Bangalore District Court
The State Through vs No.2 : Pramod.D.S on 28 June, 2022
1 C.C.15602/2018
IN THE COURT OF THE XXXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M, Bengaluru
Dated this the 28th day of June, 2022
Criminal Case No.15602/2018
Complainant : The State through
Police Inspector,
R.T.Nagar Police Station
( By Asst. Public Prosecutor )
--- V/s ---
Accused no.2 : Pramod.D.S,
S/o.SannaRangegowda,
Aged about 24 years,
C/o.Muniraju's house, Ayyappa
Bakery,Bhoopasandra Main road,
Sanjaynagar,Behind Krishna Bhavan
hotel, Bengaluru
(Note; case against accused no.1 is split up
and registered in C.C.26273/2019)
(Accused is rept. by-Sri.S.K.V.....Adv.,)
Date of commencement of : 10.01.2018
offence.
Date of report of offence. : 11.01.2018
Arrest of the Accused. : ---
Name of the Informant : K.J.Nagesh
S/o.Late.Jayaramaiah
2 C.C.15602/2018
Date of commencement of : 14.01.2020
recording evidence.
Date of closing of evidence. : 03.03.2020
Offences complained of : U/Secs.420 r/w 34 of Sec.of IPC
Opinion of the Judge. : Accused no.2 isfound not guilty
Date of Judgment : 28-06-2022
XXXII Addl.C.M.M
Bengaluru.
JUDGMENT
The Police Inspector of R.T.Nagar P.S has submitted the Charge Sheet against the accused no.1 and 2 for the offences punishable Under Sec. 420 r/w Sec. 34 of IPC .
2. The brief facts of the Prosecution case are as follows:
That the accused no.1 and 2 colluding with each other, on 08.01.2018 went to S.M Silk Sarees shop situated at Bellary Main road and made C.W.1-Sri.Nagesh to believe that the accused no.1 was going to donate silk sarees to a school and believing the words of accused and at the request of the accused no.1, the C.W.1 took sarees and the accused took C.W.1 with the sarees in a Maruti Swift car bearing No.KA13-B-3 C.C.15602/2018
9439 to the school of C.W.6 and shown her the sarees and while returning, the accused no.1 took Rs.12,500 from C.W.1 fraudulently and left the place and thereafter the accused no.2 left the place along with the 03 silk sarees. Thereby accused no.1 and 2 have committed the offences punishable U/Sec. 420 r/w Sec. 34 of IPC.
3. On the basis of the Statement of CW-1, the R.T.Nagar Police have registered a case under Crime No.9/2018 for the offences punishable U/s 420 r/w Sec. 34 of IPC against the accused no.1 and 2 and submitted the FIR before the court. Thereafter investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused no.1 and 2 for the offence punishable U/Sec. 420 r/w Sec. 34 of IPC. On the receipt of the police report, this court has taken cognizance for the said offences.
4. On the appearance of the accused, the accused were enlarged on bail. The copies of prosecution papers were furnished to the accused as contemplated U/Sec.207 of Cr.P.C. Accused no.1 remained absent and as such this criminal case came to be split up against accused no.1. After hearing both the 4 C.C.15602/2018 parties, the charge was framed against the accused no.2 and read over to him. Accused no.2 pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused, the prosecution has got examined five witnesses as PW-1 to 5, out of the total charge sheet witnesses as CW-1 to 14 and got marked eleven documents as Ex.P1 to P11. Learned A.P.P prayed for issuance of summons to C.W.11, 12 and 14 inspite of giving sufficient opportunities to I.O to execute summons and NBW, the witnesses have not been secured. Hence, the evidence of C.W.11, 12 and 14 is dropped by rejecting the prayer of the learned Assistant Public Prosecutor. After closure of prosecution evidence the accused no.2 is examined U/s 313(1)(b) Cr.P.C and each and every circumstance found in the evidence is read over separately to the accused no.2. The accused no.2 denied all such incriminating circumstances as false. Accused no.2 did not choose to explain anything during his examination. Accused no.2 did not choose to adduce defence evidence and no documents are got marked on behalf of accused.
6. I have heard the arguments addressed by the learned 5 C.C.15602/2018 Assistant Public Prosecutor and learned advocate for the accused.
7. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration :
POINTS 1. Whether the prosecution proves beyond all reasonable doubt that the accused no.2 colluding with accused no.1, on 08.01.2018 went to S.M Silk Sarees shop situated at Bellary Main road and made C.W.1-Sri.Nagesh to believe that accused no.1 was going to donate silk sarees to a school and believing the words of accused and at the request of the accused no.1, the C.W.1 took sarees and the accused took C.W.1 with the sarees in a Maruti Swift car bearing No.KA13-B-9439 to the school of C.W.6 and shown her the sarees and while returning, the accused no.1 took Rs.12,500 from C.W.1 fraudulently and left the place and thereafter the accused no.2 left the place along with the 03 silk sarees and 6 C.C.15602/2018 thereby the accused committed the offence punishable U/s 420 r/w Sec. 34 of IPC.?
2. What Order ?
8. My findings to the above Points are as under:
Point No.1 : In the Negative.
Point No.2 : As per final order,
For the following: -
REA S ON S
9. Point No.1:- It is the allegation that the accused has committed the offences punishable under Section 420 r/w Sec. 34 of the IPC.
10. It is the case of the prosecution that, that the accused no.1 and 2 colluding with each other, on 08.01.2018 went to S.M Silk Sarees shop situated at Bellary Main road and made C.W.1-Sri.Nagesh to believe that the accused no.1 was going to donate silk sarees to a school and believing the words of accused and at the request of the accused no.1, the C.W.1 took sarees and the accused took C.W.1 with the sarees in a Maruti Swift car bearing No.KA13-B-9439 to the school of C.W.6 and shown her the sarees and while returning, the accused no.1 took 7 C.C.15602/2018 Rs.12,500 from C.W.1 fraudulently and left the place and thereafter the accused no.2 left the place along with the 03 silk sarees. Thereby accused no.1 and 2 have committed the offences punishable U/Sec. 420 r/w Sec. 34 of IPC.
11. In order to prove its case, the prosecution has got examined the informant of crime/C.W.1- Nagesh as P.W.3, C.W.4-Srikanth and C.W.5-Subramani- Manager and salesman of S.M.silks- seizure mahazar witnesses to the sarees and car of accused no.2 are examined as P.W.1 and 2 respectively, C.W.2-Krishnaprasad- spot mahazar witness is examined as P.W.4, C.W.13-Jayakumari-WPSI- is examined as P.W.5.
Out of the documents marked for the prosecution Ex.P1 and 2 are the seizure mahazars, Ex.P.3 is the statement of P.W.1, Ex.P.4 is the Further statement of P.W.1, Ex.P.5- statement of P.W.2, Ex.P.6-Further statement of P.W.2, Ex.P.7- complaint, Ex.P.8-Mahazar, Ex.P.9-Photo of the vehicle, Ex.P.10- photo of the sarees and Ex.P.11 is the FIR.
12. In support of the case of prosecution C.W.4/P.W.1- Srikanth and C.W.5/P.W.2-Subramani are working as 8 C.C.15602/2018 Manager and salesman of S.M.silks respectively. These witnesses in the chief examination by learned A.P.P turned hostile to the case of the prosecution and deposed that they know the accused and they have not given statement and further statement before police as Ex.P.3 to 6 and police have not seized anything before them and they do not know the contents of Ex.P.1 and 2-seizure mahazars.
Learned A.P.P treated these witnesses as hostile witnesses and cross examined them at length, even in the cross examination nothing worth could be elicited from their mouth to support the case of the prosecution.
13. C.W.2-Krishnaprasad alleged to be a mahazar witness is examined as P.W.4 on behalf of prosecution. This witness deposed that about one year back he signed on the mahazar which is marked as Ex.P.8 at S.M.Silk shop and at HAL.
This witness was cross examined by the Learned counsel for accused and in the cross examination he denied the suggestion that he signed on a white paper and he does not know the contents of Ex.P.8-Mahazar. He deposed that himself, Nagesh and police were there at the time of mahazar and 9 C.C.15602/2018 C.W.1-Nagesh is his brother. He denied the suggestion that no mahazar was drawn at the spot and he is deposing false to help the C.W.1
14. In support of prosecution C.W.1-K.J.Nagesh is examined as P.W.3. This witness in his evidence deposed that he was working as Salesman at S.M.Silk at R.T.Nagar and accused no.2 took him to a school at HAL and took Rs.10,000/- from him. He further deposed that on 08.01.2018- C.W.4 instructed him to take 10 sarees and go to the school along with accused no.2 and he went along with accused no.2 and on 10.01.2018 accused no.2 took him to the school with 3 sarees and accused no.1 and 2 took golden bangles of the Principal and went to Kalyan Jewellers. He further deposed that accused no.1 and 2 took Rs.12,500/- stating that they had to give orders for jewelry and left him at the sweet shop and fled away with the Rs.12,500/-, three sarees and bangles of the Principal. Further P.W.3 deposed that he lodged complaint and police have drawn mahazar.
Learned counsel for accused cross examined P.W.3 at length and elicited that he was on duty at S.M.silk shop and had seen accused no.2 for the 1st time in the shop and he does 10 C.C.15602/2018 not know at what time they reached the HAL school and he cannot say the color of the sarees which he took to HAL school on the instruction of C.W.4-Manager. It is further elicited that he does not know accused no.1 and 2 and he does not know the date of the incident he is seeing the sarees appearing in Ex.P.10 for the firsr time in the police station. He denied the suggestion that he is deposing falsely and he is deposing as per the instruction of his Manager-C.W.4.
15. C.W.13-W.P.S.I-Jayakumari.S is examined as P.W.5. This witness deposed that on 11.01.2018 C.W.1 lodged written complaint against the accused and she registered the complaint and on 02.02.2018, police staff produced the accused before her and she inquired the accused and recorded their voluntary statement and on the basis of the statement of accused, she seized the Car and she went to the house of the accused and recovered sarees under mahazar.
The learned counsel for accused cross examined this witness at length and in the cross examination it is elicited that the complaint was lodged at 7.45 P.M and it was a typed complaint. She deposed that her staff wrote the seizure mahazar and the accused were traced near bus stop at 11 C.C.15602/2018 R.T.Nagar, CBI road and accused no.2 was secured along with the Maruthi Swift Car bearing No. KA-13-B-9439. She denied the suggestion that in order to help the C.W.1 she is deposing false evidence and created documents.
16. The prosecution failed to secure other witnesses inspite of giving sufficient opportunities.
17. During course of trial, the accused taken up defence of total denial of the case of the prosecution.
18. In the light of above evidence, the learned APP argued that although most of the witnesses have not supported the case of prosecution, yet there is evidence to believe that the act committed by the accused is nothing but cheating there is sufficient material on record to convict the accused. Therefore, he prayed to convict the accused.
19. The learned advocate for accused argued that, the material witnesses to the case of prosecution have not supported the case. There is nothing on record to believe that accused has committed offences punishable Under Secs.420 of Indian Penal Code. The prosecution has failed to prove the 12 C.C.15602/2018 offence beyond reasonable doubt. Therefore, he prayed to acquit the accused.
20. I have carefully gone through the charges levelled against the accused no.2 and also the evidence relied by the prosecution. On behalf of the accused no.2 it is argued that the P.W.3 himself at one breathe deposed that the C.W.4 gave him 10 sarees and they reached the HAL school along with 10 sarees and in another breathe he admitted that he cannot say the colors of the 10 sarees which he took to the school and he is seeing the sarees appearing in the Ex.P.10 (photo) for the first time. Further it is argued that the evidence of P.W.3 is not sufficient as the witness deposed that he does not know the date of incident and evidence of P.W.3 remained uncorroborated with the evidence of any other satisfactory and believable evidence. Further it is argued that seizure mahazar witnesses to the sarees and car of accused no.2 have completely turned hostile to the case of the prosecution and and denied that they have given statement before police regarding the seizure mahazar conducted by the police. Further it is argued that there is no satisfactory evidence to establish the guilt of the accused no.2 and accordingly it is prayed to 13 C.C.15602/2018 acquit the accused.
21. In the decision reported in (2017) 11 SCC 195- Yogesh Singh Vs Mahabeer Singh and others ..At para 15 Hon'ble Supreme Court observed as under:
"15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts".
Here, it is worthwhile to reproduce the observations made by Venkatachaliah, ., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:
"25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case".
Keeping the requirement of the above said provisions 14 C.C.15602/2018 of law and law laid down in the above said decision in my mind I have carefully examined the evidence placed on record.
22. This court noticed that the P.W.1/C.W.4-Manager P.W.2/C.W.5-Salesman of the S.M.Silks-seizure mahazar witnesses to the sarees and car, alleged to have given 10 sarees to C.W.1 to take it to the school along with the accused turned completely hostile to the case of the prosecution.
23. One more aspect to be noted here is that the C.W.1 deposed that the accused took the gold bangles of C.W.6 and also took Rs.12,500 from C.W.1 and fled away. This court observed that it is not the case of the prosecution that the accused took golden bangles of C.W.6.
24. The P.W.5-I.O deposed that she registered the crime and drew mahazar on the spot and conducted seizure mahazar. Under these circumstances, evidence of P.W.5-I.O not taking material role.
Looking to the weak type of evidence, there are two possibilities, one pointing towards the guilt of accused and another pointing towards the innocence of the accused. 15 C.C.15602/2018 Therefore, looking to the entire material on record, I am of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the accused no.2 has committed the offence of cheating within the meaning of Sec 420 of Indian penal code.
25. On careful appreciation of evidence led on behalf of prosecution, it reveals that, none of the witnesses have spoken to with regard to essential ingredients constituting offence for which allegations were made against the accused. Hence, on careful and meticulous appreciation of evidence and considering the totality of circumstances, the prosecution has failed to prove beyond all reasonable doubt that, the charges leveled against the accused persons. Hence, considering the over all circumstances of the case I answer point No.1 in the Negative".
26. Point No.2: - In view of Negative findings on the above points, accused no.2 is entitled for acquittal on doubt benefit. Hence, I proceed to pass the following:
ORD ER Acting U/Sec.248(1) of Cr.P.C. accused 16 C.C.15602/2018 no.2 is acquitted of the offences punishable U/Sec.420 of the IPC.
Bail bonds of the accused no.2 and Surety bonds shall stand canceled.
Keep the entire records along with the copy of this judgment in split up C.C.No.26273/2019 pending against accused no.1-Abdul Khadar.
There is no order as to disposal of the property/ies, since split up case is pending against accused no.1 (Judgment typed to my online dictation by the Stenographer, transcript corrected and signed by me, then pronounced by me in the Open Court on this the 28th day of June , 2022).
(Latha. J) XXXII Addl.C.M.M, Bengaluru.
ANNEXURES List of the Witnesses examined by the Prosecution:
PW-1 Srikanth.R C.W.4 14.01.2020
PW-2 Subramani C.W.5 14.01.2020
PW-3 K.J.Nagesh C.W.1 29.01.2020
PW-4 Krishnaprasad C.W.2 29.01.2020
PW-5 Jayakumari.S C.W.13 12.02.2020
17 C.C.15602/2018
List of the Documents exhibited for the Prosecution:
Ex.P1&2 : Seizure mahazars Ex.P3 : Statement of P.W.1 Ex.P4 : Further statement of P.W.1 Ex.P.5 : statement of P.W.2 Ex.P6 : Further statement of P.W.2 Ex.p.7 : complaint Ex.p.8 : Mahazar Ex.p.9 : Photo of the vehicle Ex.p.10 : photo of the sarees Ex.p.11 : FIR
List of the MOs marked on behalf of the Prosecution:
--Nil--
List of the Witnesses examined for defence:
--Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
(Latha. J) XXXII Addl.C.M.M, Bengaluru 18 C.C.15602/2018 Order pronounced in the open court (vide separate judgment) ORDER Acting U/Sec.248(1) of Cr.P.C. accused no.2 is acquitted of the offences punishable U/Sec.420 of the IPC.
Bail bonds of the accused no.2 and Surety bonds shall stand canceled. Keep the entire records along with the copy of this judgment in split up C.C.No.26273/2019 pending against accused no.1-Abdul Khadar.
There is no order as to disposal of the property/ies, since split up case is pending against accused no.1.
(Latha. J) XXXII Addl.C.M.M, Bengaluru.