Bangalore District Court
State By Police Sub Inspector vs No.1 S.Sunitha Ananth on 15 June, 2017
IN THE COURT OF LVI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
PRESENT: SRI.HATTIKAL PRABHU.S.
M.A.,LL.B(Spl) LL.M.,
DATED THIS THE 15th DAY OF JUNE, 2017
C.C.No.5808 /2005
Complainant State by Police Sub Inspector,
Malleswaram police station.
-Vs-
Accused No.1 S.Sunitha Ananth,
W/o.Ananth,
Aged about 30 years,
Accused no.2 Ananth,
S/o.Late.Vasudevmurthy,
Aged about 38 years
Both are R/a.No.118,
5th cross,Kodandaramapura,
Malleswaram,Bangalore-3
Date of commission of 16.05.2000
offence
Name of the informant K.G.Narasimhamurthy
of crime
Offences complained of U/Sec.468, 471 and 420
r/w Sec. 34 of IPC
Arrest of accused Not arrested
Release of accused Accused on anticipatory
bail
Commencement of 06.06.2009
recording of evidence
Closure of recording of 01.04.2016
evidence
State represented by Sr.Asst.Public Prosecutor
2
C.C. No.5808/2005
Accused represented by M.R.Balakrishna -Adv
Plea of the accused and Pleaded not guilty
his examination
Final Order/Opinion of Acquittal
the Judge
JUDGMENT
(U/Sec. 355 of Cr.P.C) This is a charge sheet submitted by the Police -Sub Inspector of Malleswaram Police station for the offences punishable U/Sec. 420, 468, 471 r/w Sec.34 of IPC against the accused no.1 and 2, in Cr.No.224/2000.
2. The brief facts of the case of the prosecution runs thus:
2(a). Deceased Venkatalakshmamma died on 15.05.2000 and the deceased Venkatalakshmamma had SB Account and also shares in Malleswaram Co-
operative Bank Ltd., in SB Account No.5494 and Account No.42977 respectively.
2(b). The accused no.1 is the grand daughter of deceased and accused no.2 is the husband of accused no.1. The accused no.1 and 2 colluding with each other 3 C.C. No.5808/2005 created and forged the signature of the deceased on the application form for change of nominee and submitted to Malleswaram Cooperative Bank Ltd., seeking change of nominee in favor of accused no.1.
2(c ). Thereby the accused no.1 and 2 committed the offences of creating forged documents and committed the offence of making use of forged documents as genuine and also cheated the bank and thereby committed the above said offences.
3. After submitting charge sheet, cognizance of the alleged offence is taken and criminal case against accused came to be registered. Accused are on bail and are represented by their counsel.
4. Charge sheet copy furnished to the accused by complying with Sec.207 Cr.P.C. After hearing before charge, since there are good and sufficient grounds to proceed further charge was framed for the offences punishable U/Secs. 420, 468, 471 r/w Sec.34 of IPC and read over to the accused no.1 and 2. Accused pleaded not 4 C.C. No.5808/2005 guilty. Hence matter is posted for recording evidence on behalf of prosecution.
5. On behalf of prosecution, in all evidence of P.W.1 to P.W.5 adduced and documents Ex.P.1 to 10 are got marked. Prosecution evidence is closed. 7 After closure of prosecution evidence, statement of accused as contemplated U/Sec. 313(1)(b) of Cr.P.C is recorded. When all the incriminating circumstances found against accused in the evidence read over and explained, the accused denied the same as false. Accused did not lead evidence on their favor. The accused got marked Ex.D.1 and 2 on their behalf.
8. Heard the arguments.
9. Now the points that would arise for the determination of the Court are:
1. Whether the prosecution proves the alleged guilt of the accused no.1 and 2 for the alleged offences U/Sec. 420, 468, 471 r/w Sec.34 of IPC, beyond all reasonable doubts?
2. What Order?5
C.C. No.5808/2005 My findings on the above points is :
For Point No.1- in the Negative For Point No.2- As per the final order for the following.....
REASONS
10. Point No.1: On behalf of prosecution in order to establish the guilt of the accused, C.W.1 informant of crime who is son of deceased Venkatalakshmamma is examined as P.W1. C.W.2 who is wife of C.W.1 is examined as PW5. C.W.5 Sr.Assistant in Malleswaram Cooperative Bank is examined as P.W.3, C.W.6 General Manager in the said bank is examined as P.W.4. C.W.9 police Inspector who registered the crime and conducted spot mahazar and partly investigated the matter is examined as P.W.2.
11. In support of oral evidence prosecution produced the alleged forged application form at Ex.P.1. Ex.P.2 and 3 are marked claiming to be admitted signatures. Ex.P.4 is 6 C.C. No.5808/2005 the intimation issued by the bank in the name of Venkatalakshmamma as to change of nomination. Ex.P.5 is the letter issued by C.W.1 to the bank objecting for transaction in the account of Venkatalakshmamma. Ex.P.6 is the death extract of deceased Venkatalakshmamma. Ex.P.7 is the private complaint submitted in the court. Ex.P.8 is the spot mahazar, these documents are marked through P.W1, Ex.P.9-FIR and Ex.P.10-intimation to the bank are marked through P.W.2-Investigating Officer who registered the crime.
12. C.W.3 and 4 who are said to be attesting witnesses to the application form for the change of nomination, are not secured by the prosecution inspite of giving sufficient opportunities. The prosecution failed to secure C.W.7-Hand writing expert, Forensic science laboratory and failed to secure C.W.8 and 10-Investigating Officers. After giving sufficient opportunities and considering the period of pendency and relying on the decision reported in ILR 2000 Kar 900, this court by rejecting the prayer of Ld. Sr.App to 7 C.C. No.5808/2005 reissue process recorded that prosecution evidence is taken as closed as per Order dated 18.02.2017.
13. The prosecution failed to secure P.W5( C.W.2) for cross examination. Hence it is recorded that P.W.5 not available for cross examination. Hence evidence of PW.5 cannot be looked into.
14. During course of arguments, Ld.Sr.App vehemently argued that evidence of P.W.1 to 4 is sufficient to bring home the guilt of the accused . Further he submitted that prosecution is able to prove that accused no.1 and 2 colluding with each other submitted application form for change of nomination by forging signature of deceased Venkatalakshmamma. Ld.Sr.App submitted that offences are heinous in nature and prayed to convict the accused.
15. On the other hand, Ld. Counsel for accused vehemently argued that P.W.1 having no personal knowledge about forging of signature and creation of document as stated by him and his evidence is not based 8 C.C. No.5808/2005 on the proper personal knowledge and his evidence is not corroborated with other satisfactory evidence and he submitted that the evidence of P.W.1 is liable to be discarded. Further he submitted that evidence of P.W3 and 4 is absolutely contrary to the case of the prosecution and their evidence is not helpful to the case of prosecution. Further Learned Counsel for accused submitted that prosecution failed to secure C.W.7-Hand writing expert to prove that deceased Venkatalakshmamma has not signed the disputed signature. Further he submitted that non examination of C.W.8 and 10-Investigating Officer is seriously fatal to the case of the prosecution. Further he submitted that non examination of material witnesses C.W.3 and 4 is also seriously fatal to the case of prosecution. Further he relied on Ex.D.1 and 2 -letters issued by bank in support of his defence that the accused not created any document or signature. Further he prayed for acquittal of the accused.
16. In the background of the rival submissions, I carefully examined the entire material available on record. In the 9 C.C. No.5808/2005 circumstances I feel it relevant to reproduce Sec.468, 471 and 420 of IPC for better appreciation of the evidence. The said provisions of law reads as under:-
Sec. 468. Forgery for purpose of cheating.- Whoever commits forgery, intending that the [ document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Sec.471. Using as genuine a forged [document or electronic record]-Whoever fraudulently or dishonestly uses as genuine any[document or electronic record], which he knows or has reason to believe to be a forged[document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
Sec.420.Cheating and dishonestly inducing delivery of property.-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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
After going through the above said provisions of law, it is crystal clear that in this case on hand that prosecution has 10 C.C. No.5808/2005 to establish that accused no.1 and 2 forged the signature of deceased Venkatalakshmamma and they presented the application for change of nomination to the bank and thereby the accused committed offences punishable U/Sec.468 and 471 of IPC.
17. Further the prosecution has to prove that the accused induced somebody to act upon or not to act upon in order to make wrongful gain. Now the material question that arises before court is whether prosecution proves these essential ingredients of law to bring home the guilt of the accused. Keeping these requirements of law in my mind, I have scrutinized the evidence available on record.
18. P.W.1-K.G.NarasimhaMurthy who is none other than son of deceased Venkatalakshmamma in his chief examination deposed supporting the case of prosecution. In the cross examination of the P.W.1 it is established that this P.W1 is not residing with deceased Venkatalakshmamma . Further it is elicited that the elder sister of P.W1 was looking after deceased 11 C.C. No.5808/2005 Venkatalakshmamma. It is undisputed fact that accused no.1 is none other than the daughter of elder sister of P.W.1. P.W.1 submitted that his elder sister did not allow him and his wife to see/visit his mother. Further it is elicited that the elder sister of P.W.1 (i.e) mother of accused no.1 filed number of criminal cases against him and also it is established that there is civil dispute between them. It is the case of the accused that for this hostility, P.W.1 lodged false complaint in order to harass the accused.
19. After going through the entire evidence of P.W.1, it can be made out that there is civil dispute between the P.W.1 and his elder sister i.e, mother of accused no.1. There are reasons to believe that there is hostility between accused and P.W1 who lodged complaint in this case. The existence of hostility itself is not sufficient to presume that false complaint came to be lodged by informant of crime . But at the same time, this Court cannot lose sight or rule out the possibility of lodging false complaint. Under these circumstances, this Court is of the opinion that the 12 C.C. No.5808/2005 evidence of interested witnesses can be accepted if same is corroborated with the satisfactory evidence of independent witness/witnesses. In this background I proceed further and examine the evidence of other witnesses available on record
20. P.W.2 Investigating Officer deposed that he registered the crime.
21. P.W.3 one Sridhar Murthy who was Senior Assistant Manager, at the time of alleged incident in the chief examination deposed that in the year 2000 both accused came to the bank and took nomination form and thereafter came back and submitted nomination form requisition to enter the name of the accused no.1 as nominee. Thereafter he deposed that deceased Venkatalakshmamma did not visit the bank on that day.
22. In the cross examination, this P.W.3 admitted that 2 members of the bank signed on the form which is marked as Ex.P.1. Further he admitted that in the account of 13 C.C. No.5808/2005 deceased Venkatalakshmamma, the balance amount was less than the required minimum balance. Further he identified the letter issued by the bank on 01.07.2000. Further he admitted that the nomination was changed according to the relevant rules of the bank. I feel it is relevant to reproduce the relevant say of P.W.3 in the cross examination. It reads as under:
"ªÉAPÀl®PÀëäªÀÄä CªÀgÀ £Á«Ä£ÉñÀ£ï §zÀ¯ÁªÀuÉ ªÀiÁqÀ®Ä CªÀgÉ §A¢zÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D §UÉÎ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëUÉ ¢£ÁAPÀ 01.07.200 0 gÀ ¥ÀvÀæªÀ£ÀÄß vÉÆÃj¹ CzÀ£ÀÄß d£ÀgÀ¯ï ªÀiÁå£ÉÃdgï gÀªÀgÀÄ ¥ÉưøïE£ïì¥ÉPÀÖgïgÀªÀjUÉ §gÉ¢zÀÄÝ EzÉ JAzÀgÉ ¸Àj. CzÀ£ÀÄß ¤.r 1 JAzÀÄ FUÁUÀ¯É UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQëUÉ ¢£ÁAPÀ 14.02.2001 gÀ£ÀÄß vÉÆÃj¹ K£ÀÄ JAzÀÄ PÉýzÁUÀ ¨ÁåAQ£À PÁ£ÀƤ£À ¥ÀæPÁgÀ £Á«Ä£ÉñÀ£ï ªÀiÁrzÀÄÝ EzÉ ªÀÄvÀÄÛ CzÀgÀ°è EzÀÝ ¸À» ºÉÆAzÁtôPÉ DUÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÀgÀ°ègÀĪÀ ¸À» d£ÀgÀ¯ï ªÀiÁå£ÀÉÃdgïgÀªÀgÀzÁÝVzÉ. CzÀ£ÀÄß ¤.r 2 14 C.C. No.5808/2005 DVzÀÄÝ CªÀgÀ ¸À» ¤.r 2J FUÁUÀ¯É JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¦gÁå¢AiÀÄ ªÀiÁvÀÄ PÉý ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è".
23. P.W.4 one Anand Halepet who was working as Manager in the said bank at the time of alleged incident. This witness deposed that in the year 2000 deceased Venkatalakshmamma applied for change of nomination and thereafter nomination was changed. Further he deposed that C.W.1 submitted letter objecting for change of nomination and thereafter he closed that account. In the cross examination this P.W.4 deposed as under:-
"¸ÁQëUÉ ¢£ÁAPÀ 01.07.2000 ¥ÀvÀæªÀ£ÀÄß vÉÆÃj¹ CzÀ£ÀÄß ¥Éǰøï E£ïì¥ÉPÀÖgïgÀªÀjUÉ §gÉ¢zÀÄÝ EzÉ JAzÀgÉ ¸Àj. CzÀ£ÀÄß ¤.r 1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ªÉAPÀl®PÀëäªÀÄä gÀªÀgÀ SÁvÉAiÀÄ°è PÀ¤µÀÖ ±ÀÄ®Ì G½PÉVAvÀ PÀrªÉÄ EvÀÄÛ JAzÀgÉ ¸Àj. ¸ÁQëUÉ ¢£ÁAPÀ 14.02.2001 gÀ£ÀÄß vÉÆÃj¹ K£ÀÄ JAzÀÄ PÉýzÁUÀ ¨ÁåAPï£À PÁ£ÀƤ£À ¥ÀæPÁgÀ £Á«Ä£ÉñÀ£ï 15 C.C. No.5808/2005 ªÀiÁrzÀÄÝ EzÉ ªÀÄvÀÄÛ CzÀgÀ°è EzÀÝ ¸À» ºÉÆAzÁtôPÉ CUÀÄvÀÛzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÀgÀ°è EgÀĪÀ ¸À» £À£ÀßzÉ. CzÀ£ÀÄß ¤.r 2 JAzÀÄ £À£Àß ¸À»AiÀÄ£ÀÄß ¤.r 2J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¥ÉǰøÀgÀ ªÀÄÄAzÉ ºÉýPÉAiÀÄ°è ¸ÀzÀj G½vÁAiÀÄ SÁvÉAiÀÄ°è MlÄÖ 361/- gÀÆ JAzÀÄ ºÉýzÉÝÃ£É JAzÀgÉ ¸Àj. ªÉAPÀl®PÀëäªÀÄä gÀªÀgÀ SÁvÉAiÀÄ°è AiÀiÁªÀ ºÀt vÉUÉ¢gÀĪÀÅ¢®è ªÀÄvÀÄÛ ºÉÆÃVgÀĪÀÅ¢®è".
On careful perusal of the evidence of P.W3 and 4 especially considering the say of P.W.3 and 4 in the cross examination, it is clear that bank changed the nomination according to the rules and after satisfying that deceased herself applied for change of nomination. Ex.D.1 and 2 letters clearly indicates that the nomination was changed by following due procedures of law.
24. This aspect clearly supports the defence of the accused. Apart from that the prosecution is at liberty and opportunity to establish that the accused forged the 16 C.C. No.5808/2005 signatures of deceased Venkatalakshmamma and committed the alleged offences. In the present case on hand, the Investigating Officer secured the report of the handwriting expert. The report speaks that the disputed signature is not tallying with the admitted signatures. The prosecution failed to prove that the admitted signatures are also admitted by the accused. The prosecution failed to adduce evidence of author of the report i.e hand writing expert. Atleast the evidence of the Investigating Officer is also not adduced. The prosecution absolutely failed to prove the report of the expert.
25. Apart from that this court observed that the prosecution mainly relied on the evidence of C.W.3 and C.W.4 who signed as attesting witnesses in the Ex.P.1-nomination form which is said to be created/forged by the accused. On plain looking into Ex.P.1-document, it indicates that deceased Venkatalakshmamma signed on the form and C.W.3 and 4 attested the form. Prosecution failed to secure C.W.3 and 4 and examine them.
17
C.C. No.5808/2005
26. Under these circumstances, this Court comes to the conclusion that non examination of C.W.3 and 4 material witnesses and non examination of C.W.7 hand writing expert and non examination of C.W.8 and 9 Investigating Officers seriously is fatal to the case of prosecution.
27. Looking to the matter from any angle evidence placed on record is not sufficient and satisfactory and not pointing out towards the guilt of the accused only. Under these circumstances, this court comes to the clear conclusion that it is not safe and proper to convict the accused for the alleged offences relying on the evidence available on record. With these observations this court held that prosecution failed to prove the guilt of the accused beyond all reasonable doubts. Consequently I answer point no.1 in the Negative.
28. Point No.2: In view of my answer to point no.1 in the Negative, as an answer to point No.2 , I proceed to pass the following....
18 C.C. No.5808/2005 ORDER Acting U/Sec.248(1) of Cr.P.C., I
hereby acquit accused no.1 and 2 for the offences punishable U/Sec. 468, 471 and 420 r/w Sec. 34 of IPC.
Accused no.1 and 2 are set at liberty forthwith. The bail bond of accused no.1 and 2 stands cancelled.
The accused are directed to execute personal bond for sum of Rs.10,000/-each, for their appearance before appellate Court, if necessary, as contemplated in Sec.437(A) of Cr.P.C.
(Dictated to the Stenographer, transcribed and typed by her on computer and after corrections made by me and then pronounced by me in the Open Court on this the 15th day of June 2017.
(HATTIKAL PRABHU.S) LVI ADDL. C.M.M,BANGALORE 19 C.C. No.5808/2005 ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W.1: K.G.Narasimhamurthy P.W.2: Jayaprakash P.W.3:Sridharmurthy P.W.4: Anand Krishnarao Halepet P.W.5: Ahalya
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Application for nomination Ex.P. 2 : Specimen signature card Ex.P.3 : Membership Application form Ex.P.3(a) : Signature of deceased Venkatalakshmamma Ex.P.4 : Intimation Letter Ex.P.5 : Copy of the letter Ex.P.6 : Death certificate Ex.P.7 : Private complaint Ex.P.7(a) : Signature Ex.P.8 : Spot Mahazar Ex.P.9 : FIR Ex.P.10 : Intimation letter by police to bank
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE-
Ex.D.1 & 2 : Letters from General Manager of Malleswaram Cooperative bank
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION-
NIL (HATTIKAL PRABHU.S) LVI ADDL. C.M.M,BANGALORE