Bangalore District Court
State By Yalahanka Ps vs No.4 - Smt.Manjula Agreed To Repay The ... on 3 March, 2023
KABC030104912008
IN THE COURT OF THE IV ADDL. C.M.M., BANGALORE
Dated this the 3rd day of March 2023
Present : Sri. Rachoti M. Shirur,
B.A., LL.M., P.G.D. in F.D.R.
IV A.C.M.M. Bangalore.
JUDGMENT UNDER SECTION 355 CODE OF CRIMINAL
PROCEDURE
1. Sl. No. of the case : CC No. 8713/2008
(Crime No.419/2007)
2. The date of commission
of the offence : 28.02.2005
3. Name of the complainant : State by Yalahanka PS
(By Sr.APP)
4. Name of the accused : A1: Suresh, 45 Yrs.,
S/o G. Madhava Shenoy,
R/a. No.108, 10th cross,
B.D.S. Garden, Geddalahalli,
Bengaluru.
A2: H.S.Nagaraj, 65 yrs.,
S/o Subbarao,
(Abated)
(By Sri.VB, Adv. for A1 & A2)
2 CC 8713/2008
A3: Muniraju
A4: Smt. Manjula
(Split up CC No.12165/2016)
5. The offences complained : U/Ss.409, 420 r/w S. 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : A1 Convicted
8. Date of order : 03.03.2023
The Police Inspector, Yalahanka Police Station filed the
Charge Sheet against the accused No.1 to 4 for the offence
punishable under Sections 409 and 420 read with Section 34 of
Indian Penal Code (hereinafter referred as IPC).
2. The brief facts of the prosecution case are as under :
The CW1 - H.S.Dhruvaraj filed written first information
statement contending that he was transferred to the Karnataka Bank
Limited, Sahakaranagar Branch, Bengaluru in the month of
December 2006. He stated that he worked as a incharge Manager
as Ramesh Rao was on leave. Prior to Sri. Ramesh Rao, accused
No.1 - Suresh worked as Manager in the said Bank. After assuming
the charge by Sri.Ramesh Rao as Manager, Head Office instructed
him to review the loan accounts sanctioned by the previous
Manager accused No.1 - Suresh. On reviewing the loan accounts
3 CC 8713/2008
he came to know that in loan account of accused No.3 - Muniraju
became non performing asset. On perusal of documents of the
property which is mortgaged to the Bank found that accused No.3 -
Muniraju gave an application for sanction of loan of Rs.10,00,000/-
for the purchase of house property bearing No.69 situated at
M.Nagar, Yalahanka within the limits of TMC, Yalahanka and his
wife accused No.4 - Smt.Manjula stood as a co-obligant to the said
loan. The loan was sanctioned and the total outstanding loan till
October 2006 is of Rs.10,38,056/-. Accused No.3 - Muniraju and
accused No.4 - Smt.Manjula agreed to repay the said amount at
prevailing rate of 11% interest. In order to ascertain the authenticity
of documents Ramesh Rao visited the TMC, Yalahanka, Bengaluru
and on enquiry he came to know that no such khata is existed in
respect of property mortgaged by the accused No.3 - Muniraju or
his vendor. He also came to know that parent deeds of the property
mortgaged pertaining to the Sy. No.41, 82, 83 and 67 purported to
be issued by the concerned BDO were fabricated for the purpose of
creation of equitable mortgage for availing the said housing loan.
Hence, under all these circumstances the said property is mortgaged
and he unable to trace the existence of the property mortgaged.
Even the empaneled valuer unable to locate the property mortgaged
and accused No.2 - H.S.Nagaraj empaneled valuer had given
valuation report knowing that such property is not existed. Hence,
the first informant came to know that earlier Manager i.e. accused
No.1 - Suresh had not accompanied the valuer at the time of
4 CC 8713/2008
valuation of the property. Hence, accused No.3 - Muniraju and his
wife accused No.4 - Manjula who are borrower and co-obligant,
accused No.2 valuer and accused No.1 the Manager of the said
Bank in colluding with each other with intention to defraud the
Bank obtained the housing loan by depositing the fabricated
documents of the property which is not existed. On the basis of
written first information statement police registered the case under
their station Crime No.419/2007 for the offence punishable under
Sections 409, 465, 468 and 420 of IPC and issued first information
report.
3. During pending investigation accused No.2 appeared through
his counsel and released on bail.
4. The Police Inspector, Yalahanka Police Station after
completion of investigation filed the Charge Sheet against accused
No.1 to 4 for the offence punishable under Sections 409 and 420
read with Section 34 of IPC.
5. My predecessor in office had taken cognizance for the said
offences and registered the case in Criminal Case Register No.III
and issued summons to accused No.2 and NBW to accused No.1, 3
and 4. Accused No.1 appeared through his counsel and released on
bail.
5 CC 8713/2008
6. The copy of Charge Sheet furnished to accused No.1 and 2 as
per Section 207 of Code of Criminal Procedure (hereinafter called
as Cr.P.C.)
7. Accused No.3 and 4 remained absent. My predecessor in
office many time issued process against accused No.3 and 4 but
process is not executed. Hence, accused No.3 and 4 are not secured
even after repeated issuance of processes and my predecessor in
office split up the case against accused No.3 and 4 and directed to
register a separate split up case against accused No.3 and 4 as per
order dated 10.12.2015. Accordingly, office registered the split up
CC No.12165/2016 against accused No.3 and 4.
8. The contention of accused No.2 that he be discharged from
the said offences was rejected as per order dated 05.10.2016.
9. My predecessor in office heard both side and perused all the
materials available on record and framed charge against accused
No.1 and 2 for the said offences and read over and explained in
Kannada language known to them and they did not plead guilty and
claimed for trial.
10. The prosecution in order to prove its case, examined totally 5
witnesses as PW.1 to PW.5 and got marked Ex.P.1 to P.13.
11. Accused No.2 reported as died on 05.10.2021 and case
against accused No.2 is abated as per order dated 11.05.2022.
6 CC 8713/2008
12. As sufficient materials available on record, statement of
accused No.1 under Section 313 of Cr.P.C. was recorded and read
over and explained all the incriminatory evidence available against
him in Kannada language known to him and accused denied the
same, accused No.1 submitted his written reply / statement.
13. I heard arguments of learned Senior Asst. Public Prosecutor
and Sri.VB, Advocate for accused No.1. I perused the reply /
written statement of accused No.1 and all materials available on
record.
14. The prosecution examined CW1 as PW1, CW2 as PW3, CW3
as PW2, CW4 as PW4 and CW5 as PW5. The prosecution got
marked Ex.P.1 - first information statement, Ex.P.2 - transfer order
of accused No.1, Ex.P.3 - Account opening form of accused No.3,
Ex.P.4 - Form No.60, Ex.P.5 - loan sanction order, Ex.P.6 -
valuation report submitted by accused No.2, Ex.P.7 - sale deed
dated 07.03.2005, Ex.P.8 - sale certificate, Ex.P.9 - Statement of
Loan Account of accused No.3, Ex.P.10 - report submitted by PW2,
Ex.P.11 - report submitted by PW4, Ex.P.12 - First Information
Report and Ex.P.13 - certificate of service of accused No.1.
15. Sri.VB, advocate for accused No.1 contended and argued that
prosecution alleged that accused have created Ex.P.8 - sale
certificate and Ex.P.7 - sale deed but the Investigating Officer after
completion of investigation filed charge sheet against the accused
7 CC 8713/2008
No.1 along with other accused for the said offences and he left
Sections 465 and 468 of IPC. Hence, the allegations of forgery
against accused is not proved. As per investigation and materials
placed on record till this day the prosecution has not produced the
Bank loan account application form, legal opinion, memorandum of
deposit of title deeds and other documents. The accused No.1 is not
having any duty to go through the documents. But accused No.1
obtained legal opinion on the loan documents and sanctioned loan
to accused No.3 as per Banking Rules. But the prosecution has not
examined the legal advisor or the person who gave the legal opinion
on documents. The accused have not disputed about the execution
of Ex.P.7 - sale deed. The PW1 or Ramesh Rao or PW5 the
Investigating Officer have not physically verified about the
existence of property mortgaged. PW3 - Sub Registrar is a hearsay
witness and he is not having any personal knowledge about the
facts. PW3 and PW5 are not competent persons to speak on Ex.P.8
- sale certificate. As per Ex.P.5 - loan sanction order loan amount
is credited to the account of vendor of the property mortgaged. But
the Investigating Officer has not examined the vendor of the
property to prove the allegations made against accused No.1. The
prosecution has to prove the allegations of guilt of the accused No.1
beyond all reasonable doubt. But in the present case the prosecution
has not proved the guilt of the accused No.1. Hence, because of
said grounds benefit is to be given to the accused No.1. The
prosecution has not produced crucial documents and examined
8 CC 8713/2008
owner and seller of the property and it also not examined officials
of the Bank. Absolutely prosecution has not proved the nexus
between the accused No.1 with accused No.3 and 4. In the present
case nothing is entrusted to accused No.1. Accused No.1
discharged his duties as per Banking Rules. Accused No.1 has not
cheated any person. Hence, prays to acquit the accused No.1.
16. It is the case of the prosecution that the accused No.3
approached to the accused No.1 - Branch Manager, Karnataka Bank
Limited, Sahakara Nagar branch, Bengaluru that he want to
purchase the house site property bearing No.69 situated at Maruthi
Nagar, Yalahanka, Bengaluru North Taluk and applied for loan in
the first informant Bank. The accused No.3 opened the Bank
account in the first informant Bank and prosecution produced
Ex.P.3 - Bank account opening form wherein accused No.3 given
his address as No.262, 3rd B Cross, Jakkuru Layout, Yalahanka. In
Ex.P.3 introduction column is not filled and no one is introduced
accused No.3 to the first informant Bank. Even then accused No.1
allowed his application and opened the account in the first
informant Bank as Account No.1212500100171201. The
prosecution also produced the Ex.P.4 Form No.60 in which accused
No.3 made declaration and verification and then signed to it. But
the said Ex.P.4 - Form No.60 is not filled up. Accused No.3
mentioned his wife accused No.4 as a nominee in Ex.P.3 - Account
opening form.
9 CC 8713/2008
17. Accused No.3 in order to obtain loan from the said Bank he
produced the Ex.P.8 - sale certificate issued by Maruthi Badavara
Gruha Nirmana Seva Sangha and sale deed dated 07.03.2005.
Hence, on the basis of these documents accused No.3 want to
purchase house situated at site No.69 situated at Maruthi Nagar,
Yalahanka within the limits of TMC, Yalahanka from
Sri.S.Honnappa S/o Sonnappa as per Ex.P.7 sale deed dated
07.03.2005. Here, accused No.1 the Branch Manager of Karnataka
Bank Limited, Sahakara Nagar branch and accused No.2 Valuator
of the property in the said Bank without visiting the property and
verifying as to the existence of said property issued Ex.P.6 -
valuation report. Hence, on the basis of Ex.P.8 - Sale Certificate,
Ex.P.6 valuation report and Ex.P.7 - sale deed accused No.1
sanctioned the loan of Rs.10,00,000/- as per Ex.P.5 loan sanction
order and credited to the account of accused No.3 and accused No.4
who is wife of accused No.3 and co-obligant to the said loan and in
order to show that the said amount is credited to the account of
accused No.3 produced the Ex.P.9 - statement of account of accused
No.3.
18. In order to show that accused No.1 worked as a Manager in
Karnataka Bank Limited, Sahakaranagar Branch, produced Ex.P.2
transfer order of accused No.1 and Ex.P.13 - certificate of service
issued by the then Branch Manager, Karnataka Bank Limited,
Sahakaranagar branch certifying that accused No.1- Suresh M.
10 CC 8713/2008
worked as a Branch Manager of said branch from 28.03.2004 to
12.12.2006.
19. Here after transfer of accused No.1 from the said branch
Ramesh Rao assumed the charge of Branch Manager, Karnataka
Bank Limited, Sahakaranagar Branch, Bengaluru city. In the
Ex.P.1 - first information statement and also in the evidence of PW1
stated that after transfer of accused No.1, Ramesh Rao assumed the
charge of Branch Manager of the said Bank. The Head Office,
Karnataka Bank Limited instructed and directed Ramesh Rao,
Manager, Kanarataka Bank Limited, Sahakaranagar Branch to
review the Non Performing Assets loan accounts which sanctioned
during the period of accused No.1. Accordingly Ramesh Rao
reviewed all loan accounts sanctioned during the service of accused
No.1 and he came to know that 25 loan accounts which are relating
to the housing loan found that property khata are not existed and
among them one of the present loan account of accused No.3.
Hence, the said facts also heard by the PW1 and he specifically
deposed as
"ಯಲಹಹಂಕ ಸರಹದದ್ದಿನಲ ಬರರುವ ಟಿಎಹಂಸ ಗ ಹಹಹೋಗ
ದಾಖಲೆಗಳನರು
ನ ಪರಿಶಹೋಲನ ಮಾಡಿದರರು. ಪರಿಶಹೋಲನ
ಮಾಡರುವ ವಹೋಳೆಯಲ ಸರುಮಾರರು 25 ಸಾಲದ ಖಾತೆಗಳರು
ದ್ದಿ ಸದರಿ ಸಸತತ್ತಿಗ
ಮನಯ ಸಾಲಕಕ ಸಹಂಬಹಂಧಪಟಟ ಖಾತೆಗಳಾಗದರು
ಸಹಂಬಹಂಧಿಸದಹಂತೆ ಯಾವುದಹೋ ಖಾತೆಗಳರು ಇಲಲ ಎಹಂದರು ಕಹಂಡರು
ಬಹಂದವು."
11 CC 8713/2008
20. PW1 also came to know that Ramesh Rao visited the TMC,
Yalahanka office to verify the khata of site No.69, Maruthinagar,
Yalahanka and he came to know that no khata is found in respect of
the said property. Accordingly, Ramesh Rao, Branch Manager of
said branch informed the same to the Head Office. Hence, Head
Office instructed and directed to file first information statement
against accused persons. Ramesh Rao, Branch Manager was on
leave because of which PW1 lodged the Ex.P.1 first information
statement stating that accused No.1 and 2 without physically
visiting and verifying the existence of the property submitted Ex.P.6
- valuation report and sanctioned the loan and thereby committed
the said offences.
21. PW1 in his evidence specifically stated and deposed as
"ಬಡಿಒ ಕಛಹೋರಿಯಹಂದ ಹಕರು
ಕ ಪತ ತ ಮಹಂಜಹರಗದಹೋ ಇರರುವುದರು
ಕಹಂಡರು ಬಹಂತರು. ಸದರಿ ದಾಖಲೆಗಳನರು
ನ ಸಾಲ ಪಡಯರುವ
ಉದಶಕಕಗ equitable mortgage ಮಾಡರುವ ಸಲರುವಗ
ಸಸಷಟಸದರ ಎಹಂದರು ಕಹಂಡರು ಬಹಂತರು. ಆನಹಂತರ ಸಸಳಕಕ ಹಹಹೋಗದಹೋ
ಆಸತ್ತಿಯ ಬಲೆ ಬಗಗ valuation report ಕಹಟಿಟದರ ಎಹಂದರು ಮಾಹತ
ಗಹತತ್ತಿಯತರು. ಎರಡನಹೋ ಆರಹಹೋಪ valuator ಎಹಂದರು
ಗಹತತ್ತಿಯತರು. Valuator ಜಹತೆ ಬಬಹಂಕ ಮಾಬನಹೋಜರ ಹಹಹೋಗ
ನಹಹೋಡಿಲಲ. ಆಗ ಒಹಂದನಹೋ ಆರಹಹೋಪ ಬಬಹಂಕ ಮಾಬನಹೋಜರ
ಆಗದದ್ದಿರರು."
22. The PW1 identified the Ex.P.1 first information statement and
his signature in it. Here the prosecution in order to show that the
12 CC 8713/2008
first informant Bank sanctioned the loan in favour of accused No.3
and 4 produced the Ex.P.5 - loan sanction order which discloses the
fact that Rs.10,00,000/- credited to the account of accused No.3.
Hence, in order to show that the loan amount of Rs.10,00,000/-
credited to the account of accused No.3 produced the Ex.P.9
statement of loan account of accused No.3. Here, the prosecution
produced the Ex.P.8 - sale certificate and Ex.P.7 sale deed dated
07.03.2005. Here, the prosecution in order to show that the said
documents are created and the alleged property is not existed it
examined PW1 and PW5. PW1 and PW5 in their evidence
specifically deposed that in respect of house property bearing site
No.69 documents are not existed in the office of TMC, Yalahanka.
23. Hence, the oral evidence of PW1 and PW5 coupled with
Ex.P.8 - sale certificate and Ex.P.7 - sale deed establish the fact that
Ex.P.8 is created for the purpose of obtaining loan from the first
informant Bank. The advocate for accused cross-examined the
PW1 and PW5 but elicited nothing in order to disprove the evidence
of PW1 and PW5 and prove that Ex.P.8 and Ex.P.7 are genuine
documents and the property stated therein is existed.
24. Here, on the basis of Ex.P.8 accused No.3 and 4 applied for
sanction of loan from the first informant Bank alleging that the
house situated at site No.69 of Maruthinagar, Yalahanka and also
produced the Ex.P.7 - sale deed dated 07.03.2005. Here, the Ex.P.7
13 CC 8713/2008
sale deed is registered in the Sub Registrar Office, Yalahanka. The
prosecution examined the PW3 Retired Sub Registrar, Bengaluru.
In his evidence stated that, Sri. S.Ponnappa wanted to sell the house
site No.69 in favour of accused No.3 and produced the Ex.P.8 and
Ex.P.7 and received Government Fee on Ex.P.7 and he registered
the Ex.P.7 Sale deed. The PW3 identified his signature in Ex.P.7
sale deed which is marked as Ex.P.7(a). Later the Investigating
Officer enquired him and then he came to know that in order to
obtain loan from the first informant Bank Ex.P.8 - sale certificate
and other documents are created. The advocate for accused No.1
and 2 cross-examined the PW3 but nothing is elicited in order to
show the fact that Ex.P.8 - sale certificate are genuine. In the cross-
examination of PW3 it is put the suggestion that he has not visited
the property and verified the existence of the property. But the duty
of Sub Registrar is only to register the deeds which have been
presented to him after receipt of Government charges. Hence, it is
not the duty of the Sub Registrar to visit each of the properties
before he registers the deed. Hence, the Ex.P.7 sale deed shows as
if S.Honnappa executed the sale deed in respect of house site
No.69, khata No.4329, Maruthinagar, Yalahanka Hobli of
Bengaluru North Taluk in favour of accused No.3 - Muniraju.
Here, in fact the said property is not existed at all even then the
accused No.3 presented it for registration and got registered the
Ex.P.7 sale deed. Further accused No.3 used the Ex.P.7 sale deed
as if the said property is existed and on the basis of it and other
14 CC 8713/2008
document obtained loan of Rs.10,00,000/- from the first informant
Bank. Hence, for the said loan accused No.4 stood as a co-obligant.
Hence, these illegal acts of accused show that in order to gain
wrongfully and to cause wrongful loss to the first informant Bank
and with dishonest intention obtained the loan from the first
informant Bank.
25. Hence, looking at the evidence of PW1, PW3 and PW5
coupled with Ex.P.7 - sale deed, Ex.P.8 - sale certificate it is clear
that Ex.P.8 - sale certificate is created. Here, PW1 deposed that
after transfer of accused No.1 from the Karnataka Bank Limited,
Sahakaranagar Branch, Bengaluru, Ramesh Rao assumed the charge
and Head Office directed him to verify the loan accounts sanctioned
by accused No.1 during his period which are non performing assets.
Accordingly, after verification Ramesh Rao came to know that 25
loan accounts are non performing assets out of which the present
loan account is also one among them. PW1 specifically deposed
that when Ramesh Rao verified the documents and visited the
concerned Government office he came to know that the khata is not
existed in the office in the name of accused No.3 or his previous
vendor. He tried to search the house property bearing site No.69,
khata No.4329, Maruthi Nagar, Yalahanka, Yalahanka Town
Municipal corporation but such property is not existed at all. Hence,
the accused No.1 and 2 with common intention without visiting the
spot issued Ex.P.6 Valuation Report and thereby sanctioned the loan
15 CC 8713/2008
in favour of accused No.3. Here, on perusal of Ex.P.6 it is
specifically mentioned that accused No.2 visited the spot i.e. site
No.69, khata No.4329, Maruthinagar, Yalahanka, Bengaluru North
Taluk on 28.02.2005 with accused No.1 and in the Ex.P.6 valuation
report of the property mentioned as:
"I have inspected the property belonging to Sri.S.Honnappa and the
report of valuation is furnished herewith for your kind perusal.
1. a. Name of the valuer : H.S.Nagaraj
b. Since when in the banks approved : 29 years
panel
2. Date of visit : 28.02.2005
3. Purpose of visit : Bank purpose
4. Persons accompanying / available at : Sri.Muniraju,
the site proposed buyer of the property
5. Name & branch head accompanied & : Sri. Suresh, Manager,
his designation Karnataka Bank Ltd., Sahakaranagar,
Bangalore.
6. Details of the property : : Sri.S.Honnappa, S/o Sri.Sonnappa, Site
a) Name and address of the owner No.69, Katha No.4620, Maruthi Nagar,
Yelahanka Hobli, Bengaluru North Tq.
b) Complete address of the property Same as above
Door No. / site No. / Sy. No. : Site No.69, Katha No.4620
Name and address of the proposed buyer : Sri.Muniraju S/o Late Sri.Subbanna,
of the property No.262, 3rd B cross, Jakkur Layout,
Yelahanka Hobli, Bangalore North Tq.
c) Extent of land : North to South : 40'0"
East to West : 30'0"
= 1200.00 sft.
d) Boundaries of property : North by : Site No.52
South by : Private property
East by : Site no.68
West by : Site No.70
16 CC 8713/2008
e) Type / class of construction : Class II
7. Details of the building
i) Whether building constructed strictly : Yes
according to the sanctioned plan
Area of building : GF 800.00 sft.
FF 600.00 sft.
Total 1400.00 sft.
ii) year of construction : 2002
iii) If building under construction (give : Building already constructed
full details)
iv) Any additions improvement carried : Nil
out
vii) Cost of construction : Rs.8,40,000.00
viii) Amount of depreciation written : Nil
down
ix) Present value : Rs.8,40,000.00
x) Present condition / state of building : Good
7. Present market value :
Land 1200.0 sft. @ 500/- : 6,00,000.00
Building 8,40,000.00
Compound wall, Sump tank, OHT 50,000.00
Total Rs.14,90,000.00
Basis of present value :
a. Present depreciated value : Rs.14,90,000.00
b. Market value : Same as above
c. Rate adopted : Rs.500.00 per sft. - Site
Rs.600.00 per sft. - Building
d. Basis for the adopted rates : Prevailing market rate of residential site in
this area and construction cost of building
as on that date
e. In case of sale by the bank what will
be the distress sale value : Rs.13,00,000.00
f. whether whole or part of the property
notified for acquisition : No
h. Location of the property : This is located very near to the main road
in a middle class residential area
17 CC 8713/2008
i. Classification of locality : Middle class
j. Civil amenities : Provided
k. Proximity to surface communication : Good
l. Distance from city / corporation limits : Inside Yelahanka CMC limits
m. Distance from central bus stand : 17 kms
n. Distance city railway station : 17 kms
o. Distance from Corporation office : 19 kms
p. Distance from Sahakaranagar Branch : 8 kms
Details of tax paid Year of Assessment Amount Date of tax paid
CMC tax 2004-2005 Rs.149/- 05.03.04
Particulars of insurance : Not yet done
10. Since how long owing the property : 23.03.1989
12. Type of ownership : Sole
15. Purchase price : ------------
16. Whether self occupied : Yes
17. No. of tenants : NA
18. Total monthly income : NA
19. Whether independent house : Independent house
20. In which floor is located : GF + FF
21. Service items available : CMC water connection is provided
22. If the property is residential : Yes
23. a) Any encroachment tenancy and
other negative aspects : No
b) Are there any slums around this
property : No
c) Is there any burial ground or lake near
by : No
24. Whether the property valued earlier, If : No
so
Details of construction :
Foundation : Size stone has been done
Super Structure : Table moulded brick masonry in CM, plastered on both side in CM
has been done.
18 CC 8713/2008
Roofing : RCC slab has been laid
Flooring : Mosaic flooring has been done
Doors & windows : Mathi & honne wood doors and windows are provided.
Electrification : AHE facilities are provided
Water supply : CMC water supply is provided.
Giving due consideration to the location of the property, class of construction of the
building and also the present market value, I certify the present value of the above
property as on to date will be Rupees Fourteen lakhs ninety thousand only.
Declaration :
a. I hereby declare that the information furnished above is true to the best of my
knowledge and belief.
b. I have no direct or indirect interest in the property valued
c. I have inspected the property personally on 28.02.2005
d. I have not been found guilty of misconduct in my professional capacity.
CERTIFICATE
I have accompanied the valuer Sri.H.S.Nagaraj who is in the panel of Bank's valuers.
While verifying the assets and I confirm that the valuation given by him is reasonable
and fair on the prevailing market price and we can accept the same."
26. Hence, looking at the contents of Ex.P.6 valuation report it is
clear that accused No.1 and 2 issued it as if they visited the site
No.69, khata No.4620, Maruthinagar, Yalahanka. It is also
important to note that accused No.1 and 2 signed to it and accused
No.1 issued certificate to that effect. Hence, the accused No.1 who
is Manager and accused No.2 who was Valuator of the property of
Karnataka Bank Limited, Sahakaranagar Branch, Bengaluru
without visiting the spot issued Ex.P.6 valuation report. Further
accused No.1 sanctioned loan of Rs.10,00,000/- in favour of
accused No.3 as per Ex.P.5 loan sanction order to which accused
No.4 stood as co-obligant and credited the said amount in the
account of accused No.3 and the same is mentioned at Ex.P.9 - loan
19 CC 8713/2008
account statement of accused No.3. Here, the advocate for accused
No.1 cross-examined the PW1 but nothing elicited in order to prove
the fact that house property bearing site No.69, Khata No.4620,
Maruthinagar, Yalahanka CMC limits as mentioned at Ex.P.6
valuation report or site No.69, Yalahanka TMC khata No.4329,
Maruthinagar, as mentioned at Ex.P.7 sale deed or site No.69,
Maruthi Nagar as mentioned at Ex.P.8 - sale certificate is existed.
In the cross-examination PW1 specifically stated that enquiry was
conducted in the Bank because of which he came to know that
accused committed fraud to first informant Bank. He also deposed
that when loan account of accused No.3 became non performing
asset it revealed that accused No.1 to 4 cheated Bank. He also
deposed in the cross-examination that valuator of the Bank valuing
the property which showed by the borrower. Here PW1 also stated
that he gave statement before the police which said by his superior
officer. But the fact remains as it is that accused No.1 and 2 issued
Ex.P.6 valuation report as if they visited the site No.69, khata
No.4620, Maruthinagar, Yalahanka TMC limits, Bengaluru North
Taluk as mentioned and extracted above from Ex.P.6 which itself
speaks that as if accused No.1 and 2 visited the spot and prepared
the valuation report of the said property. Ex.P.6 contains the
declaration and signature of accused No.2 and certificate of accused
No.1. Hence, looking at the evidence of PW1 with PW3 and PW5
and Ex.P.3 - account opening form, Ex.P.4 - Form No.60, Ex.P.5 -
loan sanction order, Ex.P.6 - valuation report, Ex.P.8 - sale
20 CC 8713/2008
certificate and Ex.P.9 - statement of account of accused No.3
establishes the fact that accused No.1 and 2 without visiting the said
site property prepared Ex.P.6 valuation report and on the basis of
Ex.P.8 - sale certificate sanctioned loan of Rs.10,00,000/- in favour
of accused No.3 and 4 for the purchase of said site property as per
Ex.P.7 sale deed and said property is not existed at all.
27. Here, on the basis of Ex.P.1 - first information statement
PW5 registered the Ex.P.12 - first information report. PW5 deputed
PW2 and PW4 for the search of accused who were absconded.
PW2 and PW4 in their evidence deposed that they searched the
accused No.1, 3 and 4 but they did not find them and on enquiry
near their house they came to know that after registration of this
case they were absconded and to that effect they gave their report as
per Ex.P.10 and Ex.P.11 respectively. Advocate for accused cross-
examined PW2 but nothing is elicited to disprove the Ex.P.10 -
report and evidence of PW4 remained unchallenged as advocate for
accused No.1 submitted no cross-examination of PW4.
28. PW5 in his evidence specifically stated that he recorded the
statements of PW2 to PW4. He arrested accused No.2 and released
on bail as per order. He also deposed that he received Ex.P.2
appointment and transfer order of accused No.1 to the Karnataka
Bank Ltd., Sahakara Nagar Branch, Bengaluru, Ex.P.13 - certificate
of service of accused No.1 in the said Bank, Ex.P.3 - account
21 CC 8713/2008
opening form, Ex.P.4 - Form No.60, Ex.P.5 - loan sanction order,
Ex.P.6 valuation report, Ex.P.8 - sale certificate, Ex.P.7 - sale deed
and Ex.P.9 statement of loan account of accused No.3. Hence on
the basis of investigation accused persons to get the amount from
the Bank on the basis of created document obtained loan and
cheated Bank. Accused No.1 on the basis of created documents
sanctioned loan and thereby accused persons misappropriated the
amount and cheated the Bank. He filed charge sheet against the
said accused No.1 to 4. Here, advocate for accused No.1 cross-
examined the PW5 and in cross-examination he specifically
deposed that he tried to search the said mortgaged property but the
said property is not physically existed. PW5 has not examined
Honnappa who gave Ex.P.8 - sale certificate to accused No.3 and 4.
In the cross-examination, in order to disprove the case of
prosecution accused No.1 has not elicited any of material facts
except the denial of his evidence. Here the PW5, who is
Investigating Officer after investigation came to know that on the
basis of created documents accused No.3 and 4 obtained the loan
and accused No.1 and 2 without visiting the site issued Ex.P.6 and
accused No.1 sanctioned the loan. Hence, looking at all the
materials placed on record accused No.1 is entrusted with property
i.e., money and he is having dominion over the money of the Bank
to sanction loan to the customers who fulfill the conditions of Bank.
He is having duty towards the Bank while sanctioning the loan.
22 CC 8713/2008
The accused No.2 was the Valuator of the Bank. Hence, accused
No.1 and 2 under duty to visit the spot and submit the valuation
report to the first informant Bank. But accused No.1 and 2 with
dishonest intention concealed the fact of non existence of said
property and also deceived the first informant Bank as if they
visited the property and prepared the Ex.P.6 and submitted to the
first informant Bank. Hence, on the basis of false Ex.P.8 - sale
certificate sanctioned loan of Rs.10,00,000/- in favour of accused
No.3. Here, accused No.1 knows the fact that in order to open the
account in Bank one of its customers shall introduce and sign as
introducer in the account opening form. But accused No.1 knowing
the fact that in the Ex.P.3 introduction column is not filled and no
one introduced accused No.3 to the Bank even then opened the
account of accused No.3 in the first informant Bank. Hence, the
accused No.1 who is employee and agent of first informant Bank
caused wrongful loss to the first informant Bank by disbursing loan
in favour of accused No.3. Here accused No.3 who is borrower of
loan of Rs.10,00,000/- from the first informant Bank he did not
repay the said loan amount to the Bank and account became NPA.
Accused No.4 stood as a co-obligant to the said loan. Here accused
No.1 sanctioned the loan on the basis of Ex.P8 Sale Certificate and
Ex.P.7 sale deed. Here PW1 and PW5 specifically deposed that
they visited the office of TMC, Yalahanka and also tried to search
the existence of said property but the records of said property are
23 CC 8713/2008
not available in the office and they came to know that said property
is not existed. Hence, PW-3 deposed that he registered Ex.P.7 sale
deed after receipt of Government fees. Accused No.1 knows that
house property bearing site No.69, Khata No.4620, Maruthinagar,
Yalahanka TMC limits as mentioned at Ex.P.6 valuation report or
site No.69, Yalahanka TMC, khata No.4329, Maruthinagar as
mentioned at Ex.P.7 sale deed or site No.69 of Maruthi Badavane as
mentioned at Ex.P.8 - sale certificate is not existed at all even then
he sanctioned loan to accused No.1. Hence, to show the same
prosecution produced Ex.P.5 Loan Sanction order and Ex.P.9
statement of loan account of accused No.3. Hence, as per evidence
of PW.1 and looking at Ex.P.1 first information statement and
Ex.P.9 statement of loan account of accused No.3 as on date of
filing of Ex.P.1-first information statement outstanding loan is of
Rs.10,34,056/- upto October 2006. Here as per Ex.P.6 valuation
report it is stated and mentioned that as if accused No.1 and 2
visited the site No.69 in Khata No.4620, Maruthinagar, Yalahanka
TMC Limits but in fact the said Site property is not existed. Hence,
accused with common intention to cheat the first informant Bank
Accused No.1 sanctioned the loan in favour of accused No.3.
Hence, accused No.1 knowing that said property is not at all existed
even then sanctioned loan from the first informant Bank to accused
No.3 and thereby cheated the first informant Bank. Hence,
expression entrusted in Section 409 of IPC is used in wide sense
24 CC 8713/2008
and include in all cases in which property is voluntarily handed over
for a specific purpose and is dishonestly disposed of contrary to the
terms on which possession has been handed over. Hence accused
knowing well that said property is fictitious even then as per Ex.P.5
loan was sanctioned and credited in the account of accused No.3
which is shown at Ex.P.9 - statement of loan account of accused
No.3. Hence, to the said loan accused No.4 stood as a co-obligant.
Hence, accused No.1 cheated the first informant Bank.
29. Hence, prosecution proved through its oral and documentary
evidence essential ingredients of Sections 409 and 420 read with
Section 34 of IPC against accused No.1. Hence, prosecution proved
its case beyond all reasonable doubt and in view of above stated
facts, circumstances, evidence and reasons I proceed to pass the
following :
ORDER
Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Office shall not destroy the records of this case till adjudication of split up CC No.12165/2016.
Looking at facts and circumstances of case and nature of offences accused No.1 is not entitled for benefits under Probation of Offenders Act.
25 CC 8713/2008Hence, case is posted for hearing on sentence.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 3rd day of March 2023) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Accused No.1 and Sri.VB, advocate for accused No.1 and Sr.APP present.
Accused No.1 submitted that he did not commit any of the alleged offence. As per Banking Rules sanctioned loan to accused No.3 and 4. He also submitted that he is old aged person and now he is 60 years old. Hence, accused No.1 submitted to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This case is registered in the year 2008. Accused No.1 appeared through out the trial. It appears that accused No.1 is aged person. Hence, accused No.1 is having family and responsibility to maintain his family. Hence, 26 CC 8713/2008 taking into note of age of accused No.1, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and accused No.1 shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and accused No.1 shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 if any during the investigation and trial is hereby set off to the period of imprisonment.27 CC 8713/2008
Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 3rd day of March 2023) (Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : H.S.Dhruvaraj PW.2 : Puttaswamy PW.3 : Anna Rajan PW.4 : Mallegowda PW.5 : M.Prabhushankar
List of exhibits marked for prosecution:-
Ex.P.1 : First information statement,
Ex.P.1(a) Signature of PW1
Ex.P.1(b) Signature of PW5
Ex.P.2 : Transfer order of accused No.1
Ex.P.2(a) Signature of PW5
Ex.P.3 : Account opening form of accused No.3
Ex.P.3(a) Signature of PW5
Ex.P.4 : Form No.60
Ex.P.5 : Loan sanction order
Ex.P.6 : Valuation report submitted by accused No.2
Ex.P.6(a) Signature of PW5
Ex.P.7 : Sale deed
Ex.P.7(a) Signature of PW3
Ex.P.7(b) Signature of PW5
28 CC 8713/2008
Ex.P.8 : Sale certificate
Ex.P.9 : Statement of Loan Account of accused No.3 Ex.P.10 : Report submitted by PW2 Ex.P.10(a) Signature of PW2 Ex.P.11 : Report submitted by PW4 Ex.P.11(a) Signature of PW4 Ex.P.12 : First Information Report Ex.P.12(a) Signature of PW5 Ex.P.13 : Certificate of service of accused No.1 Ex.P.13(a) Signature of PW5 List of M.Os marked for prosecution:- Nil List of witnesses, exhibits and M.Os marked on behalf of the accused:- Nil.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.29 CC 8713/2008 30 CC 8713/2008
Accused No.1, Sri V.B advocate for A1 and Sr.APP present.31 CC 8713/2008
ORDER (Pronounced in open court vide separate order) Acting under Section 248(2) of Code of Criminal Procedure accused No.1 found guilty for the offence punishable under Sections 409 and 420 read with Section 34 of Indian Penal Code.
Office shall not destroy the records of this case till adjudication of split up CC No.12165/2016.
Looking at facts and circumstances of case and nature of offences accused No.1 is not entitled for benefits under Probation of Offenders Act.
Hence, case is posted for hearing on sentence.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
For hearing on sentence.
Kept by IV ACMM Case is called out later.
Accused No.1 and Sri.VB, advocate for accused No.1 and Sr.APP present.32 CC 8713/2008
Accused No.1 submitted that he did not commit any of the alleged offence. As per Banking Rules sanctioned loan to accused No.3 and 4. He also submitted that he is old aged person and now he is 60 years old. Hence, accused No.1 submitted to impose minimum sentence or fine only.
Learned Sr.APP submitted that prosecution proved the charges levelled against accused No.1 and prays to impose maximum sentence on accused No.1.
This case is registered in the year 2008. Accused No.1 appeared through out the trial. It appears that accused No.1 is aged person. Hence, accused No.1 is having family and responsibility to maintain his family. Hence, taking into note of age of accused No.1, said submission and facts and nature of offence and its impact on the society this court is of opinion that accused No.1 should undergo imprisonment. If court takes lenient view it would send wrong message to society. Hence, keeping in view nature of offence and punishment prescribed for the said offence this court proceeds to pass the following :
:Sentence:
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a 33 CC 8713/2008 period of 2 years and accused No.1 shall also pay fine of Rs.10,000/- for the offence punishable under Section 409 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
The accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of 2 years and accused No.1 shall also pay fine of Rs.10,000/- for the offence punishable under Section 420 read with Section 34 of Indian Penal Code. In default of payment of fine, accused No.1 shall undergo simple imprisonment of 2 months.
All sentences shall run concurrently.
Acting under Section 428 of Code of Criminal Procedure, 1973, the period of detention of accused No.1 if any during the investigation and trial is hereby set off to the period of imprisonment.
Office is hereby directed to supply copy of this Judgement to accused No.1 immediately at free of cost.
(Rachoti M. Shirur) IV Addl. Chief Metropolitan Magistrate, Bangalore.
Sri.VB, Advocate for accused No.1 filed bail application under Section 389(3) of Cr.P.C for accused No.1 along with surety affidavit, surety declaration, photocopy of sale deed, khata extract, khata certificate, 34 CC 8713/2008 Uttara Patra and his aadhar card and prays to release accused No.1 on his conviction bail bond.
Heard both side.
Accused No.1 intended to prefer an appeal before the Hon'ble Sessions Court against the judgment and he offered surety and prayed to suspend the sentence till completion of appeal period.
Hence, accused No.1 decided to prefer appeal against judgment of this case and offered surety. Hence, court proceed to pass following...
ORDER The bail application filed under Section 389(3) of Cr.P.C. is hereby allowed and accused No.1 is released on conviction bail bond and operation and execution of sentence is suspended till completion of appeal period only on the following conditions:
1) Accused No.1 shall execute his personal bail bond for Rs.10,000/- with surety for like sum.
Surety by name Vignesh K. Kamath is present and ready to stand as surety to accused No.1 and furnished as a security his property bearing flat 35 CC 8713/2008 No.G-08 situated at Lakeside Pearlite Developers, Parappana Agrahara village, Begur Hobli.
As per office note name of surety not found in surety management system.
Enquired the surety and perused the documents and his surety is accepted for release of accused No.1 on conviction bail bond.
Office is hereby directed to take bonds.
IV Addl. CMM, Bangalore.