Bangalore District Court
V.Lakshminarayana vs The State Of Karnataka By on 20 May, 2020
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU CITY.
Dated this the 20th day of May, 2020
PRESENT:
Sri.Venkatesh.R.Hulgi, B.Com. LL.B (Spl.),
LI Addl. City Civil & Sessions Judge (CCH-52) &
C/c of LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
: CRIMINAL APPEAL NOS.1032/2018 AND 1034/2018:
APPELLANT : V.Lakshminarayana,
(In Crl.A.No.1032/2018) S/o Late Venkataramanappa,
Aged about 70 years,
Residing at No.515, 10th Cross,
Padmanabhanagara,
Kadirenanhalli,
Bengaluru- 560 070.
-V/S-
RESPONDENT: The State of Karnataka by
(In Crl.A.No.1032/2018) Rajagopalanagara Police,
Bengaluru - 560 096.
AND
APPELLANTS: 1. Dr.L.Prashanth,
(In Crl.A.No.1034/2018) S/o V.Lakshminarayana,
Aged about 46 years.
2. B.V.Sowmya,
W/o L.Prashanth,
Aged about 38 years,
Both are residing at No.515,
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10th Cross, Padmanabhanagara,
Kadirenanhalli,
Bengaluru- 560 070.
-V/S-
RESPONDENT: The State of Karnataka by
(In Crl.A.No.1034/2018) Rajagopalanagara Police,
Bengaluru - 560 096.
: COMMON-JUDGMENT :
Crl.A.No.1032/2018 is filed by the appellant, who was accused
No.2 in C.C.No.22206/2010 on the file of VII Additional Chief
Metropolitan Magistrate, Bangalore by challenging the judgment of
conviction and order of sentence dated 04.06.2018.
2. Crl.A.No.1034/2018 is filed by the appellants, who were
accused Nos.1 and 3 in C.C.No.22206/2010 on the file of VII
Additional Chief Metropolitan Magistrate, Bangalore against the
judgment of conviction and order of sentence dated 04.06.2018.
3. As these appeals arise out of common judgment of the
trial court and as the common question of law and fact is involved in
both the matters, therefore, with the consent of both the sides, both
matters are clubbed together and after hearing the common
3 Crl.Apl.1032/2018
AND 1034/2018
arguments, both the matters are taken up together for disposal
through this common judgment.
4. The trial court vide the judgment of conviction and order
of sentence dated 04.06.2018 has convicted the accused Nos.1 to 3
for the offences punishable under sections 468, 471, 419, 420 and
120-B of IPC read with section 34 of IPC. The trial court has
imposed sentence of Rigorous Imprisonment for four years and total
fine of Rs.85,000/- and in default Rigorous imprisonment for four
months for each head.
5. The parties to the appeal hereinafter would be referred to
as per their ranks assigned in the trial Court for the sake of
convenience.
6. The facts of the case sufficient for disposal of both the
appeals in brief are as under:-
That the accused No.1-Dr.Prashanth is the nephew of the
complainant Sri.Srinivasamurthy, accused No.2 is the father of
accused No.1 and accused No.3 is the wife of accused No.1. The
accused No.2 is the husband of sister of complainant
Srinivasamurthy. It is the case of the prosecution that the accused
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No.1 was a former trustee of Sushruthi Education Trust, who came
to know that the complainant-Srinivasamurthy and accused No.2 are
the joint owners of several immovable properties. Thus, the
complainant in order to obtain approval from AICTE to start MBS
Degree College on 18.08.2007 had sent accused No.1 to New Delhi
along with two blank letter heads bearing his signatures to make use
at Delhi. The accused No.1 without using the said letter head for the
above purpose. Kept them in his custody and on 08.07.2009 he had
created GPA in favour of accused No.3 in respect of several
immovable properties situated at various places in Anekal and
Bengaluru North taluk. Knowing fully well that those documents are
forged and fabricated documents, all the accused having conspired
with each other had produced those documents before P.W.4-
G.K.Purushothamma and got the same certified from P.W.5
Srinivasan, a Notary Public. Thereafter, they got registered the said
Notarized GPA in the office of Sub Registrar, Kanakapura on
08.07.2009 and in furtherance of criminal conspiracy by using the
fabricated GPAs, accused have got registered the properties
belonging to the complainant in the name of the accused in different
Sub Registrars office and thereby caused wrongful loss to the
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complainant and made wrongful gain for themselves and thereby
they have cheated the complainant. Thus, on the complaint given
by Srinivasamurthy, as per Ex.P.2, a case was registered in
Rajagopalanagara police station under crime No.53/2010 registered
for the offence punishable under sections 468, 471, 420 and 120-B
read with section 34 of IPC. After having conducted detail
investigation, the Investigating officer has laid down the charge
sheet against the accused Nos.1 to 6.
7. It appears the Trial Court has secured the presence of
accused Nos.1 to 4 and 6 only and enlarged them on bail. Case
against accused No.5 was split up. The accused Nos.1 to 4 and 6
were released on bail. After framing of the charge by the Trial Court,
the accused pleaded not guilty and they claimed to be tried.
8. To prove its case, the prosecution has examined 11
witnesses as P.W.1 to P.W.11 and got marked Ex.P.1 to Ex.P.63
documents in evidence, M.O.1 and M.O.2 are also marked for
prosecution. After the evidence is closed, the statement of accused
under section 313 of Cr.P.C. is recorded. During this stage, accused
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have produced Ex.D.1 to Ex.D.34 documents. Accused have denied
every incriminating statements and did not lead any oral evidence.
9. The trial court after having heard the arguments and on
perusal of the materials placed on record has come to the
conclusion that the prosecution has proved the allegations made
against the accused Nos.1 to 3 only and thereby convicted them for
the aforesaid offences vide the judgment of conviction and order of
sentence impugned in the present appeal. However, the trial court
has acquitted the ac No.4 and 6 for the aforesaid offences. It is
pertinent to note that the State has not filed any appeal against the
judgment of acquittal passed by the trial court against the accused
Nos.4 and 6.
10. Thus, being aggrieved by the judgment of conviction
and order of sentence dated 04.06.2018 of the trial court, the
appellants in both the appeals have filed the respective appeals on
the following common grounds:
1) The judgment of conviction and sentence passed by
the learned Magistrate is illegal, improper and not in
accordance with the law, hence the same is liable to
be set aside.
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2) The judgment and sentence of conviction passed by
the learned Magistrate is contrary to law and
evidence on record.
3) The learned Magistrate has erred in convicting the
appellant without properly appreciating the evidence
on record in its proper perspective, which is resulted
in miscarriage of justice.
4) The learned Magistrate has gravely erred in coming
to the conclusion that Ex.P.1 GPA is a forged
document forged by the accused by presuming that
PW-1 has not executed Ex.P.1 but only had issued
signed blank letter heads to accused No.1 to use the
same for the purpose of obtaining AICTE approval to
run MBA College from his Trust.
5) There is suspicion in coming into the existence of
Ex.P.1 as observed by the learned Magistrate, there
is admittedly no supporting evidence to such
conclusion of the learned Magistrate.
6) The learned Magistrate has committed a
fundamental error in coming to the conclusion
based on suspicion that Ex.P.1 was proved to be
forged.
7) The learned Magistrate consequently has gravely
erred in finding fault with the font size of the letter
printed on the GPA.
8) The learned Magistrate has clearly misdirected
himself by assuming that Ex.P.1 was registered with
the Sub Registrar.
9) The learned Magistrate had simple brushed aside
the judgments and the law declared by the Hon'ble
Apex Court and as well as our Hon'ble High Court
relied on by the accused.
8 Crl.Apl.1032/2018
AND 1034/2018
10) The learned Magistrate had jumped to the
conclusion that the ac had not explained the
reasons for the execution of the GPA is again false,
perverse and the same was observed without
looking into the records.
11) The learned Magistrate has gravely erred in not
giving the due importance of the effect of suspicious,
partisan and biased approach of the investigating
agency in this case, which has caused grave
injustice to the accused.
12) The learned Magistrate had not considered the
version put forth by the ac in their defence in the
trial.
13) The impugned judgment passed by the learned
Magistrate is perverse, capricious and the same is
liable to be set aside.
14) The reasons assigned by the learned Magistrate are
not just, proper and correct and hence the order of
conviction is liable to be set aside.
On these grounds, the appellants prayed to set aside the
impugned order by allowing this appeal.
11. In response to the notice, respondent State has
appeared through learned Public Prosecutor.
12. The trial court records are secured in Crl. Appeal
No.1034/2018.
9 Crl.Apl.1032/2018
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13. Heard arguments of both the sides and perused the
materials placed on record.
14. During the course of arguments, the learned counsel for
the appellants would submit that the judgment of conviction and
order of sentence passed by the Trial Court are illegal and against
the charges and evidence on record. Therefore, the impugned
judgment of conviction and order of sentence passed by the Trial
Court is contrary to the law and evidence on record. The Trial
Court has committed serious error in convicting the appellants for
the aforesaid offences without properly appreciating the evidence
on record in its proper perspective. This has resulted in
miscarriage of justice. It is submitted that the Trial Court has
committed a grave error in appreciating Ex.P.1 GPA and has come
to a wrong conclusion that the said document is forged one.
Despite no direct evidence on the factum of fabrication and forging
of GPA, the Trial Court has come to wrong conclusion that the
document is a forged one. The said finding of the Trial Court is
based merely on assumption and presumption. The finding that
there are several suspicious circumstances to presume Ex.P.1 is
10 Crl.Apl.1032/2018
AND 1034/2018
forged document is totally a wrong conception. It is submitted that
suspicion how so ever grave cannot take the place of proof. In this
context, the learned counsel for the appellants referred to various
decisions of the Hon'ble Apex Court. They have submitted that
merely on the uncorroborated evidence of the complainant, the
Trial Court has convicted the accused for the aforesaid offences.
Hence, the judgment of conviction and order of sentence passed
by the Trial Court are liable to be set aside. Thus, they have
prayed for allowing of the appeals.
15. Per contra, the learned Public Prosecutor would justify
the impugned judgment of conviction and order of sentence and
submit that the impugned judgment is well reasoned based on
legal evidence. Hence, no interference of this court is required.
Therefore, he has sought for dismissal of the appeals.
16. Based on the rival arguments, the following points
emerge for my consideration:-
1. Whether the finding of the trial court that
the Ex.P.1 document is a forged and
fabricated document by the accused is
proper and supported by evidence?
11 Crl.Apl.1032/2018
AND 1034/2018
2. Whether the finding of the trial court that
the accused Nos.1 to 3 alone are guilty of
the aforesaid offences is proper and as
per the law?
3. Whether the trial Court has committed
error in convicting the accused Nos.1 to 3
for the aforesaid offences and hence its
findings require interference by this
Court?
4. What order?
17. My findings on the above points are as follows:-
POINT NO.1 - Negative;
POINT NO.2 - Negative;
POINT NO.3 - Affirmative
POINT NO.4 - As per final order,
for the following:-
: REASONS :
18. POINT NOS.1 TO 3: Since these points are inter
connected to each other, hence, to avoid repetition of facts and
evidence, these points are taken up together for common
discussion.
19. In the aforesaid paragraphs I have explained the case
of the prosecution in detail. Therefore, there is no need to repeat
12 Crl.Apl.1032/2018
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the same once again. This Court being the appellate Court is the
final Court of facts. Therefore, this Court has ample power to re-
appreciate the facts of the case in the light of the evidence on record
to find out whether the judgment and order of conviction passed by
the Trial Court is supported by legal evidence and same is
sustainable.
20. As mentioned above, serious allegation of fabrication of
GPA by forging the signature of the complainant is made against the
accused persons. It is alleged that the accused Nos.1 to 6 haivng
conspired together used the forged GPA for the purpose of transfer
of immovable properties in the name of accused No.3 to cause
wrongful loss to the complainant and to make wrongful gain for
themselves and thereby they have committed the offences of
cheating etc.
21. As mentioned above, to prove the aforesaid allegations,
the prosecution has examined only 11 witnesses including the
complainant in the Trial Court as P.W.1 to P.W.11. To substantiate
the oral evidence of the above witnesses, the prosecution has
produced Ex.P.1 to Ex.P.63 documents. M.O.1-Laptop and M.O.2-
13 Crl.Apl.1032/2018
AND 1034/2018
CPU are brought in the evidence. During the course of 313
statement, the accused have produced Ex.D.1 to Ex.D.34
documents.
22. A bare perusal of the judgment of the Trial Court
impugned in the present appeal, it becomes very clear that the Trial
Court through out its judgment has not made any reference to
Ex.D.1 to Ex.D.34 documents produced by the accused persons.
Whether this has caused injustice to the case has to be seen in the
light of the evidence on record.
23. As noted above, the complainant and accused Nos.1 to
3 are closely related. The accused No.2 is the husband of sister of
the complainant. The accused No.1 is the son of the accused No.2
and husband of accused No.3. It is not in dispute that at the
relevant point of time, the complainant and accused Nos.1 to 3 were
the trustees of Sushruthi Education Trust located at Bengaluru. It is
alleged that the accused Nos.1 to 6 in order to gulp the properties of
the complainant hatched a criminal conspiracy and thereby the
accused No.1 has misused the blank letter heads of the trust
bearing signature of the complainant which were given to got
14 Crl.Apl.1032/2018
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approval from AICTE to start MBS degree College, the accused
No.1 by forging the said documents has fabricated GPA and on the
strength of the same got transferred the immovable properties. Thus
all the accused are guilty of the aforesaid offences.
24. The complainant is testified a P.W.1 in the Trial Court.
According to him at the relevant point of time he wanted to establish
MBS Degree College and therefore he had given blank letter heads
to accused No.1. He had sent accused No.1 along with two staff to
New Delhi. He stated that later he came to know that the accused
No.1 has misused those documents to create a GPA.
25. Ex.P.1 is the disputed GPA. Admittedly it bear the
signature of the complainant. It is pertinent to note that the staff of
the trust who were sent along with the accused No.1 are not cited as
witnesses and reexamined before the Trial Court. Ex.P.1 is the copy.
26. In the cross-examination P.W.1 has stated that he
cannot say how he is saying the GPA as a fabricated document.
27. P.W.2-Jyothi is a staff working in Sushruthi Education
Trust. She has only speaks about giving of blank letter heads in the
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hands of the complainant, she has not stated anything regarding that
Ex.P.1 is subsequently created as GPA. P.W.3-Gopalakrishna is the
friend of complainant. His evidence discloses that based on the
information given by the complainant, he is giving evidence
regarding fabrication of documents. P.W.4 to P.W.9 are the Sub
Registrars working at the relevant point of time in different Sub
Registrar's office. They have spoken about the registration of GPA
and subsequent document pursuant to the said GPA. They have not
spoken about the GPA is a fabricated document. It is pertinent to
note that the prosecution has not taken any pain to examine any
expert to speak about the fabrication of Ex.P.1. P.W.10 was also a
Sub Registrar, who has spoken about franking of Ex.P.1. His
evidence suggests that at the time of franking, he did not read the
contents of Ex.P.1. Therefore, he was treated as partly hostile. In
his cross-examination, nothing is made out to say that Ex.P.1 is
fabricated one.
28. P.W.11 is the Investigating officer, who has spoken
about the investigational aspects of the case. Thus, except the
evidence of the above witnesses, there are no other evidence on
record indicates that Ex.P.1 is the fabricated documents. Thus,
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being the case in paragraph No.29 of the judgment, the Trial Court
has made some remarks and stated that it has presumed that the
complainant has not executed Ex.P.1 but only he has issued the
signature blank letter heads to accused No.1, which have been
misused by them. As mentioned above, the learned counsel for the
appellants would submit that the Trial Court without appreciating the
evidence on record in a proper perspective has convicted the
accused only on assumptions and presumptions. Hence, the
judgment and order of conviction is liable to be set aside.
29. It is a settled position of law that in criminal cases mere
suspicion, howsoever, strong cannot take place of proof. It is also
equally settled that no amount of suspicion constitute a legal
evidence to sustain a conviction. Thus, in my opinion, the Trial Court
has failed to appreciate the evidence on record in the light of the
materials available. As noted above, though the accused have
produced many documents as Ex.D.1 to Ex.D.34, the Trial Court has
not at all taken into consideration those documents while
appreciating the evidence of P.W.1 to P.W.11. The Trial Court has
over looked those materials on record. Therefore, has been held by
the Hon'ble Apex Court in the case of Hemraj Chandrashekar and
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another V/s. State of Chhattisgarh and others ( 2018(4) Supreme
207, the judgment of the Trial Court which has overlooked the
material on record is not sustainable. Therefore, the judgment of
conviction and order of sentence passed by the Trial Court has to be
set aside and it is just and proper to remand the case to the Trial
Court with a request to re hear the arguments of both the sides and
to appreciate the materials on record and to dispose of the matter
afresh in accordance with the law.
30. It is also submitted that the Trial Court has committed a
grave mistake in recording of 313 statement of the accused. It is
argued that the question imposed to all the accused are verbatim
same. The incriminating statement of each accused is not put in the
313 statement seeking explanation of each individual accused and
this has also resulted in miscarriage of justice. I have gone through
the materials on record in the light of the aforesaid statements. It is
seen that the questions put to each accused under 313 statement
are verbatim same. The different circumstances appearing against
each accused is not put to them in their statement to give
explanation. Therefore, recording of 313 statements of the accused
by the Trial Court is also not as per the law. Hence, the Trial Court
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shall record the 313 statement of the accused once again in the light
of the incriminating statements appearing against each accused
individually. Thus, for the reasons and discussions made above, I
am of the opinion that the Trial Court has committed a mistake in
coming to conclusion that the accused are guilty of forging and
fabricating Ex.P.1. Consequently the judgment of conviction and
order of sentence passed by the Trial Court impugned in the present
appeals is not sustainable and same is liable to be set aside. Thus,
the judgment of the trial court require interference of this Court.
Hence, I answer point Nos.1 and 2 in the "Negative and point No.3
in the "Affirmative".
31. POINT NO.4: In view of my finding on point Nos.1
and 2, in the result, I proceed to pass the following:
: ORDER :
Both the appeals filed under section 374(3) of Cr.P.C by the appellants are hereby allowed.
The impugned judgment and order passed by the learned VII Additional Chief 19 Crl.Apl.1032/2018 AND 1034/2018 Metropolitan Magistrate, Bangalore, in C.C.No.22206/2010 dated 04.06.2018 is hereby set aside.
The matter is remanded back to the trial court with a direction to give opportunity to the appellants/accused to subject the complainants for cross- examination and also to lead defence evidence on Ex.P.1.
The trial court is further directed to record the statement of the appellant/accused as required under section 313 of Cr.P.C., with regard to the incriminating evidence found against the accused and thereafter to adjudicate the case afresh on the basis of the materials placed on record.
The accused shall appear before the Trial Court after receiving summons.
20 Crl.Apl.1032/2018 AND 1034/2018 Send the copy of this judgment along with LCR to the trial court forthwith.
Original judgment shall be kept in Crl.Appeal.No.1032/2018 and its copy shall be kept in Crl.Appeal No.1034/2018 for completion of records.
(Dictated to the Judgment Writer, transcribed by her, then corrected and pronounced by me in the open court on this the 20th day of May 2020) (VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
21 Crl.Apl.1032/2018 AND 1034/2018 By complying guidelines given by at para No.31 of the revised orders plan issued by the Hon'ble High Court of Karnataka, Bangalore dated 03.05.2020 and as per Circular dated 11.05.2020 of District Court bearing No. RPS(CCC) TO.NO.10/2020, order is pronounced vide the following:
ORDER Send the copy of this judgment along with LCR to the trial court forthwith.
Original judgment shall be kept in Crl.Appeal.No.1032/2018 and its copy shall be kept in Crl.Appeal No.1034/2018 for completion of records.
(VENKATESH.R.HULGI) C/C of LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
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