Bangalore District Court
State By vs Chamundi S/O.S.K.Muniswamy on 18 February, 2016
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 18th day of February 2016
PRESENT: Sri.ARJUN.S.MALLUR,
B.A.L., LL.B.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.22677/2010
Complainant - State by, Police Inspector
B.P.Halli Police Station
/vs/
Accused 1. Chamundi S/o.S.K.Muniswamy, 43
yrs. No.39, Bennigananhalli,
Bengaluru.
2. Dasappa S/o.Kushalappa, 49 yrs.
Hoodi village, M.D.Pura, Bengaluru.
3. Narendra S/o.Nagaraj, 38 yrs. No.38,
BNT compound, Netharamapalya,
M.D.Pura, Bengaluru.
A.4 Sugendra - Splitup.
JUDGMENT
1. The P.I of B.P.Halli police station have filed this chargesheet against the accused Nos.1 to 4 for the offences punishable u/S.468, 471, 420 r/w.34 of IPC.
2. It is alleged by the prosecution that the accused Nos.1 to 4 having common intention of causing wrongful loss to CWs.1 and 2 and wrongful gain to themselves on 19/10/1995 fabricated a fake 2 CC No.22677/2010 agreement by forging the signature of CW.2 as a surety-cum- guarantor in the fake agreement knowing full well that it is a fake and fabricated document and on 22/9/1995 approached CWs.1 and 2 obtained from them original sale deed in respect of the property of CWs.1 and 2 on the pretext of getting loan from the bank and by making use of the said original sale deed forged and fabricated agreement by forging the signature of CW.2 as Guarantor and surety and knowing fully well it is a fake agreement pledged the same before KSFC, Peenya Branch and raised loan of Rs.10 Lakhs from KSFC and did not repay the amount either to CWs.1 and 2 or KSFC and thereby committed the alleged offences.
3. On the basis of the complaint filed by complainant, a case was registered in B.P.Halli P.S., Cr.No.96/1996 and FIR was submitted to the court. Panchanama of scene of offence was conducted in presence of panchas. Statement of witnesses were recorded. Relevant documents were subjected to scientific examination and after collecting the report of scientific examiner and on completion of investigation chargesheet has been filed against the accused for the alleged offences.
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4. Cognizance of offences was taken and summons was issued to the accused persons. Accused Nos.1 to 3 have appeared before the court through their counsel and have been released on bail. A.4 remained absconded and case against him has been splitup. Copies of chargesheet were furnished to accused u/S.207 of Cr.P.C. After hearing, charge were framed against the accused for the alleged offences and accused have pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case has examined 3 witnesses as PWs.1 to 3 and got marked 5 documents as Exs.P1 to P5. Statements of accused u/S.313 of Cr.P.C. were recorded and the accused have denied the circumstances incriminating them in the evidence.
6. Heard the arguments of Sr.APP appearing for the state and the counsel for accused and perused the records.
7. The points for consideration is:
1. Whether the prosecution proves beyond doubt that the accused Nos.1 to 3 along with A.4 having common intention on 22/9/1995 approached CWs.1 and 2 and obtained from them original sale deed in respect of the property on the pretest of getting from the bank and by making of the original sale deed with an intention to make wrongful gain for themselves and cause wrongful loss to CWs.1 and 2 fabricated a fake agreement by forging the signatures of CW.2 as guarantor and 4 CC No.22677/2010 surety and knowing fully well that agreement dated 19/10/1995 is fake fabricated document pledged the same along with original sale deed before KSFC, Peenya Branch and raised loan of Rs.10 Lakhs and did not pay the amount either to CWs.1 and 2 or KSFC and thereby committed the alleged offences?
2. What order?
8. My answer on the above points:
Point No.1 - Negative, Point No.2 - As per final order, for the following;
REASONS
9. POINT NO.1:
The prosecution in support of its case has examined three witnesses. PW.1 Smt.Gowramma is the complainant and PW.2 Erappa is the husband of PW.1. They both have deposed that they own a house bearing No.85, Benniganahalli, Bengaluru which is in the name of PW.2. On 22/9/1995 when they were in the process of undertaking repairs of the house they were in need of sum of Rs.10,000/- for which they had approached the accused and the accused had told them that they would get the amount and obtained from them the house documents as security. Thereafter they handed 5 CC No.22677/2010 over the original documents to accused and accused promised them loan would be dispersed within one week. PWs.1 and 2 further deposed that even after lapse of nearly one month they were not given the amount and thereafter they came to know that accused persons by forging the signature of PW.2 had raised loan of Rs.10 Lakhs at KSFC in the name of PW.2 and also executed loan document before KSFC in the name of PW.2. PW.2 has further deposed that at no point of time he had availed any loan from KSFC much less the alleged loan. PW.1 further deposed that thereafter she filed complaint to the police and was also present when police collected the document by preparing mahazar under Ex.P2 and they produced original agreement dated 19/10/1995 and original sale deed dated 21/9/1995 before police which are marked as Exs.P3 and P4. PW.2 has further deposed that police have taken his sample signatures which is marked as Ex.P5 and he has denied the signatures found in the agreement at Ex.P3 as Erappa which is not his signature. During the cross examination of PWs.1 and 2, except denials in the form of suggestions nothing material has been elicited in their cross examination. It is further deposed by PWs.1 and 2 in the cross examination that loan is in the name of A.4 Sugendra.6 CC No.22677/2010
10. PW.3 Babu has deposed that on 22/9/1995 when accused had come to the house of CWs.1 and 2 for the purpose getting loan for construction of house he was also present and in his presence accused have taken the original documents from PWs.1 and 2. In the cross examination PW.3 deposes that he had worked in the house of PWs.1 and 2 for about 7 to 8 days, he cannot say exact date on which documents were given to police. Further in the cross examination he has deposed PW.1 has brought him to the court for giving evidence.
11. Apart from PWs.1 to 3, the prosecution has not examined any other witness. The case is originally of the year 1996 and for the reasons best known to the I.O. chargesheet has been filed before the court on 4/3/2010. The I.O. has submitted the chargesheet almost about 14 years after registering the complaint and there is no explanation for the undue delay in filing of the chargesheet. That apart the allegation that has been made against the accused persons is that PWs.1 and 2 were in need of money for undertaking repairs of the house at Bennigananahalli and in that regard they had approached the accused for financial assistance and accused promised them to get financial assistance, collected original sale deed at Ex.P4 from PWs.1 and 2 and it is further alleged that thereafter they have forged the 7 CC No.22677/2010 signature of PW.2 and fabricated fake agreement under Ex.P3 and knowing fully well it is a fake agreement presented before KSFC and raised loan in the name of PW.2 by forging the signatures on loan document to a tune of Rs.10 Lakhs and subsequently they failed to repay the said amount and also failed to pay the amount to the complainant and thereby have cheated PWs.1 and 2. To prove the allegations made against the accused prosecution has examined only 3 witnesses among them PWs.1 and 2 are the complainant and her husband they deposed supporting each other that accused persons collected the documents and subsequently they came to know that signature of PW.2 has been forged in agreement under Ex.P3 which has been fabricated and thereafter loan is raised from KSFC. PW.3 is examined as witness in whose presence accused have collected the documents. PW.3 though deposed that when accused persons collected the documents, in the cross examination he cannot say the date on which those documents were collected by the accused and also date on which police collected those documents. He further deposed in the cross examination that prior to the incident he was working in the house of PWs.1 and 2 for about 7 to 8 days. Therefore 8 CC No.22677/2010 in the given circumstance of the case PW.3 can be termed as interested witness.
12. PWs.1 and 2 have deposed that after filing of the complaint police have seized the document from the accused in their presence by preparing mahazar under Ex.P2 and PW.1 has deposed that she has signed mahazar also. The case of the prosecution is that after collecting the sale deed accused persons forged the signature of PW.2 and created a fake document under Ex.P3 which they submitted before the KSFC along with the sale deed under Ex.P4 and have raised loan. Strangely the I.O. during the course of investigation has not collected all necessary loan documents from KSFC in order to ascertain whether loan has been actually raised in the name of PW.2 by accused persons. Had the documents at Exs.P3 and P4 been submitted to KSFC then I.O. ought to have seized the same from the possession of KSFC not from the possession of accused. It is not clear from the evidence of PWs.1 to 3 from whose possession documents have been seized by the I.O. The main allegation is forgery and fabrication of false document. The disputed signature of PW.2 on the alleged fake agreement at Ex.P3 are marked as QD and QD1 during the course of scientific examination and that has been 9 CC No.22677/2010 subjected to scientific examination along with the sample signature of PW.2 which is found at Ex.P5. At the time of evidence the forensic Examiner was reported to be dead and on going through Forensic Report submitted along with chargesheet, there is clear mention that sample signatures found at Ex.P5 that of PW.2 do not tally with the disputed signature marked as QD and QD1 at Ex.P3 and the person who wrote i.e., PW.2 has not written the disputed signatures. In so far as other aspects are concerned the scientific examiner has stated that it has not been possible to fix the authorship of questioned and disputed signatures. Though FSL report says signatures found on Ex.P3 is not that of PW.2 at the same time no where report of scientific examiner discloses in clear terms that said disputed signature is forged and fabricated by accused persons. As scientific examiner is reported dead, Report is taken into consideration for appreciation of evidence on record and the report of the scientific examiner totally discredits the prosecution case that accused persons have forged and fabricated the false document at Ex.P3. PW.2 in his cross examination has admitted that loan was in the name of absconding accused No.4 Sugendra. Therefore it is further clear that A.1 to A.3 could not have forged and fabricated false document at Ex.P3. On one hand 10 CC No.22677/2010 prosecution alleges based on fabricated document loan has been raised by the accused in the name of PW.2 on the other hand PW.2 deposes in the cross examination that loan has been raised in the name of Sugendra. The I.O. is not examined before the court to clarify the discrepancies in the evidence of PWs.1 and 2. As already mentioned above, none of the loan documents produced at KSFC is seized by the I.O. in the course of investigation. Considering these aspects, I am of the considered opinion that prosecution has failed to prove the offences beyond reasonable doubt and accordingly, I answer Point No.1 in the Negative.
13. POINT NO.2:
For the afore said reasons, I pass the following;
ORDER U/s 248(1) of Cr.P.C. the accused Nos. 1 to 3 are acquitted of the alleged offences punishable u/s 468, 471 and 420 r/w.34 of IPC. Bail bonds of accused stand cancelled and they are set at liberty. Office is directed to retain the case papers and properties till disposal of splitup chargesheet against accused No.4. (Dictated to the Steno, transcribed by him, same was corrected by me and then pronounced in open court on this the 18th day of February 2016).
(ARJUN.S.MALLUR) X A.C.M.M., BENGALURU 11 CC No.22677/2010 ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Smt.Gowramma Nil PW.2 Erappa.
PW.3 N.Babu.
Exhibits Marked Ex.P1 Certified copy of FIR.
Ex.P2 Certified copy of Mahazar.
Ex.P3 Original agreement dated 19/10/1995.
Ex.P4 Original Sale deed dated 21/9/1992.
Ex.P5 Sample signature of PW.2.
Material Objects got marked
-Nil-
X A.C.M.M., Bengaluru.
12 CC No.22677/2010