Bangalore District Court
State By vs N. Lokesh S/O.Narayanappa on 27 September, 2016
1 CC.No.22164/2012
IN THE COURT OF THE XLIII ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: This the 27th day of September 2016
PRESENT: Sri. PRAKASH NAYAK,
B.A.(LAW)., LL.b.,
XLIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
C.C.No.22415/2012
Complainant: State by, Airport Police Station
(By Lr.Sr.APP)
Accused: N. Lokesh S/o.Narayanappa
Aged about 26 years
R/at. Neralige Village,
Keladi Post, Kasaba Hobli,
Sagara Tq, Shivamoga Dist.
(By Sri. N.V.R. Advocate)
JUDGMENT
The PSI of Airport P.S filed the instant charge sheet against the accused for the offence punishable under section.420 of IPC.
2. The gist of the prosecution case is that Cw.1 is having an account at Union Bank of India, Domlur Branch and he is possessing a debit card bearing No.4213683312058058 and the accused with an intention to earn money illegally, he used the said debit card No.4213683312058058 of Cw.1 without knowledge of Cw.1 and he 2 CC.No.22164/2012 has used it in the period between 30-5-2010 to 13-7-2011 through on line and he made transaction with Tata Sky limited and obtained currency, 13 Tata Sky Plus Box and 43 Normal Box having worth of total Rs.1,83,344/- and thereby deceived the complainant and thereby accused committed aforesaid offences. Concerned police registered Cr.No.202/2010.
3. The accused in response to the summons appeared before the Court through his counsel and he is on bail. As contemplated U/s.207 of Cr.P.C., the copy of charge sheet furnished to the accused. Subsequently, charge is framed and read over to the accused, who pleaded not guilty and claims to be tried.
4. The prosecution in order to prove its case has examined Pw.1 to Pw.5 and Ex.P1 to Ex.P.4 got exhibited. After closure of the prosecution evidence the accused is examined U/s.313 Cr.P.C wherein the accused has denied the incriminating evidence appears against him and he has not chosen to adduce any evidence.
5. Heard. The learned Sr.APP for prosecution and learned counsel for accused and perused the records.
6. The following points arise for consideration of the Court.
1. Whether the prosecution beyond reasonable doubt Proves that Cw.1 is having an account at Union Bank of India, Domlur Branch and he is possessing a debit card bearing No.4213683312058058 and the accused 3 CC.No.22164/2012 with an intention to earn money illegally, he used the said debit card No.4213683312058058 of Cw.1 without knowledge of Cw.1 and he has used it in the period between 30-5-2010 to 13-7-2011 through on line and he made transaction with Tata Sky limited and obtained currency, 13 Tata Sky Plus Box and 43 Normal Box having worth of total Rs.1,83,344/- and thereby committed offence punishable U/s.420 of IPC?
2. What order?
7. My answer of the aforesaid points.
Point No.1 - In the Negative
Point No.2 - As per final order for the following
REASONS
8.Point No.1: In order to substantiate its case the prosecution has initially examined Cw.2 Dinesh Kumar as Pw.1, who in his examination in chief has deposed that as per Ex.P1 he has given letter to the concerned IO which consists the details as to account number and address. In his cross-examination Pw.1 has stated that the concerned police have issued a written requisition seeking beneficiary details and without looking the records he cannot say the exact date on which the said requisition is given to him and also the date on which he issued the letter. He denied that Ex.P1 does not consists his signature.
4 CC.No.22164/20129. Further the prosecutin examined Cw.1 Devakaran Benadic as Pw.2, who is the complainant. Said Pw.2 in his examination in chief has stated that he is running a businesses by name M/s.Flooring Solutions and he had bank account at Union Bank of India, Domlur branch and it was current account and he was having debit card facility for the same. He further deposed that he do not know the accused. On 3-7-2010 when he went to the bank and collected his current account statement he found that Rs.2,00,000/- is missing in his account. He further stated that on verification, he came to know that the said amount was used for purchasing Tata Sky set top boxes by using his debit card and none of the said transactions are related his business transactions. He further deposed that thereafter he collected the bank details and came to know that since the transactions of the account were less than Rs.9,000/- he did not receive any intimation to his mobile number. He has also deposed that at no point of time during the said period he lost his debit card. Pw.2 further stated that in this regard he has submitted Ex.P2 FIS to the police and he has also produced copies of the bank statements pertaining to his debit card to the concerned police, it is marked as Ex.P3. According to Pw.2 the said transactions made by using his debit card are fraudulent transactions and not related to him. He further deposed that he has seen the accused in the police station and then he recollected that previously he has seen the accused on Sea Food Restaurant in Cox Town and he presumes that the accused 5 CC.No.22164/2012 might have misused his debit card of Union Bank of India by noting down is his debit card number.
10. Pw.2 in his cross-examination has admitted that for the first time he is seeing the accused before the court and previously he had not seen the accused anywhere. He admitted that the transactions of the previous month will be noticed in the statement of next month and he has noticed the said transactions in the months of July. He volunters that he has not taken the statement for about one month. He has also admitted that if any amount is withdrawn the SMS will be sent to his mobile. However he volunters that the messages will be received only if the transaction exceeds Rs.10,000/-. He has admitted that the complaint is lodged after several days and he further stated that since he was busy in collecting the documents and account statements he could not file the complaint immediately. He denied that he has filed complaint after misusing the account. Further the prosecution has examined Cw.6 Prashanth as Pw.3 and Cw.7 Valiyappa as Pw.4, both the witnesses though identified their signatures on Ex.P4 seizure panchanama pleaded ignorance about its contents. In their cross-examination made by Lr.Sr.APP both Pw.3 and 4 denied that in their presence Ex.P4 seizure panchanama was prepared and item No. 1 to 44 were seized.
11. Further the prosecution has examined Cw.3 Ashwath Kumar as Pw.5, who in his examination in chief has stated that he has issued Ex.P3 in favour of the complainant in which he has mentioned 6 CC.No.22164/2012 the details of debit card pertaining to the complainant. In his cross- examination he admitted that who ever make use of a debit card the transactions could be recorded in the name of the card holder. He admitted that in this case the complainant has not given any complaint to him in writing as to loss of his debit card. He admitted that Ex.P3 does not consists seal that of a chief manager and he admitted that the police have not recorded his statement.
12. The careful analysis of aforesaid evidence on record clearly reveal that the prosecution in this case has filed to prove that the accused has committed the offence as alleged against him. The materials on record including the oral and documentary evidence clearly reveal that the complainant is having an account at Union Bank of India, Domlur branch and the said debit card is related to the complainant. The evidence on record further reveal that there is delay in filing complaint. Further there is no evidence is placed on record which reveals that it is the accused who has misused the said debit card. As aforesaid the complainant himself in his cross- examination has stated that at no point of time his debit card was stolen or misplaced. It is an admitted fact that if any transactions were made through debit card, SMS will be sent to the mobile of the concerned holder of the debit card. In this case the complainant has stated that for about one year he has not received any messages in respect of the said alleged transactions made through his debit card with the concerned Tata Sky Limited. The complainant in his cross- examination has clearly stated that for the first time he is seeing the 7 CC.No.22164/2012 accused in the present case. The evidence of Pw.1 and Pw.5 is relevant in respect of issuance of Ex.P1 and Ex.P3 only. In this case the prosecution has failed to secure Cw.4 and 5 and Cw.8 to 10. The evidence of these witnesses was very much relevant in this case. The fact of non examination of these witnesses which includes the concerned IO is fatal to the case of the prosecution.
13. Admittedly in this case the prosecution has cited Cw.6 Prashanth and Cw.7 Valiyappa as a witnesses to Ex.P4 panchanama. However said Pw.3 and 4 turned hostile to the case of the prosecution and hence the seizure is not provided as per law. Therefore under the said circumstances the prosecution ought to have examined the concerned IO. The repeated issuance of process to secure the said witnesses not yielded any fruits. Further the materials on record also reveal that the prosecutin has failed to prove involvement of the accused in this case as alleged. There is no incriminating evidence which establishes the nexus between the accused and the present case. The intention or deception on the part of the accused is not established as per law. It is alleged that the accused has made on line transactions by misusing the number of debit card belong to the complainant. However to prove the said allegation of alleged online transaction the prosecution has not produced and adduced relevant , required , cogent , acceptable and sufficient oral and documentary evidence before the court. Hence the overall materials on record clearly reveals that the prosecution has miserably failed to prove the allegations leveled against the 8 CC.No.22164/2012 accused. Therefore the court is of the opinion that the prosecution has failed to prove the existence of mandatory ingredient to attract the offence alleged against the accused. Hence, under the said circumstances the court opines that the benefit of doubt shall be extended to the accused.
14. The aforesaid oral and documentary evidence on record clearly reveal that the prosecution has not adduced any cogent evidence to prove the guilt of the accused beyond reasonable doubt. The evidence of Pw.1 to Pw.5 is not sufficient to accept the case of the prosecution. There is no incriminating evidence against the accused which establishes the guilt of the accused. In view of the aforesaid materials on record, the Court is of the opinion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Further it is settled law that on assumptions and presumptions the case of the prosecution cannot be proved and accepted. Further it is settled law that when two views are possible the view which is favourable to the accused has to accepted. In view of the aforesaid discussions and for the aforesaid reasons the Court proceed to answer Point No.1 in the Negative.
15. Point No.2 : For the aforesaid reasons, the Court proceed to pass the following ORDER Acting U/s.248(1) Cr.P.C accused is hereby acquitted for the offence punishable U/s.420 of IPC.
9 CC.No.22164/2012The bail bond of the accused shall stands in force for a period of 6 months as contemplated u/s.437(A) of Cr.P.C.
(Dictated to the steno, transcribed by her, same was corrected by me and them pronounced in open Court on this the 27th day of September 2016.) (Prakash Nayak) XLIII ACMM, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED:
Pw.1 - Dinesh Kumar
Pw.2 - Devakaran Benadic
Pw.3 - Prashanth
Pw.4 - Valiyappa
Pw.5 - Ashwath Kumar
LIST OF EXHIBITS MARKED:
Ex.P.1 - Letter
Ex.P.1(a)- Signature of Pw.1
Ex.P.2 - Complaint
Ex.P.2(a)- Signature of Pw.2
Ex.P.3 - Bank Statements
Ex.P.3(a)- Signature of Pw.5
Ex.P.4 - Seizure Mahazar
10 CC.No.22164/2012
Ex.P.4(a) to Ex.P.4(f) - Signature of Pw.3
Ex.P.4(g) to Ex.P.4(l) - Signature of Pw.4
LIST OF MATERIAL OBJECTS GOT MARKED:
NIL
(Prakash Nayak)
XLIII ACMM, BENGALURU