Bangalore District Court
Nagara Police Station vs No. 1 To 3. Accused No.1 To 3 Have Appeared ... on 8 April, 2022
1
C.C.245/2008
IN THE COURT OF XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
PRESENT: SRI.PADMAKAR VANAKUDRE
B.A. LL.B,
C/C, 32 ACMM, BENGALRU.
ND
DATED THIS THE 08th DAY OF APRIL 2022
Serial Number of the C.C.245/2008
case
Name of the State by Police Inspector, R.T
complainant Nagara Police station
(Reptd. by Sr.Asst.Public
Prosecutor )
Name of the accused 1)N.C.Raghunath Reddy,
person/s S/o.B.Channarayappa,
Age: 44 years,
R/o:Nakalahalli village
Gowribidanur Tq.
Kolar District.
2). Mousam,
S/o: Asadulla Khan,
Age : 35 years,
R/o: No.88, Near Jamia
Masjid, Bellary Road,
Ganganagar, R.T.Nagar,
Bangalore.
3). Asadulla Khan, (dead)
(Note: case against accused
no.3 is abated)
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C.C.245/2008
Offences complained of U/Sec.457 and 380 of the IPC.
Charges framed for the U/Sec.457 and 380 of the IPC.
offences
Date of commencement 22.06.2007
of offence
Date of commencement 02.01.2009
of recording evidence
Date of closure of 19.11.2019
recording evidence
Plea of the accused on
their examination : Not Guilty
Offences proved Nil
Final Order : Acquittal
Date of final order 08.04.2022
JUDGMENT
(U/S 355 Cr.P.C) The Assistasnt Commissiner of Police, J.C.Nagara Sub Division Bengaluru has filed charge sheet against the accused No.1 to 3 for the offences punishable under Section 380 and 457 of the Indian Penal Code.
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C.C.245/2008
2. It is the case of the prosecution that, the first informant was the tenant of accused No.3. He is running lathe machine work shop in the said premises under the name and style as H.M.Lathe. He had hypothecated machineries worth Rs.3,75,000/- to the National Small Induastries Corporation Limited. He had also other machineries worth Rs.2,50,000/- installed in the said work shop.
3. It is alleged that on 22.06.2007 the first informant was out of station. On that day at about 1:30 A.M accused No.1 to 3 along with 15 other persons and with a crane bearing Regn.No. KA-50-M-512 came to the shop of first informant, broke open the lock of the shop, committed criminal trespass and committed theft of the machineries worth of Rs.6,00,000/-(Rupees Six Lakhs), almirah and documents from thre. The first informant returned Bengaluru on 23.06.2007 at 10.00 P.M and came to know about the theft committed by accused persons.
4. The first informant had approached the Jurisdictional police but they refused to register the case and hence he 4 C.C.245/2008 approached the Commissioner of Police and lodged first information statement on 25.06.2007.
5. It is alleged that since the police had taken no action based on the first information statement, the first informant approached Hon'ble High Court of Karnataka in W.P.No.11326/2007. Thereafter, the R.T.Nagar police have registered the case on 08.08.2007 in Crime No.228/2007 for the offences punishable under sections 395 and 427 of the IPC against accused persons.
6. The C.W. 19 has conducted investigation of the offence and filed Final Report against the accused Nos. 1 to 3 for the offences punishable under section 380 and 457 of the IPC.
7. This court has taken the cognizance of the offences punishable under section 380 and 457 of the IPC against accused No. 1 to 3. Accused No.1 to 3 have appeared before the Court through learned counsels and got released on bail. 5
C.C.245/2008
8. This Court has framed the charge against accused No. 1 to 3 for the offences punishable under section 380 and 457 of the IPC. They have not pleaded guilty but claimed to be tried.
9. In order to prove its case, out of 19 charge sheet witnesses, the prosecution has only got examined two witnesses as P.W. 1 and 2 and got exhibited one document at Ex.P.1.
10. On 06.01.2009 this Court has passed the judgment acquitting the accused persons of the alleged offences ounishable under section 380 and 457 of the IPC.
11. Being aggreived by the judgment of this Court, the complainant has approached the Hon'ble High Court of Karnataka in Crl.Revision Petition No.1369/2010. Wherein, vide order dated 16.11.2011 the Hon'ble High of Karnataka has setaside the judgment of this Court and remanded the matter for fresh disposal in accordance with law. 6
C.C.245/2008
12. After remand of the case, this Court has issued summons to the accused persons. They have appeared through their respective counsels.
13. Learned Counsel instructed by the First Informant has filed an aplication under section 301(2) of the Cr.P.C. seeking permission assist the prosecution. This Court has allowed said application vide order dated 07.02.2012 and permitted the counsel to assist the prosecution.
14. The first informant has filed an application under section 173(8) Cr.P.C seeking directions against the investigating officer for further investigation. The application came to be rejected vide order dated 27.02.2012.
15. Being aggrieved by the said order, the first informant has approached the Hon'ble High Court of Karnataka in Crl.Revision Petition No.3587/2012 and the petition came to be allowed vide order dated 06.11.2012. In view of the said order this Court has directed the investigating officer to conduct further investigation and to file the report. 7
C.C.245/2008 Accordingly the investigating officer has filed additional charge sheet on 27.07.2017. My learned predcessor in office has vide order dated 24.03.2021 rejected the additional charge sheet submitted by the Investigating officer.
16. A perusal of order sheet shows that initially the prosecution has got examined five witnesses as P.W. 1 to 5. The statement of accused No. 1 to 3 as provided under section 313 of the Cr.P.C has been recorded on 07.08.2019.
17. During the pendency of the case, accused No. 3 is reported to be died and hence, the case against him has been abated.
18. Thereafter, twice the prosecution has filed an aplications under section 311 of Cr.P.C and got examined three witnesses as P.W. 6 to 8. In all the prosecution has examined 08 witnesses as P.W.1 to 8 and got exhibited 37 documents at Ex.P.1 to P.36. During the cross-examinatin of prosecution witnesses Ex. D.1 to D.3 came to be marked. 8
C.C.245/2008
19. Additional statement, as provided under section 313 of Cr.P.C, of accused No.1 and 2 has been recorded. They have denied all incriminatory circumstances appearing against the them in the prosecution side evidence. However, they have not choosen to lead any evidence on their behalf.
20. Heard the arguments of learned senior public prosecutor and learned counsels for accused No. 1 and 2. Learned counsel instructed by the first informant and learned counsels for accuse have also filed written agruments. .
21. I have perused the written arguments submitted by both the parties and perused the material placed on record.
22. Point that would arise for my consideration are as under:
1. "Whether the prosecution proves beyond all reasonable doubts that on 22.06.2007 at about 01.30 A.M accused No.1 to 3 have committed theft of machineries, almirah and documents in the building of first informant and thereby committed an offence punishable U/s 380 of the IPC.?
2. "Whether the prosecution proves beyond all reasonable doubt that on 9 C.C.245/2008 22.06.2007 at about 1.30A.M accused No.1 to 3 have committed an offence of house breaking after sunset and before sunrise by entering into the workshop of the first informant by breaking open its lock for the purpose of committing an offence of theft and thereby committed an offence punishable U/s 457 of the IPC.?
23. My findings on the above points are in the Negative for the following:
REASONS
24. Points No.1 and 2 : For the sake of convenience these two points are taken together for consideration.
It is the case of the prosecution that on 22.06.2007 at about 1.30 A.M the accused No.1 to 3 had broke open the lock of the work shop of P.W.3, committed the theft of machines worth Rs.6,00,000/-, almirah and document and thereby committed an offence punishable under sections 380 and 457 of the IPC.
25. Accused have denied the case of the prosecution in toto. They denied the commission of theft as alleged by 10 C.C.245/2008 the complainant. It is the defence of the accused that it is the authority of NSIC who lifted machines from the premises of the complainant since he failed to repay the loan amount.
26. In order to prove its case, the prosecution has got examined 08 witnesses as P.W.1 to 8 and got exhibited 37 documents at Ex.P.1 to 37.
27. P.W.1 and 2 are the witnesses to the panchanama. P.W.3 is the first informant. P.W.4 is the hearsay witness. P.W.5 is the official of NSIC. P.W.6 is the investigating officer. P.W.7 and 8 are cited as eye witnesses of the alleged incident.
28. It is alleged that accused No.1 to 3 have committed an offence punishable U/s 380 and 457 of the IPC. To constitue an offence punishable U/s 380 of the IPC, the prosecution firstly must prove that the accused have committed theft, secondly , the theft is committed in any building, tent or vessel and thirdly the building, tent or 11 C.C.245/2008 vessel is used as human dwelling or used for the custody of the property.
29. To constitue an offence U/s 457 of the IPC, the prosecution must prove that: 1) the accused has committed lurking house trespass by night or house breaking by night and 2) the accused did so in order of commission of the offence punishable with imprisonment.
30. P.W.1 and 2 who are cited as witnesses to the panchnama have completely turned hostile to the case of the prosecution. They denied seizure of the materilas and execution of the panchnama in their presence. Therefore, their evidence is not available for the case of the prosecution.
31. A perusal of the first information statement shows that the P.W.3 was running a workshop under the name and style as HMA. He was tenant under accused No.3 since 6-7 years prior to the date of alleged offence. It is stated that he had installed lathe and other machines worth 12 C.C.245/2008 Rs,2,50,000/- and also availed machines worth Rs.3,75,000/- from NSIC. The offence of house breaking at night and theft in the dwelling house is alleged in this case. Therefore, it is not necessary to see whether the properties alleged to have stolen by the accused persons were in possession of the first informant at the time of alleged incident.
32. It is stated in the first information statement that the complainant was a tenant under accused No. 3 and running work shop. During the cross examination the P.W.3 has also admitted that his father was the tenent under accused No. 3. He has stated that he has not produced rent agreement. A perusal of entire materials placed on record shows that there is no ducument to show that the accused was tenent in the said premises under accused No. 3.
33. The P.W.3/complainant has deposed that his father had purchased HMA Engineering work shp from C.W.3 on 03.06.2000. He had purchased 4 Lathe machines, 2 13 C.C.245/2008 reborring machines, 1 grilling machine, 1 hydraulic press, machine working tooks and fly press machine from C.W.3. Those machines were under hypothecation of NSIC Ltd Bank. Ex.P29 is the letter issued by the Sr. Branch Manager, NSIc. A perusal of Ex. P.29 shows that C.W. 3 Muneer was supplied 08 machines under Hire Purchase scheme and said machines are the properties of Govt. of India till dues are paid. A document at Ex. P6 is the application submitted by C.W-3 Muneer and a document at Ex.P-7 is the agreement entered in to between said Muneer and NSIC. Documents at Ex.P-9 to 21 are the receipts regarding the payments made to NSIC. A perusal of Ex.P-6, Ex.P-7 and Ex.P-29 shows that C.W-3 Muneer has availed said machines from NSIC under hire purchase agreement. A document at Ex.P-8 the General Power of Attorney executed by C.W-3 Muneer appointing the complainant as his attorney to deal with his businesss.
34. During the cross examination P.W-3 has admited that C.W-3 Muneer has undertaen to not to alienate machines till the clearance of the loan amount. He has also admitted 14 C.C.245/2008 that all the machines were hypothecated to NSIC and he has not taken any loan from NSIC. C.W- 3 Muneer has been examined as P.W-4. He has deposed before the Court that since he sustained loss, he has sold machenaries and garage to the father of the complainant. During the cross examination he has admitted that he had no power to sell the machines. The P.W.5, who is the manager at NSCI has admitted that till 08.08.2007 the C.W-3 was the owner of the machines and NSIC is the absolute owner of machines. Therefore, a meterial on record shows that the C.W.3 was having lawfull possession of the machines. Except the deed of Power of Attorney, the complainant has not produced any documents to show that either he was runnig the workshop in the building of accused No.3 or he has purchased machines from Muneer.
35. It is alleged that accused No.1 to 3 have committed theft of the machines on 22.06.2007 at 1.30A.M. It is stated in the first information statement that on the said date and time the complainant was not in station and he came to know about the theft only when he returned to 15 C.C.245/2008 Bengaluru on the next day i.e., on 23.06.2007 at about 10.00 P.M.
36. A careful perusal of the first information statement shows that the complainant came to know about the alleged offence only on the next day after he returning to Bengaluru. The first information statement shows that no other persons had witnessed the alleged incident and informed the complainant in that regard.
37. The complainant who is examined as PW..3 has deposed that on 22.06.2007 at about 1.30 A.M his neighbor by name Salim has informed him over phone that the accused persons have committed theft of the things and machines from his workshop. He was at Mysuru at that time. Immediately he informed the same to his brother by name Yusuf. His brother approached the police, but police did not take his complaint. This piece of evidence of P.W-3 is contrary to his own first information his statement at Ex.P.2. Though a perusal of Ex.P.1 shows that no person had witnessed the alleged incident, but 16 C.C.245/2008 P.W3 has deposed that his neighbor by name Salim had witnessed the incident. Said Salim has not been examined by the prosecution in this case. Even the brother of the first informant who came to know about the incident through the first informant has not been examined by the prosecution. Non examination of said witnesses is fatal to the case of the prosecution.
38. It is stated in Ex.P.2 that the complainant had returned to Bengaluru on the next day at 10.00 P.M and then only he came to know about the incident. To the contrary he has deposed that he returned early morning on 23.06.2007 and he visited the workshop.
39. P.W.4 has deposed regarding the sale and transfer of the machines to the father of the complainant. Regarding the alleged incident he deposed that he came to know from the complainant that on 22.06.2007 accused No.1 and 2 and 15 other persons had committed theft of the machines. The evidence of P.W-4 shows that he has no personal knowledge regarding the alleged offence. 17
C.C.245/2008
40. P.W.7 has deposed that on 22.06.2007 at about 1.00 A.M one Yusuf called him over phone and informed him that 10-15 persons were lifting the machines from the shop through crane. He deposed that he went to the shop and owner of the shop informed him that the workshop was being vacated and machines were shifted. He has also deposed that for 2-3 times some persons came and negotiations were going on and he participated in the negotiations.
41 P.W.8 who is cited as an eye witness has deposed that on 22.06.2007 at about 1.30A.M to 1.45 A.M Yusuf called him over phone and informed him about the theft. He deposed that he went to the shop with Yunus within 10-15 minutes and seen two lorries and one crane. Machineries were loaded to the lorries.
42. There is no references about these witness P.W-7 and 8 either in the first information statement or in the oral evidence of first informant i.e, P.W-3. Eeven these 18 C.C.245/2008 witnesses have been treated as partly hostile and cross examined by the Learned Sr.APP. During the cross examination P.W-7 admits that one Zakir informed him about the incident. He also admits that first informant is his relative and he only brought him to the Court on that day. Though he has stated that there took a negotiations but during cross examination he deposed that he does not know the dates of the panchayath. The P.W-8 has also not deposed regarding break opening of the lock and commission of theft by the accused persons. Though he deposed that Yusuf informed him about the incident over phone, but during cross examination he has stated that the first informant informed him about the incident and hence he went to the spot. Thse two witnesses have deposed that they came to know about the theft through one Yousuf. Siad Yousuf is neither cited as charge sheet witness nor examined in this case. They have not specifically deposed regarding the commission of alleged offence by the accused persons.
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C.C.245/2008
42. Except P.W- 3, 7 and 8 the prosecution has not examined any other witnesses to say about the alleged offence. Witnesses examined have not specifically deposed regarding the breaking open of the lock of the premises of the workshop and theft committed by the accused persons. The evidence of P.W-3, 7 and 8 are contrary to each other and also to documentary evidence at Ex.P-2.
43. P.W.5 who is the Manager of NSIC limited has deposed that C.W-3/P.W-4 Munir was supplied machineries under hire purchase agreement. He failed to repay the loan amount. On 06.08.2007 accused No.3, who is the owner of the premises, asked the NSIC to take back the machineries of P.W.-4-Munir Ahmed. When the official went to the spot they came to know though accused No,3 that the accused No.1 Raghunath had taken away the machineries for non payment of his amount. But during the cross examination by the learned counsel for accused persons P.W.5 has stated that he did not visit the garage prior to 08.08.2007. He admits that as per the hire 20 C.C.245/2008 purchase agreement the owner of the machineries is NSIC and the possession was handed over to C.W.3/P.W-4. He has also admitted that on 29.03.2007 at the time of inspection the premises was locked. He admits that he issued document at Ex.P.35.
44. A document at Ex.P.35 is a letter issued by the NSIC on 08.08.2007. A perusal of Ex.P.35 shows that the NSIC Ltd., has repossessed 08 machineries from the premises of the accused No.3 at R.T.Nagar and remaining 03 machineries were not able for repossession. It is also mentioned in Ex.P.35 that the machineries are repossessed based on the request of accused No.3 dated 07.08.2007. It is also mentioned in Ex.P.35 that the machineries were taken by the NSIC with the concurrence from the premises as Munir Ahmed is not traceable. P.W-5 has also admitted that the word "your premises" mentioned in Ex.P.35/D.2 refers to the place at which machineries were installed. There is no dispute regarding the place of work shop. Therefore, the evidence of P.W.5 makes it clear that the authorities of NSIC moved the machines from the 21 C.C.245/2008 workshop. The evidence of P.W.5 and documentary evidence at Ex.P.35 shows that the NSIC has issued a letter after repossessing the machineries from the premises of accused No.3. It is not in dispute that the said premises belonged to accused No.3. Therefore, the evidence of P.W.5 falsified the case of the prosecution that the accused No.1 to 3 have moved the machineries from the premises with an intent to commit theft.
45. Now I have to see whether the investigating officer has recovered said stolen machines from the possession of the accused persons and whether recovery is proved. The P.W-3 has deposed that three days before registering the FIR police took him to Vadadasahalli, Gudibande taluka and where he had seen his machines in the work shop of Niyamath Khan. He has deposed that all the stolen machines were there. He deposed that on 08.08.2007 accused No. 1 to 3 handed over all machines to NSIC Bank and police have not seized these machines. He has further deposed that on 12.08.20007 police took him to Vadadasarahalli and seized 4 feet Lathe machine, 22 C.C.245/2008 Hydraulic press, iron table, wooden stand and one Loona scooter. This evidence of P.W-3 shows that even before registering the FIR, the police found stolen machines in Vadadasarahalli, but they did not seize said machines under pandhanama.
46. A document at Ex.P.1 is the seizure mahazar. A perusal of the seizure panchnama shows that the police have recovered one lathe machine, one power cutting machine, table, 4 plywood stands and one Luna scooter from the house of accused No.1. Witnesses to said panchnama have turned hostile to the case of the prosecution. Therefore, the recovery of the machineries and objects mentioned in the panchnama from the possesion of the accused persons is not proved by the prosecution. Other machineries said to have been stolen from the work shop have not been seized and reported by the police.
47. A document at Ex.P.31 is a leter issued by the Police Inspector of R.T.Nagar Police Station Bengaluru. A careful 23 C.C.245/2008 perusal of the said document shows that in para 8 of the said document it is mentioned that, when the Manager of NSIC went to the shop, it was locked. On enquiry accused No.3 informed the officials of NSIC that the C.W.3 was not paying rent and hence he asked the authorities to take away the machineries. It is further mentioned that on 08.08.2007 at about 3.OO P.M accused No.1 and 2 called the NSIC officials statinhg that they had kept the machineries in a goods vehicle on CBI office road. Accordingly NSIC oficials took 05 machines from there. This statement shows that the machineries were loaded in a goods vehicle and the concerned Police were aware of the same. This document shows that the machineries are in possesion of the NSIC. Despite the same the I.O has not tried to recover or seize that machineries from the NSIC. Even no investigation has been made in this regard, it appears. Said five machines are not recovered from the possession of accused persons. This itself creats seriuos doubt on the case of the prosecution.
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48. A perusal of Ex.P-2 shows that the information regarding the crime was lodged on 25.06.2007. The police have registered the case on 08.08.2007. There is no explaination as to why the police have not registered the case till 08.08.2007 though they received an information of the offence on 25.06.2007 itself. The inordinate delay in registering the case is not explained and this creates serious doubt on the case of the prosecution.
49. A perusal of entire oral and documenary evidence on record shows that no machines have been recovered or seized from the possession of accused persons. Therefore, recovery of stolen property from the posession accused persons is not proved. Under such circumstances, it cannot be said that accused have committed theft of the said machines.
50. The oral and documentary evidence on record are contrary to each other. The evidence of P.W.3 is contrary to his own statement at Ex.P.2. The offence of theft and lurking trespass is not proved beyond all reasonable doubt. 25
C.C.245/2008 Despite sufficient opportunities the prosecution has failed to examine all the charge sheet witnesses. The evidence on record does not inspire the confidence of this Court to hold the accused persons guilty of the alleged offences. The prosecution has failed to prove that the accused had moved machines with dishonest intention from the posession of P.W-3 in order to commit the theft. Hence, I proceed to answer points no.1 and 2 in the Negative and proceed to pass the following....
ORDER Acting under Section 248(1) of Cr.P.C., I hereby acquit the accused No. 1 and 2 of the offences punishable under Section 380 and 457 of the IPC.
Accused No.1 and 2 are set at liberty forthwith and the bail bond of accused and that of surety stand canceled.
Interim custody of the material objects is made absolute.
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C.C.245/2008 (Judgment dictated to the Stenographer, transcribed and typed by her, transcript thereof corrected and then pronounced by me in the open court on this the 08th day of April 2022).
(Padmakar Vanakudre) C/c.XXXII Addl.C.M.M. Bangalore.
:ANNEXURE:
1.List of Witnesses examined on behalf of the prosecution:
P.W.1-Naveed Hasan Saifi P.W.2-Thousif Pasha P.W.3-K.M.Younus P.W.4-Muneer Ahmed P.W.5-Anantha Narayana Prasad P.W.6- U.P.Shivaram Reddy P.W.7-Iqbal Ahmed Khan P.W.8- Safeer Ulla Khan
2. List of Documents marked on behalf of the prosecution:-
Ex.P.1: Seizure Panchanama Ex.P.1 (a,b): Signatures Ex.P.2: Complaint Ex.P.3: Spot Mahazar Ex.P.4: Endorsement of Police Commissioner office dated 25.06.2007 Ex.P.5: Acknowledgement issued by R.T.Nagar.P.S Ex.P.6: Loan application dated 24.02.1999 Ex.P.7: Memorandum of Agreement dated 19.06.1999 Ex.P.8: Original Power of Attorney executed by Muneer Ahmed to the complainant dated 15.07.2000 Ex.P.9 to 21: Payment receipts of the complainant to NSIC Ex.P.22: Certified copy of the order sheet in O.S.4512/2004 Ex.P.23 to 28: Photos 27 C.C.245/2008 Ex.P.29: Letter of the NSIC Bank Senior Manager dated 27.06.2007 Ex.P.30: Certified copy of the order sheet of the proceedings before Hon'ble Lokayuktha Ex.P.31: Certified copy of the complaint dated 26.07.2008 to the Hon'ble Lokayuktha Ex.P.32: Copy of the complaint to the Manager NSIC Bank dated 26.06.2007 Ex.P.33: Certified copy of the affidavit of Shivaram Reddy in W.P. Ex.P.34: Letter of accused No.3 to NSIC Bank Manager dated 09.08.2007 Ex.P.35: Letter of accused No.3 to NSIC Bank, dated 08.08.2007, Ex.P.36: Death certificate of C.W.2 Ex.P.37: Certified copy of the order dated 29.03.2014 in Crl.Appeal No.21 & 32/2007.
3.:- List of witnesses and documents marked on behalf of the accused Ex.D.1-sale receipts dated 25.02.2004 Ex.D.2- Letter of accused No.3 to NSIC Bank, dated 08.08.2007 Ex.D2 (a,b)-Signatures Ex.D.3- Letter issued to C.W.3
4. List of Material objects marked on behalf of the prosecution:
NIL (Padmakar Vanakudre) C/c.XXXII Addl.C.M.M. Bangalore.28
C.C.245/2008 Order pronounced in the open court (vide separate judgment) ORDER Acting U/Sec.248(1) of Cr.P.C., I hereby acquit the accused no. 1 and 2 of the offences punishable under Section 380 and 457 of the IPC.
Accused no.1 and 2 are set at liberty forthwith and the bail bond of accused and that of surety stand canceled.
Interim custody of the material objects is made absolute.
(Padmakar Vanakudre) C/C.XXXII ADDL.C.M.M. BANGALORE.
The accused no. 1 and 2 are directed to execute personal bond for sum of Rs.20,000/-, each 29 C.C.245/2008 for their appearance before appellate Court, if necessary as contemplated in Sec.437(A) of Cr.P.C.
(Padmakar Vanakudre) C/C.XXXII ADDL.C.M.M. BANGALORE.