
dated 28-02-2012, this case against accused No-2 was split up
and ordered to register separate case, but so far, the office has
not registered separate case against him.
2. The brief facts of the case of prosecution are that-
On 05-06-2010 at about 6.30 p.m., CW1 D.V.
Nagalakshmi visited ATM counter, located at SBM Head Office
at Avenue Road, Bengaluru and tried to draw cash of
Rs.10,000/- from her account by using her ATM card. Since
the cash was not processed, may be due to fault of machine,
she cancelled the said transaction, but even in spite of
cancellation of said transaction, thereafter she received mobile
alert message from Branch Manager Bangalore that an
amount of Rs.10,000/- debited into her account. In this
regard, it is the allegation of the prosecution that this accused
and another who were present in the said ATM counter when
this complainant visited to draw cash, have illegally drawn the
said amount of Rs.10,000/- from the account of complainant,
thereby cheated the complainant and committed the alleged
offences.
3 C.C.No.47025/2010
3. Accused No-1 is on bail. On receipt of charge sheet,
my learned predecessor in office took cognizance of the
offences and furnished the copies of prosecution papers to the
accused. After hearing on charges, my learned predecessor in
office has framed charge against accused No-1 for the alleged
offences, read over and explained in the language known to
him, wherein he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has
examined in all four witnesses as PW1 to 4 and got marked
eight documents as per Ex.P1 to 8.
5. Thereafter, the statement of accused No-1, as required
U/S 313 of Cr.P.C., recorded wherein he has denied the
incriminating evidence appeared against him and not opted to
adduce any defence evidence. However, thereafter, necessary
application for adducing defence evidence was allowed by this
court moved by defence and accordingly, accused No-1 has
been examined himself as DW1 and got marked one document
as per Ex.D1.
6. I have heard arguments of both sides and perused the
evidence on record.
7. If we look into the allegations made in the complaint, it
is seen that there are no eyewitnesses to the act of drawing the
amount of Rs.10,000/- by this accused and another,
4 C.C.No.47025/2010
particularly from the account of complainant. It appears,
though there is evidence regarding the presence of accused
persons by way of further statement of complainant in the
ATM counter, in my opinion mere presence of this accused
and another in the ATM counter, at the time when the
complainant trying to draw the amount, unless explains their
overact, does not amounts to direct evidence, if at all, it is only
a circumstantial evidence. Further, if we carefully perused the
charge sheet, it is seen that, the investigation officer has not
placed any direct evidence by way of CC TV footage of said
ATM counter to establish that on 05-06-2010 at 6-30 PM, this
accused No-1, along with split up accused No-2 illegally had
drawn cash of Rs.10,000/- by using fake ATM card from the
account of complainant. It is needless, to say that without
using ATM card and pin number, one cannot be in a position
to draw the cash from ATM machine illegally. Moreover, it is
not the case of prosecution that this accused and another
used the ATM card of complainant to draw cash of
Rs.10,000/- and further it is not the case of prosecution that,
by way of misrepresentation, this accused and another came
to know the pin/secret number of complainant to drawn the
cash illegally. However, it appears from the prosecution papers
that the PSI of New Extension P.S., Tumkur had arrested this
accused and another, and recovered the cash pertaining to
this case by preparing seizure mahazar and based on recovery
of amount and voluntary statement, they have been charge
5 C.C.No.47025/2010
sheeted for the above-referred offences. Therefore, the present
case is, purely based upon circumstantial evidence.
8. Now, let us consider whether the prosecution is
successful in bringing home the guilt of accused No-1 beyond
all reasonable doubts. PW2 D.V.Nagalakshmi the complainant
and victim have almost re-iterated her complaint averments in
her examination in chief. Her testimony further indicating that
on 05-06-2010 at 3-15 PM, she was attempting to check
balance in her account from the ATM counter located adjacent
to the SBM head office at Avenue Road, Bengaluru. She did
not get any information, however at that time, she noticed the
presence of accused persons in the said counter, who were
drawing the cash from another machine and they told her to
try once again, as the system not properly working.
Accordingly, she tried and however could not get any
information. But, on the same day at 6.30 p.m., she received
SMS message to her mobile phone stating that Rs.10,000/- is
drawn from her account. Immediately, she lodged complaint to
the Upparpet police station.
9. Her testimony further indicates that after lodging of
the complaint, the police visited the ATM counter and
prepared mahazar. Therefore, from the evidence of P.W.2, it is
very much clear that by virtue of complaint lodged by this
P.W.2, the concerned police set the law into motion.
6 C.C.No.47025/2010
10. It appears in this case, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigation officer C.W.10 herein, who received the complaint
from P.W.2, registered the case and prepared spot mahazar.
Further, the prosecution has not examined the independent
spot mahazar witnesses. However, I have carefully perused
the cross-examination of P.W.2 and absolutely, nothing worth
elicited from her to doubt her testimony in the matter of
lodging of complaint and preparing of spot mahazar.
11. It appears as per the further case of prosecution, the
New Extension P.S. PSI, Tumkur, on the basis of complaint of
illegal drawing of money of one Sridhara Acharya, in ATM had
registered the case in their police station, arrested this
accused and another and recovered cash pertaining to this
case by preparing seizure mahazar. It appears in this case, the
prosecution has produced the true copy of said seizure
mahazar as per Ex.P7. It is to be noted here that the,
prosecution in order to prove Ex.P.7 has examined only one
witness who is the seizure panch as per PW3. However, it
appears in spite of giving sufficient opportunities, the
prosecution has not examined another independent seizure
mahazar witness as well as the investigation officer, who
conducted the same.
7 C.C.No.47025/2010
12. Now let us consider whether the prosecution has
established the said seizure mahazar beyond all reasonable
doubts. The testimony of PW3 indicating that on 21-08-2010
at 6.30 pm, the PSI and staff of New Extension P.S., Tumkur
visited his Shiva Linga Lodge situated at Balepet, Bengaluru
along with accused No-2. They enquired him about stay of
accused No-2 & another at his lodge, for which he replied that
accused No-2 along with accused No-1 stayed in his lodge. He
informed the said police that CW5 Ravikumar was working as
cashier at the time of allotment of room to accused persons.
The police informed him about the illegal drawing of amount
from ATM by the accused persons from the account of some
other person. The police had told to accompany them, as they
have to inspect the room and to prepare mahazar. Accused
No-2 led them to the said room and asked accused No-1 to
open the door. Accordingly, accused No-1 opened the door.
The police verified the room and found cash worth
Rs.54,000/-, Reliance Mobile Phone, Two Blank ICICI Bank
Cheques, ATM Cards of ICICI & SBM banks. The police took
the ledger extract of room and seized the above properties
under mahazar. Though PW3 was cross-examined, nothing,
worth is elicited from him to doubt his testimony. In my
opinion, even though the prosecution has not examined
another independent seizure mahazar witness and the
investigation officer who prepared the seizure mahazar, I have
8 C.C.No.47025/2010
no reason to dis-believe the testimony of PW3 in the matter of
seizure mahazar.
13. As stated above, this case is purely, based upon
circumstantial evidence. In order to connect the accused, each
circumstance has to link together like chain. If any one link
missed, the accused cannot, be convicted. It is to be, noted
here that four cases registered against present accused No-1
and another including this case, the other cases numbered as
CC No.47023/2010, CC No.47018/2010 & CC
No.47011/2010, which are pending before this court and
simultaneously posted for judgment. It appears, the
investigation officer of this case who is also investigation
officer in other three cases referred above, took the custody of
accused No-1 & 2 in one of the above referred cases, for the
purpose of investigation. During the course of investigation,
he enquired accused No-1 & 2 and recorded their confessional
statements. Since, they disclosed information and expressed
that, if they taken, they would show the place where they had
illegally drawn the cash, accordingly, the investigation officer
took them to the ATM counter attached to SBM head office
and prepared mahazar as per Ex.P1. It appears the
prosecution to prove Ex.P1 has examined only one witness by
name Basavaraj PW.1 herein. The testimony of PW1 indicating
that about two years back, the police called him near SBM
office located at Avenue road, Bangalore pertaining to drawn of
9 C.C.No.47025/2010
cash from ATM, prepared mahazar and obtained his signature.
He further stated that at that time, two persons were with the
custody of said police, and he is unable to identify them. Since
PW1 has not supported the case of prosecution, the learned
Sr.APP treated him as hostile. In the cross-examination, PW1
has admitted the suggestion that on 14-09-2010 when the
police called him as panch, the accused No-1 was with the
custody of said police. Though PW1 has admitted the said
suggestion, he further stated that, he could not clearly identify
the accused No-1. However, he further admitted regarding
preparing of spot mahazar by the police in between 11 a.m. to
12. In the cross-examination by the learned counsel for
accused No-1, PW.1 has admitted that he cannot exactly
identify the accused No-1, as the person brought by police at
the time of preparing the mahazar. In my opinion, the
testimony of PW1 is not trustworthy to believe. In my further
opinion, in order to believe the above said testimony of P.W.1,
corroboration by another witness, more particularly
investigation officer who prepared the mahazar is necessary.
Unfortunately, in spite of giving sufficient opportunities, the
prosecution has not examined another independent mahazar
witness and investigation officer who prepared Ex.P1.
Therefore, the prosecution has failed to prove Ex.P1 beyond all
reasonable doubts.
10 C.C.No.47025/2010
14. It is pertinent to note here that in the cross-
examination of learned Sr.APP, P.W.2 the complainant has
admitted that on 14-09-2010, she had given further statement
before police that she saw only accused No-1 in the police
station. Further she admitted in the cross-examination of
learned counsel for accused No-1 that she received only a sum
of Rs.8,000/- out of Rs.10,000/- lost by her. She has further
admitted that though she noticed accused No-1 in police
station, at present she is not in a position to identify him
exactly. Further, she cannot say whether accused No-1 has
mis-used her money. In my opinion, the testimony of PW2 in
the matter of identification of accused No-1 is not trustworthy
to believe and moreover she is not definite whether she
actually identified accused No-1 in the police station or not.
Even assuming that PW2 has identified accused No-1 in the
police station, basing on said identification it cannot be said
that this accused has committed the offence unless other
circumstances corroborates. In the instant case in view of my
above discussion, the prosecution has failed to prove that, by
virtue of the information given by this accused the
investigation officer visited the ATM counter and prepared
mahazar as per Ex.P1. Therefore, the testimony of PW2 in the
matter of identification of accused No-1 cannot be based to
hold that this accused along with another, illegally drawn the
amount of Rs.10,000/- from the account of PW.2 through
ATM.
11 C.C.No.47025/2010
15. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigation officer who completed the investigation. It
appears P.W.4 the head constable has deposed regarding
arrest of accused No-2 on suspicion grounds. Admittedly, the
case against accused No-2 is split up, and therefore the above
testimony of P.W.4 is only formal one and need not requires
detailed consideration. Even assuming that PW4 has arrested
accused No-2 on suspicious ground, based upon his
testimony, the present accused No-1 cannot be connected, for
the offences alleged against him unless other circumstances
corroborates.
16. I have carefully perused the evidence on record.
Though the prosecution to prove the guilt against accused No-
1 has examined in all four witnesses there is no link of each
circumstances to connect accused No-1 for the offences
alleged against him. It is to be noted here that, during the
course of investigation, investigation officer has recovered the
ATM cards of SBM and ICICI Bank from the custody of
accused persons. At the repetition of cost, without using the
ATM card and pin/secret number, it would be very difficult to
draw cash from the ATM counter from others account. In the
instant case, though it is the case of prosecution that, this
accused and another illegally drawn the cash of Rs.10,000/-,
from the account of P.W.2, naturally the accused persons to
12 C.C.No.47025/2010
draw the said amount might have used fake ATM card or
might have used secret pin number or might have used some
other technique/skill to draw the amount without using the
ATM card or secret pin number from the account of P.W.2.
But neither P.W.2 nor any witnesses have explained the
manner in which this accused and another, illegally drawn the
cash from the account of P.W.2 through ATM Machine which
is very weak part on the side of the prosecution to prove the
guilt against the accused. Moreover, the investigation officer
has not examined the bank officer who is an expert in ATM
machine, and who is the person to explain the nature of act of
accused persons, in illegally drawing the amount from ATM
machine. Further the investigation officer has not sent the
ATM cards seized from the custody of accused particularly the
SBM card to the Forensic Science Laboratory, in order to
confirm whether the accused by using the said ATM card had
drawn the cash from the account of PW2. Therefore, in my
opinion the investigation officer has failed to conduct proper
investigation to establish the guilt of the accused. In my
further opinion, even though the prosecution has examined
four witnesses and almost all the witnesses have supported
the case of prosecution, their evidence is not sufficient to
connect accused No-1 for the offences alleged against him.
17. As stated above, the accused No-1 has entered into
witness box and deposed that on 17-08-2010, he visited
13 C.C.No.47025/2010
Bengaluru to study 'B' Pharma. On 21-08-2010, he withdrawn
a sum of Rs.14,000/- from his account and as on the same
day, his brother deposited Rs.40,000/- to his account in
Delhi. Further, on the same day, he withdrawn a sum of
Rs.36,000/- in Tumkur. D.W.1 in support of his evidence has
produced his bank statement as per Ex.D.1 (kept in CC
No.47011/2010), wherein we could see the drawing of amount
of Rs.10,000/-, 6,000/- and 20,000/- in all a sum of
Rs.36,000/- on three occasions on 21-08-2010. But the
testimony of D.W.1 is not in corroboration to the drawing of
amount as per Ex.D.1. Anyhow, the accused No-1 has drawn a
sum of Rs.36,000/- on 21-08-2010. Admittedly, the offence is
taken place on 05-06-2010. No material is placed by accused
No-1 to substantiate his contention that his brother deposited
a sum of Rs.40,000/- which is also supported by Ex.D.1. But
in my opinion Ex.D.1 is not conclusive proof that this accused
has not illegally drawn the cash either from the account of
P.W.2 or from the account of other persons on the date of
allegation. Anyhow, the burden is heavy on the prosecution to
establish the guilt of accused No-1 beyond all reasonable
doubts. As already discussed, though the prosecution to
establish the guilt against accused No-1 has managed to
examine four witnesses, their evidence is insufficient to
connect this accused for the offences alleged against him.
Under the circumstances, on overall scrutiny of the evidence
of witnesses examined by prosecution, this court is of the
14 C.C.No.47025/2010
considered opinion that prosecution has miserably failed to
prove its case, beyond all reasonable doubts. Accordingly, this
court is of the view that accused No-1 is entitled for the benefit
of doubt. In the result, I proceed to pass the following:
ORDER
This court did not found guilty of accused No-1 for the offences punishable under Section 380 and 420 of I.P.C., and hence acting under Section 248(1) of Cr.P.C., accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled and set at liberty.
Office to register separate case against A2 as per order of this court dated 28-02-2012 and retain entire case paper of this case in 15 C.C.No.47025/2010 the said spilt up case without fail.
(Dictated to the Stenographer on Computer. The computerized print out taken by him is revised, corrected and then pronounced by me in the open court on this day i.e., 05-09-2015) (J.V.Vijayananda), IX Addl. Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Basavaraj
PW2 : D.V.Nagalakshmi
PW3 : H.G.Venkusa
PW4 : A.N.Sudarshan Kumar
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Mahazar
Ex.P2 : Complaint
Ex.P3 : ATM Withdrawal Slip
Ex.P4 : Photo
Ex.P5 : Mahazar
Ex.P6 : Further Statement of PW2
Ex.P7 : Copy of Mahazar
Ex.P8 : Report of PW4
List of Material objects produced:-
NIL 16 C.C.No.47025/2010 List of Witnesses examined & documents marked on behalf of the defence:
DW1 : Shailendra Kumar Ex.D1 : Bank Statement of Account IX A.C.M.M., BENGALURU. 17 C.C.No.47025/2010 05-09-2015 Judgment pronounced vide separate sheets. ORDER This court did not found guilty of accused No-1 for the offences punishable under Section 380 and 420 of I.P.C., and hence acting under Section 248(1) of Cr.P.C., accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled and set at liberty.
Office to register separate case against A2 as per order of this court dated 28-02-2012 and retain entire case paper of this case in the said spilt up case without fail.
IX Addl. Chief Metropolitan Magistrate, Bengaluru.
18 C.C.No.47025/201019 C.C.No.47025/2010