Bangalore District Court
State By Central Ps vs Pleaded Not Guilty And Claimed To Be ... on 27 February, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 27th day of February 2016
Present : Sri. Venkataraman Bhat,
B.Sc., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 8331/2001
2. The date of commission
of the offence : 1.4.1995 to 15.9.1995
3. Name of the complainant : State by Central PS
4. Name of the accused : G.V.Achar, 48 Yrs.,
S/o Late V.K.Achar,
R/a No.Nil, Mirandhouse Vijay,
Mangalore.
Bangalore address :
No.350, 8th cross,
4th T Block, Jayanagar,
Bengaluru.
5. The offences complained : U/s.477A, 468, 420, 409 IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 27.02.2016
Police Inspector, Central police station placed charge sheet
against the accused for the offences punishable u/s.408, 477A,
468, 420, 471 of IPC.
2 CC.NO.8331/2001
2. According to the prosecution, accused was working as
temporary Paid Secretary from 1.4.1995 to 15.9.1995 in Karnataka
State Co-operative Agricultural and Rural Development Bank,
Employees Co-operative Society Limited. It is alleged that, accused
being Secretary of this society falsified the account of
Rs.2,17,614/- by creating forged documents and misappropriated
the same. It is further alleged that, accused created FD amount of
Rs.25,000/- and made a false account to the effect that FD amount
has been paid. It is further alleged that, accused by writing a
receipt for Rs.15,000/- failed to make entry in the cash book.
Apart from this, accused by creating a benami loan transaction in
the name of CW3 and misappropriated the same for his own use.
3. On the basis of first information statement lodged by then
Secretary of this society, FIR has been registered at Crime
No.334/1996 of Central police station.
4. During the course of investigation accused was arrested and
produced before this court. Later he was enlarged on the bail.
5. Two separate charge sheets came to be filed out of this alleged
transaction. One case is numbered as CC 8330/2001 and another
is numbered as CC 8331/2001. After submission of the charge
sheet, cognizance of the offences have been taken. Copy of charge
sheet was furnished as required u/s.207 of Cr.P.C. Charge was
framed for the offences punishable u/s.477A, 468, 420, 409 of IPC.
Accused pleaded not guilty and claimed to be tried.
3 CC.NO.8331/2001
6. CW1 to CW20 witnesses have been cited in the charge sheet.
During the course of trial, PW1 and PW2 were examined and Ex.P.1
to Ex.P.10 got marked.
7. After closure of the prosecution side evidence, statement of
the accused was recorded u/s.313 of Cr.P.C. Accused did not
adduce any defence evidence.
8. Heard arguments of Senior APP and advocate for the accused.
9. Now, I would like to appreciate evidence of PW1 and PW2.
Before going into appreciate the evidence, it is more relevant to
refer the main charges against the accused. As far as this case is
concerned, mainly following charges are levelled against the
accused.
i) Accused during the year 1995-96 falsified
the account of Rs.2,17,614/- without
remitting the said amount into bank
account.
ii) Accused created FD of Rs.25,000/- and
made a false entry to the effect that
payment has been made.
iii) Accused by issuing a receipt for Rs.14,000/-
failed to make entry in the cash book.
iv) Accused created a benami loan transaction
in the name of CW3 and falsely made an
entry to the effect that the said amount was
4 CC.NO.8331/2001
released in favour of CW3 and
misappropriated the same.
10. In other words, offences of criminal breach of trust, cheating,
forgery with an intention to cheat and falsification of account are
levelled against the accused. Ex.P.1 is the copy of complaint lodged
by CW1 / PW1. In fact original complaint got marked in CC
8330/2001. It can be noticed that, PW1 is the successor Secretary
of the society. As per the first information statement accused made
false entry with respect to a sum of Rs.2,02,614/- and thereby
misappropriated the same. Details of datewise misappropriation is
referred in Ex.P.1. PW1 has deposed to the effect that, as per bye-
laws of the said society accused is entrusted with all financial
transaction of the society. Copy of bye law is available on the
record.
11. In order to attract offence of criminal breach of trust, two
essential conditions are required to be established. One is
entrustment of the property and second is dishonest
misappropriation of the property. Bye-law No.54 of the said society
reads as under :
"Bye-law No.54 : Subject to the foregoing rules
the President shall have general control over
all the affairs of the society. In the absence of
the President his duties shall devolve on the
Vice-President. The treasurer shall have the
custody of all the moneys, documents and
other valuables of the society and shall be
responsible for their safe custody, and the
internal auditor shall check the daily
accounts."
5 CC.NO.8331/2001
12. It goes to very clear that, in fact Treasurer is the custodian of
all the moneys, documents and other valuables of the society. As
per Bye-law No.79 of the society, receipt must be given for all
payments made into the society and shall be signed by the
Secretary. Now, the question for consideration is, whether the
Secretary was entrusted all the financial transaction including
deposits of money etc. It has come in the evidence that, the said
society is having Current A/c with BDCC. According to PW1,
accused made a false entry without remitting the said amount into
the bank account. It is further alleged that, accused failed to show
this amount in cash book. Of course PW1 being Secretary of the
society supported the prosecution in his examination-in-chief, but
during the course of cross-examination PW1 deposed in a different
manner. During the course of cross-examination PW1 has duly
admitted as under :
"The Secretary is the custodian of the cash
received. The Treasurer is entrusted with
the responsibility of signing the cheques.
Except that, he has no other function. The
cheques are signed jointly by the President
and the Treasurer. It is true that, the
cheques referred above includes loan
cheques, FSD cheques. It is true that the
Secretary has no power to sign the
cheques."
13. If the evidence of PW1 is believed, then the signing authority
of the cheques are by the President and the Treasurer. Certain
allegations are made against the accused to the effect that, he
6 CC.NO.8331/2001
forged the cheques and misappropriated the amount. Later during
the course of cross-examination PW1 has duly admitted as under :
"It is true that, the amount paid to Hegde
Katte, Madhava Rao & Bennihalli, was also
through the cheque."
14. It is one of the allegation against the accused that, he created
a benami loan transaction in the name of CW3 with Hegde Katte
and misappropriated sum of Rs.25,000/-. If cheques were required
to be signed by the President and Treasurer, then there was no
occasion to sign the cheques by the Secretary.
15. PW2 is none other than the then President of the said society
at the relevant point of time. PW2 has deposed that, accused
misappropriated sum of Rs.3,75,000/- during 1994-95. He has
further deposed that, accused misappropriated sum of
Rs.2,02,000/- during 1995-96. Except this, nothing has been
stated by PW2. During the course of cross-examination PW2 has
admitted as under :
"¸ÀzÀj ZÉPïUÀ½UÉ CzÀsåPÀëgÀÄ, G¥ÁzÀsåPÀëgÀÄ ºÁUÀÆ RZÁAa
¸À» ªÀiÁqÀ¨ÉÃPÀÄ. AiÀiÁªÀÅzÉà ¸ÀAzÀ¨ÀsðzÀ°è PÁAiÀÄðzÀ²ðUÉ
¸À» ªÀiÁqÀĪÀ C¢üPÁgÀ ¤ÃrgÀ°®è C£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj
¥ÀæPÀgÀtPÉÌ ¸ÀA§AzÀs¥ÀlÖ ªÀÄÆgÀÄ ZÉPïUÀ½UÉ CzÀsåPÀë, G¥ÁzÀsåPÀë
ºÁUÀÆ ReÁAa ¸À» ªÀiÁrzÁÝgÉ C£ÀÄߪÀÅzÀÄ ¤d.
E£ÀÄß½zÀ ªÀÄÆgÀÄ 20,000/- ZÉPïUÀ½UÉ PÁAiÀÄðzÀ²ðAiÀĪÀgÀÄ
¸À» ªÀiÁr®è C£ÀÄߪÀÅzÀÄ ¤d."
16. So, one thing is very clear that, Secretary did not sign to the
cheques of the society. It has come in the evidence of PW2 that, all
7 CC.NO.8331/2001
the money transaction of the society was done only through
cheques. When Secretary has no authority to sign the cheques,
how could it possible to misappropriate the amount by the
Secretary. As per bye-law No.54 Treasurer is the custodian of all
moneys, documents and valuable properties of the society. Firstly,
entrustment of the work as alleged by the prosecution to the
accused is not proved in accordance with law. Secondly, there is
no substantive evidence to prove that, accused has
misappropriated the said amount.
17. CW2 is the auditor of the said society. In fact he audited the
account of the society for the period 1994-95, 1995-96. Auditor is
the most material witness to prove itemwise misappropriation of
the amount. However, prosecution could not able to secure the
presence of this material witness. It discloses that, during the
course of investigation disputed and admitted writing, signatures of
accused have been sent to obtain FSL report. Scientific Officer,
FSL, Bangalore is cited as CW15. It is pertinent to note that,
prosecution could not able to secure his presence before the Court.
In other words, FSL report is not proved by examining CW15. It is
reported that, most of the witnesses have left earlier address and
their present address is not known. Inspite of taking coercive steps
by the prosecution it could not secure the presence of other charge
sheet witnesses. Non examination of auditor as well as CW15 is
fatal to the prosecution. On the evidence of PW1 and PW2 it is not
proved that accused falsified the accounts and misappropriated the
same. Likewise, there is no evidence to substantiate the charge of
cheating and forgery with intention of cheating.
8 CC.NO.8331/2001
18. In a criminal case standard of proof is beyond reasonable
doubt. Merely on the ground of suspicion accused cannot be
convicted. In the case on hand, except evidence of PW1 and PW2
there is no evidence of other material witnesses. Moreover, it
discloses that, society had initiated recovery proceedings against
the accused by filing Arbitration case before Asst. Registrar of Co-
operative Society. According to PW1, a sum of Rs.2,500/- used to
be deducted out of the salary of the accused. But during the
course of cross-examination PW1 has admitted as under :
"It is true that, the Hon'ble High Court in
W.P.No.51163/2003 directed as for refund of
the said money."
19. So, one thing is very clear that Hon'ble High Court of
Karnataka directed to refund the deducted amount to the accused.
On the available evidence, offence of criminal breach of trust,
cheating and falsification of account are not proved by adducing
convincing and acceptable evidence. In the absence of any
convincing and trustworthy evidence, there is no alternative except
to acquit the accused for want of evidence. In the result, I proceed
to pass the following :
ORDER
Accused is not found guilty for the offences punishable u/s.477A, 468, 420, 409 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s. 477A, 468, 420, 409 of IPC.
9 CC.NO.8331/2001Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 27th Day of February 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : M.Channaiah PW.2 : H.V.Konannavar
List of exhibits marked for prosecution:-
Ex.P.1 : Copy of complaint Ex.P.2 : Cash book of society Ex.P.3 to Ex.P.5 : Three ledgers of fixed deposit Ex.P.6 : Challan book for the period 11.3.95 to 20.10.95 Ex.P.7 to Ex.P.10: Receipt books List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:-
Nil.
(Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.10 CC.NO.8331/2001
27.02.2016 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused is not found guilty for the offences punishable u/s.477A, 468, 420, 409 IPC.
Accused is acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s. 477A, 468, 420, 409 of IPC.
Bail bond of accused stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 27th Day of February 2016) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
11 CC.NO.8331/2001