Bangalore District Court
State By J.P. Nagar Police Station vs No. : 1. M.L. Shamanna on 26 September, 2017
IN THE COURT OF THE 44TH ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 26th day of SEPTEMBER 2017
:Present:
Smt. Mala N.D., B.A.L., LL.B.,
44th ACMM, Bengaluru
C.C.No.35474/2006
Complainant : State by J.P. Nagar Police station
(By Asst. Public Prosecutor)
-V/s-
Accused No. : 1. M.L. Shamanna,
S/o Late Muniyappa,
Aged about 54 years,
R/at No.79, 21st 'C' Main,
Marenahalli, J.P. Nagar,
2nd Phase, Bengaluru.
(Case against accused No.2 to 8
is quashed by the order of Hon'ble High
Court of Karnataka in Crl. Petition
No.3508/2014, dated 21/07/2014 and
the same is confirmed by the Hon'ble
Apex Court in SLP No.1070/2015,
dated 25/07/2016)
(By Sri. Ashwath.V., advocate )
2 C.C.No.35474/2006
JUDGMENT
The PSI of J.P. Nagar Police Station has filed charge sheet against accused No.1 for the offence punishable U/s. 420, 468, 471 of IPC.
2. The brief facts of the prosecution case are as follows:
It is alleged that, site No.2A, carved out of Sy.No.32 of Marenahalli, within the limits of J.P. Nagar Police Station, measuring 30x40 feet was allotted in the name of Sri. A.V. Srinivas Murthy, i.e. C.W. 2, husband of complainant Smt. Champakavathi from Sarakki Group Panchayath in the year 1971, possession certificate/certificate of right, Katha endorsement was issued in the name of C.W. 2, since then he was in possession of aforesaid site. As such, in the year 2003, C.W. 2 gifted aforesaid site through a gift deed in the name of his wife i.e. C.W. 1, thereafter, C.W. 2 applied for transfer of katha before C.W. 6 Sri. Gundappa, Revenue Inspector, Jayanagar Sub-
division, Bengaluru, into the name of his wife, to his shock and surprise he came to know that, accused No.1 to 6 in furtherance of common intention, created, concocted sale deed by forging the signature of husband of C.W. 1 on the sale deed, with a fraudulent 3 C.C.No.35474/2006 intention of grabbing aforesaid site of C.W. 2 and thereby cheated C.W. 1 and 2. Therefore, C.W.1 has lodged complaint before the jurisdictional police. As such, this case came to be registered against accused. During the course of investigation, I.O. visited the place of incident, drawn spot mahazar, seized item No.1 and 2 and subjected the same under P.F. No.129/2006, seized item No.1 to 4 and subjected the same under P.F. No.123/2007, seized item No.1 to 4 and subjected the same under P.F. No.122/2007, recorded the statement of witnesses and after completion of investigation filed charge sheet against accused for the aforesaid offences.
3. The accused No.1 is on bail and he is represented through his counsel. In the initial stage, this case has been registered against accused No.1 to 8. Later, the Hon'ble High Court of Karnataka in Crl. Petition No.3508/2014, dated 21/07/2014 has quashed the proceedings against accused No.2 to 8 and the same is confirmed by the Hon'ble Apex Court in SLP No.1070/2015, dated 25/07/2016. Therefore, Section 120(B) and 34 of IPC does not attracted to the present case on hand.
4 C.C.No.35474/2006
4. The copies of the prosecution papers have been furnished to the accused as required under Sec.207 of Cr.P.C. The cognizance of the offences punishable U/sec. 420, 468, 471 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 in the language known to him, he 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 03 witnesses as P.W. 1 to 3 and got marked twenty one documents at Ex.P1 to P.21. Inspite of issuing summons and warrants against other witnesses, none of them have been secured before this court. Therefore, the evidence of remaining witnesses has been dropped by rejecting the prayer of the prosecution.
7. After completion of prosecution side evidence, the statement of accused persons as required under Section 313 of Cr.P.C. has been recorded, wherein accused has denied the incriminating evidence adduced against him and not chosen to lead 5 C.C.No.35474/2006 his 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, site No.2A, carved out of Sy.No.32 of Marenahalli, within the limits of J.P. Nagar Police Station, measuring 30x40 feet was allotted in the name of Sri. A.V. Srinivas Murthy, i.e. C.W. 2, husband of complainant Smt. Champakavathi from Sarakki Group Panchayath in the year 1971, possession certificate/certificate of right, Katha endorsement was issued in the name of C.W. 2, since then he was in possession of aforesaid site. As such, in the year 2003, C.W. 2 gifted aforesaid site through a gift deed in the name of his wife i.e. C.W. 1, thereafter, C.W. 2 applied for transfer of katha before C.W. 6 Sri. Gundappa, Revenue Inspector, Jayanagar Sub-division, Bengaluru, into the name of his wife, to his shock and surprise he came to know that, accused No.1 to 6 in furtherance of common intention, created, concocted sale deed by forging the signature of husband of C.W. 1 on the sale deed and thereby committed an offence punishable under Section 468 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the 6 C.C.No.35474/2006 aforesaid date, time, place and under aforesaid circumstances, accused created, concocted sale deed by forging the signature of husband of C.W. 1, Sri. A.V. Srinivas Murthy, i.e. C.W. 2 on the sale deed, with a fraudulent intention of grabbing site of C.W. 2 i.e. site No.2A, carved out of Sy.No.32 of Marenahalli and thereby cheated C.W. 1 and 2 and committed an offence punishable under Section 420 of IPC?
3. Whether the prosecution prove beyond reasonable doubt that, on the aforesaid date, time, place and under aforesaid circumstances, accused by impersonating himself as C.W. 2, created forged documents in respect of site belonging to C.W. 1 and 2, also forged the signature of C.W. 2 on the sale deed, submitted the forged documents knowing fully well that, aforesaid documents are concocted one and thereby committed an offence punishable under Section 471 of 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
7 C.C.No.35474/2006
REASONS
11. Point No.1 to 3: All these points involve similar set of facts and circumstances, hence, taken up together for common discussion.
12. It is the case of prosecution that, accused with a fraudulent intention of cheating has sold site No.2A, measuring 30 x 40 feet, situated at Marenahalli, belonging to C.W. 2 Sri. A.V. Srinivas Murthy, got registered the sale deed in his name along with other five persons. According to the prosecution, the said site was originally belonged to C.W. 2 Sri. A.V. Srinivas Murthy, which was allotted by Sarakki Group Panchayath in the year 1971. As such, he has been in possession and enjoyment of the said site and later transferred the same in the name of his wife on 16/05/2003, through a registered gift deed. Later, C.W. 2 applied for transfer of Katha in his wife's name and came to know through the endorsement issued by the BBMP that, the said site has been transferred in the name of accused No.1 to 6 through a registered sale deed by impersonating and also by forging his signature and thumb impression. 8 C.C.No.35474/2006
13. On perusal of the available materials on record it can be noticed that, disputed sale deed dated 16/07/1997 has been forwarded to FSL examination with the admitted signature and thumb impression of C.W. 2 Sri. A.V. Srinivas Murthy along with his disputed signature and thumb impressions.
14. To establish its case, the prosecution has cited as many as 33 witnesses and successful in examining only three witnesses as P.W. 1 to 3. They are the complainant, her husband Sri. A.V. Srinivas Murthy and one of their relative. C.W. 2, A.V. Srinivas Murthy is examined as P.W. 1, who has spoken about allotment of the said site in his favour by the Sarakki Group Panchayath which was later transferred in the name of his wife through a registered gift deed in the year 2003. He has also deposed to the effect that, accused No.1 colluding with other 7 persons has created forged sale deed through impersonation which was came to his knowledge when the BBMP authorities have issued an endorsement in this regard in the year 2003 i.e. when he applied for transfer of katha in the name of his wife.
9 C.C.No.35474/2006
15. In his cross-examination C.W. 2/P.W. 1 has admitted that, the said site was originally allotted to his father and later got transferred to his name.
16. In support of evidence of C.W. 2, his wife Smt. Chamapakavathi who has lodged the complaint has spoken about the alleged incident by saying that, accused has created sale deed with an intention of cheating in order to have a wrongful gain.
17. That apart, one of the relative of C.W. 1 and 2 is examined as P.W. 3 in order to speak about obtaining of model signatures and thumb impressions of C.W. 2 in his presence in the Police Station by drawing mahazar. Since, his evidence is limited to the extent of drawing of mahazar with regard to obtaining of model thumb impression and signatures, it is not helpful to the case of prosecution as there is no dispute with regard to forwarding of the admitted and disputed signatures as well as thumb impressions of C.W. 2 to the forensic examination.
18. Since the complainant and her husband are all interested witnesses, the corroboration of other independent material witnesses is a must in order to bring home the guilt of the accused. On the 10 C.C.No.35474/2006 contrary, the prosecution has failed to examine the material independent witnesses along with mahazar witnesses who are C.W. 3 to 7.
19. More importantly, in a cases like this, in order to prove the allegations of Section 420 and 471 of IPC examination of scientific examiner is mandatory, whereas in this case, the said expert has not been examined. Similarly the case of sub-registrar who has allegedly registered the sale deed in favour of accused No.1 including other five persons. Since the alleged offences are cheating, forgery and using the forged documents as a genuine one, the evidence of persons who speaks about execution of false documents to use as a genuine one is compulsory in order to bring the accused into the clutches of law. On the contrary absence of these material witnesses resulted in failure of non-establishment of prosecution case. Therefore, available evidence of complainant and her husband is not sufficient to prove the charges leveled against the accused. Since the Hon'ble Apex court has quashed the proceeding against other seven persons, question of considering common intention, criminal conspiracy does not arise at all. Therefore, viewed from any angle 11 C.C.No.35474/2006 the prosecution the failed to establish its case with cogent, convincing and corroborative evidence. As a result, benefit of doubt has to be extended in favour of accused. Therefore, above points No.1 to 3 are answered in the Negative.
20.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 found not guilty and acquitted of the offences punishable U/s. 468, 471, 420 of IPC.
The bail & bail bond of the accused and surety 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 26th day of September 2017).
(Mala N.D) XLIV Addl.C.M.M., B'lore.
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION P.W. 1: A.V. Srinivasa Murthy P.W. 2: P.K. Champakavathi P.W. 3: B.R. Raghavendra 12 C.C.No.35474/2006
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION Ex.P. 1 : Seizure Mahazar Ex.P.1(a) : Signature of P.W. 1 Ex.P.1(b) : Signature of P.W. 3 Ex.P. 2 : Spot Mahazar Ex.P.3 to 9 : Model signatures of P.W. 1 Ex.P.3(a)to9(a) : Signatures of P.W. 1 Ex.P.10 : Sale deed Ex.P.11 to 13 : Two applications given to bank and model signature of P.W. 1 Ex.P.14 to 19 : Documents obtained from BMP under RTI Act Ex.P.20 : Written complaint given to J.P. Nagar Police Station Ex.P.20(a) : Signature of P.W. 2 Ex.P.21 : Complaint given before Thyagaraja Nagar Police Station
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE METERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (Mala N.D) XLIV Addl.C.M.M., B'lore.13 C.C.No.35474/2006
Judgment pronounced in Open
Court vide separate:-
ORDER
Acting U/s.248(1) of Cr.P.C., accused
found not guilty and acquitted of the offences punishable U/s. 468, 471, 420 of IPC.
The bail & bail bond of the accused and surety shall stands cancelled.
(Mala N.D) XLIV Addl.C.M.M., B'lore.