Bangalore District Court
State By Yalahanka Ps vs No.2 - H.S.Nagaraj Empaneled Valuer Had ... on 22 April, 2022
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 22nd day of April 2022
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 7925/2008
(Crime No.417/2007)
2. The date of commission
of the offence : 26.12.2004
3. Name of the complainant : State by Yalahanka PS
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden, Geddalahalli,
Bengaluru.
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
(Abated)
A3: S.Seetharamu,
S/o Late Suryanarayanarao, 37 Yrs.,
R/a. No.14, 5th main, 5th cross,
Ganganagar Extension,
Bengaluru.
A4: G.S.Tungamma,
W/o Late Suryanarayanarao, 69 Yrs.,
35 CC.NO.7925/2008
R/a. No.28, Koundinya,
Gopalappa Layout,
Hebbala Kempapura, Bengaluru.
A5: A.P. Sridhar,
S/o A. Puttaveerappa, 35 Yrs.,
R/a. No.1096/6, 7th cross, A Block,
Sahakaranagar, Bengaluru.
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 22.04.2022
The Police Inspector, Yalahanka Police Station filed the Charge
Sheet against the accused No.1 to 5 for the offence punishable under
Sections 409 and 420 read with Section 34 of Indian Penal Code
(hereinafter referred as IPC).
2. The brief facts of the prosecution case are as under :
The CW1 - H.S.Dhruvaraj transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the year 2006. He
worked as a incharge Manager as Ramesh Rao was on leave. Prior to
Sri. Ramesh Rao, accused No.1 - Suresh worked as Manager in the
said Bank. After assuming the charge by Sri.Ramesh Rao as Manager,
Head Office instructed him to review the loan accounts sanctioned by
35 CC.NO.7925/2008
the previous Manager accused No.1 - Suresh. On reviewing the loan
accounts he came to know that in loan account of accused No.3 - S.
Seetaramu became non performing asset. On perusal of documents of
the property which mortgaged to the Bank found that accused No.3 -
S. Seetaramu gave an application for sanction of loan of
Rs.10,00,000/- for the purchase of house property bearing site N0.1,
Katha No.1305/68/3A situated at Jakkur, Yalahanka within the limits
of TMC, Yalahanka and his mother accused No.4 - G. S. Thungamma
stood as a co-obligant to the said loan. The loan was sanctioned and
the total outstanding loan as on the date of filing of the first
information statement was of Rs.9,95,611/-. Accused No.3 - S.
Seetaramu and accused No.4 - Smt. G. S. Thungamma agreed to
repay the said amount at prevailing rate of 9% interest. In order to
ascertain the authenticity of documents Ramesh Rao visited the TMC,
Yalahanka, Bengaluru and on enquiry he came to know that no such
katha is existed in respect of property mortgaged by accused No.3 - S.
Seetaramu or his vendor. He also came to know that parent deeds of
property mortgaged pertaining to the Sy. No.41, 82, 83 and 67
purported to be issued by the concerned BDO were fabricated for the
purpose of creation of equitable mortgage for availing the said
housing loan. He tried to search the property mortgaged, but he did
not able to trace the existence of the property mortgaged. Even the
empaneled valuer unable to locate the property mortgaged and
accused No.2 - H.S.Nagaraj empaneled valuer had given valuation
report knowing that such property is not existed. Hence, the first
35 CC.NO.7925/2008
informant came to know that earlier Manager i.e. accused No.1 -
Suresh had not accompanied the valuer at the time of valuation of the
property. Hence, accused No.3 - S. Seetaramu, his mother accused
No.4 - Smt. G. S. Thungamma who are borrower and co-obligant,
accused No.5-A. P. Sreedhar who introduced accused No.3 and 4 to
Bank, accused No.2 valuer and accused No.1 the Manager of the said
Bank in collusion with each other with intention to defraud the Bank
obtained the housing loan by depositing the fabricated documents of
the property which is not existed. On the basis of written first
information statement police registered the case under their station
Crime No.417/2007 for the offence punishable under Sections 409,
465, 468, 420 read with Section 34 of IPC and issued first information
report.
3. During pending investigation accused No.2 to 4 appeared
through their advocate and they were released on bail.
4. The PI, Yalahanka PS completed the investigation and filed the
Charge Sheet against accused No.1 to 5 for the offence punishable
under Sections 409 and 420 read with Section 34 of IPC. My
predecessor in office had taken cognizance for the said offences and
registered the case in Criminal Case Register No.III and issued
summons to accused No.2 to 5 and NBW to accused No.1. Accused
No.1 and 5 appeared through their counsel and released on bail.
Accused No.2 to 4 appeared after receipt of summons.
35 CC.NO.7925/2008
5. The copy of Charge Sheet furnished to accused as per Section
207 of Code of Criminal Procedure (hereinafter called as Cr.P.C.)
6. The contention of accused No.2 that he be discharged from the
said offence was rejected as per order dated 05.10.2016.
7. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused No.1
to 5 for the said offences and read over and explained in Kannada
language known to them and they did not plead guilty and claimed for
trial.
8. The prosecution in order to prove its case, examined totally 5
witnesses as P.W.1 to 5 and got marked Ex.P.1 to P.14.
9. Accused No.2 reported as died on 05.10.2021 and case against
accused No. 2 is abated.
10. As sufficient materials available on record, statement of accused
No.1, 3 to 5 under Section 313 of Cr.P.C. was recorded and read over
and explained all the incriminatory evidence and statements available
against them in Kannada language known to them and accused denied
the same and did not lead defence evidence.
11. The prosecution examined CW1 as PW1, CW2 as PW2, CW3
as PW3, CW4 as PW4 and CW5 as PW5. The prosecution got
35 CC.NO.7925/2008
marked Ex.P.1 - first information statement, Ex.P.2 -transfer order of
accused No.1, Ex.P.3 - Account opening form of accused No.3, Ex.P.4
- copy of passport, Ex.P.5 - loan sanction order, Ex.P.6 - valuation
report of the property given by accused No.2, Ex.P.7 - sale deed,
Ex.P.8 - Statement of Loan Account of accused No.3, Ex.P.9 -copy of
GPA, Ex.P.10 - copy of sale deed, Ex.P.11 - report submitted by PW3,
Ex.P.12 -statement of PW4, Ex.P.13 - first information report and
Ex.P.14 - certificate of service of accused No.1.
12. It is the case of the prosecution that accused No.3 approached to
accused No.1 - Branch Manager, Karnataka Bank Limited, Sahakara
Nagar branch, Bengaluru that he want to purchase the site No.1, Katha
No.1305/68/3A situated at Jakkur, Yalahanka and applied for loan in
the first informant Bank. Accused No.3 opened the Bank account in
the first informant Bank and prosecution produced Ex.P.3 Bank
account opening form wherein accused No.3 given his address as
Subbiah Bulding, CPV Block, 5th Main, 5th Cross, Ganganagar, R.T.
Nagar, Bengaluru. Accused No.5 introduced accused No.3 to the first
informant Bank and introduction column is not filled. Even then
accused No.1 allowed his application and opened the account in the
first informant Bank as Account No.1212500100143001. The accused
No.3 furnished Ex.P.4 passport and PAN card as his address proof.
The accused No.3 mentioned his mother - accused No.4 as a nominee
in Ex.P.3 - Account opening form.
35 CC.NO.7925/2008
13. The accused No.3 in order to obtain loan from the said Bank he
produced the Ex.P.10 sale deed dated 07.03.2002 and Ex.P.9 - general
power of attorney. Hence, on the basis of these documents accused
No.3 want to purchase house situated at site No.1, Katha
No.1305/68/3A situated at Jakkur, Yalahanka. Here, accused No.1 the
Branch Manager of Karnataka Bank Limited, Sahakara Nagar branch
and accused No.2 Valuator of the property in the said Bank without
visiting the property and verifying as to the existence of said property
issued Ex.P.6 - valuation report. Hence, on the basis of Ex.P.10 - sale
deed, Ex.P.9 - General Power of Attorney and Ex.P.6 valuation report
accused No.1 sanctioned the loan of Rs.10,00,000/- as per Ex.P.5 loan
sanction order and credited to the account of accused No.3 and
accused No.4 who is mother of accused No.3 and co-
obligant to the said loan and in order to show that the said amount is
credited to the account of accused No.3 produced the Ex.P.8 statement
of account of accused No.3.
14. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, produced Ex.P.2
transfer order of accused No.1 and Ex.P.14 Letter/certificate of service
issued by the then Branch Manager, Karnataka Bank Limited,
Sahakaranagar branch certifying that accused No.1- Suresh M.
worked as a Branch Manager of said branch from 28.03.2004 to
12.12.2006.
35 CC.NO.7925/2008
15. Here after transfer of accused No.1 from the said branch
Ramesh Rao assumed the charge of Branch Manager, Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru city. In the Ex.P.1 - first
information statement and also in the evidence of PW1 stated that
after transfer of accused No.1, Ramesh Rao assumed the charge of
Branch Manager of the said Bank. The Head Office, Karnataka Bank
Limited instructed and directed Ramesh Rao, Manager, Kanarataka
Bank Limited, Sahakaranagar Branch to review the Non Performing
Assets loan accounts which sanctioned during the period of accused
No.1. Accordingly, Ramesh Rao reviewed all loan accounts
sanctioned during the service of accused No.1 and he came to know
that 25 loan accounts which are relating to the housing loan found that
property katha are not existed and among them one of the present loan
account of accused No.3. Hence, the said facts also heard by the PW1
and he specifically deposed as
"ಯಲಹಹಂಕ ಸರಹದದ್ದಿನಲ ಬರರುವ ಟಿಎಹಂಸ ಗ ಹಹಹೋಗ
ದಾಖಲೆಗಳನರು
ನ ಪರಿಶಹೋಲನ ಮಾಡಿದರರು. ಪರಿಶಹೋಲನ ಮಾಡರುವ
ವಹೋಳೆಯಲ ಸರುಮಾರರು 25 ಸಾಲದ ಖಾತೆಗಳರು ಮನಯ ಸಾಲಕಕ
ಸಹಂಬಹಂಧಪಟಟ ದ್ದಿ
ಖಾತೆಗಳಾಗದರು ಸದರಿ ಸಸತತ್ತಿಗ ಸಹಂಬಹಂಧಿಸದಹಂತೆ
ಯಾವುದಹೋ ಖಾತೆಗಳರು ಇಲಲ ಎಹಂದರು ಕಹಂಡರು ಬಹಂದವು."
16. PW1 also came to know that Ramesh Rao visited the BDA
office to verify the khata of site No.1 situated Jajjur, Yalahanka and he
came to know that in respect of said property katha is not existed.
Accordingly, Ramesh Rao, Branch Manager informed the same to the
35 CC.NO.7925/2008
Head Office. Hence, Head Office instructed and directed to file first
information statement against accused persons. Ramesh Rao, Branch
Manager was on leave because of which PW1 lodged the Ex.P.1 first
information statement stating that accused No.1 and 2 without
physically visiting and verifying the existence of the property
submitted Ex.P5-valuation report and sanctioned the loan and thereby
committed the said offences.
17. PW1 in his evidence specifically stated and deposed as .......
" ಸದರಿ ದಾಖಲೆಗಳನರು
ನ ಸಾಲ ಪಡಯರುವ ಉದಶಕಕಗ equitable
mortgage ಮಾಡರುವ ಸಲರುವಗ ಸಸಷಟಸದರ ಎಹಂದರು ಕಹಂಡರು ಬಹಂತರು.
ಆನಹಂತರ ಸಸಳಕಕ ಹಹಹೋಗದಹೋ ಆಸತ್ತಿಯ ಬಲೆ ಬಗಗ valuation report
ಕಹಟಿಟದರ ಎಹಂದರು ಮಾಹತ ಗಹತತ್ತಿಯತರು. ಎರಡನಹೋ ಆರಹಹೋಪ
valuator ಎಹಂದರು ಗಹತತ್ತಿಯತರು. Valuator ಜಹತೆ ಬಬಹಂಕ
ಮಾಬನಹೋಜರ ಹಹಹೋಗ ನಹಹೋಡಿಲಲ. ಆಗ ಒಹಂದನಹೋ ಆರಹಹೋಪ ಬಬಹಂಕ
ಮಾಬನಹೋಜರ ಆಗದದ್ದಿರರು."
18. The PW1 identified the Ex.P.1 first information statement and
his signature in it. Here the prosecution in order to show that the first
informant Bank sanctioned the loan in favour of accused No.3 and 4
produced the Ex.P.5 loan sanction order which discloses the fact that
Rs.10,00,000/- credited to the account of accused No.3. Hence, in
order to show that the loan amount of Rs.10,00,000/- credited to the
account of accused No.3 produced the Ex.P.8 statement of loan
account of accused No.3. Here, the prosecution produced the Ex.P.7
35 CC.NO.7925/2008
and Ex.P.10 sale deeds and Ex.P.9 general power of attorney. Hence,
the oral evidence of PW1 coupled with Ex.P.7, Ex.P.10 and Ex.P.9
establishes the fact that Ex.P.7 and Ex.P.10 and Ex.P.9 are created for
the purpose of obtaining loan from the first informant Bank.
19. Here, on the basis of Ex.P.7 and Ex.P.10 sale deeds and Ex.P.9
general power of attorney accused No.3 and 4 applied for sanction of
loan from the first informant Bank alleging that they want to purchase
house situated at site No.1, Jakkur, Yalahanka and also produced the
Ex.P.10 sale deed dated 07.03.2002 and Ex.P.10 sale deed dated
07.01.2005. Here, the Ex.P.7 and Ex.P.10 sale deeds are registered in
the Sub Registrar Office, Yalahanka. The prosecution examined the
PW2 Retired Sub Registrar, Bengaluru. In his evidence stated that, on
07.01.2005 accused No.3 wanted to purchase the house site No.1 of
Jakkur village from of D. Ramachandran and produced the Ex.P.7 sale
deed and and he registered the Ex.P.7 sale deed. The PW2 identified
his signature in Ex.P.7 sale deed which is marked as Ex.P.7(a). Later
the Investigating Officer enquired him and then he came to know that
in order to obtain loan from the first informant Bank Ex.P.7 sale deed
is created. The advocate for accused cross-examined PW2. In the
cross-examination of PW2 it is suggested that he has not visited the
property and verified the existence of the property. But the duty of
Sub Registrar is only to register the deeds which have been presented
to him after receipt of Government charges. Hence, it is not the duty
of the Sub Registrar to visit each of the properties before he registers
35 CC.NO.7925/2008
the deed. Hence, the Ex.P.7 sale deed shows as if D. Ramachandran
executed the sale deed in respect of house site No.1 of Khata
No.1305/68/3A situated at Jakkur village, Yalahanka of Bengaluru in
favour of accused No.3 - Seetaramu. Here, in fact the said property is
not existed at all even then the accused No.3 presented it for
registration and got registered the sale deed as per Ex.P.7. Further
accused No.3 used the Ex.P.7 sale deed as if said property is existed
and on the basis of it and other document obtained loan of
Rs.10,00,000/- from the first informant Bank. Hence, for the said loan
accused No.4 stood as a co-obligant. Hence, these illegal acts of
accused show that in order to gain wrongfully and to cause wrongful
loss to the first informant Bank and with dishonest intention obtained
the loan from the first informant Bank.
20. Hence, looking at the evidence of PW1 and PW2 coupled with
Ex.P.7 sale deed, it is clear that Ex.P.7 sale deed is created. Here, the
PW1 deposed that after transfer of accused No.1 from the Karnataka
Bank Limited, Sahakaranagar Branch, Bengaluru, Ramesh Rao
assumed the charge and Head Office directed him to verify the loan
accounts sanctioned by accused No.1 during his period which are non
performing assets. Accordingly, after verification Ramesh Rao came
to know that 25 loan accounts are non performing assets out of which
the present loan account is also one among them. PW1 specifically
deposed that when Ramesh Rao verified the documents and visited the
concerned Government office he came to know that Ex.P.7 sale deed
35 CC.NO.7925/2008
is created. He tried to search the site No.1 at Jakkur village,
Yalahanka but such property is not existed at all. Hence, the accused
No.1 and 2 with common intention without visiting the spot prepared
Ex.P.6 Valuation Report and thereby sanctioned the loan in favour of
accused No.3. Here, on perusal of Ex.P 6 valuation report it is
specifically mentioned that accused No.2 visited the spot i.e. site No.1
at Jakkur village, Yalahanka Hobli, Bengaluru on 26.12.2004 with
accused No.1 and in the Ex.P.6 valuation report of the property
mentioned as :
"I have inspected the property belonging to Sri Ramachandran and the
report of valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 28 years
panel
2. Date of visit : 26.12.2004
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at the : Sri.Seetharamu
site (proposed buyer of the property)
6. Details of the property : : Sri. D.Ramachandran,
Name and address of the owner S/o Doraiswamy, No.7, 13th cross, Pillanna
Garden, St. Thomas Town, Bangalore -
560084.
b) Complete address of the property : Site No.1, Khata No.68/3A, Jakkur
village, Yelahanka Hobli, Bangalore North
Tq.
Name & Address Proposed buyer of the : Sri.Seetharamu,
property S/o Sri. Sruyanarayan Rao,
: CPV Block, Subbaiah Building, 5th main,
5th cross, Ganganagar Extension,
Bengaluru - 560 082.
35 CC.NO.7925/2008
Door No. / site No. / Sy. No. Site No.1, Khata No.68/3A
c) Extent of land : North to South : 30'0"
East to west : 40'0"
= 1200.00 sft.
d) Boundaries of property : North by : Site No.2
South by : Property belonging to
Sri.K.R.Srinivas Murthy
East by : Property belonging to Sri.
K.R.Srinivas Murthy
West by : 15 feet road
e) Type / class of construction : Class II
7. Details of the building
i) Whether building constructed strictly : Yes
according to the sanctioned plan
Area of building : 1000 sq. ft.
ii) year of construction : 2001
iii) If building under construct (give full : Building already constructed
details)
iv) Any additions improvement carried : Nil
out
ix) Present value : Rs.6,30,000.00
x) Present condition / state of building : Good
7. Present market value :
a.Land 1200.0 sft. @ 600/- : 7,20,000.00
b. Building 6,30,000.00
c. Compound wall, sump tank, OHT 50,000.00
Total Rs.14,50,000.00
Basis of present value :
a. Present depreciated value : Rs.14,50,000.00
b. Market value : Same as above
c. Rate adopted : Rs.600.00 per sft. - Site
Rs.650.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site in
this area and construction cost of building
as on that date
35 CC.NO.7925/2008
e. In case of sale by the bank what will
be the distress sale value : Rs.13,50,000.00
h. Location of the property : This is located near to the main road in a
middle class residential area
21. Service items available : CMC water connection is provided.
22. If the property is residential : Yes
19. a) Any encroachment tenancy and
other negative aspects : No
b) Are there any slums around this
property : No
Foundation : Size stone masonry in CM has been done
Super Structure : Table moulded brick masonry in CM plastered on both side in CM
only has been done.
Roofing : RCC slab has been laid.
Flooring : Mosaic flooring has been done
Doors & windows : Mathi & honne wood doors and windows are provided.
Electrification : AEH facilities has been provided.
Water supply : CMC water supply connection is provided
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Fourteen lakhs fifty thousand only.
Declaration :
I have inspected the property personally on 26.12.2004
CERTIFICATE
I, have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same.
21. Hence, looking at the contents of Ex.P.6 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the site No.1
at Jakkur village, Yalahanka Hobli. It is also important to note that
accused No.1 and 2 signed to it and accused No.1 issued certificate to
that effect. Hence, the accused No.1 who is Manager and accused
35 CC.NO.7925/2008
No.2 who was Valuator of the property of Karnataka Bank Limited,
Sahakaranagar Branch, Bengaluru without visiting the spot issued
Ex.P.6 valuation report. Further accused No.1 sanctioned loan of
Rs.10,00,000/- in favour of accused No.3 as per Ex.P.5 loan sanction
order to which accused No.4 stood as co-obligant and credited the said
amount in the account of accused No.3 and the same is mentioned at
Ex.P.8 loan account statement of accused No.3. Here, the advocate
for accused No.1 and 2 cross-examined the PW1 but nothing is
elicited in order to prove the fact that house property bearing site No.1
at Jakkur village existed. In the cross-examination PW1 specifically
stated that enquiry was conducting in the Bank because of which he
came to know that accused committed fraud to first informant Bank.
He also deposed that when loan account of accused No.3 became non
performing asset it revealed that accused No.1 to 5 cheated Bank. He
also deposed in the cross-examination that valuator of the Bank
valuing the property which showed by the borrower. Here PW1 also
stated that he gave statement before the police which said by his
superior officer. But the fact remains as it is that accused No.1 and 2
issued Ex.P.6 valuation report as if they visited the site No.1 at Jakkur
village, Yalahanka Hobli, Bengaluru North Taluk as mentioned and
extracted above from Ex.P.6 which itself speaks that as if accused
No.1 and 2 visited the spot and prepared the valuation report of the
said property. Ex.P.6 contains the declaration and signature of
accused No.2 and certificate of accused No.1. Hence, looking at the
evidence of PW1 with PW2 and PW5 and Ex.P.3 - account opening
35 CC.NO.7925/2008
form, Ex.P.5 - loan sanction order, Ex.P.6 - valuation report, Ex.P.7 -
sale deed and Ex.P.8 - statement of account of accused No.3
establishes the fact that accused No.1 and 2 without visiting the said
site property prepared Ex.P.6 valuation report and on the basis of
Ex.P.7 and Ex. P.10-sale deeds and Ex.P.9 - general power of attorney
sanctioned loan of Rs.10,00,000/- in favour of accused No.3 and 4 for
the purchase of said site property as per Ex.P.7 sale deed and said
property is not existed at all.
22. Here, on the basis of Ex.P.1 - first information statement PW5
registered the Ex.P.13 first information report. PW5 deputed PW3 and
PW4 for the search of accused who were absconded. PW3 and PW4
in their evidence deposed that they searched accused No.1 and 5 but
they did not find them and on enquiry near their house they came to
know that after registration of this case they were absconded and to
that effect they gave their reports. Advocate for accused cross-
examined them but nothing is elicited to disprove the report and
evidence of PW3 and PW4.
23. PW5 in his evidence specifically stated that he recorded the
restatement of PW1 on 25.11.2007. He arrested accused No.2,
recorded his statement and released on bail as per order. He also
deposed that he received Ex.P.2 - appointment and transfer order of
accused No.1 to the Karnataka Bank Ltd., Sahakara Nagar Branch,
Bengaluru, Ex.P.14 - letter/certificate of service of accused No.1 in
35 CC.NO.7925/2008
the said Bank, Ex.P.3- account opening form, Ex.P.4 - passport, Ex.P.5
- loan sanctioned order, Ex.P.6 valuation report, Ex.P.7 and Ex.P.10 -
sale deeds, Ex.P.9-general power of attorney and Ex.P.8 statement of
loan account of accused No.3. Hence on the basis of investigation
accused persons to get the amount from the Bank on the basis of
created document obtained loan and cheated Bank. Accused No.1 on
the basis of created documents sanctioned loan and thereby accused
persons misappropriated the amount and cheated the Bank. He filed
charge sheet against the said accused No.1 to 5. PW5 tried to locate
the site, but site is not existed. Here, advocate for accused cross-
examined the PW5 and in cross-examination stated that
Hanumanthegouda, S Veeranna and D. Ramachandra were not present
and found in their respective address. In the cross-examination, in
order to disprove the case of prosecution accused have not elicited any
of material facts except the denial of his evidence. Here the PW5,
who is Investigating Officer after investigation came to know that on
the basis of created documents accused No.3 and 4 obtained the loan
and accused No.1 and 2 without visiting the site issued Ex.P.6
valuation report and accused No.1 sanctioned the loan. Hence,
looking at all the materials placed on record accused No.1 is entrusted
with property i.e., money and he is having dominion over the money
of the Bank to sanction loan to the customers who fulfills the
conditions of Bank. He is having duty towards the Bank while
sanctioning the loan. The accused No.2 was the Valuator of the Bank.
Hence, accused No.1 and 2 under duty to visit the spot and submit the
35 CC.NO.7925/2008
valuation report to the first informant Bank. But accused No.1 and 2
with dishonest intention concealed the fact of non existence of said
property and also deceived the first informant Bank as if they visited
the property and prepared the Ex.P.6 and submitted to the first
informant Bank. Hence, on the basis of created Ex.P.7 - sale deed
sanctioned loan of Rs.10,00,000/- in favour of accused No.3. Here,
accused No.1 knows the fact that in order to open the account in Bank
one of its customers shall introduce and sign as introducer in the
account opening form. But accused No.1 knowing the fact that in the
Ex.P.3 introduction column is not filled even then opened the account
of accused No.3 in the first informant Bank. Hence, the accused No.1
and 2 who are employees and agents of first informant Bank caused
wrongful loss to the first informant Bank by disbursing loan in favour
of accused No.3. Here accused No.3 who is borrower of loan of
Rs.10,00,000/- from the first informant Bank he did not repay the said
loan amount to the Bank and account became NPA. Accused No.4
stood as a co-obligant to the said loan. Here accused No.3 obtained
the loan on the basis of Ex.P.7 sale deed. PW-2 deposed that he
registered Ex.P.7 sale deed. Accused No.3 knows that Site No.1 at
Jakkur village of Bangalore North Taluk is not existed at all even then
he applied for the loan to first informant Bank and obtained loan of
Rs.10,00,000/-. Hence, to show the same prosecution produced Ex.P.5
Loan Sanction order and Ex.P.8 statement of loan account of accused
No.3. Hence, as per evidence of PW-1 and looking at Ex.P.1 first
information statement and Ex.P.8 statement of loan account of accused
35 CC.NO.7925/2008
No.3 as on date of filing of Ex.P.-1-first information statement
outstanding loan is of Rs.9,95,611/-. Here as per Ex.P.6 valuation
report it is stated and mentioned that as if accused No. 1 and 2 visited
the site No.1 at Jakkur village but in fact the said Site property is not
existed. Hence, accused No.1 to 4 with common intention to cheat the
first informant Bank Accused No.1 sanctioned the loan in favour of
accused No.3. Hence, accused No.3 knowing that said property is not
at all existed even then applied for a loan and obtained loan from the
first informant Bank and thereby cheated the first informant Bank.
Hence, expression entrusted in Section 409 of IPC is used in wide
sense and include in all cases in which property is voluntarily handed
over for a specific purpose and is dishonestly disposed of contrary to
the terms on which possession has been handed over. Hence accused
No.1 to 4 knowing well that said property is fictitious even then as per
Ex.P.5 loan was sanctioned and credited in the account of accused
No.3 which is shown at Ex.P.8 - statement of loan account of accused
No.3. Hence, to the said loan accused No.4 stood as a co-obligant
who is mother of accused no3. Hence, accused No.3 and 4 did not
repay the loan amount and thereby caused wrongful loss to the first
informant Bank. Hence, accused No.1 and 2 with accused No.3 and 4
cheated the first informant Bank. Here in the cross examination of
PW-1 and PW-5 accused No.5 specifically put the question that other
than at Ex.P.3 Account Opening Form signature of accused No.5 is not
found at any of the documents. PW-1 and PW-5 deposed that
accused No.5 is not a Guarantor to the loan of accused No.3 or he has
35 CC.NO.7925/2008
not signed any of the documents relating to the loan of accused No.3.
PW-1 also stated that name and address of accused No.3 as stated by
accused No.3 is correct and accused No.3 is himself Seetaram. Hence,
looking at the Ex.P.3 Account Opening form and cross-examination of
PW1 and PW5 it is clear that accused No.5 is not a guarantor or
signed any of the loan documents of accused No.3. It is also clear that
accused No.3 is himself a Seetaramu and name and address furnished
by accused No.3 is correct. Hence, the prosecution has not brought
any of the material evidence on record to show that accused No.5 is
participated in creating Ex.P.7 sale deed or he has received any of the
part of loan amount from accused No. 1 to 4. Accused No.5 in
support of his arguments relied on Manoranjan Das Vs. State of
Jharkhand, (2004) 12 SCC 90 and K.J.Hubert Vs. Sub Inspector
of Police and others, 2019 SCC OnLine 1122: (2019) 2 KLT 388. I
went through the said deciisions and in Manoranjan Das Vs. State of
Jharkhand, (2004) 12 SCC 90 Hon'ble Supreme Court of India held
that,
"Penal Code, 1860 - Ss. 420/109 - Abetment of
cheating / fraud - One L, who had been introduced
to respondent Bank by appellant, committing fraud
on Bank - Responsibility of appellant therefor -
Held, appellant had introduced L to the Bank only
for opening an account and that by itself does not
spell out any fraud or cheating - On facts, there
was no evidence to show that the appellant was in
any way related to the fraud committed by L on the
Bank - Moreover, the appellant was in no way
responsible for the loss sustained by the Bank due
35 CC.NO.7925/2008
to said fraud - Hence appellant acquitted of all
charges - Banker and Customer - Opening of
account - Responsibility for introducing a person
to open an account - Fraud."
24. I also went through K.J.Hubert Vs. Sub Inspector of Police
and others, 2019 SCC OnLine 1122: (2019) 2 KLT 388 wherein
Hon'ble High Court of Kerala observed as under :
"9. It is a normal banking practice that a person
who wants to open an account in a bank will have
to get himself introduced by another account holder
in the same bank. The mere act of introducing a
person to a bank to enable such person to open an
account in the bank, without anything more, does
not attract the offence of cheating punishable under
Section 420 IPC against the person who makes the
introduction, even when the person introduced by
him subsequently commits an act of cheating
against the bank.
10. Authority for the aforesaid proposition can be
had from the decision of the Apex Court in
Manoranjan Das V. State of Jharkhan : (2004) 12
SCC 90 : AIR 2004 SC 3623. It was observed in
that case as follows :
"It is argued that the appellant had introduced
Loknath Acharya to start current account in the
bank and there is no evidence to show that he
had at any point of time acted in collusion with
Loknath Acharya to commit any fraud. It was
also submitted that introduction of the appellant
in connection with Loknath Acharya to the bank
35 CC.NO.7925/2008
was on 26-5-1972 and the cheque for Rs.27,000
withdrawn by Loknath Acharya only in the
month of October 1972 and there is no evidence
to show that the appellant had any business
connection or collusion with Loknath Acharya.
We perused the evidence produced by the
prosecution and there is nothing on record to
show that the appellant was in any way related to
the fraud committed by Loknath Acharya on the
bank. The prosecution did not even produce the
form in which the appellant had signed for
introducing Loknath Acharya for starting a
current account with the bank. The evidence of
the three witnesses also does not show any
complicity of the appellant in committing any act
of cheating. The appellant had introduced
Loknath Acharya to the bank only for opening an
account and that by itself does not spell out any
fraud or cheating".
11. There is no allegation against the petitioner
that he had received any money from the bank.
Therefore, no question of dishonest
misappropriation of any amount by him arises."
25. Hence, in the present case also as observed above accused No.5
introduced the accused No.3 to the first informant Bank. Hence,
absolutely no evidence to show that accused No.5 received the
misappropriated amount or he signed any of the loan documents.
Hence, the ratio laid down in the said decisions are aptly applicable to
the present facts of the case and the prosecution absolutely failed to
prove the ingredients of said sections against accused No.5. Hence,
35 CC.NO.7925/2008
prosecution proved through its oral and documentary evidence
essential ingredients of Sections 409 and 420 read with Section 34 of
IPC against accused No.1 to 4. Hence, prosecution proved its case
beyond all reasonable doubt and in view of above stated facts,
circumstances, evidence and reasons I proceed to pass the following :
ORDER
Acting under Section 248(1) of Code of Criminal Procedure accused No.5 is acquitted for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
The bail bond and surety bond of accused No.5 shall stand canceled.
Acting under Section 248(2) of Code of Criminal Procedure accused No.1, 3 and 4 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Looking at facts and circumstances of case and nature of offences accused No 1, 3 and 4 do not entitle for benefits under Probation of Offenders Act.
Hence, case is posted for hearing on sentence.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 22nd day of April 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
35 CC.NO.7925/2008Accused No.1 submitted that he did not commit any offence. As per rules of Banking sanctioned the loan to the borrowers. Hence, accused submitted to impose minimum sentence or fine only.
Accused No.3 submitted that the site is existed and it is still in his name. Accused No.3 submitted that he has old aged mother. If the said site is sold out he would get Rs.50,00,000/-. Hence, prays to impose minimum sentence or fine only.
Accused No.4 through whatsapp VC mobile No.9620098038 submitted that she has not committed any offence and prays to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved all the charges levelled against accused No.1, 3 and 4 and prays to impose maximum sentence on accused No.1, 3 and 4.
This is a case registered against accused in the year 2008. Hence, accused No.1, 3 and 4 are attending court since then. Accused No.1 submitted that he has not committed any offence and sanctioned the loan as per Banking rules. Accused No.3 submitted that he is having age old mother. Here, accused submitted that the said site is existed and it is registered in his name. If said site is sold he would get Rs.50,00,000/-. Hence, at this stage in order to show that the site is existed accused No.3 has not produced any documents or led any 35 CC.NO.7925/2008 evidence during the course of trial. Accused No.4 is age old lady. Hence, she submitted that she has not committed any of the offence. But at this stage said contention would not survive as already this court come to the above conclusion. It is important to note that at the time of recording of statement of accused No.4, Sri.BRM, advocate for accused No.4 submitted that she is not able to speak and on her behalf Sri.BRM, advocate answered. Today accused No.4 able to speak and heard her on the sentence. Hence, taking into note of age of accused No.1, 3 and 4, said submission and facts and nature of offence and health condition of accused No.4 this court is of opinion that accused No.1, 3 and 4 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1, 3 and 4 are hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years each and shall also pay fine of Rs.10,000/- each for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1, 3 and 4 shall undergo simple imprisonment of 2 months each.35 CC.NO.7925/2008
The accused No.1, 3 and 4 are hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years each and shall also pay fine of Rs.10,000/- each for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1, 3 and 4 shall undergo simple imprisonment of 2 months each.
All sentences shall run concurrently. Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1, 3 and 4 immediately at free of cost.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 22nd day of April 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : H.S.Dhruvaraj
35 CC.NO.7925/2008
PW.2 : Anna Rajan
PW.3 : Puttaswamy H.D.
PW.4 : Mallegowda
PW.5 : M.Prabhushankar
List of exhibits marked for prosecution:-
Ex.P.1 : First information statement, Ex.P.1(a) Signature of PW1 Ex.P.1(b) Signature of PW5 Ex.P.2 : Transfer order of accused No.1 Ex.P.3 : Account opening form of accused No.3 Ex.P.4 : Certified copy of passport Ex.P.5 : Loan sanction letter Ex.P.6 : Valuation report of the property given by accused No.2 Ex.P.7 : Sale deed Ex.P.7(a) Signature of PW2 Ex.P.8 : Statement of Loan Account of accused No.3 Ex.P.9 : Certified copy of GPA Ex.P.10 : Certified copy of sale deed Ex.P.11 : Report submitted by PW3 Ex.P.11(a) Signature of PW3 Ex.P.12 : Report submitted by PW4 Ex.P.13 : First information report Ex.P.13(a) Signature of PW5 Ex.P.14 : Certificate of service of accused No.1 Ex.P.14(a) Signature of PW5 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.