Bangalore District Court
State By Cubbon Park Police vs Being Branch Manager Was Looking After ... on 20 June, 2019
IN THE COURT OF THE VII ADDL. C.M.M., BENGALURU.
Dated this the 20th day of June 2019
Present: Sri. Laxman R. Kurane, B.Com., LL.M.,
VII ADDL. C.M.M., Bengaluru.
JUDGMENT U/S. 355 OF Cr.P.C.:
1. CC NO. : 8309/2000
2. Date of offence : 28.8.1999
3. Complainant : State by Cubbon Park Police
Station
4. Accused : M.S.Suresh S/o Late V. Seetharamaiah,
43 years, r/at No. 555, 69th cross,
1st stage, Kumaraswamy Layout,
Bangalore.
5. Offences complained of : Sec. 408, 420 IPC
6. Plea : Accused pleaded not guilty
7. Final order : Acting U/s. 248 (1) Accused is
acquitted
The PSI of Cubbon Park Police Station has filed the final report as
against the accused person for the offences punishable under Sec. 408, 420
IPC.
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2. The brief facts of the case of the prosecution is that on 6.6.1998 to
23.11.1998 accused being the General Manager in Standard Electricals
Limited company situated at Queens Apartments Queens Road, Bangalore
had placed order for supply of electrical materials to C.W.3 to 6 on behalf
of Standard Electricals Limited and obtained the said materials from C.W.8
and 9 to the tune of Rs 12,85,002/- and the accused misappropriated the
same for his personal gain and subsequently paid only Rs 1,65,473/- and
misappropriated remaining amount of Rs 11,19,529/- for his personal gain
and dishonestly induced CW. 8 to 10 materials worth Rs 12,85,002/- and
caused wrongfully loss to CW.1 to the tune of Rs 11,19,529/- and cheated
the company and thereby committed the aforesaid offences.
3. The accused appeared through his counsel and was enlarged on
bail. Prosecution papers are furnished to the accused person in compliance
of 207 of Cr.P.C and after hearing before charge, since no grounds were
made out for his discharge, charges were framed, read over to the accused
person in the language known to him. The accused person having
understood the same, denied it to be false and claimed to be tried. As such,
the matter was set down for trial.
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4. The prosecution in order to prove the guilt of the accused person
had cited C.W.1 to 18 as its charge sheet witnesses, among whom C.W.2,
3, 4, 5, 7, 8, 1, 11, 14, 12, 15, 16, 21, 23, 6 and 22 are examined as P.W.1 to
P.W.16 and got marked Ex.P.1 to P.168. The accused was not questioned
under Sec. 313 of Cr.P.C. as there were no incriminating material available
in the case of the prosecution. As such, the matter was posted for
arguments.
5. Heard the learned Sr. APP for the prosecution and the learned
counsel for the accused person. Perused the materials available on record.
6. Following points arise for my consideration:
(1) Whether the prosecution proves beyond reasonable doubt that
the accused person has committed the offences punishable
under Sec. 408, 420 IPC ?
(2) What order ?
7. Having regard to the arguments heard and the materials placed on
record, my answer to the above points are :
Point No.1 : In the negative.
Point No.2 : See final order, for the following :
REASONS
Point No.1 :
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8. The PW-1 in his examination chief stated that, accused was
working as Branch Manager in their company from 1997 to January 1999.
Their company was dealing with Manufacture of Lower Tension Switch
Gears and it has got branches all over India and it has many dealers. The
accused being Branch Manager was looking after the administration of
branch , receiving of LR's, invoices and delivery materials from the dealers
on the basis of invoices, was collecting amount from the dealers. He
further stated that the accused was sending the copies of order
acknowledgement to the head office, Corporate office. The Corporate
office and head office were dispatching the material on the basis of orders.
The accused used to endorse the LR's, was dispatching materials to the
right dealers. Thereafter the dealer has to collect the material from
transport office. The accused used to collect the amount and remit the
same to the account of the company in SBI Branch, Shivaji Nagar,
Bangalore. He further stated that, the CW-3 informed that he received
materials from transport office which he had not placed any order and he
informed the said facts to their head Office at Jalandar. The Head Office in
turn forwarded the said fact to their office at Bangalore. The general
Managar after enquiry came to know that the material were also received
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in the name of CW-3 to 6, though they have not placed any orders for the
materials. The CW-1 immediately called the accused, enquired him and
accordingly and he admitted that he secured the materials in the name CW-
3 to 6 without their orders and gave confessional letter dated 30-12-1998
and had secured the materials worth Rs. 12,85,021 /- and out of same the
accused paid Rs. 1,65,473/- .
9. The PW-1 in his cross examination at page no. 16 stated, he first
time came to know the misappropriation from Kundan Electricals. He
came to know that, the accused has misappropriated and only after
receiving the information from Head Office and Head Office had
communicated the said fact to Ananth Raman (PW-7). The advocate for
the accused in the cross examination at page no. 18 made suggestion that,
Ex.P . 46 and 47 were prepared by administrative threat to the accused. It
is disclosed that the accused has executed Ex.P . 46 and 47 to the company.
If the complainant got executed the Ex.P. 46 and 47 by threat, the accused
should have filed threat complaint against them to the police Station.
10. PW-2 Mohan Ram is the Owner of M/s. Sundar Electrical Stores,
he was getting electrical items from standard Electricals. He stated that the
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representative of Standard Electricals used to come take order for supply
of materials from them. The Legal representative used to bring invoices
and used to take delivery of goods from concerned Lorry Office. He further
stated that, in the month December 1998 the S.L.N .Lorry Services situated
that Kalasipalyam of South Prite Minerals informed him that they have
received consignment in his name from Jalandar, to which he had not
made any order. The PW-2 in his cross examination stated that the accused
was, gentleman, he was not coming to their shop for taking orders, but
simply he was comping for discussion purpose.
11. PW-3 Ramesh, who is Owner of Kanyalal Lakshman Das
Electric Shop, who used to purchase the electric goods from Standard
Electricals, stated that, the accused himself or his representative used to
collect the orders from them. He further stated that in the month of
October-November 1998 , the Regional Manager informed him that there
was outstanding amount of Rs. 8 to 10 lacs which was more than the order
placed by them. The company given letter which disclosed 9 invoices
raised in their mail but they have not placed any orders in respect of said
invoices. He stated that he came to know that the accused had
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misappropriated the funds from Ananthram and he does not know who is
responsible for misappropriation of amount.
12. PW-4 Gaheverchand Jain , who is the owner of M/s. Susheel
Electricals and the Susheel Electricals used to purchase the materials from
Standard Electricals. Pw-4 in his examination chief has turned out hostile.
PW-5 Pradeep Kumar who is owner of M.P Sales Co-operation, stated that
he never made any business transaction with Standard Electrical . The P.SI
brought 17 bills which were not containing his name and had not received
any goods under said bills.
13. PW-6 I.P. Singh was the Senior Sales Executive of Standard
Electricals and in his examination-in-chief stated that during the year 1997-
1998, the accused was the Branch Manager entrusted with entire
responsibility of Branch office, he used to collect the orders from the
customer and forward the same either to Jalandar or Delhi for execution.
The accused was supposed to send daily collection information to Jalandar.
The goods were supplied to the customer on credit basis by giving 45 days
time. In case of due from any customer, they used to ask the branch
Manger to take follow up action to collect the dues. He further stated that
the amount was due from Sundar Electricals, Kanyalal Lakshmana Das
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Electricals and Susheel Kumar Electricals and other Electricals in the year
1999. The Sundar Electrical wrote a letter enquiring as to how many
invoices were raised and accordingly the Standard Electricals provided list
of invoices. Thereafter the Sundar Electricals replied that they did not
receive any materials in respect of 4-5 invoices along with pending
invoices of other customer. He further stated that the accused undertook to
make the goods loss within one month and paid Rs. 1,65,000/- out of Rs.
7,20,000/-.
14. PW-7 Ananthraman was the Deputy Manger of Southern Legal
Officer and his evidence is in line with the evidence of of PW-6, but he was
not offered for cross examination.
15. PW-8 M.S. Sudan, the Manger of Suresh Transport Company
from whom accused was getting release of the materials, but PW-8 has
turned hostile.
16. PW-9 K.S Bhat is the Regional Manger of Canara Bank has
issued two D.D. for Rs. 40,000/- each. In his cross examination he has
stated that D.Ds. were issued to several persons from their bank.
17. PW-10 R. Jayaprakash was working in Associate Road Carrier
Ltd., Sudam Nagar, Delivery Branch. He stated that, he received
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consignments from Nelamangala Transport Office to their godown and the
said goods will be delivered to consignee. The person who received the
goods should produce original consignment, they collect frieght charges
and deliver the goods to the consignment as per the invoice to the
consignee or his representative. The godown keeper takes the signature of
the receiving party on the consigning party and deliver the goods. He
further stated that the police have brought one Ponnappa (PW-1) enquired
and shown him two invoices and consignee copy and told them that goods
were delivered. He does not know who has received the consignee and
invoices. In his cross-examination he stated that through all the
information of Ponnappa, he came to know that the accused had
misappropriated the goods and caused loss to the company.
18. PW-11 Jayaram was the Chief Managar of SBI, in the year
2000. He stated that, the Cubbon park Police requested him to furnish
particulars about the bankers cheque. On 17-02-2000 he furnished two
photo attested copies of cheques and application for the same. The
application at Ex.P. 75 and bankers cheques are at Ex.P. 76 and 77. On
Ex.P. 76 application the signature of Suresh and Ex.P. 77 is the signature of
H. Shivakumar.
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19. PW-12 J.R. Gupta was Chartered Accountant, he carried audit
work of Standard Electricals and Ex.P. 45 is the audit report dated 12-07-
1999 for the period 89-99 to 1999. The PW-12 In his cross examination
on page no . 7 stated that, on the basis of records he formed opinion in
respect of the misappropriation committed and not by the employee. The
Ex.P. 45 is the audit report dated 12-07-1999 and the PCR at Ex.P.1 was
filed on 25-02-1999. It is shows that after filing of PCR the Ex.P. 45 also
issued to suit the case of prosecution. Hence it creates doubt about Ex.P.
45. The case of prosecution is mainly based on Ex.P. 45 audit report which
was prepared after filing of Ex.P.1. Therefore, the issuance of Ex.P.45
creates doubt about case of prosecution.
20. PW-13 Lakshminarayan was the assistant Director, FSL
Bangalore, has compared the signature of accused with standard signature
and disputed signature and opined that the dispute signature and writings
found in Ex.P. 4 to 17 , specimen signature , standard writings and initials
are written by the same person. The PW-13 was not offered for cross
examination and his evidence no evidence in the eye .
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21. PW-14 Shobha Katawkar who is Investigating Officer, after
completion of investigation filed charge sheet against the accused. Mere
filing of charge sheet is not sufficient to prove the guilty of offence. PW-
14 in her cross examination stated that she do not remember whereabouts
of the originals invoices in respect of Ex.P. 78 , 79 , 83 to 86 , 88 to 96 and
do not remember how the goods were transported.
22. PW-15 Sampathlal was the partner in M.M. Shantala Electrical
goods stated that , he used to bring goods from Bombay, Jalandar and
Delhi. The evidence of PW-15 is not helpful. The Ex.P.2 , 3 , 38 , 39 ,45
to 48 , 56 , 58, 78 to 80, 83, 85,88 to 96 are not the original documents but
photo copy of the documents which were marked in the evidence subject to
production of originals. But no efforts were made by the prosecution to
produce original documents and no explanation was given in this regard.
PW-3, 4 and 15 who are the main witnesses to the offence but they have
totally denied the case of prosecution. It is the case of prosecution that the
accused secured materials worth Rs. 12,85,021/- and out of the same he
paid Rs. 1,65,473/- , sought some more time to pay the balance amount. If
that is so the company should have sought Civil remedy instead of
Criminal remedy .
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23. Section 420 of IPC states that who were cheats and thereby
dishonestly induces the the person deceived to deliver any property to any
person or to make, alter or destroy the whole are any part of valuable
security or anything which is signed or sealed and which is capable of
being converted into a valuable security. On perusal of the records and
contents of complaint it reveals that Section 420 is not attracted and the
accused has not committed the offence.
24. Section 408 of IPC states that, who were being clerk or servant
or employed as a clerk or servant and being in any manner entrusted in
such capacity with property or with any dominion over property,
committees criminal breach or trust in respect of that property. In the
present case the complainant company has not entrusted the property to
accused which had been misappropriate by him. Therefore the Standard
Electrical Company on the basis of admitted statement of all ought to have
filed Civil suit and leave balance amount of Rs. 11,20,000/-. There is no
evidence against the accused. Hence, the prosecution has failed to prove
the guilt of the accused person beyond all reasonable doubt. Accordingly, I
answer the above point in the negative.
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Point No. 2 :
25. In view of the reasons stated at point No.1, I proceed to pass the
following:
ORDER
Invoking the jurisdiction vested to this Court under Sec. 248(1) of the Criminal Procedure code, the accused is acquitted of the offence punishable U/s. 408, 420 IPC.
Bail bond and surety bond executed by the accused and his surety shall be in force for the period of 6 months.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified, corrected & then pronounced by me in the Open Court dated this the 20th day of June 2019) (LAXMAN R. KURANE), VII ACMM, BENGALURU.
ANNEXURES:
List of witnesses examined on behalf of the Prosecution:
P.W.1 : Ponnappa P.W.2 : Mohan Ram P.W.3 : Ramesh P.w.4 : Gevarchand Jain P.W.5 : Pradeep Kumar P.W.6 : I.P.Singh P.W.7 : Anantharam 1 4 P.W.8 : Sudham P.W.9 : K.S.Bhat P.W.10 : Jayaprakash P.W.11 : N.S.Jayaram P.W.12 : Guptha P.W.13 : Lakshminarayan P.W.14 : Shoba Kavatekar P.W.15 : Sampath Lal P.W.16 : Muniyappa
List of documents marked on behalf of the Prosecution:
Ex.P.1 : Complaint Ex.P.2 : Resolution Ex.P.3 : Appointment order of complainant Ex.P.4 to 17 : Acknowledgements Ex.P.18 to 32: Check sheets Ex.P.33 : Power of attorney Ex.P.34 & 35: Duty charge sheet Ex.P.36 & 37: Covering letters Ex.P38 & 39: Receipts Ex.P.40 : Covering letter Ex.P.41 & 42: Demand Drafts Ex.P.43 &44: Certified copies of Demand Drafts Ex.P.45 : Copy of audit report Ex.P.46& 47: Photocopy of letters Ex.P.48 : Photocopy of resignation Ex.P.49 & 50: Attendence Registers Ex.P.51 & 52: Office copy of receipts Ex.P.53 to55: Letters Ex.P.56 to 58: Copy of invoice Ex.P.59 : Letter Ex.P.60 to 73: Invoices Ex.P.74 & 75: Letters Ex.P.76 : Banker copy of cheque Ex.P.77 : Copy of cheque Ex.P.78 & 79: Copies of invoice Ex.P.80 to 82: GR No. 5646, 5437 and 5639 1 5 Ex.P.83 to 85: Invoices of Sundar Electricals Ex.P.86 & 87: G.R. Nos. 5593 and 5634 Ex.P.88 to 96: Invoices Ex.P.97 to 103: G.Rs
Ex.P.104 to 145: Specimen signature sheets Ex.P.146 to 160: Specimen signatures Ex.P.161 : Specimen writing Ex.P.162 : Letter dated 14.4.1998 Ex.P.163 : Opening of Export Ex.P.164 : Reasons Ex.P.165 & 166: Letters of Sampath Lal Ex.P.167 : Reply given by complainant Ex.P.168 : Statement of P.W.15 List of Material Objects marked on behalf of the Prosecution:
Nil For defence: - NIL -
VII ACMM, BENGALURU.1 6
Judgment is pronounced in open court.
Invoking the jurisdiction vested to this Court under Sec. 248(1) of the Criminal Procedure code, the accused is acquitted of the offence punishable U/s. 408, 420 IPC.
Bail bond and surety bond executed by the accused and his surety shall be in force for the period of 6 months.
VII ACMM, BENGALURU. 1 7 1 8