Bangalore District Court
State By Yalahanka Ps vs No.2 - H.S.Nagaraj Empaneled Valuer Had ... on 26 May, 2022
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 26th day of May 2022
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 16522/2008
(Crime No.441/2007)
2. The date of commission
of the offence : 01.08.2005
3. Name of the complainant : State by Yalahanka PS
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden, Geddalahalli,
Bengaluru.
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
(Abated)
A3: M.S.Panchal
A4: Smt. Nalini
(Split up)
A5: A.P. Sridhar,
S/o A. Puttaveerappa, 35 Yrs.,
R/a. No.1096/6, 7th cross, A Block,
Sahakaranagar, Bengaluru.
2 CC.NO.16522/2008
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Convicted
8. Date of order : 26.05.2022
The Police Inspector, Yalahanka Police Station filed the Charge
Sheet against the accused No.1 to 5 for the offence punishable under
Sections 409, 420 read with Section 34 of Indian Penal Code
(hereinafter referred as IPC).
2. The brief facts of the prosecution case are as under :
The CW1 - Ramesh Rao transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the year 2007 Manager.
Prior to CW1-Ramesh Rao, accused No.1 - Suresh worked as
Manager in the said Bank. After assuming the charge by CW1-
Ramesh Rao as Manager, Head Office instructed him to review the
loan accounts sanctioned by the previous Manager accused No.1 -
Suresh. On reviewing the loan accounts he came to know that in loan
account of accused No.3 - M. S. Panchal became non performing
asset. On perusal of documents of the property which mortgaged to
the Bank found that accused No.3 -M. S. Panchal gave an application
for sanction of loan of Rs.9,00,000/- for the purchase of house
property bearing No.30 situated at BMP Ward No.90,
3 CC.NO.16522/2008
Devarjevanahalli, Bengalore and his wife accused No.4 - Nalini stood
as a co-obligant to the said loan. The loan was sanctioned and the
total outstanding loan as on was of Rs.9,25,658/-. Accused No.3 -
M.S. Panchal and accused No.4 - Smt. Nalini agreed to repay the said
amount with interest at prevailing rate of 11% p.a. In order to
ascertain the authenticity of documents CW1-Ramesh Rao visited the
TMC, Queen's Road, Bengaluru and on enquiry he came to know that
no such katha is existed in respect of property mortgaged in the name
of accused No.3 -M. S. Panchal or his vendor. He also came to know
that parent deeds of property mortgaged were fabricated for the
purpose of creation of equitable mortgage for availing the said
housing loan. He tried to search the property mortgaged, but he did
not able to trace the existence of the property mortgaged. Even the
empaneled valuer unable to locate the property mortgaged and
accused No.2 - H.S.Nagaraj empaneled valuer had given valuation
report knowing that such property is not existed. Hence, the first
informant came to know that earlier Manager i.e. accused No.1 -
Suresh had not accompanied the valuer at the time of valuation of the
property. Hence, accused No.3 -M. S. Panchal, his wife accused No.4
- Smt. Nalini who are borrower and co-obligant, accused No.5-A. P.
Sreedhar who introduced accused No.3 and 4 to Bank, accused No.2
valuer and accused No.1 the Manager of the said Bank in collusion
with each other with intention to defraud the Bank obtained the
housing loan by depositing the fabricated documents of the property
which is not existed. On the basis of written first information
4 CC.NO.16522/2008
statement police registered the case under their station Crime
No.441/2007 for the offence punishable under Sections 409, 465, 468,
420 of IPC and issued first information report.
3. During pending investigation accused No.2 and 5 appeared
through their advocate and they were released on bail.
4. The PI, Yalahanka PS completed the investigation and filed the
Charge Sheet against accused No.1 to 5 for the offence punishable
under Sections 409 and 420 read with Section 34 of IPC. My
predecessor in office had taken cognizance for the said offences and
registered the case in Criminal Case Register No.III and issued
summons to accused No.1 to 5. Accused No.1, 3 and 4 appeared
through their counsel and released on bail. Accused No.2 and 5
appeared after receipt of summons appeared.
5. The copy of Charge Sheet furnished to accused as per Section
207 of Code of Criminal Procedure (hereinafter called as Cr.P.C.)
6. The accused No.3 and 4 absconded and this court issued non
bailable warrant against them. My predecessor in office even after
issuance of non-bailable warrant as they were not secured within a
reasonable time and split up the case against them and ordered to
register separate case against them and directed to file split up charge
sheet against them. Accordingly, office registered the split up CC
No.12160/2016 against accused No.3 and 4.
5 CC.NO.16522/2008
7. The contention of accused No.2 that he be discharged from the
said offence was rejected as per order dated 05.10.2016.
8. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused No.1,
2 and 5 for the said offences and read over and explained in Kannada
language known to them and they did not plead guilty and claimed for
trial.
9. The prosecution in order to prove its case, examined totally 4
witnesses as P.W.1 to 4 and got marked Ex.P.1 to P.13.
10. Accused No.2 reported as died on 05.10.2021 and case against
accused No. 2 is abated.
11. As sufficient materials available on record, statement of accused
No.1 and 5 under Section 313 of Cr.P.C. was recorded and read over
and explained all the incriminatory evidence and statements available
against them in Kannada language known to them and accused denied
the same and did not lead defence evidence.
12. The prosecution examined CW1 as PW1, CW4 as PW2, CW3
as PW3 and CW6 as PW4. The prosecution got marked Ex.P.1 - first
information statement, Ex.P.2 -transfer order of accused No.1, Ex.P.3
- certificate of service of accused No.1, Ex.P.4 - Account opening
form of accused No.3, Ex.P.5 - identity card, Ex.P.6 - loan sanction
order, Ex.P.7 - valuation report of the property given by accused No.2,
6 CC.NO.16522/2008
Ex.P.8 - Forged khata certificate, Ex.P.9 - sale deed, Ex.P.10 -
Statement of Loan Account of accused No.3, Ex.P.11 - report
submitted by PW2, Ex.P.12 - letter containing information regarding
site No.30 and Ex.P.13 - first information report.
13. It is the case of the prosecution that accused No.3 approached to
accused No.1 - Branch Manager, Karnataka Bank Limited, Sahakara
Nagar branch, Bengaluru that he want to purchase the house property
bearing No.30 situated at BMP Ward No.90, Devarajeevanahalli,
Kasaba Hobli, Bengaluru and applied for loan in the first informant
Bank. Accused No.3 opened the Bank account in the first informant
Bank and prosecution produced Ex.P.4 - Bank account opening form
wherein accused No.3 given his address as No.197, Nagaraja Colony,
Immadi Halli, Bengaluru. Accused No.5 introduced accused No.3 to
the first informant Bank and introduction and other columns are not
filled. Even then accused No.1 allowed his application and opened
the account in the first informant Bank as Account
No.1212500100228101. The accused No.3 furnished Ex.P.5 - Voter ID
as his address proof. The accused No.3 mentioned his wife accused
No.4 as a nominee in Ex.P.4 - Account opening form.
14. The accused No.3 in order to obtain loan from the said Bank he
produced the Ex.P.8 khata certificate. Hence, on the basis of this
document accused No.3 want to purchase house property bearing
No.30, situated at BMP Ward No.90, Devarajeevanahalli, Kasaba
7 CC.NO.16522/2008
Hobli, Bengaluru. Here, the accused No.1 the Branch Manager of
Karnataka Bank Limited, Sahakara Nagar branch and accused No.2
Valuator of the property in the said Bank without visiting the property
and verifying as to the existence of said property issued Ex.P.7 -
valuation report. Hence, on the basis of Ex.P.8 - khata certificate and
Ex.P.7 valuation report accused No.1 sanctioned the loan of
Rs.9,00,000/- as per Ex.P.6 loan sanction order and credited to the
account of accused No.3 and accused No.4 who is wife of accused
No.3 and co-obligant to the said loan and in order to show that the
said amount is credited to the account of accused No.3 produced the
Ex.P.10 statement of account of accused No.3.
15. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, produced Ex.P.2
transfer order of accused No.1 and Ex.P.3 Letter/certificate of service
issued by the then Branch Manager, Karnataka Bank Limited,
Sahakaranagar branch certifying that accused No.1- Suresh M.
worked as a Branch Manager of said branch from 28.03.2004 to
12.12.2006.
16. Here after transfer of accused No.1 from the said branch PW1 -
Ramesh Rao assumed the charge of Branch Manager, Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru city. In the Ex.P.1 - first
information statement and also in the evidence of PW1 stated that
after transfer of accused No.1, he assumed the charge of Branch
8 CC.NO.16522/2008
Manager of the said Bank. The Head Office, Karnataka Bank Limited
instructed and directed PW1 - Ramesh Rao, Manager, Kanarataka
Bank Limited, Sahakaranagar Branch to review the Non Performing
Assets loan accounts which sanctioned during the period of accused
No.1. Accordingly, PW1 - Ramesh Rao reviewed all loan accounts
sanctioned during the service of accused No.1 and he came to know
that 25 loan accounts which are relating to the housing loan found that
property katha are not existed and among them one of the present loan
account of accused No.3. Hence, PW1 specifically deposed as
"ಯಲಹಹಂಕ ಸರಹದದ್ದಿನಲ ಬರರುವ ಟಿಎಹಂಸ ಗ ಹಹಹೋಗ
ದಾಖಲೆಗಳನರು
ನ ಪರಿಶಹೋಲನ ಮಾಡಿದ. ಆ ರಿಹೋತ ಪರಿಶಹೋಲನ
ಮಾಡಿದಾಗ ಆ ಆಸಸ್ತಿಗಳರು 3 ನಹೋ ಆರಹಹೋಪಿಯ ಹಸರಿಗ ಇಲಲದರರುವ
ಬಗಗ ಕಹಂಡರು ಬಹಂತರು. ಪರಿಶಹೋಲನ ಮಾಡರುವ ವಹೋಳೆಯಲ ಸರುಮಾರರು
25 ಸಾಲದ ಖಾತೆಗಳರು ಮನಯ ಸಾಲಕಕ ಸಹಂಬಹಂಧಪಟಟ
ದ್ದಿ ಸದರಿ ಸಸತಸ್ತಿಗ ಸಹಂಬಹಂಧಿಸದಹಂತೆ ಯಾವುದಹೋ ಖಾತೆಗಳರು
ಖಾತೆಗಳಾಗದರು
ಇಲಲ ಎಹಂದರು ಕಹಂಡರು ಬಹಂದವು."
17. PW1 - Ramesh Rao visited the BDA office to verify the khata of
house property bearing No.30, situated at BMP Ward No.90,
Devarajeevanahalli, Kasaba Hobli, Bengaluru and he came to know
that in respect of said property katha is not existed. Accordingly, PW1
- Ramesh Rao, Branch Manager informed the same to the Head
Office. Hence, Head Office instructed and directed to file first
information statement against accused persons. PW1 - Ramesh Rao,
Branch Manager lodged the Ex.P.1 first information statement stating
9 CC.NO.16522/2008
that accused No.1 and 2 without physically visiting and verifying the
existence of the property submitted Ex.P.7 - valuation report and
sanctioned the loan and thereby committed the said offences.
18. PW1 in his evidence specifically stated and deposed as
" ಸದರಿ ದಾಖಲೆಗಳನರು
ನ ಸಾಲ ಪಡಯರುವ ಉದಶಕಕಗ equitable
mortgage ಮಾಡರುವ ಸಲರುವಗ ಸಸಷಟಸದರ ಎಹಂದರು ಕಹಂಡರು ಬಹಂತರು.
ಆನಹಂತರ ಸಸಳಕಕ ಹಹಹೋಗದಹೋ ಆಸಸ್ತಿಯ ಬಲೆ ಬಗಗ valuation report
ಕಹಟಿಟದರ ಎಹಂದರು ಮಾಹತ ಗಹತಸ್ತಿಯತರು. ಎರಡನಹೋ ಆರಹಹೋಪಿ
valuator ಎಹಂದರು ಗಹತಸ್ತಿಯತರು. Valuator ಜಹತೆ ಬಬಹಂಕ
ಮಾಬನಹೋಜರ ಹಹಹೋಗ ನಹಹೋಡಿಲಲ. ಆಗ ಒಹಂದನಹೋ ಆರಹಹೋಪಿ ಬಬಹಂಕ
ಮಾಬನಹೋಜರ ಆಗದದ್ದಿರರು."
19. The PW1 identified the Ex.P.1 first information statement and
his signature in it. Here the prosecution in order to show that the first
informant Bank sanctioned the loan in favour of accused No.3 and 4
produced the Ex.P.6 - loan sanction order which discloses the fact that
Rs.9,00,000/- credited to the account of accused No.3. Hence, in
order to show that the loan amount of Rs.9,00,000/- credited to the
account of accused No.3 produced the Ex.P.10 - statement of loan
account of accused No.3. Here, the prosecution produced the Ex.P.8 -
khata certificate, Ex.P9 - sale deed dated 12.08.2005 wherein C.Abdul
Hameed executed it in favour of accused No.3 - M.S.Panchal. Hence,
the oral evidence of PW1 coupled with Ex.P.8 and Ex.P.9 establishes
the fact that Ex.P.8 and Ex.P.9 are created for the purpose of obtaining
loan from the first informant Bank.
10 CC.NO.16522/2008
20. Here, on the basis of Ex.P.8 - khata certificate accused No.3 and
4 applied for sanction of loan from the first informant Bank alleging
that they want to purchase house property bearing No.30 situated at
situated at BMP Ward No.90, Devarajeevanahalli, Kasaba Hobli,
Bengaluru and also produced the Ex.P.9 sale deed dated 12.08.2005.
Here, the Ex.P.9 sale deed is registered in the Sub Registrar Office,
Bengaluru North Taluk. This court issued process to secure CW2 -
B.C.Manjunath, Sub Registrar, Bengaluru North Taluk but reported
that he died on 04.05.2021 and he dropped. Here, in fact the said
property is not existed at all even then the accused No.3 presented it
for registration and got registered the sale deed as per Ex.P.9. Further
accused No.3 used the Ex.P.9 sale deed as if said property is existed
and on the basis of it and other document obtained loan of
Rs.9,00,000/- from the first informant bank. Hence, for the said loan
accused No.4 stood as a co-obligant. Hence, these illegal acts of
accused show that in order to gain wrongfully and to cause wrongful
loss to the first informant Bank and with dishonest intention obtained
the loan from the first informant Bank. Here, the prosecution
produced the Ex.P.8 -khata certificate dated 31.08.1998. Here, the
prosecution in order to show that the said document is created and it is
not issued from the concerned corporation of the City of Bengaluru it
examined PW3. PW3 in her evidence specifically deposed that Ex.P.8
khata certificate is not issued from the BMP, Bengaluru. She also
deposed that the signature and seal found on it is also not the signature
of any of her employee and the seal is also not belonging to the said
11 CC.NO.16522/2008
office. She also deposed that on the request of Investigating Officer
she gave her Ex.P.12 report on Ex.P.8 - khata certificate. The report
of PW3 marked as Ex.P.12 and her signature as Ex.P.12(a). Hence,
the oral evidence of PW3 coupled with Ex.P.8 and Ex.P.12 establishes
the fact that Ex.P.8 is created for the purpose of obtaining loan from
the first informant Bank. The advocate for accused cross-examined
the PW3 but elicited nothing in order to disprove the evidence of PW3
and prove that Ex.P.8 - khata certificate is genuine document.
21. Hence, looking at the evidence of PW1 and PW3 coupled with
Ex.P.8 -khata certificate, Ex.P.9 sale deed, it is clear that Ex.P.8 and
Ex.P.9 are created. Here, the PW1 deposed that after transfer of
accused No.1 from the Karnataka Bank Limited, Sahakaranagar
Branch, Bengaluru, he assumed the charge and Head Office directed
him to verify the loan accounts sanctioned by accused No.1 during his
period which are non performing assets. Accordingly, after
verification PW1 - Ramesh Rao came to know that 25 loan accounts
are non performing assets out of which the present loan account is
also one among them. PW1 specifically deposed that when he
verified the documents and visited the concerned Government office
he came to know that Ex.P.8 - khata certificate and Ex.P.9 - sale deed
are created. He tried to search the house property No.30, situated at
BMP Ward No.90, Devarajeevanahalli, Kasaba Hobli, Bengaluru but
such property is not existed at all. Hence, the accused No.1 and 2 with
common intention without visiting the spot prepared Ex.P.7 Valuation
12 CC.NO.16522/2008
Report and thereby sanctioned the loan in favour of accused No.3.
Here, on perusal of Ex.P 7 valuation report it is specifically mentioned
that accused No.2 visited the spot i.e. site No.30 situated at BMP Ward
No.90, Devarajeevanahalli, Kasaba Hobli, Bengaluru on 01.08.2005
with accused No.1 and in the Ex.P.7 valuation report of the property
mentioned as :
"I have inspected the property belonging to Sri Abdul Hameed and the
report of valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 29 years
panel
2. Date of visit : 01.08.2005
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at the : Sri.M.S.Panchal
site (proposed buyer of the property)
6. Details of the property : : Sri. Abdul Humeed,
Name and address of the owner S/o Sri. Abdul Gafor,
Devarajeevanahalli, Bangalore - 560045.
b) Complete address of the property : Site No.30, V.P.No.735,
Devarajeevanahalli, Kasaba Hobli,
Bangalore - 560045.
Door No. / site No. / Sy. No. : Site No.30, VP No.735
c) Extent of land : North to South : 36'0"
East to west : 25'0"
= 900.00 sft.
d) Boundaries of property : North by : Site No.31
South by : Site No.29
East by : Private property
West by : 20 feet road
e) Type / class of construction : Class II
13 CC.NO.16522/2008
7. Details of the building
i) Whether building constructed strictly : Yes
according to the sanctioned plan
Area of building : GF 750.00 sft.
FF 750.00 sft.
Total 1500.00 sft.
ii) year of construction : 1999
iii) If building under construction (give : Building already constructed
full details)
iv) Any additions improvement carried : Nil
out
ix) Present value : Rs.8,10,000.00
x) Present condition / state of building : Good
7. Present market value :
a. Site 900.0 sft. @ 700/- : 6,30,000.00
b. Building 8,10,000.00
Total Rs.14,40,000.00
Basis of present value :
a. Present depreciated value : Rs.14,40,000.00
b. Market value : Same as above
c. Rate adopted : Rs.700.00 per sft. - Site
Rs.600.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site in
this area and construction cost of building
as on that date
e. In case of sale by the bank what will
be the distress sale value : Rs.13,50,000.00
h. Location of the property : This is located near to the main road in a
middle class residential area
21. Service items available : Corp water is available
22. If the property is residential : Yes
23. a) Any encroachment tenancy and
other negative aspects : No
b) Are there any slums around this
property : No
14 CC.NO.16522/2008
Foundation : Size stone masonry in CM has been done
Super Structure : Table moulded brick masonry in CM plastered on both side in CM
only has been done.
Roofing : RCC slab has been laid.
Flooring : Mosaic flooring has been done
Doors & windows : Wooden doors and windows are provided.
Water supply : Corp water supply connection is available
Electrification : AEH facilities has been provided.
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Fourteen lakhs forty thousand only.
Declaration :
I have inspected the property personally on 01.08.2005
CERTIFICATE
I, have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same.
22. Hence, looking at the contents of Ex.P.7 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the houe
property bearing No.30 situated at BMP Ward No.90,
Devarajeevanahalli, Kasaba Hobli, Bengaluru. It is also important to
note that accused No.1 and 2 signed to it and accused No.1 issued
certificate to that effect. Hence, the accused No.1 who is Manager
and accused No.2 who was Valuator of the property of Karnataka
Bank Limited, Sahakaranagar Branch, Bengaluru without visiting the
spot issued Ex.P.7 valuation report. Further accused No.1 sanctioned
loan of Rs.9,00,000/- in favour of accused No.3 as per Ex.P.6 loan
sanction order to which accused No.4 stood as co-obligant and
credited the said amount in the account of accused No.3 and the same
15 CC.NO.16522/2008
is mentioned at Ex.P.10 loan account statement of accused No.3.
Here, the advocate for accused No.1 and 2 cross-examined the PW1
but nothing is elicited in order to prove the fact that house property
bearing No.30 situated at BMP Ward No.90, Devarajeevanahalli,
Kasaba Hobli, Bengaluru existed. In the cross-examination PW1
specifically stated that he came to know that accused committed fraud
to first informant Bank when he visited the TMC office for
verification of khata and tried to search and locate the existence of
said property. He also deposed that when loan account of accused
No.3 became non performing asset it revealed that accused No.1 to 5
cheated Bank. The fact remains as it is that accused No.1 and 2 issued
Ex.P.7 valuation report as if they visited the house property bearing
No.30 situated at BMP Ward No.90, Devarajeevanahalli, Kasaba
Hobli, Bengaluru as mentioned and extracted above from Ex.P.7
which itself speaks that as if accused No.1 and 2 visited the spot and
prepared the valuation report of the said property. Ex.P.7 contains the
declaration and signature of accused No.2 and certificate of accused
No.1. Hence, looking at the evidence of PW1 and PW3 and Ex.P.4 -
account opening form, Ex.P.6 - loan sanction order, Ex.P.7 -
valuation report, Ex.P.8 - khata certificate, Ex.P.9 - sale deed and
Ex.P.10 - statement of account of accused No.3 establishes the fact
that accused No.1 and 2 without visiting the said site property
prepared Ex.P.7 valuation report and on the basis of Ex.P.8 and Ex. P.9
- sale deed sanctioned loan of Rs.9,00,000/- in favour of accused No.3
16 CC.NO.16522/2008
and 4 for the purchase of said house property as per Ex.P.9 sale deed
and said property is not existed at all.
23. Here, on the basis of Ex.P.1 - first information statement PW4
registered the Ex.P.13 first information report. PW4 deputed PW2 and
CW5 for the search of accused who were absconded. PW2 in his
evidence deposed that he searched accused but they did not find them
and they were absconded and to that effect he gave his report as per
Ex.P.11. Advocate for accused cross-examined PW2 but nothing is
elicited to disprove the Ex.P.11 - report and evidence of PW2.
24. PW4 in his evidence specifically stated that he recorded the
restatement of PW1 on 14.12.2007. He arrested accused No.2,
recorded his statement and released on bail as per order. He also
deposed that he received Ex.P.3 - appointment and transfer order of
accused No.1 to the Karnataka Bank Ltd., Sahakara Nagar Branch,
Bengaluru, Ex.P.2 - letter/certificate of service of accused No.1 in the
said Bank, Ex.P.4- account opening form, Ex.P.5 - ID card, Ex.P.6 -
loan sanctioned order, Ex.P.7 valuation report, Ex.P.8 - khata
certificate, Ex.P.9 - sale deed, Ex.P.10 statement of loan account of
accused No.3 and Ex.P.12 - report of PW3. Hence on the basis of
investigation accused persons to get the amount from the Bank on the
basis of created document obtained loan and cheated Bank. Accused
No.1 on the basis of created documents sanctioned loan and thereby
accused persons misappropriated the amount and cheated the Bank.
17 CC.NO.16522/2008
He filed charge sheet against the said accused No.1 to 5. PW4 tried to
locate the site, but site is not existed. Here, advocate for accused No.1
and 2 cross-examined the PW4 and in cross-examination stated that he
personally went to locate the property but the said property is not
existed and unable to locate the property. In the cross-examination, in
order to disprove the case of prosecution accused have not elicited any
of material facts except the denial of his evidence. Here the PW4,
who is Investigating Officer after investigation came to know that on
the basis of created documents accused No.3 and 4 obtained the loan
and accused No.1 and 2 without visiting the site issued Ex.P.7
valuation report and accused No.1 sanctioned the loan. Hence,
looking at all the materials placed on record accused No.1 is entrusted
with property i.e., money and he is having dominion over the money
of the Bank to sanction loan to the customers who fulfills the
conditions of Bank. He is having duty towards the Bank while
sanctioning the loan. The accused No.2 was the Valuator of the Bank.
Hence, accused No.1 and 2 under duty to visit the spot and submit the
valuation report to the first informant Bank. But accused No.1 and 2
with dishonest intention concealed the fact of non existence of said
property and also deceived the first informant Bank as if they visited
the property and prepared the Ex.P.7 and submitted to the first
informant Bank. Hence, on the basis of created Ex.P.8 - khata
certificte and Ex.P.9 - sale deed sanctioned loan of Rs.9,00,000/- in
favour of accused No.3. Here, accused No.1 knows the fact that in
order to open the account in Bank one of its customers shall introduce
18 CC.NO.16522/2008
and sign as introducer in the account opening form. But accused No.1
knowing the fact that in the Ex.P.4 introduction and other columns are
not filled even then opened the account of accused No.3 in the first
informant Bank. Hence, the accused No.1 and 2 who are employees
and agents of first informant Bank caused wrongful loss to the first
informant Bank by disbursing loan in favour of accused No.3. Here
accused No.3 who is borrower of loan of Rs.9,00,000/- from the first
informant Bank he did not repay the said loan amount to the Bank and
account became NPA. Accused No.4 stood as a co-obligant to the said
loan. Here accused No.3 obtained the loan on the basis of Ex.P.8 -
khata certificate and Ex.P.9 - sale deed. Accused No.3 even knowing
that house property bearing No.30 situated at BMP Ward No.90,
Devarajeevanahalli, Kasaba Hobli, Bengaluru is not existed at all even
then he applied for the loan to first informant Bank and obtained loan
of Rs.9,00,000/-. Hence, to show the same prosecution produced
Ex.P.6 Loan Sanction order and Ex.P.10 statement of loan account of
accused No.3. Hence, as per evidence of PW-1 and looking at Ex.P.1
first information statement and Ex.P.10 statement of loan account of
accused No.3 as on 02.11.2007 outstanding loan was of Rs.9,25,658/-.
Here as per Ex.P.7 valuation report it is stated and mentioned that as
if accused No.1 and 2 visited the house property bearing No.30
situated at BMP Ward No.90, Devarajeevanahalli, Kasaba Hobli,
Bengaluru but in fact the said property is not existed. Hence, accused
No.1 to 4 with common intention to cheat the first informant Bank
accused No.1 sanctioned the loan in favour of accused No.3. Hence,
19 CC.NO.16522/2008
expression entrusted in Section 409 of IPC is used in wide sense and
include in all cases in which property is voluntarily handed over for a
specific purpose and is dishonestly disposed of contrary to the terms
on which possession has been handed over. Hence accused No.1 to 4
knowing well that said property is fictitious even then as per Ex.P.6
loan was sanctioned and credited in the account of accused No.3
which is shown at Ex.P.10 - statement of loan account of accused
No.3. Hence, to the said loan accused No.4 stood as a co-obligant
who is wife of accused No.3. Hence, accused No.3 and 4 did not
repay the loan amount and thereby caused wrongful loss to the first
informant Bank. Hence, accused No.1 and 2 with accused No.3 and 4
cheated the first informant Bank. Here in the cross examination of
PW-1 and PW-4 accused No.5 specifically put the question that other
than at Ex.P.4 Account Opening Form signature of accused No.5 is not
found at any of the documents. PW-1 and PW-4 deposed that
accused No.5 is not a Guarantor to the loan of accused No.3 or he has
not signed any of the documents relating to the loan of accused No.3.
PW-1 also stated that name and address of accused No.3 as stated by
accused No.3 is correct and accused No.3 is himself M.S.Panchal.
Hence, looking at the Ex.P.4 Account Opening form and cross-
examination of PW1 and PW4 it is clear that accused No.5 is not a
guarantor or signed any of the loan documents of accused No.3. It is
also clear that accused No.3 is himself a M.S.Panchal and name and
address furnished by accused No.3 is correct. Hence, the prosecution
has not brought any of the material evidence on record to show that
20 CC.NO.16522/2008
accused No.5 is participated in creating Ex.P.8 - khata certificate and
Ex.P.9 - sale deed or he has received any of the part of loan amount
from accused No.1 to 4. Accused No.5 in support of his arguments
relied on Manoranjan Das Vs. State of Jharkhand, (2004) 12 SCC
90 and K.J.Hubert Vs. Sub Inspector of Police and others, 2019
SCC OnLine 1122: (2019) 2 KLT 388. I went through the said
deciisions and in Manoranjan Das Vs. State of Jharkhand, (2004)
12 SCC 90 Hon'ble Supreme Court of India held that,
"Penal Code, 1860 - Ss. 420/109 - Abetment of
cheating / fraud - One L, who had been introduced
to respondent Bank by appellant, committing fraud
on Bank - Responsibility of appellant therefor -
Held, appellant had introduced L to the Bank only
for opening an account and that by itself does not
spell out any fraud or cheating - On facts, there
was no evidence to show that the appellant was in
any way related to the fraud committed by L on the
Bank - Moreover, the appellant was in no way
responsible for the loss sustained by the Bank due
to said fraud - Hence appellant acquitted of all
charges - Banker and Customer - Opening of
account - Responsibility for introducing a person
to open an account - Fraud."
25. I also went through K.J.Hubert Vs. Sub Inspector of Police
and others, 2019 SCC OnLine 1122: (2019) 2 KLT 388 wherein
Hon'ble High Court of Kerala observed as under :
"9. It is a normal banking practice that a person
who wants to open an account in a bank will have
to get himself introduced by another account holder
21 CC.NO.16522/2008
in the same bank. The mere act of introducing a
person to a bank to enable such person to open an
account in the bank, without anything more, does
not attract the offence of cheating punishable under
Section 420 IPC against the person who makes the
introduction, even when the person introduced by
him subsequently commits an act of cheating
against the bank.
10. Authority for the aforesaid proposition can be
had from the decision of the Apex Court in
Manoranjan Das V. State of Jharkhan : (2004) 12
SCC 90 : AIR 2004 SC 3623. It was observed in
that case as follows :
"It is argued that the appellant had introduced
Loknath Acharya to start current account in the
bank and there is no evidence to show that he
had at any point of time acted in collusion with
Loknath Acharya to commit any fraud. It was
also submitted that introduction of the appellant
in connection with Loknath Acharya to the bank
was on 26-5-1972 and the cheque for Rs.27,000
withdrawn by Loknath Acharya only in the
month of October 1972 and there is no evidence
to show that the appellant had any business
connection or collusion with Loknath Acharya.
We perused the evidence produced by the
prosecution and there is nothing on record to
show that the appellant was in any way related to
the fraud committed by Loknath Acharya on the
bank. The prosecution did not even produce the
form in which the appellant had signed for
introducing Loknath Acharya for starting a
current account with the bank. The evidence of
the three witnesses also does not show any
22 CC.NO.16522/2008
complicity of the appellant in committing any act
of cheating. The appellant had introduced
Loknath Acharya to the bank only for opening an
account and that by itself does not spell out any
fraud or cheating".
11. There is no allegation against the petitioner
that he had received any money from the bank.
Therefore, no question of dishonest
misappropriation of any amount by him arises."
26. Hence, in the present case also as observed above accused No.5
introduced the accused No.3 to the first informant Bank. Hence,
absolutely no evidence to show that accused No.5 received the
misappropriated amount or he signed any of the loan documents.
Hence, the ratio laid down in the said decisions are aptly applicable to
the present facts of the case and the prosecution absolutely failed to
prove the ingredients of said sections against accused No.5. Hence,
prosecution proved through its oral and documentary evidence
essential ingredients of Sections 409 and 420 read with Section 34 of
IPC against accused No.1 and 2. Hence, prosecution proved its case
beyond all reasonable doubt and in view of above stated facts,
circumstances, evidence and reasons I proceed to pass the following :
ORDER
Acting under Section 248(1) of Code of Criminal Procedure accused No.5 is acquitted for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
23 CC.NO.16522/2008The bail bond and surety bond of accused No.5 shall stand canceled.
Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Looking at facts and circumstances of case and nature of offences accused No 1 is not entitle for benefits under Probation of Offenders Act.
Keep the entire record of this case in split up case registered against accused No.3 and 4 i.e. CC No.12160/2016.
Hence, case is posted for hearing on sentence.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 26th day of May 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 submitted that as per Banking Rules he has taken the legal opinion from the penal advocates. He personally visited the proposed mortgaged property. Thereafter issued DD in favour of seller. He has not committed any offence. He is aged about 59 years and having age old mother. He also submitted that he suffering from high blood pressure and sugar and taking treatment. Hence, accused submitted to impose minimum sentence or fine only.
24 CC.NO.16522/2008Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This is a case registered in the year 2008. Hence, accused No.1 is regularly attending the court. Accused No.1 submitted that he is of 59 years old and having age old mother. Hence, taking into note of age of accused No.1, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In 25 CC.NO.16522/2008 default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the investigation and trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 26th day of May 2022) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : H.S.Dhruvaraj PW.2 : Anna Rajan PW.3 : Puttaswamy H.D. PW.4 : Mallegowda PW.5 : M.Prabhushankar
List of exhibits marked for prosecution:-
Ex.P.1 : First information statement, Ex.P.1(a) Signature of PW1 Ex.P.1(b) Signature of PW4 26 CC.NO.16522/2008 Ex.P.2 : Transfer order of accused No.1 Ex.P.2(a) Signature of PW4 Ex.P.3 : Certificate of service of accused No.1 Ex.P.3(a) Signature of PW4 Ex.P.4 : Account opening form of accused No.3 Ex.P.4(a) Signature of PW4 Ex.P.5 : Identity cards Ex.P.5(a) Signature of PW4 Ex.P.6 : Loan sanction letter Ex.P.6(a) Signature of PW4 Ex.P.7 : Valuation report of the property given by accused No.2 Ex.P.7(a) Signature of PW4 Ex.P.8 : Forged khata certificate Ex.P.9 : Sale deed Ex.P.10 : Statement of Loan Account of accused No.3 Ex.P.10(a) Signature of PW4 Ex.P.11 : Report submitted by PW2 Ex.P.11(a) Signature of PW2 Ex.P.11(b) Signature of PW4 Ex.P.12 : Information letter Ex.P.12(a) Signature of PW4 Ex.P.13 : First information report Ex.P.13(a) Signature of PW4 List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.27 CC.NO.16522/2008 28 CC.NO.16522/2008
26.05.2022 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Acting under Section 248(1) of Code of Criminal Procedure accused No.5 is acquitted for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
The bail bond and surety bond of accused No.5 shall stand canceled.
Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Looking at facts and circumstances of case and nature of offences accused No 1 is not entitle for benefits under Probation of Offenders Act.
Keep the entire record of this case in split up case registered against accused No.3 and 4 i.e. CC No.12160/2016.
Hence, case is posted for hearing on sentence.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
29 CC.NO.16522/2008For hearing on sentence.
Kept by IV ACMM Case is called out later.
Accused No.1 and his advocate present.
Accused No.1 submitted that as per Banking Rules he has taken the legal opinion from the penal advocates. He personally visited the proposed mortgaged property. Thereafter issued DD in favour of seller. He has not committed any offence. He is aged about 59 years and having age old mother. He also submitted that he suffering from high blood pressure and sugar and taking treatment. Hence, accused submitted to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This is a case registered in the year 2008. Hence, accused No.1 is regularly attending the court. Accused No.1 submitted that he is of 59 years old and having age old 30 CC.NO.16522/2008 mother. Hence, taking into note of age of accused No.1, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 during the investigation and trial is hereby set off to the period of imprisonment.
31 CC.NO.16522/2008Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Sri.VB, Advocate for accused No.1 filed bail application under Section 389(3) of Cr.P.C for accused No.1 along with surety affidavit, declaration, copy of sale deed, khata extract, khata certificate, EC and his aadhar card and prays to release accused No.1 on his conviction bail bond.
Heard both side.
Accused No.1 intended to prefer an appeal before the Hon'ble Sessions Court against the judgment and he offered surety and prayed to suspend the sentence till completion of appeal period.
Hence, accused decided to prefer appeal against judgment of this case and offered surety. Hence, court proceed to pass following...
ORDER The bail application filed under Section 389(3) of Cr.P.C. is hereby allowed and accused No.1 is 32 CC.NO.16522/2008 released on conviction bail bond only on the following conditions...
1) Accused No.1 shall execute his personal bail bond for Rs.10,000/- with surety for like sum.
Surety by name Vignesh K. Kamath is present and ready to stand as surety to accused No.1 and furnished as a security his property bearing flat No.G-08 situated at Lakeside Pearlite Developers, Parappana Agrahara village, Begur Hobli.
Enquired the surety and perused the documents and his surety is accepted for release of accused No.1 on conviction bail bond.
Office is hereby directed to take bonds.
IV Addl. CMM, Bangalore.