Bangalore District Court
State By Central Crime Branch (F And M ... vs Anwar Pasha S/O Kijar Pasha on 5 October, 2016
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl. C. M. M, Bengaluru
C.C.No.25428/2014
Dated this the 5th day of October 2016
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by Central Crime Branch (F and M Squad),
N.T. Pet, Bengaluru.
(By Learned Special Public Prosecutor)
VS
Accused:- 1. Anwar Pasha s/o Kijar Pasha,
age: 24 years, r/o No.29B, Khuthwa road,
Shivajinagar, Bengaluru 560001
2. Noorukhan @ Nooru @ Irfan s/o Sirajulla Khan,
age:22 years, r/o 4th cross, Sadathnagar,
Guthala colony, Mandya,
3. Nadris @ Nadris Tharun @ Kunni Mohan,
s/o Unni Mohan, age: 26 years,
2 C.C.No.25428/2014
r/o Thalathil, Thiruvambadi, Kalikat,
Kerala State.
4. K. Shahanawaz 2 Nawab s/o Khadar Shariff,
age: 25 years, r/o No.92-C/12B, East Kaverinagar,
Kumarapalyam, Nyamakal district, Tamilnadu.
5. Abdul Rajak, Mascot Trading Company,
Central Specialty Building, Central Mumbai,
6. Shameer, Mascot Trading Company,
Central Specialty Building, Central Mumbai,
(Accused no.1 and 2 were acquitted by this court on
28-4-2015 and accused no.4 to 6-split up)
(Accused no.3 by Shri K. Ramsingh, Advocate)
Offences complained : U/secs 468, 471 and 420 r/w sec 34 of the
Indian Penal Code.
Opinion of the Court : Accused no.3 is not found guilty
Date of Judgment : 05.10.2016.
JUDGMENT
That, the Assistant Commissioner of Police, Central Crime Branch (F and M Squad), N.T. Pet, Bengaluru, has filed the Final report 3 C.C.No.25428/2014 against the accused for the offence punishable under sections 468, 471 and 420 r/w section 34 of the Indian Penal Code.
1. That, the gist of the prosecution case is that all accused with their common intention to cheat the Government and Airtel mobile phone company and to make wrongful gain have collected the names and addresses of CWs9 to 20 and other persons and have filled the customer application forms in the names of CWs9 to 20 and have affixed their forged signatures in said applications and by submitting the said documents to Airtel company as a genuine documents have obtained the SIM cards.
It is further allegation of the prosecution that, the accused have obtained the network connection from Airtel Company between April 2006 to August 2006 and by using their own technology and through teleconference have made the international calls and through said teleconference have received the international calls and have provided the service to the customers. That, the accused persons in order to make wrongful gain have received the lesser money from the customers and by using the duplicate credit cards have paid the 4 C.C.No.25428/2014 bills to Citi Bank through online and later on the said bills were charged back.
2. That, on complaint being lodged the Mico Layout Police, Bengaluru, have registered the case against the accused persons. That, thereafter, the matter was transferred to Central Crime branch (F and M squad). Bengaluru and the Investigating Officer after completion of investigation filed the Final report against the accused for aforesaid offences.
3. That, this court took the cognizance of aforesaid offences. That, in C.C.No.36063/2010, this court on 03-01-2012 split up the accused no.3 to 6 and proceeded the matter against the accused no.1 and 2 and framed the charge against them and they have not pleaded guilty and this court had recorded the evidence of witnesses at PWs1 to 8 and got marked the documents at EXsP1 to P14(a) and MOs1 to 7 and on 28-04-2015 acquitted the accused no.1 and 2. That, this court had registered the case against the accused no.3 to 6. That, as the accused no.4 to 6 have failed to appear before this court, this court on 09-03-2016 split up the accused no.4 to 6 and proceeded against the accused no.3. That, this court framed 5 C.C.No.25428/2014 the charge against the accused no.3 and read over to him in language known to him and he has not pleaded guilty and claimed to be tried. That, on 19-09-2016 the learned counsel for accused no.3 has filed a memo adopting the evidence of witnesses which was recorded in C.C.No.36063/2010. That, this court has allowed the said memo. That, the statement of the accused no.3 as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over to him in language known to him and he denied all incriminating evidence appearing against him and not chosen to lead either oral or documentary evidence on his behalf.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:
1. Whether the prosecution has proved beyond all reasonable doubt that, the accused no.3 conspiring with other accused and with an intention to cheat the Government and Airtel mobile company and in order to make wrongful gain have filled the customer application forms in the names of CWs9 to 20 and have affixed their forged signatures on said application and by submitting the said documents 6 C.C.No.25428/2014 to the Airtel mobile company as a genuine documents have obtained the SIM cards and by making the international calls have provided the service to the customers and have failed to pay the bill amount of Rs.1,90,64,913/- to the Airtel company and thereby have committed the offence punishable under sections 468, 471 and 420 r/w section 34 of the Indian Penal Code ?
2. What order?
5. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2:- As per the final order for the following:-
REASONS
6. Points No.1:- It is specific allegation of the prosecution that, all accused with their common intention to cheat the Government and Airtel mobile phone company and to make wrongful gain have collected the names and addresses of CWs9 to 20 and other persons and have filled the customer application forms in the names of CWs9 to 20 and have affixed their forged signatures on said applications and have submitted before the Airtel company as a genuine documents and have obtained the SIM cards. It is further allegation 7 C.C.No.25428/2014 of the prosecution that, the accused have obtained the network connection from Airtel Company between April 2006 to August 2006 and by using their own technology and through teleconference have made the international calls and through said teleconference have received the international calls and have provided the service to the customers and received the lesser money from the said customers. It is further allegation of the prosecution that, all accused persons by using the duplicate credit cards have paid the bills to Citi Bank through online and later on it came to know that the said bills have charged back.
It is pertinent to note here that, in the instant case the prosecution to prove its above case has got examined CW1- Shri L. Karthikeyan s/o K. V. Lokanathan- the Complainant as PW1. It is pertinent to note here that, PW1 in his examination-in-chief has deposed that in the year 2006 around 36 persons have applied for 61 connections and they have also submitted the application forms and the documents showing the address proof and they have used their service from April 2006 to August 2006 and have paid the total bill amount at the tune of Rs.1,90,64,913/- and all the said customers 8 C.C.No.25428/2014 have made the payment through self care portal through Citi Bank. It is to be noted here that, PW1 has further deposed that during first week of August 2006 they came to know through said Citi Bank that all the payments made were charged back because either the said credit cards were forged, stolen or lost. That, PW1 has further deposed that the aforesaid 36 customers have cheated their firm at the tune of Rs.1,90,64,913/- and for which he lodged the complaint against them.
7. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW27-Shri Donaldo Pinto s/o Paul Pinto-the then Assistant Manager in Citi Bank, Jayanagar branch, Bengaluru, as PW4. It is pertinent to note here that, PW4 in his examination-in-chief has deposed on 14-07-2010 he received the requisition from Assistant Commissioner of Police, Central Crime Branch, Bengaluru and in said requisition the said Assistant Commissioner of Police sought the details of 39 credit cards. It is to be noted here that, PW4 has further deposed that on 05-07-2010 he wrote a letter to the said Assistant Commissioner of Police, Central 9 C.C.No.25428/2014 Crime Branch, Bengaluru, stating that the said 39 credit cards have not been issued from their bank.
8. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW23-Shri Prakash s/o Erappa- the then Police Constable of Byatarayapapura Police Station as PW6 and CW25-Shri G.Puttalingappa s/o Late Ganganna-the then Assistant Sub Inspector of Central Crime Branch (F and M Squad), Bengaluru as PW8. It is to be noted here that, PW6 in his examination-in-chief has deposed on 28-10-2009 as per the directions of Assistant Commissioner of Police, Central Crime Branch, he and one Police Sub Inspector by name Shri Nagaraj have taken the laptop and teleconference electronic goods to C-DAC company.
It is to be noted here that, PW8 in his examination-in-chief has deposed that as per the directions of Assistant Commissioner Police, Central Crime Branch, he brought the analysis report from the said C-DAC company and submitted his report.
9. It is to be noted here that, the prosecution to prove its above case has further got examined CW24-Shri V. Venkatesh s/o Late Venkatappa-the then Head Constable of Basaveshwaranagar Police 10 C.C.No.25428/2014 Station as PW7. It is pertinent to note here that, PW7 in his evidence has deposed about the seizing of the mobile phones from present accused no.3 and one Shri Shah Nawaz.
10. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW17-Smt.Wahid Unnisa w/o Mohammed Iqbal as PW2 and CW13-Shri M. Govinda Reddy s/o Munireddy as PW3. It is to be noted here that, PWs2 and 3 have turned hostile and not supported the case of the prosecution.
11. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW30-Shri Bipirappa Gachinakatti s/o Savaligappa-the Investigating Officer as PW5. It is to be noted here that, as the said witness has failed to appear before this court for his further examination-in-chief, this court has discarded his entire evidence.
12. It is pertinent to note here that, in the instant case the allegation of the prosecution is that, the accused no.3 conspiring with other accused persons to cheat the Government and Airtel mobile company had collected the names and addresses of CWs9 to 20 and other persons and filled the customer application forms in their 11 C.C.No.25428/2014 names and affixed the signatures in said applications and submitted the said documents to Airtel company and obtained the SIM cards and thereafter, cheated the Airtel company to the tune of Rs.1,90,64,913/-.
13. It is to be noted here that, to bring home the charge of the accused for the offence punishable under section 420 of Indian Penal Code, the prosecution has to prove that there must be deception which should always precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the promise. It is pertinent to note here that, mere deceit, fraudulent or dishonest inducement will not suffice to convict the accused under section 420 of Indian Penal Code.
It is pertinent to note here that, to convict the accused for the offence punishable under section 468 of Indian Penal Code, the prosecution is required to establish that the accused had committed the forgery and that he did it with the intention that the document forged shall be used for the purpose of cheating. 12 C.C.No.25428/2014
It is pertinent to note here that, to convict the accused for the offence punishable under section 471 of Indian Penal Code, the prosecution must prove that the accused had used the forged document as a genuine document.
It is pertinent to note here that, in the instant case the prosecution has not produced before the court the said application forms and SIM card limits of the postpaid of the customers. It is to be noted here that, the prosecution in the instant case has also failed to prove the seizure mahazars. It is to be noted here that, in the instant case the prosecution has not furnished the documents pertaining to the STD and ISD calls and also not produced the documents pertaining to duration of the said calls. It is further pertinent to note here that, as stated above PW5 was not bothered to appear before the court and give his further evidence inspite of giving sufficient opportunities. It is to be noted here that, in the instant case the prosecution has failed to prove beyond all reasonable doubt the essential requisites of alleged offences. It is to be noted here that, in the absence of any cogent evidence the court cannot come to the conclusion that the accused no.3 has committed 13 C.C.No.25428/2014 the alleged offences. It is to be noted here that, in all criminal cases it is the bounden duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt, until then the accused is presumed to be innocent. It is to be noted here that, in the instant case the evidence of witnesses is not crystal clear to hold that the accused no.3 has committed the alleged offences along with other accused persons. It is to be noted here that, in view of My above findings and without much discussion I hold that, the prosecution has failed to prove the guilt of the accused no.3 for the offence punishable under sections 468, 471 and 420 r/w section 34 of the Indian Penal Code. In view of the same, point no.1 is answered in the NEGATIVE.
14. Point No.2:- That, as discussed on point no.1, I proceed to pass the following:-
ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.3 is acquitted for the offence punishable under sections 468, 471 and 420 r/w section 34 of the Indian Penal Code.14 C.C.No.25428/2014
That, the bail and surety bonds of the accused no.3 are stands cancelled.
That, the accused no.3 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
That, the order passed in respect of M.O.1 shall be made as absolute.
That, MO's no.2 to 7 shall be kept in C.C.No.8181/2016. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open Court on this the 5th day of October 2016) Date:05.10.2016 (Hema Pastapur) Place:Bengaluru I Addl. C. M. M, Bengaluru.
Annexure List of witnesses examined on behalf of the prosecution PW1: Shri L.Karthikeyan s/o K.V.Lokanathan;
PW2: Smt.Wahid Unnisa w/o Md. Iqbal;
PW3: Shri M.Govinda Reddy s/o Munireddy;
PW4: Shri Donald Pinto s/o Paul Pinto;
PW5: Shri Bipirappa Gachinakatti s/o Savaligappa;
PW6: Shri Prakash s/o Erappa;
PW7: Shri V.Venkatesh s/o Late Venkatappa and
PW8: Shri G.Puttalingappa s/o Late Ganganna.
15 C.C.No.25428/2014
List of documents marked on behalf of the prosecution EXP1: Complaint;
EXP1(a): Signature of PW1;
EXP2: Annexures ( in 3 pages);
EXP3: Statement of PW2;
EXP4: Statement of PW4;
EXP5: Letter of PW4;
EXP5(a): Signature of PW4;
EXP6: Memo of Joint Commissioner;
EXP7: Seizure mahazar;
EXP7(a) Signature of PW5;
EXP8: Report of CW21;
EXP8(a): Signature of PW5;
EXP8(b): Signature of CW21;
ExP9: Seizure mahazar;
EXP9(a): Signature of PW5;
EXP9(b): Signature of PW7;
EXP10: Voluntary statement of accused no.3;
ExP11: Seizure mahazar;
EXP11(a): Signature of PW5;
EXP11(b): Signature of PW7;
EXP12: Seizure mahazar;
EXP12(a): Signature of PW5;
EXsP12 and P13:Endorsements of C-DAC Company;
EXP14: Report of PW8 and
16 C.C.No.25428/2014
EXP14(a): Signature of PW8.
List of witnesses examined on behalf of the accused Nil List of documents marked on behalf of the accused Nil List of material objects marked on behalf of the prosecution MO1 : Car;
MOs2 to 4: 3 mobiles with SIM cards:
MO5: Teleconference electronic articles:
MO6: Laptop and
MO7: Regzine bag.
Date:05.10.2016 (Hema Pastapur)
Place:Bengaluru I Addl C. M. M, Bengaluru.
17 C.C.No.25428/2014
05-10-2016
State by Sr.APP:
Accused no.3 C/B
For Judgment
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of the Code of Criminal Procedure, the accused no.3 is acquitted for the offence punishable under sections 468, 471 and 420 r/w section 34 of the Indian Penal Code.
That, the bail and surety bonds of the accused no.3 are stands cancelled.
That, the accused no.3 shall comply with the provisions of section 437(A) of the Code of Criminal Procedure.
That, the order passed in respect of M.O.1 shall be made as absolute.
That, MO's no.2 to 7 shall be kept in C.C.No.8181/2016.
(Hema Pastapur) I Addl.CMM, Bangalore.
18 C.C.No.25428/2014