Bangalore District Court
State By High Grounds Ps vs No.1 And 2 Pleaded Not Guilty And Claimed ... on 7 December, 2015
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 7th day of December 2015
Present : Sri. Venkataraman Bhat,
B.Sc., LL.B. (Spl)
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 14570/2008
2. The date of commission
of the offence : September 2001 to March 2008
3. Name of the complainant : State by High Grounds PS
4. Name of the accused : A1: A.S.Kumar, 46 Yrs.,
S/o Annayyappa,
R/a. No.1763, Sri Siddeshwara Nilaya,
1st main road, Prashanthanagara,
T.Dasarahalli, Bengaluru-57.
A2: Jayan Josh, 30 Yrs.,
S/o V.D.Josh,
R/a. Velliyath House, Church Road,
Nellikannu, Tiruchuru-5,
Kerala State.
5. The offences complained : U/s.408, 420 IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
8. Date of order : 07.12.2015
2 CC.NO.14570/2008
Police Sub Inspector, High Grounds police station placed
charge sheet against accused No.1 & 2 for the offences punishable
u/s.408, 420 of IPC.
2. Rajesh Exports Limited company is situated at Kumarakrupa
Road, Bangalore which is engaged in import and export of gold
jewellery. According to the prosecution, accused No.1 and 2 were
working in this company. It is stated that, accused No.1 and 2 were
entrusted the marketing of gold and gold jewellery in Kerala State. It
was their duty to marketing gold and gold jewellery and submit
accounts in this regard. It is alleged that, in between September
2001 to March 2008 accused No.1 and 2 had taken gold ornaments
of weighing 9617 grams and failed to account the same and
misappropriated the same for their own use. Accused No.1 & 2 did
not return these gold ornaments and committed criminal breach of
trust and cheating.
3. On the basis of first information statement lodged by CW1, FIR
has been registered at Crime No.57/2008 of High Grounds police
station.
4. During the course of investigation accused No.1 was arrested
and produced before the court. He was remanded to JC. Later he
was enlarged on bail. Accused No.2 had obtained anticipatory bail
and appeared before this court. He was released on regular bail.
5. After submission of the charge sheet, cognizance of the
offences have been taken. Copy of charge sheet was furnished as
3 CC.NO.14570/2008
required u/s.207 of Cr.P.C. Charge was framed u/s.408, 420 of IPC.
Accused No.1 and 2 pleaded not guilty and claimed to be tried.
6. CW1 to CW10 witnesses have been cited in the charge sheet.
During the course of trial, PW1 to PW3 were examined and Ex.P.1 to
Ex.P.18(a) got marked.
7. After closure of the prosecution side evidence, statement of
accused No.1 and 2 was recorded u/s.313 of Cr.P.C.
8. Heard arguments of Senior APP and advocate for the accused.
9. CW1 was examined as PW1. PW1 was working as Marketing
Manager in Rajesh Exports Limited company. PW1 has deposed
that, accused No.1 and 2 were working as Marketing Managers and
they were entrusted of marketing gold ornaments in Kerala State.
According to PW1 accused used to take gold ornaments from the
company and they were required to credit the amount collected from
customers to the company. Accused No.1 and 2 were further
required to return unsold gold ornaments within 45 days. It was the
practice to issue cash vouchers at the time of entrustment of gold
jewelleries to the accused. According to PW1, totally 80.600 Kg gold
ornaments were entrusted to accused No.1 and 2 till March 2008.
However, accused No.1 and 2 did not return to the work. They failed
to account the same. Whereabouts of accused No.1 and 2 was not
traced. The approximate value of gold ornaments retained by
accused No.1 and 2 is Rs.1 Crore. Under these circumstances, PW1
as per the directions of Managing Director lodged first information
4 CC.NO.14570/2008
statement as per Ex.P.1. PW1 has further deposed that accused
No.1 had kept two voucher books in his house and they were seized
by the police as per Ex.P.2 on the basis of statement given by
accused No.1. Of course PW1 has deposed regarding the
entrustment of gold ornaments to accused No.1 and 2 in detail. PW1
has further deposed that, accused No.2 was assisting to accused
No.1 in marketing of this gold ornaments. Cash voucher books got
marked as Ex.P.3 to Ex.P.11(a). Trial balance sheet of accused No.1
got marked as Ex.P.12. Copy of inventory is marked as Ex.P.13. At
this stage, further examination of PW1 was deferred at the request of
Sr. APP for want of documents. It can be noticed that, thereafter
PW1 did not turn up for further examination-in-chief.
10. CW5 was examined as PW3. PW3 was working as Managing
Director of Rajesh Exports Limited company. PW3 has deposed
regarding the appointment of accused No.1 and 2 as Marketing
Managers and they were entrusted the marketing of gold ornaments
in Kerala State. According to PW3, accused No.1 and 2 used to
select gold ornaments from the strong room of the company.
Thereafter gold ornaments were given to accused No.1 and 2 by
issuing cash vouchers. PW3 has further deposed that, accused No.1
and 2 failed to return totally 9617 grams of gold ornaments of 22
carrots. The approximate value of these gold ornaments is
Rs.1 Crore. PW3 has further deposed regarding the commission of
offence of criminal breach of trust and misappropriation of the value
of the said gold ornaments by the accused. Time was granted for
cross-examination of PW3 at the request of advocate for the
5 CC.NO.14570/2008
accused. However, PW3 did not appear before the court for cross-
examination.
11. CW10 was examined as PW2. PW2 was working as PSI of
High Grounds police station at the relevant point of time. PW2 has
deposed regarding the receipt of first information and registration of
FIR and arrest of the accused. PW2 has further deposed regarding
the investigation work conducted by her, submission of the charge
sheet. PW2 was subjected into cross-examination.
12. Inspite of sufficient opportunity, the prosecution could not able
to secure the presence of other charge sheeted witnesses. It can be
noticed that, trial was commenced on 1.2.2011. On the perusal of
order sheet, it discloses that when PW1 failed to appear before the
court for further examination-in-chief at the first instance Bailable
warrant came to be issued number of times. Thereafter non bailable
warrant came to be issued against PW1. Thereafter proclamation
was issued against PW1. Inspite of this, PW1 did not turn up for
further examination. It is reported that, PW1 has left the address.
The present address is not known. Likewise, summons came to be
issued against CW2 to CW9. Thereafter, as coercive steps NBW
came to be issued against CW2 to CW9. It is pertinent to note that,
NBW came to be issued number of times through ACP and DCP. It
further discloses that, even proclamation also came to be issued
against CW2 to CW7. Except CW5 other witnesses remained
absent. Though CW5 was examined in part as PW3, he too
remained absent for cross-examination. It can be noticed that, NBW
6 CC.NO.14570/2008
came to be issued against CW2 to CW7 through ACP and DCP. In
other words, inspite of available coercive steps prosecution could not
able to secure the presence of these material witnesses. CW8 and
CW9 were given up by the prosecution.
13. Now I would like to appreciate on the available evidence.
Evidence of PW1 is incomplete. Of course some of the documents
got marked during his evidence. Cash vouchers got marked from
Ex.P.3 to Ex.P.11. On an incomplete evidence of PW1, it is not safe
to rely on the evidence of PW1. Likewise, evidence of PW3 is also
incomplete. PW3 failed to appear before the court for cross-
examination. Though PW3 being Managing Director of the Rajesh
Exports Limited company, he did not turn up for cross-examination for
the best reason known to him. PW2 is investigation officer who
conducted investigation and placed charge sheet. During the course
of cross-examination PW2 has duly admitted as under :
"¦üAiÀiÁð¢zÁgÀjAzÀ ¤.¦.15 ªÀÄvÀÄÛ 16 PÉÌ ¸ÀA§AzÀs¥ÀlÖ C¸À®Ä
ªÉÇÃZÀgïUÀ¼À£ÀÄß ¥ÀqÉAiÀÄ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖgÀĪÀÅ¢®è."
14. According to the prosecution two cash voucher books got
seized from the house of accused No.1 on the basis of his disclosure
statement. I have gone through the voluntary statement of accused
No.1 which is marked as Ex.P.17. The signature of I.O. got marked
as Ex.P.17(a). It can be noticed that, Ex.P.17 does not bear the
signature of the accused. It is mandatory to take the signature of the
accused who gives voluntary statement. Under these circumstances,
7 CC.NO.14570/2008
no reliance can be placed on Ex.P.17. Moreover, these vouchers
have not been seized as per the disclosure statement u/s.27 of
Evidence Act. PW2 being an investigation officer deposed in a
mechanical manner. Evidence of PW2 does not inspire any
confidence in the mind of the court. Approximately the alleged
misappropriation amount involved in this case is Rs.1 Crore. It
discloses that, complainant company is a reputed company. CW4 is
the President of this company. Whereas PW3 is the Managing
Director of the said company. The trial was held for a considerable
period of 4 years. Court has provided sufficient opportunity to secure
the presence of all the charge sheeted witnesses. Even prosecution
has taken all the coercive steps to secure the presence of material
witnesses. Inspite of this, other witnesses remained absent. Even
the complainant company lost the interest in prosecuting the case. It
is very unfortunate that, charge sheeted witnesses did not turn up to
give evidence before the court. Evidence of PW1 and PW3 is
incomplete. Two essential ingredients of offence of criminal breach
of trust i.e. entrustment and dishonest misappropriation of the
property are not proved by adducing acceptable evidence. Certainly,
all these facts are helpful to the accused. There is no alternative
except to acquit the accused for want of evidence. Even on the
available evidence also, it is not possible to convict accused No.1
and 2 since the prosecution failed to prove entrustment and dishonest
misappropriation. Even offence of cheating is also not proved. In the
result, I proceed to pass the following :
8 CC.NO.14570/2008
ORDER
Accused No.1 & 2 are not found guilty for the offences punishable u/s.408, 420 IPC.
Accused No.1 & 2 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bonds of accused No.1 and 2 stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 7th Day of December 2015) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : Keerthikumar PW.2 : Lakshmidevi M. PW.3 : Prashanth Mehta
List of exhibits marked for prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Seizure mahazar Ex.P.3 to Ex.P.11 : Cash voucher books Ex.P.12 : Trial balance sheet Ex.P.13 : Copy of Inventory Ex.P.14 : FIR Ex.P.15 & 16 : Receipt books Ex.P.17 : Voluntary statement of accused 9 CC.NO.14570/2008 Ex.P.18 : Report List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused:- Nil.
(Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.10 CC.NO.14570/2008
07.12.2015 State by Sr. APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused No.1 & 2 are not found guilty for the offences punishable u/s.408, 420 IPC.
Accused No.1 & 2 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.408, 420 of IPC.
Bail bonds of accused No.1 and 2 stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the th open court on this the 7 Day of December 2015) (Venkataraman Bhat) IV Addl. Chief Metropolitan Magistrate, Bangalore.
11 CC.NO.14570/2008