Bangalore District Court
State By J.P. Nagar Police Station vs No. : 1. Shabeer Ahamed @ Shabeer on 19 July, 2018
IN THE COURT OF THE 44TH ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 19th day of JULY 2018
:Present:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.11596/2013
Complainant : State by J.P. Nagar Police station
(By Sr. Asst. Public Prosecutor)
-V/s-
Accused No. : 1. Shabeer Ahamed @ Shabeer,
S/o Late Hussain,
Aged about 42 years,
R/at No.34, 22nd Main Road,
Vinayaka Nagar, J.P. Nagar 5th Phase,
Bengaluru.
3. Rafeeq,
S/o Late Meerjaan,
Aged about 48 years,
R/at No.11, 22nd Main Road,
Vinayaka Nagar,
J.P. Nagar 5th Phase, Bengaluru.
(Case against accused No.2, 4 and 5 is split
up)
(By Sri. T.G.M. advocate )
2 C.C.No.11596/2013
JUDGMENT
This case has arisen out of a private complaint filed by one Smt. Ishrath Unnissa, against accused persons for the offences punishable U/s.387, 506, 504 r/w 34 of IPC.
2. The complaint averments are as follows:
It is alleged that, accused persons in furtherance of common intention in order to illegally extort money, on 22/01/2012 at about 10 a.m. in the morning, went to the house of C.W. 1 Smt. Ishrath Unnissa, bearing site No.9A, situated at 21st Cross, Vinayaka Nagar, J.P. Nagar 5th Phase, within the limits of J.P. Nagar Police Station, expressed their intention to purchase her site No.8A situated besides her house, under the said pretext received original sale deed, original GPA, Katha certificate and tax paid receipt for verification from C.W. 1. Thereafter, accused persons neither purchased the aforesaid site nor returned her original documents. As such, on 23/01/2002 at about 10.30 a.m. in the morning, accused persons again went near the house of C.W. 1, informed her that, accused No.1 will purchase her site b by giving Rs.12,00,000/- after registration in his name, which was refused by the complainant by 3 C.C.No.11596/2013 demanding to return back her documents. Being enraged, accused persons threatened her by telling her to listen them, otherwise she will lose her site, they will not allow them to live in the aforesaid property. On same day at 11 p.m. in the night, accused persons again came near the house of C.W. 1, informed her that they have pledged her documents, demanded her to give Rs.18 lakhs, tried to illegally extort money from her by putting her in fear of death or grievous hurt, as such, C.W. 1 questioned their act, during that time, accused persons abused C.W. 1 in filthy language, accused No.4 posed threat to her life with dire consequences, accused No.1 did not returned her original documents and thereby committed aforesaid offences. Therefore, C.W.1 Smt. Ishrath Unnissa has lodged private complaint before this court, which was referred for investigation to the jurisdictional police. Accordingly, I.O. during the course of investigation, visited the place of incident, drawn spot mahazar, recorded the statement of witnesses and after completion of investigation filed charge sheet against accused persons for the aforesaid offences.4 C.C.No.11596/2013
3. The accused No.1 and 3 are on bail and they are represented through their counsel. Inspite of sufficient efforts, accused No.2, 4 and 5 were not secured before this court. Hence, case against them is split up.
4. The copies of the prosecution papers have been furnished to the accused No.1 and 3 as required under Sec.207 of Cr.P.C. The cognizance of the offences punishable U/sec. 387, 506, 504 r/w 34 of IPC has been taken as per Sec.190 of Cr.P.C.
5. The charge is framed, contents of charge have been read over and explained to the accused No.1 and 3 in the language known to them, they pleaded not guilty and claimed to be tried. Hence, the prosecution is called upon to prove its case.
6. The prosecution, in order to prove its case has examined five witnesses as P.W. 1 to 5 and got marked eighteen documents at Ex.P1 to P.18. Learned Sr. Asst. Public Prosecutor has given up the evidence of C.W. 5 to 9 as not required.
7. After completion of evidence from prosecution side, the statement of accused No.1 and 3 as required under Section 313 of Cr.P.C. has been recorded, wherein accused have denied the 5 C.C.No.11596/2013 incriminating evidence adduced against them and not chosen to lead their side defense evidence. Hence, the case is posted for arguments.
8. Heard both the side and perused the material evidence on record.
9. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, accused persons in furtherance of common intention in order to illegally extort money, on 22/01/2012 at about 10 a.m. in the morning, went to the house of C.W. 1 Smt. Ishrath Unnissa, bearing site No.9A, situated at 21st Cross, Vinayaka Nagar, J.P. Nagar 5th Phase, within the limits of J.P. Nagar Police Station, expressed their intention to purchase her site No.8A situated besides her house, under the said pretext received original sale deed, original GPA, Katha certificate and tax paid receipt for verification from C.W. 1. Thereafter, accused persons neither purchased the aforesaid site nor returned her original documents. As such, on 23/01/2002 at about 10.30 a.m. in the morning, accused persons again went near the house of C.W. 1, informed her that, accused No.1 will purchase her site b by giving Rs.12,00,000/- after registration in his name, which was refused by the complainant by demanding to return back her documents.
Being enraged, accused persons threatened her by telling her to listen them, otherwise she will lose her site, they will not allow them 6 C.C.No.11596/2013 to live in the aforesaid property. On same day at 11 p.m. in the night, accused persons again came near the house of C.W. 1, informed her that they have pledged her documents, demanded her to give Rs.18 lakhs, tried to illegally extort money from her by putting her in fear of death or grievous hurt, accused No.1 did not returned her original documents and thereby committed an offence punishable under Section 387 r/w 34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of common intention, accused persons in furtherance of common intention threatened C.W. 1 by telling her to listen them, otherwise she will lose her site, they will not allow them to live in the aforesaid property, tried to illegally extort money from her by putting her in fear of death or grievous hurt, accused No.4 posed threat to her life with dire consequences and thereby committed mischief an offence punishable U/s. 506 r/w 34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused persons in furtherance of their common intention, accused persons in furtherance of common intention, tried to illegally extort money from her by putting her in fear of death or grievous hurt, as such, C.W. 1 questioned their act, during that time, accused persons abused 7 C.C.No.11596/2013 C.W. 1 in filthy language and thereby committed an offence punishable under Section 504 r/w 34of IPC?
4. What Order?
10. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : IN THE NEGATIVE
Point No.4 : As per final order for the following
REASONS
11. Points No.1 to 3: All these points involve similar set of facts and circumstances, hence, taken up together for common discussion.
12. This case revolves around two sites No.8A and 9A situated at 21st Cross, Vinayaka Nagar of J.P. Nagar 5th phase on the background that, mother of complainant had purchased these sites from one Syed Yusuf through GPA in the year 1991 which was later registered in the name of complainant on 22/07/2003. It is the case of prosecution that, accused No.1 and 3 along with accused No.2, 4 and 5 under the pretext of purchasing site No.8A approached the 8 C.C.No.11596/2013 complainant, taken away all original documents i.e. GPA, registered sale deed and other relevant documents in respect of site No.8A on 22/01/2012 and on the next day, came near the house of complainant which is situated in site No.9A, demanded the complainant to register the said site in their name for Rs.12 lakhs, which will be paid after registration, which was refused by the complainant, as a result, accused posed threat to the complainant and her family members without returning their original documents and also again demanded Rs.18 lakhs to return those documents by scolding them in filthy language along with life threat. Therefore, complainant has filed a private complaint before this court which was referred for investigation.
13. In this connection, the prosecution has citied 12 witnesses and examined five witnesses. Among them, complainant is Smt. Ishrath Unnisa who has deposed in her evidence that, her mother had purchased two sites in the year 1991 i.e. 8A and 9A which measures 30 x 60 feet in J.P. Nagar as aforesaid. It is further deposed that, during 2003 she got registered site No.8A and 9A in her name which were purchased from one Syed Yusuf by her mother 9 C.C.No.11596/2013 under GPA. Thereafter, they constructed a watchman shed in site No.8A and in 2012 January they constructed a sheet house in site No.9A, shifted their resident, thereby started residing in the sheet house at site No.9A on a plan that, they could construct a house by selling site No.8A, accordingly, they were searching for prospective buyers. During that time, accused No.2, 4 and 5 i.e. Suman, Fyroz Khan and Gopal approached them, verified the Xerox copies of site documents, assured them that they will bring very good prospective purchasers, brought accused No.1 and 3 to show the site and at that juncture, accused No.1 and 3 received original site documents pertaining to site No.8A viz., GPA, sale deed, 'B' Khatha extract and tax paid receipts from C.W. 1, took away from their house, did not come back, later accused visited their house on the next day with a condition that, the complainant shall register site No.8A in favour of accused No.1 for which Rs.12 lakhs will be paid after registration, which was refused by her, therefore the accused, scolded them in filthy language by threatening them, again on the same day at night 11 p.m. accused persons came near the house of complainant, demanded Rs.18 lakhs by stating that, they have already pledged 10 C.C.No.11596/2013 their original documents which will be released if complainant gives the said amount. Therefore, this witness has lodged missing complaint before the Police Station.
14. In her cross-examination, this complainant has admitted that, her mother had purchased these two sites under a GPA in the year 1991 and later these sites were transferred into her name in which, she had constructed a sheet house in site No.9A. This witness has admitted that, presently, somebody has constructed a house in site No.8A in which she had appointed one watchman and allowed him to stay in the shed at site No.8A. It can be noticed that, this witness has admitted that, said watch man was there in site No.8A from 1991 till 2003 and the details after 2003 in respect of possession of site No.8A has not been stated. From the evidence of this witness, it can be noticed that, one Syed Yusuf had sold site No.8A and 9A in favour of her mother in the year 1991 and the same person had sold the same in favour of one Nazir Ahamed much earlier to three months of execution of sale deed in favour of complainant Ishrath Unnisa i.e. on 23/05/2003, which can be noticed from the registered sale deed which is marked at Ex.D.1, which was 11 C.C.No.11596/2013 confronted through I.O. From the available materials on record, nothing is forth coming to say that, the said Syed Yousuf had executed registered sale deed in favour of the complainant only after cancellation of the sale deed made in favour of Nazir Ahamed on 23/05/2003. Admittedly, the sale deed in favour of the complainant was on 22/07/2003, i.e. to say three months after execution of the sale deed in favour of one Nazir Ahamed i.e. on 23/05/2003.
15. The contents of private complaint at para No.5 reveals that, allegation against accused is that, they had ran away from the house of the complainant along with original documents, whereas, the further statement of the complainant dated 26/05/2012 states that, she had lodged the complaint before Police Station for missing of her original documents. Contrary to these two versions, complainant i.e. C.W. 1 before this court has deposed that, she had handed over those documents to the accused persons on 22/01/2012 for verification. There is no corroboration to the evidence of C.W. 1 as well as to her onw complaint and further statement to attract Section 387 of IPC that the accused have illegally tried to extort 12 C.C.No.11596/2013 money as well as original documents by demanding her Rs.18 lakhs with life threat.
16. Admittedly, the alleged incident has taken place on 22/01/2012 as well as 23/01/2012 i.e. on the next day of alleged incident, whereas the complaint averments does not read about an incident alleged to have been taken place on 23/01/2012. The contents of complaint at para No.4 and 5 speaks that, on 22/01/12 at about 10 a.m. accused approached complainant in her house situated at site No.9A of J.P. Nagar, 5th phase, negotiated for purchase of property No.8A, at that time, he had asked for original documents, accordingly, the same were handed over to him, it is thereafter, accused ran away with the said documents and committed theft inspite of shouting of C.W. 1. There is no evidence corroborating to this kind of complaint version. Thus, there are many contradictions in the versions of complainant itself.
17. In addition, the evidence of C.W. 2, who is none other than the sister of complainant has also deposed similarly in respect of the contradictions which are already pointed above. From the evidence of this witness also, it can be noticed that, one Syed Yusuf 13 C.C.No.11596/2013 had sold site No.8A and 9A under a GPA to complainant's mother which was later transferred into the name of the complainant under registered sale deed and much earlier to the execution of sale deed in favour of complainant, there was also one more registered sale deed in favour of one Nazir Ahamed who has admittedly in possession of site No.8A along with his wife Smt. Thasina since 7 years. From the evidence of both C.W. 1 and 2, it can be noticed that, there is someone who is in possession of site No.8A of J.P. Nagar, 5th Phase.
18. The evidence of both C.W. 1 and 2 discloses that, the said original documents were handed over to accused No.2 Suman, on the contrary, these two witnesses mainly aims only towards accused No.1 and 3 by saying different version that they ran away by taking original documents at one stretch and on the other, they say original documents were missing. This witness P.W. 2 in her cross- examination has admitted that, there was a sale negotiation in their house for Rs.7 lakhs and they themselves have handed over the original documents for verification. Under the circumstances, the allegations as against accused persons that they ran away along with 14 C.C.No.11596/2013 original documents of C.W. 1 appears to be doubtful. Since there are contrary versions as to say whether these original documents were misplaced or taken away or snatched by accused persons, ingredients of Section 387 of IPC cannot be attracted. As such, the evidence of C.W. 1 and 2 cannot be reliable in this regard in the absence of other independent eye witnesses.
19. Other two eye witnesses are not before this court. Similarly, two mahazar witnesses Sri. Mohan Kumar and Sri. Manikanta have not been examined. In addition C.W. 2 has specifically stated that these two mahazar witnesses have signed on the mahazar in the Police Station. As such, much weightage cannot be attached to the spot mahazar in the absence of their evidence.
20. P.W. 3 is a police inspector, who speaks about conducting of seizure mahazar in respect of seizing of original documents in the house of accused No.1. The witnesses to this seizure mahazar are also not secured before this court. Admittedly, the said original documents were handed over to the accused by the complainant. As such, these original documents were recovered from accused No.1 only and the same is a disputed fact.
15 C.C.No.11596/2013
21. The evidence of P.W. 4 and 5 who are I.O.s speak about investigation and reveals the fact that, there are some persons in possession of site No.8A which consist of a residential house. From the evidence of P.W. 5, it can be noticed that, he has confronted the sale deed in respect of site No.8A which is in the name of one Sri. Nazir Ahamed executed by one Sri. Syed Yusuf who is the person who had executed the sale deed in favour of complainant through GPA holder i.e. mother of the complainant.
22. From the evidence of these witnesses, it can be noticed that, one Syed Yusuf had executed sale deed in favour of two persons in respect of site No.8A and 9A of Vinayaka Nagar, J.P. Nagar, wherein at present, the complainant is in possession of site No.9A and admittedly one Nazir Ahamed is in possession of site No.8A. It is the specific defense of the accused that, complainant without having any valid license, without cancellation of sale deed in favour of Nazir Ahamed in respect of site No.9A which was executed three months earlier to the sale deed executed in her favour, had tried to sell site No.9A in favour of accused, which came to their knowledge after paying an advance amount of Rs.8 lakhs, as such, 16 C.C.No.11596/2013 they refused to purchase the same and demanded their money back. Therefore, complainant has filed this false case against accused persons. In order to corroborate this version, sale deed dated 23/05/2003 in favour of one Nazir Ahamed which is marked at Ex.D.1 discloses that, one Syed Yusuf was also a person who sold site No.9A in favour of complainant through GPA without cancellation of earlier sale deed in favour of Nazir Ahamed.
23. Under the circumstances, the evidence of P.W. 1 and 2 to the effect that, they have appointed a watch man and he sold site in favour of some other person cannot be a reliable version. It is also not the case of prosecution that, Syed Yusuf had executed sale deed in favour of complainant on 22/07/2003 by canceling the sale deed executed in favour of Nazir Ahamed on 23/05/2003. On the contrary, both the sale deeds are registered sale deeds. From the available materials on record, it is not forth coming whether the complainant is claiming the ownership of site No.8A and 9A before Civil Courts.
24. The sale deeds in favour of complainant as well as Nazir Ahamed are in respect of both site No.8A and 9A, whereas, there is no allegation against the said Nazir Ahamed by the complainant. 17 C.C.No.11596/2013 Under the circumstances, the defense of accused appears to be true to some extent.
25. More interestingly, according to the prosecution, alleged incident has taken place on 22/01/2012, whereas the complaint is lodged before this court on 11/04/2012. Neither in the private complaint nor in her evidence, complainant tried to explain the reason for delay in filing the complaint. Admittedly, complaint against accused has been lodged after four months of the alleged incident. There is no explanation for delay. As such, the credibility of contents of complaint has to be weighed properly, as such, it appears as an after thought.
26. In so far as allegation of Section 504 and 506 of IPC is concerned the complainant and her sister have concentrated mainly on Section 387 i.e. about taking away their original documents and have not made any specific allegations in respect of Section 504 and 506 of IPC and these Sections are in connection with 387 of IPC. Since, the complainant and her sister have admitted in their evidence that, they had handed over the original documents in favour of accused for verification, question of scolding them in filthy language 18 C.C.No.11596/2013 and snatching the original documents, running away by taking the original documents does not arise. Therefore, prosecution has miserably failed to prove Section 504 and 506 of IPC as against accused persons.
27. There are not only contradictions but even there are improvements in the evidence of these witnesses by deposing a new version that, accused after taking away their original documents, came to their house next morning, demanded to register those sites in favour of accused No.1 on a condition that, the he will pay Rs.12 lakhs for registration of sale deed in his favour, whereas, these facts have not been stated anywhere in the complaint. At para No.7, it is stated that, accused have demanded Rs.18 lakhs for return of original documents by blackmailing them.
28. Thus, there are many contradictions, improvements in the evidence. As such, there is no clear cut direct evidence as against accused persons in respect of the charges leveled against them. Therefore, this Court cannot hold accused No.1 and 3 as guilty minded. Thus, 19 C.C.No.11596/2013 the prosecution has miserably failed to prove the charges leveled against accused persons with cogent, convincing and corroborative evidence. Therefore, above points No.1 to 3 are answered in the Negative.
29.Point No.4: In view of the negative findings on the above points No.1 to 3, I proceed to pass the following:-
ORDER Acting U/s.248(1) of Cr.P.C., accused No.1 and 3 are found not guilty and acquitted of the offences punishable U/s. 387, 506, 504 r/w 34 of IPC.
The bail & bail bond of the accused and sureties shall stands cancelled.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 19th day of July 2018).
(Mala N.D) XLIV Addl.C.M.M., B'lore.20 C.C.No.11596/2013
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W. 1: Smt. Ishrathunnissa P.W. 2: Smt. Nusarath Thabsum P.W. 3: Raghu Nayak.A.R P.W. 4: K.T. Chandrappa P.W. 5: Manjunath.K.R.
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Complaint Ex.P.1(a) : Signature of PW-1 Ex.P. 2 : Spot mahazar Ex.P.2(a) : Signature of P.W. 1 Ex.P.2(b) : Signature of P.W. 4 Ex.P.3 : Certified copy of GPA Ex.P.4 : Certified copy of sale deed Ex.P.5 : Certified copy of 'B' Khatha Ex.P.6 to12 : Copy of tax paid receipts Ex.P.13 : Certified copy of GPA Ex.P.14&15 : Copy of sale agreement Ex.P.16 : Seizure mahazar Ex.P.16(a) : Signature of P.W. 3 Ex.P.17 : PCR complaint Ex.P.17(a) : Signature of P.W. 4 Ex.P.18 : FIR Ex.P.18(a) : Signature of P.W. 4
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE Ex.D.1: Copy of registered sale deed dated 23/05/2003 Ex.D.2: Copy of registered sale deed dated 22/07/2003
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (Mala N.D) XLIV Addl.C.M.M., B'lore.21 C.C.No.11596/2013
Judgment pronounced in Open Court vide separate:-
ORDER Acting U/s.248(1) of Cr.P.C., accused No.1 and 3 are found not guilty and acquitted of the offences punishable U/s. 387, 506, 504 r/w 34 of IPC.
The bail & bail bond of the accused and sureties shall stands cancelled.
(Mala N.D) XLIV Addl.C.M.M., B'lore.