Bangalore District Court
State By Mahadevapura vs No on 12 November, 2021
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 12th day of November 2021.
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C. No.1062/2016
Date of Offence : 11.01.2016
Name of complainant : State by Mahadevapura
Police Station
(By Learned Sr. APP)
V/s.
Name of accused : 1. Garapati Shivarama
Krishnavaraprasad,
S/o Garapatipichhaiah,
Aged about 62 years,
R/at Flat No.CB-302,
Central Block,
Sriramasmiti Apartment,
Bidaraguppe, Attibele,
Anekal Taluk,
Bangalore.
Permanent Address:
Garapati Shivarama
Krishnavaraprasad,
S/o Garapatipichhaiah,
No.8-3191/147/4-B 43,
Vengal Rao Nagar,
Madhura Nagar,
S. R. Nagar Post,
Karitabbe, Hyderabad.
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C.C.No.1062/2016
2. Nagaraju,
S/o Muniswamy Reddy,
Andenahalli Village,
Anekal Taluk,
Sarjapura Hobli,
Bangalore Rural District.
3. Upendra Balaji,
S/o Garapati Shivarama
Krishnavaraprasad,
R/at Flat No.CB-302,
Central Block,
Sriramasmiti Apartment,
Bidaraguppe, Attibele,
Anekal Taluk,
Bangalore.
Permanent Address:
Upendra Balaji,
S/o Garapati Shivarama
Krishnavaraprasad,
No.8-3191/147/4-B 43,
Vengal Rao Nagar,
Madhura Nagar,
S. R. Nagar Post,
Karitabbe, Hyderabad.
(By Sri. Lokanath .K
Advocate)
Offences complained off : U/s. 406, 420, 468, 465,
471, 120(b) r/w 34 I.P.C.
and Sec.66(c) & 66(d) I.T.
Act 2000.
Plea of accused : Pleaded not guilty
Final order : Not guilty
Date of order : 12.11.2021
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C.C.No.1062/2016
JUDGMENT
Police Inspector, Mahadevapura Police station has filed charge sheet against the accused above named for the offences punishable under Sec.406, 420, 468, 465, 471, 120(B) r/w Sec.34 of IPC and Sec.66(C) & 66(D) of Information Technology Act, 2000.
2. Brief facts of prosecution case are that :-
Accused No.1, CW1 to CW3 established a company by name Manikya Home Pvt., Ltd., Company at Imperial Plaza of Panjagotta, Hyderabad by registering said company before Registrar of Companies and they maintained Articles of Association with regard to affairs of companies. Said company had letter-head and seal. Subsequently, in the year 2008 accused No.1, CW1 to CW3 opened a branch office at Pern's Paradise No.766 of Ring Road Mahadevapura, Bengaluru and they entered into an agreement dated 25.04.2008 with CW7, Cw8 and Cw9 in respect of lands bearing Sy.No.13, 14 and 16 lands of Handerahalli, Sarjapur Hobli, 4 C.C.No.1062/2016 Anekal Taluk for the purpose of developing said lands and to construct Villas in it. Further at the time of said agreement, they paid Rs.42,60,000/- to CW7 to CW9 as non- refundable amount. Said agreement was signed by accused No.1 on behalf of Manikya Home Pvt., Ltd. And on the other side CW7 to CW9 signed it. Thereafter, from October 2009 accused No.1 did not attend any meetings of Manikya Home Pvt., Ltd., nor he showed any interest in the affairs of said company. Further CW1 to CW3 after discussing about development of aforesaid land in their board meeting, they obtained necessary permission to develop said land from concerned authorities, they erected compound wall around said lands, they got installed borewell and constructed a site office in it. Further as per decision taken in board meeting the salary of accused No.1 through company was stopped and service of mobile phone issued by said company was also disconnected. In the meanwhile CW7 to CW9 5 C.C.No.1062/2016 were making attempts to transfer aforesaid lands in favour of third parties and after some time they issued a paper publication in that regard. After reading such publication CW1 to CW3 filed a case against them and the said case is pending before Arbitration Court, Bangalore City. At that time accused No.1 had lost all relationship with aforesaid company of CW1 to CW3 and he with an intention to commit breach of trust and fraud against said company, created and concocted an affidavit in his name by misusing old letter head and company seal in his possession against the by-laws of the company. Further accused No.1 created said document with active support and conspiracy with accused No.2 and 3 with sole intention to produce it before Arbitration Tribunal and thereby cheated the company of CW1 to CW3. Further accused No.2 had drafted said created said document styled as affidavit as if Manikya Home Pvt., Ltd., wherein it was mentioned that, while entering into 6 C.C.No.1062/2016 development agreement dated 25.04.2008, the aforesaid company had agreed to develop said land bearing Sy.No.13, 14 and 16 of Handenahalli within two years, but despite conversion of said land, it has not developed the lands. It was further averred in said affidavit that, the said company is suffering from financial constraints and hence, it has dissolved the development work of said lands. Further it was averred that, the said information was informed to the owners of land in the month of May 2013 and even today the said company is ready to resolve the issues by holding talks with said land owners. It is further case of prosecution that, the aforesaid created document was typed by accused No.3 in seized Lenova Laptop by using letter head without CIN number of above company and accused No.1 had signed said document as deponent by using seal of the company in violation of Rule No.17 of aforesaid by-laws of company. Further by producing said document before Arbitration Court, 7 C.C.No.1062/2016 accused have committed offences breach of trust, cheating forgery.
3. After lodging of aforesaid First Information before police, the Mahadevapura Police have registered the case in their P.S. Crime No.606/2015 and issued F.I.R. After recording statements of material witnesses, after obtaining expert opinion about seized laptop and pendrive and after completion of investigation, I.O. has filed charge sheet against the accused for the above offences.
4. After charge-sheet accused No.3 was arrested, accused No.1 and 2 voluntarily appeared before court and all accused are enlarged on bail. Charge sheet copies are furnished to accused persons under Sec.207 of Cr.P.C. Charge framed, accused No.1 to 3 have not pleaded guilt of alleged offence and they have claimed to be tried.
5. In order to prove the guilt of the accused, prosecution has examined 12 witnesses as P.Ws.1 to 12 and got marked 37 documents as per Exs.P1 to 8 C.C.No.1062/2016 P37. After completion of prosecution evidence, statement of the accused as required under Section 313 of Cr.P.C. is recorded. The accused have denied the incriminating evidence against them and they have not led any defence evidence.
6. On the basis of charge sheet allegations, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubts that, accused No.1 has committed offences punishable under section 406 of IPC?
2. Whether the prosecution proves beyond reasonable doubts that, accused have committed offences punishable under section 420 R/w. Section 34 of IPC?
3. Whether the prosecution proves beyond reasonable doubts that, accused have committed offences punishable under section 468 R/w. Section 34 of IPC?
4. Whether the prosecution proves beyond reasonable doubts that, accused have committed offences punishable under section 465 R/w. Section 34 of IPC?9
C.C.No.1062/2016
5. Whether the prosecution proves beyond reasonable doubts that, accused committed offences punishable under section 471 R/w. Section 34 of IPC?
6. Whether the prosecution proves beyond reasonable doubts that accused have committed offences punishable under section 120(B) R/w. Section 34 of IPC?
7. Whether the prosecution proves beyond reasonable doubts that, accused have committed offences punishable under section 66(C) of I.T. Act?
8. Whether the prosecution proves beyond reasonable doubts that, accused have committed offences punishable under section 66(D) of I.T. Act?
9. What order ?
7. Heard arguments of learned Sr.APP and learned counsel for accused persons. Perused oral and documentary evidence adduced by the prosecution. The following are findings to above points.
Point No.1 to 8 : In the Negative Point No.9 : As per final order, for the following:
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C.C.No.1062/2016 REASONS
8. Point No.1 to 8:- These points are taken together for consideration as findings on one point have bearing on other points and also to avoid repetation of facts and evidence.
9. Prosecution got examined as many as 12 witnesses as PW1 to PW12. PW1 Ravikumar S/o Tulasidas, who is said to be the first informant and one of director of Manikya Home Pvt., Ltd., company has testified that, their company was incorporated in the year 2004, further himself, one Srinivas, one G. V. Chowdry and accused No.1 are director said company, it was carrying business of estate having their office at Hyderabad and branch office at Bangalore. He has further stated that, after incorporation of said company they had letter head with logo and seal of company, which was kept in the office of directors at Bangalore. Further the said letter head and seal could be used with the permission of directors and such 11 C.C.No.1062/2016 permission can be accorded orally. He has further testified that, in the year 2008 the board of Directors have decided to do estate business in Bangalore. Accordingly, they have authorized accused no.1 to proceed in establishment of the branch at Bangalore. Accordingly, they opened office at Doddanekkundi, Bangalore. Thereafter they have verified lands at Handenahalli, Sarjapura Hobli, Anekal Taluk, for development and formation of the layout and also construction of villas. Thereafter they entered into development agreement with land owners i.e. with C.W.7 to 9 namely Muniswamy Reddy, Krishna Reddy and Pilla Reddy. As per the agreement they have paid Rs.42 lakhs to the above said owners and accused no.1 was signatory to the said Development agreement dated 25.04.2008 on behalf of the company. As per the terms of the agreement they have to develop a land and construct Villas two years and two months after getting permission from the concerned authorities. PW.1 further deposed that, they obtained conversion 12 C.C.No.1062/2016 order from the concerned authority and constructed compound wall, around the said land and dug a bore well and constructed site office in the year 2009 onwards. However, accused no.1 did not attend meetings of board of Directors of 2009. Later they came to know through local news papers that the above said land owners were negotiated with other developers and they approached the jurisdictional court by filing a civil case against them. Thereafter they approached the Hon'ble High Court for appointment of arbitrator to resolve the dispute and Hon'ble High Court appointed an Arbitrator. The one of our Director Sri.C.V.Srinivas was representing their company before the arbitrator and when said matter was pending before the arbitrator, accused no.1 has resigned from the Director ship in the month of 2015 which was accepted by remaining Directors of the company on 31st March 2015 and the same was communicated to the register of the companies. He has further specifically stated that thereafter accused 13 C.C.No.1062/2016 no.1 used our company letterhead without any consent or permission, before the arbitrator and filed an affidavits after acceptance of his resignation, by putting ante date. Further he filed the said affidavit to declare that their company was not interested to proceed with the development project. He has further testified that, they came to know about such a declaration filed by accused no.1 before the arbitrator on 13.10.2015 and hence they approached the jurisdictional police and filed first information in this case as per ExP1. he has identified his signature on it as ExP1(a). He has further stated that, they came to know that the declaration filed by accused no.1 before arbitrator was not bearing Corporate identity number (CIN Number), which was mandatory under companies Act after 1st April 2014 and he has identified such CIN Number mentioned in Ex.P.1 as per ExP1(b). He has further stated that thereafter police have conducted the spot mahazar as per ExP2, identified his signature marked as ExP2(a), he has got marked copy 14 C.C.No.1062/2016 of Certificate of incorporation of their company marked as per ExP3, Memorandum and articles of the association of said company as per ExP4, Copy of Resignation letter given by accused no.1 dated 31.03.2015 as per ExP5. Copy of Acceptance of resignation is marked as per ExP6, Copy of notices issued by news paper publication as per ExP7, Certified copy of resolution dated.22.07.2014 authorizing director Srinivas to represent cases in respect of above property as per ExP8, Four Photographs showing compound wall and site office in the above said land as per Ex.P9 to P12 and certified copy of Arbitration order as per Ex.P.13. He has further specifically stated that accused no.1 has made use of letterheads of above company and seal without permission illegally and filed a declaration before the arbitrator just to misuse the powers as ex-directors and cause the loss to the company and their company never decided to discontinue the said development project at any point of time.
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10. In cross examination by defence side PW1 has admitted that, a resolution was passed in the company to commence their branch at Bangalore and he does not remember whether the copy of said resolution was given to I.O. or not. He has admitted that, initially he did not take KST number for said branch and he does not know about TIN number of their business. He has further pleaded ignorance about obtaining permission from BBMP. He has further admitted that, accused No.1 invested Rs.70 lakhs in their company and he does know whether the said accused was paid said invested amount, when he resigned from their company. In relevant portion of further cross examination PW1 has admitted that, CW8 had filed a criminal case against him and he has further clearly stated that, he does not know when accused No.1 prepared and filed affidavit before Hon'ble Arbitrator. Further he has admitted that, they took resignation of accused No.1 in letter given by them on 30.03.2015, but on perusal of Ex.P.5 16 C.C.No.1062/2016 resignation copy, it shows that, the said letter also does not contain any CIN number of aforesaid company. This aspect raises serious doubt with regard to evidence of this witness, that CIN number was mandatory for all documents executed on behalf of above company. The entire evidence of this witness is denied by defence and it is suggested to him that, he deposed in falsely by filing false case.
11. P.W.2 C.V. Srinivas, who is said to be the other director of the company has also reiterated entire averments of prosecution case, but he has varied his version saying that the letterheads and seals of the company are kept in the office of the Directors of the company at Hyderabad. Whereas P.W.1 has stated that it was kept in Bengalore itself. In addition to evidence of P.W.1, this witness has stated that as accused no.1 did not attend meetings of board of Directors from 2009 the Board cancelled all authorizations from October 2009, it stopped salary to him and withdrawn mobile phone connection. He has 17 C.C.No.1062/2016 also testified with regard to negotiation attempts by land owners with other, filing a civil case against land owners, approaching High Court for appointment of arbitrator, appointment of arbitrator, resignation of accused no.1 from the Director ship in the month of March 2015, acceptance of Resignation. He has also testified that thereafter accused no.1 used our company letterhead without any consent or permission, before the arbitrator and filed an affidavits after acceptance of his resignation, by putting ante date declaring that their company was not interested to proceed with the development project and hence they approached the jurisdictional police and filed a complaint. He has also stated that accused no.1 has made use of letterheads and seal without permission illegally and filed a declaration before the arbitrator just to misuse the powers as ex-directors and cause the loss to the company, for his personal gain by damaging the credibility of the company among investors in the said project worth about 200 crores. 18
C.C.No.1062/2016 However nothing explained by said witness as to how their company sustained such huge loss.
12. In cross examination by defence side PW2 also admits that, they have not obtained anything from Karnataka Government and BBMP for establishment of their branch at Bangalore including KST and TIN numbers. Further PW2 admits that, he contributed Rs.25 lakhs and accused No.1 contribute Rs.75 lakhs in their company. Though he asserts to have compensated accused No.1 after his resignation which is equal to his contribution, he admits that, he has not produced any documents in that regard. He has further clearly admitted that, CW8 filed a complaint against him before Sarjapur P.S. and denied that due to filing of above affidavit by accused during Arbitration, their company has not sustained any loss. It is suggested to him that, he is deposing falsely and this false complaint filed as per instance of PW3 Chowdhary. However it is pertinent to note that Ex.P.5 resignation is issued by accuse d no.1 on 31.03.2015 19 C.C.No.1062/2016 and same is acknowledged and confirmed by P.W.1 on behalf of their company on 30.03.2015 as per Ex.P.6, which is one day prior to issuance of Ex.P.5, which raises doubt about aforesaid documents produced by prosecution side and resignation of accused no.1 as per their case. Further no documents are produced by prosecution to show that said resignation is accepted, confirmed and communicated to registrar of companies. These all aspects raise cloud over case of prosecution.
13. P.W.3 G.B.Choudhary has also entered in witness box and he has testified similarly to evidence of P.W.2. He has also alleged that accused no.1 has made use of letterheads and seal without permission illegally and filed above declaration before the arbitrator just to misuse the powers as ex-directors and cause the loss to the company, for his personal gain by damaging the credibility of the company among investors in the said project worth about 200 crores and their company never decided to 20 C.C.No.1062/2016 discontinue the said development project at any point of time. However even this witness has not explained any thing as to how their company sustained such loss and nothing explained by him with regard to acceptance of resignation of accused no.1 as per Ex.P.6, which is one day prior to Ex.P5 resignation letter. Further P.W.2 and 3 have also not stated anything with regard to non mentioning of CIN number on Ex.P.5, which is mandatory as per their version for all correspondence and communication of their company.
14. In cross examination by defence side this witness has also admitted that, no licenses, KST and TIN number were obtained from Karnataka Government. Further PW2 admits that, he contributed Rs.25 lakhs and accused No.1 contributed Rs.75 lakhs in their company. Though he asserts to have compensated accused No.1 after his resignation which is equal to his contribution, he admits that, he has not produced any documents in that regard. He has 21 C.C.No.1062/2016 further clearly admitted that, CW8 filed a complaint against him before Sarjapur P.S. and denied that, due to filing of above affidavit by accused during Arbitration, their company has not sustained any loss. It is suggested to him that, he is deposing falsely and this false complaint is filed against the accused.
15. P.W.4 Achutaramaiah has deposed that, he has worked in Manikya Home Pvt., ltd., company as a Auditor. He has audited every year in the said company. PW.4 further deposed that, there was no discrepancies during audit. He has given statement before the police. However despite this witness has not testified as per his statement and he has turned hostile, he is not treated as hostile nor cross examined by prosecution side. Further his evidence is not challenged by defence side by way of cross examination nor same helps prosecution in any manner to prove alleged guilt of accused.
16. P.W.5 Sai Roop Kumar has deposed that, since 2006 he has worked in Manikya Home Pvt., ltd., 22 C.C.No.1062/2016 company as a Manger, he knows accused persons and accused No.1 was working as Director of said company. He has further stated that in the year 2007 their company was having its office at Bangalore, in the year 2015, accused No.1 resigned in the said company and in Arbitrartion case filed by land owner, accused No.1 used letterhead of the company, without any consent or permission by declaring that their company was not interested to proceed with the development project and thereby caused loss to company. In cross examination by defence side PW5 has admitted that, he does not know anything about arbitrator case personally and the other directors had informed him about allegations against accused No.1. He has further admitted that, he has not personally met the land owners and denies that, he does not know about entire affairs of transaction held in Bangalore. Hence this witness appears to be a hearsay witness and his evidence does not help case 23 C.C.No.1062/2016 of prosecution as he has testified as per information given by P.W.1 to 3.
17. CW8 Pilla Reddy S/o Narayanappa, CW7 Muniswamy Reddy S/o Narayanappa and CW9 Krishna Reddy S/o Narayanappa who are said to be owners of disputed land and the parties to the agreement with aforesaid Manikya company are examined as PW6 to PW8 and these witnesses have completely turned hostile, but testifying that, they do not know anything about this case and they have not given statement before police. Though PW6 to PW8 are treated as hostile and cross examined at length by learned APP, nothing worthwhile is elicited from their mouth to prove alleged creation and concoction of the affidavit by accused No.1 either as per their instance or as per ill-relationship with other directors of the company. This witnesses have denied to have given statement before IO as per Ex.P.14 to Ex.P.16.
18. CW13 Nagamani W/o S. R. K. V. Prasad who is said to be wife of accused No.1 is examined as PW9 24 C.C.No.1062/2016 and she has turned hostile by testifying that, Ex.P.17 does bear her signature, she does not know the contents of said mahazar and no articles were seized under it. Though this witness is treated as hostile and cross examined by learned Sr.APP nothing worthwhile is elicited from her mouth to prove seizure of alleged incriminating laptop, pendrive, letter heads, cheque books and dairy from the house of accused No.1.
19. PW.10 Dr. Kumudarani D/o Mukundappa has testified that, she is working as Deputy Director of FSL Bangalore, on 10.12.2015 she received a laptop and pen drive from IO of this case to ascertain whether aforesaid created and concocted affidavit by way of declaration dated 02.02.2015 is there in above laptop. She has further stated that after examination she found that, an affidavit by way of declaration dated 02.02.2015 was present in said laptop. Further she has stated that, the said document was not found in pen drive. She has identified her report submitted in that regard as per Ex.P.18, her signature as per 25 C.C.No.1062/2016 Ex.P.18(a) and above articles sent for examination as per MO.1 and MO.2. In cross examination by defence side PW10 has denied that, she is not an expert in software section and she has clearly admitted that, in a laptop the date, time and details of a document may be changed. This aspect is a ground to believe that dated and time of any document in a laptop may be manipulated and hence on the basis of sole evidence of this witness, it is difficult to believe that accused no.1 created above file in said laptop with help of accused no.3. The entire evidence of this witness is denied and it is suggested to her that, she has issued false report as per instance of IO.
20. P.W.11 Chandrashekar has deposed that, Since 2009 to 2016 he has working in Mahadevapura P.S as HC. On10.12.2015 he has taken to laptop and Pen drive to scientific exam. On 24.12.2015 he has received report, laptop and pen drive from Scientific Laboratory and submitted before his senior officer. In 26 C.C.No.1062/2016 cross examination entire evidence of this witness is also denied by defence side.
21. P.W.12 Manjunatha. M. the then PI of Mahadevapura P.S. and I.O. of this case has testified that he received Ex.P.1 information from P.W.1, issued FIR as per Ex.P.9, on16.10.2015 he went to office of above company with panchas and he conducted Ex.P.2 Mahazar. Theafter he recorded further statement of P.W.1 and 3.11.2015 he seized Items produced by CW.17 as per Ex.P.17 seizure mahazar. He has identified MO1 and 2 laptop and pendrive, seal as per M.O.3, seized Diary as per M.O.4, 7 empty letterheads as per Ex.20 to P.26. Hotel receipt as per Ex.27, seized 4 flight tickets as per Ex.P28 to P.31, SBI Banks empty 5 cheque books of accused no.1 as per Ex.P.32 to P.36. He has further testified with regard to recording statements of witnesses, forwarding seized MO 1 and 2 for expert opinion on 08.12.2015 to Scientific Laboratory, receiving expert report as per Ex.P.18, securing Call 27 C.C.No.1062/2016 details of mobile of Accused as per Ex.P37,and filing of charge-sheet after completion of investigation. In cross examination by defence side PW12 has admitted that, he has to enter his movement in movement register. It is specifically suggested to him that, though he has not conducted any mahazar and he has not recorded any statement or further statement of witnesses, he has created the same for the purpose of this case. It is further suggested to him that, he has not seized MO1 to MO4 and he himself has got created Ex.P.18 report and filed false charge-sheet by improper investigation. However nothing is explained by this witness as to how exactly he came to know that accused persons had created aforesaid declaration affidavit with the help of MO1 and 2 laptop and pendrive. Further on perusal of Ex.P.17 mahazar, it appears to be a search mahazar in the house of accused no.1 and bears signature of C.W 13, who is wife of accused no.1. Nothing is stated by I.O. with regard to her presence nor CW17 who is the other I.O. 28
C.C.No.1062/2016 has stepped into witness box to speak about seizure of said articles under Ex.P.17. Further I.O. has not explained anything as to how seized hotel receipt, Air tickets and call details of accused persons are helpful to prove the alleged guilt of accused persons.
22. Thus on perusal of entire evidence of prosecution, it shows that accused no.3 is son of accused no.1 and as per case of prosecution accused no.1 being Ex- director of aforesaid company has created and concocted aforesaid affidavit by way of declaration and produced before Hon'ble Arbitrator appointed by Hon'ble High Court in collusion with opposite side party i.e. land owners and caused huge loss to their company. Thereby accused no.1 committed criminal breach of trust, all accused cheated the company and they also forged the letter head of company to create said document, they produced said document before Arbitration , knowing the same to be forged one and they also committed other offences under Information 29 C.C.No.1062/2016 technology Act. However as already stated above, P.W.1 has admitted that Ex.P.5 resignation tendered by accused no.1 was prepared on letter head given by themselves. Further nothing explained about acceptance of said resignation one day prior to Ex.P.5 letter as per Ex.P.6 acknowledgement and no materials placed by PW 1 to 3 to show acceptance of resignation of accused no.1. Further as rightly argued by learned counsel for accused persons, the prosecution has not produced or secured the very original Affidavit by way of declaration, said to have been created by accused no.1 before this Court and as per evidence of P.W.10 Expert the date of file in lap top may be changed, which is a ground to suspect that aforesaid document is created by accused persons after confirmation of resignation of accused no.1. It is further pertinent to note that though I.O. has asserted to have seized all materials used for creation of above document, he has not explained anything as to from which printer it was 30 C.C.No.1062/2016 printed and no such printer is seized. Further the I.O. has also not produced specimen letter heads of company of P.W.1 to 3 to show that alleged created affidavit or seized letter heads were not belonging to their company and same are created one. Further as already stated above evidence of P.W.1 is inconsistent with P.W.2 and 3 with regard to keeping of seal of company in Hyderabad office and Bengaluru office. Further seizure of incriminating materials and documents are not proved by prosecution as per Ex.P.17 seizure mahazar in view of hostile evidence of P.W9 and the witnesses/Pancha of seizure mahzar i.e. C.W.11 and 12 are also not secured and examined by prosecution. Further I.O. has not explained two corrections in Ex.P.17 without his endorsement and for said reasons the very seizure of incriminating articles is not proved to satisfaction of the Court. Further as already stated above nothing is explained as to how the I.O. came to know about creation of 31 C.C.No.1062/2016 above document with the help of M.O.1 laptop and he has not stated with regard to nexus between accused no.2 with accused no.1, for committing alleged crime with the help of materials on record. Further except self serving testimony of P.W.1 to 3 and I.O, absolutely there is nothing on record to prove that accused have created and concocted above affidavit by way of declaration after resignation of accused no.1 to cause loss to company. Further on perusal of Ex.P.13 Arbitration award, it shows that the claim of company to register development agreement is denied and the said company is compensated by ordering refund of amount incurred by them with interest. Further it is specifically mentioned in Page 24 of said award the present criminal proceedings will go on without being influenced by any observations made in above award. Further absolutely there is no independence evidence to show that accused persons have committed alleged offence and evidence of above 32 C.C.No.1062/2016 witnesses has not inspired the confidence of the Court to believe that accused no.1 has created and concocted alleged affidavit by way of declaration after resignation of accused no.1 from above company to cause loss to said company in conspiracy with other accused. Hence it shows that except evidence of interested and official witnesses, absolutely there is nothing on record to prove that accused persons in collusion with each other have created and concocted alleged affidavit by way of declaration by forging letter head and seal of the company in violation of by laws, by an act of forgery, fraud and conspiracy, they produced said affidavit knowing to be forged one and accused no.1 being Ex director of the company has committed criminal breach of trust against above company. Further absolutely there are no material or ingredients either attracting aforesaid offences or offences punishable under section 66 (C) and 66 (D) of Information Technology Act 2000. For these reasons 33 C.C.No.1062/2016 prosecution has failed to prove beyond reasonable doubts that accused no.1 to 3 have committed offences punishable under section 406, 420, 468, 465, 471, 120(B) r/w Sec.34 of IPC and Sec.66(C) & 66(D) of Information Technology Act, 2000, beyond reasonable doubts. Hence point no.1 to 8 are answered in the Negative.
23. Point No.9: - For the reasons stated and findings given on point No.1 to 8, following is:
ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 to 3 are acquitted for the offences punishable under Sections 406, 420, 468, 465, 471, 120(B) r/w Sec.34 of IPC and Sec.66(C) & 66(D) of Information Technology Act, 2000.
The bail bond and surety bond executed by accused no.1 to 3 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
Seized M.O.1 ,2 and 4 Lap top, pendrive and diary shall be 34 C.C.No.1062/2016 returned to accused no.1 and M.O.3 seal being worthless shall be destroyed after expiry of appeal period.
(Typed by the stenographer directly on computer, revised, corrected by me and then pronounced in open court on this the 12 th day of November 2021).
Sd/-
(Anand T Chavan) st 1 Addl. CMM., Bengaluru ANNEXURE List of witnesses examined for prosecution :-
PW1 : Ravikumar PW2 : C. V. Srinivas PW3 : J. B. Choudhary PW4 : Achyutaramaiah PW5 : Sairoop Kumar PW6 : Pilla Reddy PW7 : Muniswamy Reddy PW8 : Krishna Reddy PW9 : Nagamani PW10 : Dr. Kumudarani PW11 : Chandrashekar PW12 : Manjunath .M.,
List of exhibits marked for prosecution :-
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of PW1
Ex.P.1(b) : CIN
Ex.P..1(c) : Signature of PW12
Ex.P.2 : Spot mahazer
Ex.P.2(a) : Signature of PW1
Ex.P.2(b) : Signature of PW12
Ex.P.3 : Certificate of Incorporation
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Ex.P.4 : Memorandum & Articles of
Association
Ex.P.5 : Registration letter
Ex.P.6 : Acknowledgment & confirmation
Ex.P.7 : Certified paper notification
Ex.P.8 : Certified resolution letter
Ex.P.9 to 12 : Photographs
Ex.P.13 : Copy of Order passed by the
Hon'ble High Court of
Karnataka in AC. No.54/2015
Ex.P.14 : Statement of Pilla Reddy
Ex.P.15 : Statement of Muniswamy Reddy
Ex.P.16 : Statement of Krishnareddy
Ex.P.17 : Seizure mahazar
Ex.P.17(b) : Signature of PW12
Ex.P.18 : F.S.L. reported
Ex.P.18(b) : Signature of PW10
Ex.P.19 : F.I.R.
Ex.P.19(a) : Signature of PW12
Ex.P.20 to 26 : Blank letter head related to
Manikya Homes Pvt., Ltd.,
Ex.P.27 : SRT Hotel receipt
Ex.P.28 to 31 : Flight tickets
Ex.P.32 to 36 : IDBI Bank cheque books
Ex.P.37 : Call details
Ex.P.37(a) : Signature of PW12
List of material object :
M.O.1 : Laptop
M.O.2 : Pen Drive
M.O.3 : Seal
M.O.4 : Dairy
List of Witnesses examined for defence:-
NIL 36 C.C.No.1062/2016 List of documents marked for defence:-
NIL Sd/-
1st Addl. CMM., Bengaluru.