Bangalore District Court
The State Of Karnataka Through vs 2. C.Shivalingegowda on 13 March, 2023
1 CC.No.20300/10
KABC030206642010
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 13th DAY OF MARCH 2023
C.C. No.20300/10
Present: SRI. B.C.CHANDRASHEKAR
B.A., LL.B.,
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : The State of Karnataka through
Shankarpuram Police Station
Rep.by Sr.APP
V/s.
Accused 2. C.Shivalingegowda,
s/o.Chikkadegowda, 43 yrs
3. K.H.Padma,
w/o.C.Shivalingegowda, 40 yrs,
A2 and 3 are r/at.No.1604, 1st A
cross, 1st stage, Chandra layout,
Bengaluru.
4. K.S.Gayathri, w/o.Venkatesh, 38
yrs, Tejas Nilaya, Kengunte,
2 CC.No.20300/10
Maruthinagar, Mallathahalli,
Bengaluru.
1. Arvindkumar (split up)
DATE OF COMMENCEMENT : 02/11/2007
OF OFFENCE
DATE OF ARREST OF THE : Accused No.2 to 4 are on bail
ACCUSED
OFFENCES ALLEGED : U/s.465, 468, 471, 420 r/w.34 of
IPC
DATE OF COMMENCEMENT : 11/08/18
OF EVIDENCE
DATE OF CLOSING OF : 22/11/18
EVIDENCE
OPINION OF THE JUDGE : Found not guilty
(B.C.CHANDRASHEKAR)
XXIV A.C.M.M., BENGALURU.
: J U D G M E N T :
The PI of Shankarpuram Police station has filed
chargesheet against accused persons for the offences
punishable u/s.465, 468, 471, 420 r/w.34 of IPC.
2. The brief facts of the case of the prosecution are
that on 02.11.2007 accused no.2 and 3 have approached the
State bank of Mysore situated at No.8/6, 1st Floor, Rangarao
3 CC.No.20300/10
road, Shankarpuram to purchase a residential house bearing
No.1072, situated Ward No.79, 1st Stage, 1st Cross,
Gangondanahalli and submitted an application and accused
No.4 stood as a guarantor for the said loan and accused no.1
has created the documents to get the loan and obtained the
loan of Rs.35,00,00000 and after verification the CW 12 has
given the report that those documents are created, thereby
the accused persons have made the CW1 to CW13 to believe
the forged documents as a true documents and took the loan
of Rs.35 lakhs and without repaying the loan, the accused
no.1 to 4 have committed the offences u/s.465, 468, 471, 420
r/w.34 of IPC.
3. On the basis of the complaint of the CW 1, this crime has
been registered by Shankarpuram Police Station. During the
crime stage, the accused no.3 has appeared before the court along
with anticipatory bail through her counsel and filed the bail
application. Accordingly, she has released on regular bail. After
investigation, Investigating officer has submitted the chargesheet
against the accused no.1 to 4 for the offences u/s.465, 468, 471,
420 r/w.34 of IPC. The cognizance for the said offences are taken.
The accused no.3 Gayathri during the crime stage became the
accused no.4 in the chargesheet. Accordingly, accused no.4 has
enlarged on bail by representing through the counsel. In order to
secure the presence of accused no.1 to 3 as per the chargesheet,
this court issued number of NBWs. Inspite of issue of number of
4 CC.No.20300/10
NBWs, the presence of accused no.1 to 3 could not be secured.
Hence, case against accused no.1 to 3 is ordered to be split up vide
orders dtd: 11/9/14.
4. The copies of the prosecution papers have furnished to the
accused no.4 as contemplated u/s.207 of Cr.P.C., After being
heard the arguments before charge, as there were no grounds to
discharge accused no.4, charge for the offences u/s.465, 468, 471,
420 r/w.34 of IPC have been framed & read over, explained to the
accused no.4 in the language best known to her. The accused
no.4 has not pleaded guilty and claims to be tried. Hence, the case
taken up for trial. The split up case has been registered against
accused no.1 to 3 in CC.No.35906/14. On issuance of NBW
against accused persons, accused no.2 and 3 have appeared in the
split up case and enlarged on bail. Since presence of accused no.2
and 3 has secured in the split up case as per the order dtd:
22/5/15, they have been retained in this case and ordered to
appear in this case, thus, again accused no.2 and 3 have taken in
this case and the split up case continued only against accused
no.1. Accordingly, again after being heard the arguments, charge
have been framed against accused no.2 and 3 and read over the
explained to the accused no.2 and 3, they have not pleaded guilty
and claims to be tried. Hence, the case continued to record the
evidence to prove the guilt of the accused no.2 to 4.
5 CC.No.20300/10
5. In order to prove the guilt of the accused no.2 to 4, the
prosecution has examined 10 witnesses as PW 1 to 10 out of
15 witnesses as cited in the chargesheet. 66 documents have
been marked as Ex.P.1 to 66. After prosecution evidence, the
accused no.2 to 4 have been examined u/s.313 of Cr.P.C., &
they have denied the prosecution evidence. The accused no.2
to 4 have not chosen to submit the defence evidence.
6. Heard the arguments of learned APP and counsel for
accused no.2 to 4. Perused, On the basis of the above, the
following points have arises for my consideration :
1) Whether prosecution proves beyond
reasonable doubt that the accused
persons with common intention to
commit an offence on 02.11.2007 with
an intention to purchase a residential
property situated at No.79, 1st Stage, 1st
Cross, Gangondanahalli, House
No.1072, the accused No.2 and 3
applied for loan to purchase the site in
State Bank of Mysore situated at
Rangarao Road, No.8/6, 1st Floor and
accused No.4 has given surety for the
said loan and accused No.1 by creating
fabricated documents got sanctioned
loan of Rs.35,00,00000 and thereby
forged the documents and thereby
committed the offences u/s.465 r/w.34
of IPC ?
6 CC.No.20300/10
2) Whether prosecution proves beyond
reasonable doubt that the accused
persons in furtherance of the above act,
applied for loan to purchase the site in
State Bank of Mysore situated at
Rangarao Road, No.8/6, 1st Floor and
accused No.4 has given surety for the
said loan and accused No.1 by creating
fabricated documents got sanctioned
loan of Rs.35,00,00000 and forged the
documents to cheat the bank and
thereby committed the offences u/s.468
r/w.34 of IPC ?
3) Whether prosecution proves beyond
reasonable doubt that the accused
persons in furtherance of the above act
applied for loan to purchase the site in
State Bank of Mysore situated at
Rangarao Road, No.8/6, 1st Floor and
accused No.4 has given surety for the
said loan and accused No.1 by creating
fabricated documents got sanctioned
loan of Rs.35,00,00000 and
fraudulently used the fabricated
documents as genuine and thereby
committed the offences u/s.471 r/w.34
of IPC ?
4) Whether prosecution proves beyond
reasonable doubt that the accused
persons in furtherance of the above act
applied for loan to purchase the site in
State Bank of Mysore situated at
Rangarao Road, No.8/6, 1st Floor and
7 CC.No.20300/10
accused No.4 has given surety for the
said loan and accused No.1 by creating
fabricated documents got sanctioned
loan of Rs.35,00,00000 and without
repaying the loan amount to the
aforesaid bank, cheated to CW1 to CW
13 and thereby committed the offences
u/s.420 r/w.34 of IPC ?
5) What order?
7. My answer to the above points is as under;
Point No.1 to 4 In the Negative.
Point No.5As per final order for the following;
REASONS
8. Point No.1 to 4 : According to the prosecution the
accused no.2 to 4 have committed the offences u/s.465, 468,
471, 420 r/w.34 of IPC. In order to prove the guilt of the
accused persons, the prosecution has examined the
complainant Asst.General Manager of State Bank of Mysore
as PW 1 and he has deposed that accused no.2 and 3 have
applied for housing loan of Rs.35 lakhs to their bank in the
month of July 2007 to purchase the house from the accused
no.1. After perusing the documents and compliance of
formalities like taking legal opinion, spot inspection, the bank
has sanctioned Rs.35 lakhs to accused no.2 and 3 by way of
issuing 3 cheques in favour of accused no.1. Accused No.2
8 CC.No.20300/10
and 3 are required to be paid the loan in equal monthly
instalments and for the said housing loan accused no.4 is the
guarantor. But they become defaulter, when the officers went
to house of accused no.1 and 2 and enquired and after getting
the encumbrance certificate, it was noticed that the house
purchased by the accused no.2 and 3 had already sold by
accused no.1, before sanctioning the loan. The accused no.1
has represented that he has lost all original title deeds with
respect to house and informed that he has given the police
complaint and issued paper notices and also filed the sworn
affidavit. But the accused persons have cheated the bank.
Immediately the bank has caused notice to the accused no.1
and 2 and accused no.1 has accepted that he has already sold
his house to somebody and promised to repay the amount
and issued 2 cheques in favour of the complainant bank
towards repayment of the loan, when the cheque presented
for encashment, they returned with endorsement "Funds
insufficient", they have caused the notice to the accused no.1
to 3, but they have neither replied nor made any payment,
thus, the accused persons by colluding with each other, have
made a fraud on the bank, hence, he has lodged the
complaint as per Ex.P.1.
9 CC.No.20300/10
9. PW 2 is the Chief Manager of the bank has deposed
that he know the accused no.1 and 2 and they have applied
for housing loan on 2/7/07. After receiving the application
they have sent for process to RACPC of their bank, after
processing the loan documents, the bank has sanctioned
Rs.35 lakhs to the accused no.2 and 3. After some time, he
came to know that the accused persons have forged the
documents and availed the housing loan, thus, they have
cheated the bank. He has given the statement before the
Investigating officer.
10. PW 3 is the Manager of the State Ban of Mysore and
he has deposed that in between 2005 to 2010 he was working
as a Dy.Manager at RACP. The accused no.2 and 3 have
submitted an application in the month of November 2007 for
the loan of Rs.35 lakhs housing loan. The bank has taken the
legal opinion from the bank legal adviser and the accused
persons have submitted the sale deed, encumbrance, khatha
extract, sale agreement and he has verified the same and
forwarded to the higher officer. Later on the loan has
sanctioned to the accused persons, but accused no.2 and 3
have not repaid the loan. When they checked the
encumbrance certificate from the Sub registrar , it came to
know that the accused persons have already sold the very
same property to some other persons. Thus, accused no.2
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and 3 have cheated the bank. Accused No.1 has sold the
property to the accused no.2 and 3 and accused no.4 is the
guarantor, all the accused persons have cheated the bank by
creating the documents.
11. PW 4 is one of the bank employee Sri.N.K.Prakash
and he submits the evidence but he has not tendered for the
cross examination, similarly PW 5 is also Asst.Manager of the
complainant bank, he has also submits the evidence but he
has also not tendered for the cross examination.
12. PW 6 is the Chief Manager who has deposed that
accused no.1 and 2 have submitted an application to
purchase the house and accused no.4 is the guarantor. The
accused persons have submitted the agreement,
encumbrance certificate with other documents and the
documents have been sent to him for verification. Later on
they have sanctioned Rs.35 lakhs to the accused no.1 and 2.
Thereafter they found that the accused persons have created
the documents and produced the same and took the loan
thereby they have cheated the bank.
13. PW 7 is an advocate who given legal scrutiny report,
he has deposed that since 26 years he is practicing as an
Advocate and also legal advisor of SBM bank, RACP. State
11 CC.No.20300/10
Bank of Mysore has sent a file of one Shivalingegowda for
legal opinion with xerox documents for verification. They have
given paper publication about loss the original documents
and the said paper notice has been given by the accused no.1.
Since the accused no.1 is the earlier owner of the property, he
has verified the documents and given the legal scrutiny report
and suggested to the bank, to take the Encumbrance
Certificate. Lateron, after verification of Encumbrance
Certificate, some of the transactions have not mentioned.
Hence, the bank has asked to give an additional report by
verifying the documents. Again he has verified the documents
which produced and given his report as per Ex.P.25. Later on
it came to know that the accused persons have created the
documents and cheated the bank.
14. PW 8 is the Investigating officer has deposed that on
29/5/08 at about 4.30 pm., when he was in SHO duty, the
complainant came and lodged the complaint, hence, he has
registered the crime as per Ex.P.1, on 4/6/08 he has collected
all the original documents from the complainant and
subjected to PF.No.15/08 and he has identified the
documents which are marked as Ex.P.1 to 25. Further
deposed that on 20/6/08 accused no.2 and 3 have appeared
before him by getting the bail, hence, he has arrested them
12 CC.No.20300/10
and released on bail and handed over the further investigation
to another Investigating officer.
15. PW 10 is one more Investigating officer, he has
deposed that on 2/3/09, he has written letter to the Sub
Registrar, Nagarbhavi seeking opinion on cancellation of
agreement and seal thereon and also asked to produce the
details of the Agreement of sale dtd: 8/10/07 and
Encumbrance certificate and its seal on 12/3/09. The Sub
Registrar sent the opinion as per Ex.P.66, later on he has
handed over case papers to CW 15.
16. PW 9 is one more Investigating officer, he has
deposed that he has received the case papers from CW 14 at
the time of investigation, he cannot trace the accused no.1
and as he has absconded he has submitted the final report.
17. The prosecution has produced and got marked the
complaint as Ex.P.1 and CW 1 has lodged it to register the
crime, Ex.P.2 is the application submitted by the accused
no.2 and 3, Ex.P.3 to 5 are the encumbrance certificates of
the house property, Ex.P.6 is the letter given by the accused
no.1 before the Banashankari police about missing of the
original documents with respect to property, Ex.P.7 is the
public notice given by the accused no.1 about missing of
13 CC.No.20300/10
original documents, Ex.P.8 is the affidavit sworn to by the
accused no.1 and submitted to the bank that he has lost
original documents and he has given the police complaint ,
Ex.P.9 is the sanction letter issued by the complainant which
disclosing that the sanction of the loan. Ex.P.10 to 12 are the
copies of the cheque issued by the bank about the sanction of
the loan, Ex.P.13 is the Memorandum of Term loan agreement
for housing loan and accused no.4 is the guarantor , Ex.P.14
is the Areement of guarantee executed by the accused no.1, 2
with respect to agreeing to execute the deeds by way of an
undertaking to deposit of the title deeds to the bank.
18. Further the complainant has produced the original
sale deed executed by the accused no.1 in favour of the
accused no.2 dtd: 1/1/08 which accused no.2 is the
purchaser of the said house property from the accused no.1
as per Ex.P.15, Ex.P.16 is the Confirmation letter by the
accused no.2 and 3 to the bank, Ex.P.17 is the Encumbrance
certificate, Ex.P.18 is the copy of the sale deed dtd: 28/11/07
which disclosing that accused no.1 has purchased the said
house property from its earlier owner.
19. Further the complainant has produced the letter
given by the accused no.1 to the complainant as per Ex.P.19
14 CC.No.20300/10
and submits that he has given the cheque to clear the loan
availed by the accused no.1 to 3 and also mentioned about
issuing cheque to the accused persons, Ex.P.21 is the letter
given by the accused no.3 and admits that he has availed the
loan from the bank and also agreed to repay the entire loan to
the bank, Ex.P.22 is the letter of the accused no.1 to the
General Manager that he has given the cheque for
Rs.50,000/ and also undertakes to clear the loan amount.
Ex.P.23 is the letter by the complainant bank to the accused
persons about return of the cheques for insufficient funds.
20. Similarly Ex.P.24 is the Credit Report declaration
executed by the accused persons, Ex.P.25 is the bank a/c
extract, Ex.P.26 is the copy of the pan card, Ex.P.27 is the
copy of the ration card, Ex.P.28 is the ID card of accused
no.2, Ex.P.29 is the income tax returns of accused no.3,
Ex.P.30 is the credit report declaration executed, Ex.P.31 is
the Income tax returns of accused no.3, Ex.P.32 is the copy of
the pan card of accused no.3, Ex.P.33 is the bank statement,
Ex.P.34 is the computation of total taxable income by the
chartered accountant, Ex.P.35 is the copy of the Identity card
of accused no.3, Ex.P.36 is the credit report, Ex.P.37 is the
declaration of the accused no.1 surety, Ex.P.38 is the copy of
the pan card, Ex.P.39 is the Indane domestic gas receipt,
Ex.P.40 is the certificate issued by the Directorate of
15 CC.No.20300/10
Industries and Commerce. Ex.P.40 is the letter of accused
no.4, Ex.P.41 is the income tax returns, Ex.P.43 is the
statement of a/c, Ex.P.44 is the Renewal of the sale
agreement between accused no.1 and 2, Ex.P.45 is the bill
issued by the Advocate with respect to giving legal scrutiny
report and report, Ex.P.46 is the Valuation report prepared by
the Engineer and value Assessor about the valuation of the
property, Ex.P.47 is the certificate issued by the Chartered
Accountant with respect to verification of the income tax
report by the accused no.2 and 3, Ex.P.48 is the Agreement of
indemnity executed by accused no.2 in favour of the bank,
Ex.P.49 is the Receipt, Ex.P.50 is the confirmation of the
SBM.
21. Further, Ex.P.51 is the allotment certificate issued by
the Bengaluru City Improvement Trust Board which allots the
site in favour of Balakrishna, the first owner of the site,
Ex.P.52 is the possession certificate, Ex.P.53 is the absolute
sale deed executed by the Dy.Secretary of the Board in favour
of the said Balakrishna, thus by virtue of the sale,
Balakrishna became the absolute owner of the property.
Ex.P.55 is the certified copy of the sale deed dtd: 28/8/98,
Ex.P.56 is one more copy of the sale deed dtd; 28/8/98 which
disclosing that Haraprasad has sold the property in favour of
Vedavathi, Ex.P.56 is the certified copy of the sale deed dtd:
16 CC.No.20300/10
22/11/1999 which disclosing that one T.S.Vedavathi, who
purchased the said property has sold it in favour of
B.Manjurekhar for a valuable consideration. Thus, the
Manjurekhar became the absolute owner of the said site.
Ex.P.57 is the approved plan. Ex.P.58 is the original sale
deed dtd : 24/2/07 executed by the said Manjurekere in
favour of Arvind kumar accused no.1. Thus, the accused
no.1 became the owner of the property. Ex.P.59 is the
property tax receipt, Ex.P.60 is the khatha certificate, Ex.P.61
is the khatha extract which disclosing that Arvind kumar is
the owner of the property.
22. Further, Ex.P.62 is the visit report of the bank to the
schedule property. Ex.P.63 is the inspection report, Ex.P.64 is
the copy of the FIR of this case, Ex.P.65 is the letter written
by the Investigating officer to the Sub Registrar to furnish the
documents and give report, Ex.P.66 is the report given by the
Sub Registrar with respect to document.
23. After conclusion of the prosecution evidence and
examination of the accused persons u/s.313 of Cr.P.C., the
accused no.2 himself has examined as DW 1 and one
document has marked as Ex.D1.
24. I carefully gone through the entire allegation made by
17 CC.No.20300/10
the prosecution and evidence placed by them to prove the
guilt of the accused persons as well as the defence of the
accused persons. On the basis of the evidence laid by both
parties, it is just and necessary to figure out some admitted
facts.
25. The prosecution has contended that the accused no.1
is the owner of the property who sold the same to accused
no.2 and 3. It is not in dispute that accused no.2 and 3 are
the purchaser of the property. It is not in dispute that at the
time of purchase the property, they have taken the loan from
the bank. It is not in dispute that the accused no.4 is a
guarantor of the said loan.
26. According to the prosecution, accused persons have
committed an offence u/s.464, 471, 468, 420 r/w.34 of IPC.
In order to attract the provision of sec.464 of IPC, accused
persons must made a false document dishonestly or
fraudulently and makes signs, seal or executes a document
with an intention of causing it to be believed that such
document made signed or sealed, executed, transmitted or
affixed by the authority of a person by whom or by whose
authority he knows that it was not made or signed or
executed by the authority. Similarly, in order to attract the
provision of sec.468 of IPC, the accused persons must forge
18 CC.No.20300/10
with an intention that the document shall be used for the
purpose of cheating and in order to attract the provision of
sec.471 of IPC, accused persons must fraudulent or
dishonestly uses the created documents as a genuine one
which he knows or he has reason to believe to be forged
document. In other words, the accused persons must have
forged or created the documents and with a dishonest
intention submitted to the bank to take loan knowing fully
well that those documents are created one. Accordingly ,
when the prosecution is able to establish that the accused
persons have produced the created documents to the bank at
the time of taking loan with dishonest intention or
fraudulently in order to take the loan that too in order to
commit the cheating the accused persons are liable to be
punished under the above provision.
27. Similarly, if the accused persons have produced the
created documents to the bank with a dishonest intention or
fraudulent intention to cheat the bank and took the loan by
using the created documents and it amounts to an offence
u/s.420 of IPC. Similarly if the accused persons are having
common intention, then the accused persons are liable for the
offence committed by another accused person u/s.34 of IPC.
By keeping these provisions in the mind, I carefully gone
through entire evidence placed by the prosecution in order to
19 CC.No.20300/10
figure out whether the accused persons have created or forged
any documents with a dishonest or fraudulent intention to
cheat the bank and produced it before the bank to cheat
them.
28. As per the chargesheet, the prosecution has
contended that the accused no.2 and 3 have applied an
application for loan and at the time of taking loan, the
accused persons have produced the created documents and
the accused persons have makes to believe the bank as those
documents are true and got sanctioned the loan of Rs.35
lakhs. In other words, according to the prosecution at the
time of taking loan, the accused persons have produced the
created documents and obtained the loan. Thereby they have
committed the alleged offence. Under such circumstances, it
is just and necessary to know what are all the documents are
forged, created and fabricated and produced at the time of
loan application and it is also necessary to figure out who has
created or forged the documents and intention of the accused
persons.
29. As stated above, at the time of evidence, the PW 1 has
deposed that the accused persons have produced the created
documents. It is further evidence of the PW 1 that the
accused no.1 has appeared to the bank and submits an
20 CC.No.20300/10
affidavit as well as paper publication and police notice that he
has lost original documents of the property. Later on it
brought to the notice that prior to selling it to the accused
no.2 & 3, the accused no.1 had already sold the very same
property, thereby the accused no.1 has involved in producing
those forged document with an intention to cheat the bank in
getting the loan. But since accused no.1 has absconded and
split up case has been registered against him, at this stage,
this court is not going to discuss about the any offence
committed by the accused no.1.
30. So far as accused no.2 & 3 are concerned, now it is
just and necessary to know what are all the documents
produced by the accused no.2 & 3 and what are all the
documents forged and created by them. As already discussed
above, Ex.P.2 is the loan application submitted by the
accused no.2 and 3 and accused no.4 is the guarantor. Along
with the said application, they have produced the
encumbrance certificates as Ex.P.3 to 5 with respect to the
property. Ex.P.6 is the complaint given by the accused no.1
about missing of original documents of his property. Ex.P.7
is the public notice given in the daily newspaper, Ex.P.8 is the
affidavit sworn to by the accused no.1 with respect to missing
of his title deeds. Thus, Ex.P.6 to 8 have not given by the
accused no.2 & 3, but they have been submitted by the
21 CC.No.20300/10
accused no.1 as admitted by the PW 1.
31. Ex.P.9 is the Sanction communication letter to the
customer with respect to sanction of loan. Ex.P.9 to 12 are
the copy of the cheques which have been granted the loan and
disbursed in the name of accused no.1. Ex.P.13 is the
Memorandum of term loan agreement executed by accused
no.2 and 3 with the guarantor accused no.4. Ex.P.14 is the
agreement of guarantee. Ex.P.15 is the original sale deed
executed by the accused no.1 in favour of accused no.2 and 3
after taking loan. Ex.P.16 is the confirmation letter by the
accused no.1 and 2 to the bank about equitable mortgage of
property. Thus, Ex.P.13 to 16 are not at all any created
documents but those are all the bank documents with original
sale deeds. Thus, there is no question of creation of Ex.P.13
to 16.
32. Ex.P.17 is the encumbrance certificate of the property
for the year 1/4/07 to 26/3/08. On perusal of the same, one
I.M.Devaiah is the applicant of the said encumbrance
certificate before the SRO who taken the same and in the very
same Ex.P.17, the Encumbrance Certificate for the year
1/4/04 to 20/4/08 have been taken by one G.V.Gowramma.
Thus, the said Ex.P.17 is also not applied and collected by the
accused no.2 to 4 and they have not produced the same to the
22 CC.No.20300/10
bank.
33. Ex.P.9 is the confirmation of the outstanding loan
executed by the accused no.2 in favour of AGM, bank,
Ex.P.18 is the certified copy of the sale deed dtd; 28/11/07
which disclosing that the accused no.1 has purchased the
said property from its earlier owner N.Ravichandra. Ex.P.20
is the letter by the accused no.1 in favour of AGM with
respect to giving of cheque for Rs.30,41,000/ by undertaking
to clear the loan. Accordingly, Ex.P.20 has been executed by
the accused no.1 and it is not by the accused no.2 & 3. Thus,
Ex.P.18 to 20 are not the created documents by the accused
no.2 to 4.
34. Ex.P.21 is the letter by the accused no.2 and he
admits that he has took the loan from the bank and later it
came to his notice that whatever documents placed by the
accused no.1 that the time of taking loan are created and he
undertakes to clear the whatever loan availed by him. Thus,
Ex.P.21 is also not created document but according to him,
whatever the documents given by the accused no.1 is created
hence, there is no role on the part of accused no.2 to 4 in
creating the Ex.P.21.
35. Ex.P.22 is the letter given by the accused no.1, so
23 CC.No.20300/10
there is no role of accused no.4 in Ex.P.22. Similarly Ex.P.23
is a letter given by the bank to the accused persons intimating
about bouncing of cheques. Ex.P.24 is the credit report
declaration executed by the borrowers and guarantors.
Ex.P.25 is the bank a/c extract of Vijaya bank. Ex.P.26 is the
copy of the pan card, Ex.P.27 is the copy of the Ration card,
Ex.P.28 is the copy of ID card, Ex.P.29 is the income tax
acknowledgement, Ex.P.30 is the credit report declaration,
Ex.P.31 is the income tax acknowledgement, Ex.P.32 is the
pan card of accused no.3, Ex.P.33 is the copy of the passbook
of Bhoomika gas, Ex.P.34 is the of tax sheet, Ex.P.35 is the
copy of the voter ID of the accused no.2. Thus, these
documents have also not created by any of the accused
persons.
36. Ex.P.36 is the Credit report declaration of the accused
no.4, Ex.P.37 is the copy of the DL, Ex.P.38 is the copy of the
pan card of accused no.4, Ex.P.39 is the copy of the gas
receipt, Ex.P.40 is the certificate issued by Directorate, Small
scale industries. Ex.P.42 is the letter of accused no.4,
Ex.P.41 is the income tax returns of accused no.4, Ex.P.43 is
the bank statement. It is not the allegation of the prosecution
that those documents are created by any of the accused
persons.
24 CC.No.20300/10
37. Ex.P.44 is the sale agreement entered into between the
accused no.1 and 2 with respect to purchase of the property,
Ex.P.45 is the bill and legal scrutiny report submitted by the
advocate for the bank. Ex.P.46 is the valuation report
prepared by the Engineer and valuer with respect to valuation
of the property. Ex.P.47 is the certificate of Chartered
accountant about verification of income tax returns given by
the accused no.1 and 2 that whatever the documents given by
them are found correct. Ex.P.48 is the Agreement of
indemnity and Ex.P.49 is the receipt executed by the accused
no.1 and 2 with respect to payment of consideration amount
under the sale deed. Ex.P.50 is the SBM confirmation of
balance in the bank. Thus, these documents are also not
created by the accused no.2 to 4.
38. Ex.P.51 is the allotment certificate issued by the
Bengaluru City Improvement Trust Board which allots the site
in favour of Balakrishna, the first owner of the site, Ex.P.52 is
the possession certificate issued by the BDA, Ex.P.53 is the
absolute sale deed executed by the Dy.Secretary of the Board
in favour of the said Balakrishna, thus by virtue of the
saledeed, Balakrishna became the absolute owner of the
property. Ex.P.55 is the certified copy of the sale deed dtd:
28/8/98, Ex.P.56 is one more copy of the sale deed dtd :
28/8/98 which disclosing that Haraprasad has sold the
25 CC.No.20300/10
property in favour of Vedavathi, Ex.P.56 is the certified copy
of the sale deed dtd: 22/11/1999 which disclosing that one
T.S.Vedavathi, who purchased the said property has sold it in
favour of B.Manjurekhar for a valuable consideration. Thus,
the Manjurekhar became the absolute owner of the said site.
Ex.P.57 is the approved plan. Ex.P.58 is the original sale
deed dtd : 24/2/07 executed by the said Manjurekere in
favour of Arvind kumar accused no.1. Thus, the accused
no.1 became the owner of the property. Ex.P.59 is the
property tax receipt, Ex.P.60 is the khatha certificate, Ex.P.61
is the khatha extract which disclosing that Arvind kumar is
the owner of the property. Thus, those documents are
disclosing the passing of the title from BDA to the accused
no.1 under various persons as stated above and ultimately
the accused no.1 became the absolute owner of the house
property. But those documents have also not at all forged or
created by accused no.2 to 4. But they are the copies of the
title documents.
39. Ex.P.62 is the visit report of the bank to the schedule
property. Ex.P.63 is the inspection report, Ex.P.64 is the copy
of the FIR of this case. Ex.P62 and 63 have been prepared by
the Dy.Manager of the bank with respect to his visit to the
property.
26 CC.No.20300/10
40. Ex.P.65 is the letter written by the Investigating officer
to the Sub Registrar to give the opinion on the documents
namely Cancellation of agreement, sale agreement,
Encumbrance certificate and other documents, whether those
documents have been registered and the seal containing in
the document belongs to their office. Ex.P.66 is the report of
Sub Registrar with respect to document dtd: 27/11/07 and
they have given the report that so far as the cancellation of
the agreement dtd: 27/11/07 is concerned, the said deed has
been registered on 27/11/07 vide register No.4127/08 but
the cancellation of the sale agreement sent by you is not
tallying with the cancel of sale agreement with them.
Similarly, so far as sale agreement dtd: 8/10/07 is concerned,
the said documents has already registered vide document
no.3067/0708 but the photo available in the agreement send
by you is different from the photo available with them. But
those documents have not been furnished by the accused
no.2 to 4 at the time of availing loan from the bank. However,
further they have sent the Encumbrance certificate of the
property. It is further contended that so far as encumbrance
certificate of accused no.1 from 1/4/07 to 19/12/07 is
concerned, the said encumbrance certificate is not tallying
with the encumbrance certificate available with them. Thus,
the Encumbrance certificate of Arvind kumar is appears to be
27 CC.No.20300/10
not genuine one. The said Encumbrance certificate has
already marked as Ex.P.3. Except Encumbrance certificate in
view of the detailed discussion made, no other documents
have been created or forged by the accused no.2 to 4 and
produced at the time of availing loan. Hence, it could be hold
that the Encumbrance certificate submitted along with
application is not tallying with the Encumbrance certificate
available in the Sub Registrar office. Now it is just and
necessary to know about the Encumbrance certificate.
Whether it has been created or forged by the accused no.2 to
4 and they have had any intention of cheating the bank in
creating the said documents and to take loan.
41. As discussed above, except Encumbrance certificate
no other documents have been created or forged by accused
persons. At this juncture, it is benefit to refer the cross
examination of the PW 1 and he admits that
2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳತ ನಮಮ ಬಬಬ್ಯಾಂಕಿಗೆ ಯಾವ
ದಾಖಲಾತಿಗಳನತ
ನ ಸಸೃಷಷ್ಟಿ ಮಾಡಿಕರಟಷ್ಟಿದ್ದಾರ ಎಬ್ಯಾಂದತ
ಹನೇಳಲಾಗತತತದೆಯನೇ ಎನತ
ನ ವ ಸರಚನಗೆ ಸಾಕ್ಷಿ ಖತಣಭಾರ ರಾಹಿತಬ
ನ ಕರಟಷ್ಟಿದ್ದಾರಬ್ಯಾಂದತ ನತಡಿಯತತತರ.
ಪತ ತವನತ
Thus as admitted by the PW 1, the accused persons have
created the Encumbrance certificate and given the same.
28 CC.No.20300/10
Accordingly, now it is just and necessary to know the
involvement of the accused no.2 to 4 in creating and forging
the Encumbrance certificate with a fraudulent intention to
cheat the bank. By keeping the fact in issue about forgery of
Encumbrance certificate, I once again gone through the same
meticulously.
42. Ex.P.3 is the Encumbrance certificate given by the
accused no.2 and 3 at the time of application. On meticulous
verification of the same, it disclosing that the accused no.1
Arvind kumar is the applicant of Ex.P.3 encumbrance
certificate. One Subramanya Naidu is the applicant of Ex.P.5,
thus, neither accused no.2 and 3 nor accused no.4 have
taken those documents in order to believe that they would
have created and produced to take the loan. When the
accused no.1 and one Subramanya Naidu have taken the said
Encumbrance certificate from the Sub Registrar office or they
have prepared it, it cannot be hold that accused no.2 and 3
have involved in creating the documents. Since Ex.P.3 has
been taken by accused no.1, this court unable to find out any
material evidence about involvement of accused no.2 and 3 in
creating the said document or taking the same.
43. At this juncture, it is significant to note here that
PW2 is a Chief Manager of the bank, at the time of cross
29 CC.No.20300/10
examination he admits as hereunder :
ನಬಯಾಲಯದ ಮತಬ್ಯಾಂದೆ ಇರತವ 2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿ ನನನ
ಬಬಬ್ಯಾಂಕನಲ್ಲಿ ಗಗ್ರಾಹಕ ಆಗಿದದ. ಶೆಡರ
ಬ ಲ್ ಆಸತಯ ಮರಲ
ಮಾಲನೇಕನಗಿದದ ಅರವಬ್ಯಾಂದತ
ದ ಮಾರ್ ಎಲಾ
ಲ ದಾಖಲಾತಿಗಳನತ
ನ
2 ನನೇ ಆರರನೇಪಿಗೆ ಕರಟಷ್ಟಿರತತತನ ಕಾರಣ ಈ ಆರರನೇಪಿಗರ ಸಹ
ಸಸೃಷಷ್ಟಿ ಮಾಡಿದ ದಾಖಲಾತಿಗಳತ ಎಬ್ಯಾಂದತ ಗೆರತಿತಲಲ ಎಬ್ಯಾಂದರ
ಇರಬಹತದತ .
As per the above admission, the documents have been
given by the original owner Arvind Kumar to the accused no.2
and the accused no.2 has no knowledge that those documents
are created by him and the witness admits it may be true.
Under such circumstances, it can be gathered that accused
no.2 might have not aware about the creating of the
document by the accused no.1. Similarly, PW 3 the Manager
of SBM in his cross examination admits as here under :
ಆ ಸಮಯದಲ್ಲಿ 1 ನನೇ ಆರರನೇಪಿ ಸದರಿ ಆಸತಯ ಸಾಸ್ವಾದನೇನದಲ್ಲಿ ಇದದ
ಎಬ್ಯಾಂದರ ನಿಜ . 1 ನನೇ ಆರರನೇಪಿ ನಿನೇಡಿದಬ್ಯಾಂತಹ ದಾಖಲಾತಿಗಳನತ
ನ 2
ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳತ ನಮಮ ಬಬಬ್ಯಾಂಕಿಗೆ ನಿನೇಡಿರತತತರ ಎಬ್ಯಾಂದರ
ನಿಜ. 2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳಿಗೆ ಮಬ್ಯಾಂಜರರತ ಮಾಡಿದ
ಸಾಲ , ಸದರಿಯವರತ 1 ನನೇ ಆರರನೇಪಿಯಬ್ಯಾಂದ ಆಸತಯನತ
ನ
ಖರಿನೇದ ಮಾಡಲತ ಎಬ್ಯಾಂದರ ನಿಜ. ....4 ನನೇ ಆರರನೇಪಿ ತನತ 2
ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳಿಗೆ ಜಾಮನೇನತದಾರಳಾಗಿ ನಿಲಲಲತ
30 CC.No.20300/10
ನಿನೇಡಿದ ತನನ ಆಸತಯ ಎಲಾ
ಲ ದಾಖಲಾತಿಗಳತ ನಿಜವಾದ
ದಾಖಲಾತಿಗಳತ ಎಬ್ಯಾಂದರ ನಿಜ .
As per the above admission whatever the document
produced by the accused no.2 and 3 to the banks have been
actually given by the accused no.1 only and the accused no.2
and 3 have took the loan only to purchase the property from
the accused no.1. Hence, on the basis of the same, it could
be hold that whatever the documents given by the accused
no.2 and 3 to the bank are all given by the accused no.1. The
intention of the accused no.2 is only to purchase the house
property and that is the reasons, they have taken the loan.
Under such circumstances, it is crystal clear that the
documents furnished to the bank have been completely
produced by the accused no.1 which includes the
Encumbrance certificate but not by the accused no.2 and 3.
Thus, absolutely there is no any role on the part of the
accused no.2 and 3 in creating the documents. Their
intention is only to purchase the property.
44. It is significant to note here that the bank has not
sanctioned the loan only on the basis of the documents
furnished by accused no.2 and 3 which have been given by
the accused no.1. During the course of cross examination
the PW 1 has admits that :
31 CC.No.20300/10
ಆ ಮರಲ ಖರಿನೇದ ಪತ ತದ ಆಧಾರದ ಮನೇಲೆ 1 ನನೇ ಆರರನೇಪಿ
ಅದಕದ ಮಾಲನೇಕನಗಿದದ ಎಬ್ಯಾಂದರ ಸರಿ. ಆ ಮರಲ ದಾಖಲೆಗಳತ
ಕಳೆದತಹರನೇಗಿದೆ ಎಬ್ಯಾಂದತ ಬಬಬ್ಯಾಂಕಕ್ಗೆ ಹರನೇಗಿ ಸತಳತ
ಳ ದರರತ ಕತಕಕುೆಾಟತ
ಷ್ಟಿ
ಅದರ ಆಧಾರದ ಮನೇಲೆ ನಮಮ ಬಬಬ್ಯಾಂಕಿನಬ್ಯಾಂದ ಸಾಲ ಮಬ್ಯಾಂಜರರತ
ಆಗತವಬ್ಯಾಂತೆ ಆತ ನರನೇಡಿಕರಬ್ಯಾಂಡಿದ್ದಾನ.
As per the above admissions of the PW 1, the accused no.1
being the absolute owner has given a false complaint before
the police that he has lost original documents and on the
basis of the same, he made the bank to grant the loan.
Further, as per the evidence of PW 1 to 3 the accused no.1
himself has personally approached the bank and given the
affidavit swearing to that he has lost his original documents
and also the accused no.1 himself has produced the paper
publication as well as copy of the complaint lodged to the
Banashankari Police Station about missing of his original
documents. On the basis of the affidavit of accused no.1, the
bank authorities have confirmed about the title of the accused
no.1 and as admitted above, because of accused no.1, the
bank has sanctioned the loan. Hence, it clearly discloses that
in producing the fake affidavit, fake complaint and fake paper
publication and made the bank to believe about the missing of
the document, all the things have been done by the accused
no.1 only and absolutely there is no role on the part of
accused no.2 and 3 in producing those fake documents.
32 CC.No.20300/10
45. During the course of cross examination, the PW 1 has
admits that
2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿತರತ ಹಾಗರ ಆಸತಯ ಮರಲ
ಮಾಲನೇಕ 1 ನನೇ ಆರರನೇಪಿ ಇವರ ನಡತವೆ ಆದ ಖರಿನೇದ
ಕರಾರತಪತ ತ ಆಧಾರದ ವೆತನೇಲೆ ನವು 2 ಮತತತ 3 ನನೇ
ಆರರನೇಪಿತರಿಗೆ ಸಾಲ ವುಬ್ಯಾಂಜರರತ ಮಾಡಿದ್ದೇವೆಬ್ಯಾಂದರ ಸರಿ . ನಮಮ
ಮಾಬನನೇಜರರ್ರವರತ ಮರಲ ದಾಖಲಾತಿಗಳನತ
ನ ನರನೇಡಿ ಆಮನೇಲೆ
ಸಾಲ ಮಬ್ಯಾಂಜರರತ ಮಾಡತತತರಬ್ಯಾಂದರ ಸಾಕ್ಷಿಯತ ನಮಮ ಕಾನರನತ
ಸಲಹಗರರತ ಆ ಮರಲ ದಾಖಲೆಗಳನತ
ನ ನರನೇಡಿ ಅಭಿಪಗ್ರಾಯ
ಕರಟಷ್ಟಿ ನಬ್ಯಾಂತರ ಸಾಲ ಮಬ್ಯಾಂಜರರತ ಮಾಡತತೆತನೇವೆಬ್ಯಾಂದರ ಸರಿ .
As per the above admission, the bank has sanctioned the
loan on the basis of the agreement executed by the accused
no.1 in favour of accused no.2 and 3 that too after taking
legal opinion from the legal adviser of the bank. Similarly,
PW6 is the Chief Manager of the bank has admits in his cross
examination that
1 ನನೇ ಆರರನೇಪಿ , 2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳಿಗೆ ಮಾರಾಟ
ಮಾಡಲತ ಒಪಿಪ್ಪಿದದ ನಮಮ ಬಬಬ್ಯಾಂಕಿಗೆ ಸಾಲಕಾದಗಿ ಅಡಮಾನ ಮಾಡಿದ
ಆಸತಯನತ
ನ ವೆವೈಯಕಿತಕವಾಗಿ ಬಬಬ್ಯಾಂಕಿನವರತ ತಪಸಣ
ಮಾಡಿರತತತರ ಆ ಕಾಲದಲ್ಲಿ 1 ನನೇ ಆರರನೇಪಿ ಸಾಸ್ವಾದನೇನದಲ್ಲಿದದ .
ಸಾಲ ಮಬ್ಯಾಂಜರರತ ಮಾಡತವ ಪೂವರ್ರದಲ್ಲಿ 1 ನನೇ
ಆರರನೇಪಿಯಬ್ಯಾಂದ ಮರಲ ದಾಖಲಾತಿಗಳನತ
ನ
33 CC.No.20300/10
ಪಡೆದತಕರಬ್ಯಾಂಡಿರಲಲಲ. ಆದರ ಅಡಮಾನ ಮಾಡಿ ಆಸತಯ
ದಸೃಡಿನೇಕಸೃತ ನಕಲತಗಳನತ
ನ ಪಡೆದತಕರಬ್ಯಾಂಡಿರತತೆತನೇವೆ. (ಸಾಕ್ಷಿ
ಮರಲದಾಖಲಾತಿಗಳತ ಕಳೆದತಹರನೇಗಿವೆ ಎಬ್ಯಾಂದತ ಅಫಿಡವಟ
ಮತತತ ಪೊಲನೇಸ್ ಕಬ್ಯಾಂಪಲಬ್ಯಾಂಟ ನಿನೇಡಿರತವ ಬಗೆಕ್ಗೆ ದಾಖಲಾತಿಗಳನತ
ನ
ಬಬಬ್ಯಾಂಕಿಗೆ ನಿನೇಡಿರತತತರ ಎಬ್ಯಾಂದತ ನತಡಿಯತತತರ. ಈ ಮನೇಲೆ
ಹನೇಳಿದ ದಾಖಲಾತಿಗಳನತ
ನ ಬಬಬ್ಯಾಂಕಿಗೆ 1 ನನೇ ಆರರನೇಪಿ
ನಿನೇಡಿರತತತನ ಎಬ್ಯಾಂದರ ನಿಜ.
As per the above admission, before sanctioning the loan,
the bank has conducted the personal visit of the property
and at that time, the accused no.1 was in the possession of
the same and whatever the documents produced by the
applicant have been given by the accused no.1 only. Thus,
the bank has sanctioned the loan only on the basis of the
documents furnished by the accused no.1 only but there is no
role on the part of accused no.2 to 4 in producing the
documents, hence, again it could be confirmed that the
accused no.2 to 4 have no intention in creating the
documents or producing the same before the bank to obtain
loan.
46. As admitted by the PW 1, the bank has granted the
loan only after taking legal scrutiny report by legal advisor.
The legal advisor of the bank has examined as PW 7 and he
has deposed as already stated above. During the course of
34 CC.No.20300/10
cross examination he admits that the accused persons before
the court has not brought any documents before him and he
has not sought any kind of report and further admits that he
does not know what is the relationship between the accused
persons before the court with this case and whatever the
evidence given by him is only on the basis of the statement of
the bank and he has no personal knowledge. Further the
legal scrutiny report given by him has marked as Ex.P.45. On
careful verification of Ex.P.45, it disclosing that according to
the report of PW 7, he has verified nearly 17 photocopies of
the documents and given the said report. Further they have
traced the title of the property from BBMP to acquisition of
right by the accused no.1 by virtue of the sale deed. Thus, as
per the said documents, accused no.1 is the absolute owner
of the property and this fact is not at all in dispute. But the
main allegation of the prosecution are that the accused no.1
has produced the forged and false Encumbrance certificate at
the time of granting the loan. Further, in column no.18 of the
report, they have clearly mentioned as hereunder :
" Yes, I have verified all the documents with
reference to the entries in the books at the
Sub Registrar's office, Peenya and
Nagarbhavi, Bengaluru "
35 CC.No.20300/10
As per the above certificate, the panel advocate of the
bank have verified all the documents with reference to the
entries available in the books of Sub Registrar office of Peenya
and Nagarbhavi, Bangalore. When the advocate for bank has
verified whatever the documents furnished to them in the Sub
Registrar office and given the legal scrutiny report and opined
that the mortgage loan can be granted. But the bank panel
advocate has failed to figure out at the time of their
verification at Sub Registrar office about furnishing wrong
Encumbrance certificates. It is significant to note here that
Ex.P7 Encumbrance certificate has been taken by the PW 7
the panel advocate of the complainant bank himself. The said
Encumbrance certificate also not disclosing that prior to
execution of sale deed in favour of accused no.2 and 3, the
accused no.1 had already sold away it to some other persons.
47. It is significant to note here that as already stated
above, during the course of cross examination PW 1 has
admits that they will grant the loan after verification of the
documents and after taking the legal scrutiny report from
their legal advisor. Here, the bank has taken the legal
scrutiny report from PW 7 that too after verification of the
documents from the Sub Registrar office, inspite of that, they
are unable to figure out the prior selling of the property by the
36 CC.No.20300/10
accused no.1. Hence, it appears to this court that if the bank
would have taken proper care and caution before granting the
loan, certainly, granting of the loan could have avoided.
Thus, the bank officials have also not shown proper vigilant
before granting the loan.
48. In view of the detailed discussion made above, one
thing is clear that accused no.1 has actively participated at
the time of taking loan and he has produced all the
documents and whatever the documents placed by the
accused no.1 have been given by the accused no.2 and 3 to
take loan. Except Encumbrance certificate no other
documents have been forged or created documents and
accused no.2 to 4 have not forged or created those
documents. Even Encumbrance certificate is not tallying with
the Encumbrance certificate as available in the Sub Registrar
office, as per the Sub Registrar report, it has not been
furnished by the accused no.2 and 3 or it has not been
prepared by accused no.2 to 4. Under such circumstances,
the doubt would accrued in the mind of the court about
involvement of accused no.2 to 4 in creating or forging the
Encumbrance certificate.
49. It is significant to note here that it is not only the
allegation of the bank that the accused persons have availed
the loan by giving false Encumbrance certificate but the
37 CC.No.20300/10
accused no.1 before executing the sale deed in favour of
accused no.2 and 3, he had already sold away the very same
property to somebody else. But he has suppressed the said
fact and he has not produced his original title deeds. On the
other hand, he had given a false affidavit swearing that he lost
his title deeds and also given a false police complaint about
missing of the case papers. That is the reasons, the accused
no.1 has cheated the bank. Because accused no.2 and 3 are
the borrowers and accused no.4 is the guarantor, the bank
makes the allegation against them also. As discussed above,
this court did not found any material evidence to figure out
absolutely accused no.2 to 4 have also involved in producing
the forged documents.
50. During the course of arguments, the counsel for the
accused persons submits that they have availed the loan only
with an intention to purchase the house, but the accused
no.1 had already sold away the said house but once again
executed the sale deed in favour of accused no.2 and 3.
Later on they have been dispossessed from the said property,
that is the reasons, they could not repay the bank loan.
Further submits that the accused no.2 and 3 are real persons
cheated by the accused no.1. But accused no.2 and 3 are not
the cheaters and they are the victims. The counsel for the
38 CC.No.20300/10
accused persons further submits that they have also lodged
the complaint before against the accused no.1 for cheating
them.
51. Further the accused no.2 himself has examined as
DW1 and deposed before the court that the accused no.1 has
agreed to sell his house and he himself has told that he will
make arrangement to obtain the loan. Thus, the accused
no.1 himself has produced the documents to the bank and
made the bank to grant loan of Rs.35 lakhs. The said loan
has been took by the accused no.1 through DD to his
account. He himself has given Rs.20 lakhs to the accused
no.1. Later on in the presence of bank officials, the accused
no.1 had executed a sale deed and it has been taken by the
bank. Accused No.1 has handed over the possession of the
house, thus, he used to deposit the EMI every month. After
1½ yrs - 2 years, the Indian Bulls finance Manager has came
and told him that there is a loan on the said house and one
Ravichandra has took the loan from the said finance. After
verification, it came to his knowledge that the accused no.1
has cheated them by selling the very same house prior to
them. The Finance Manager has vacated him from the said
house. He has also filed a private complaint before the 8 th
ACMM, Bengaluru. Later on the bank has lodged the false
39 CC.No.20300/10
complaint against him. DW1 has been cross examined by
the learned Sr.APP. But nothing has found to disbelieve his
version. The accused no.2 has produced the certified copy of
the Register no.1 (criminal) and it disclosing that a PCR has
been filed against the accused no.1 and others by the
Chandra layout police. The counsel for the accused persons
have submits that the entire documents with respect to PCR
has been destructed and they are unable to take any copies
except the copy of the criminal register. Thus, accused no.2
and 3 have requested to acquit them as they are the victims.
By considering the evidence of DW 1 with the arguments as
above, I once again carefully gone through the materials.
52. As per the prosecution as well as evidence of DW 1, the
accused persons have cheated by producing the false
Encumbrance certificate, as it has not disclosing the sale
transaction made by the accused no.1 in favour of one
Ravichandra prior to execution of sale deed in favour of
accused no.2 and 3 and granting of loan. As already
discussed above, there is no role on the part of accused no.2
to 4 in collecting or creating the documents of Encumbrance
certificate in order to produce the same to the bank. Thus,
the act of the accused no.2 and 3 creates some suspect and
the doubt would accrued in the mind of the court to accept
40 CC.No.20300/10
that the accused no.2 and 3 have done some act in creating
the same.
53. As per the discussion made above, the accused no.1
himself has produced the affidavit & other documents before
the bank by mentioning that he has lost original documents
of his title and on the basis of the affidavit, paper publication
and police complaint, the bank has accepted that he might
have lost his original documents and granted the loan. Thus,
absolutely no role on the part of accused no.2 and 3 in
creating the documents. Under such circumstance, the
prosecution is required to prove that the accused no.2 to 4
have also common intention to cheat or fabricate the
documents, certainly they will be penalized u/s.34 of IPC. By
keeping this principle, I once again carefully gone through the
entire evidence of the prosecution. PW 1 has makes an
allegation in the complaint that accused no.1 to 4 have
cheated the bank. But as per Ex.P.1 the complainant has
clearly makes an allegation that the accused no.1 has
produced the EC and he has been called for to the bank & he
represented that he lost the original documents & also
produced the copies of the same. On careful reading of the
entire complaint avernments, absolutely there is no
41 CC.No.20300/10
intention of accused no.2 to 4 to forge or creating the false
documents to produce it to the bank.
54. Similarly on careful reading of the entire evidence of
PW 1 to 3, the PW 1 has just deposed that the accused
persons have colluded together and played a fraud on the
bank. Thereby according to him the accused persons have
cheated the bank. But absolutely there is no material
allegation that accused no.2 to 4 are also having an intention
of cheating the bank and creating the documents in order to
take the loan. Further, as admitted by the PW 2 in his cross
examination as stated above, when the cousenl for the
accused persons has suggested that the accused no.2 and 3
have no knowledge that the documents furnished by the
accused no.1 are forged and fake, PW2 has admits it may be
true. Thus, PW 2 the Chief Manager of the bank is admitting
that accused no.2 nad 3 have no knowledge about the
documents furnished by the accused no.1 are created
documents. Hence, it shows that the accused no.2 and 3 are
not having any intention of creates or cheats the bank. Thus,
it is also creates slight doubt about intention of accused no.2
and 3 in creating or forging the documents and taking the
loan by the bank.
42 CC.No.20300/10
55. On meticulous verification of entire evidence placed by
the prosecution, absolutely the prosecution has utterly failed
to prove that the accused no.2 and 3 are having the common
intention in creating or forging the documents with the
accused no.1 and to take the loan and cheat the bank.
Hence, the strong doubt would accrued in the mind of the
court on common intention of accused no.2 to 4. In view of
the detailed discussion made above, because the accused
no.1 has created some documents and given the same to the
bank and bank has accepted the same without proper
verification, the strong doubt would accrued in the mind of
the court about the involvement of accused no.2 and 3 in
creating the documents. Similarly because the accused no.2
and 3 are became the defaulters, it never became an offence
of cheating to the bank. Still the bank is having every right to
recover the loan granted to them with due process of law.
When the involvement of accused no.2 and 3 in creating the
documents are more doubtful, the benefit of doubt has to be
extended to the accused no.2 and 3. Under such
circumstance, it could be hold that the prosecution has failed
to prove the guilt of the accused no.2 and 3 beyond all
reasonable doubt in establishing the fact that accused no.2
and 3 are having the common intention in creating the
documents with the accused no.1 and they are actively
43 CC.No.20300/10
participated in forging the documents and cheating the bank.
Hence, it is a fit case to extend the benefit of doubt against
accused no.2 and 3 including accused no.4.
56. So far as accused no.4 is concerned, it is very
significant to note here that during the course of cross
examination PW 1 admits that :
4 ನನೇ ಆರರನೇಪಿ 2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿತ ಸಾಲಕದ
ಜಾಮನೇನತದಾರನಗಿದದ ಎಬ್ಯಾಂದರ ಸರಿ ಮತತತ ಆತನತ
ಹಾಜರತಪಡಿಸದ ಆತನ ಆಸತಯ ದಾಖಲೆಗಳತ ನಿಜವಾದ
ದಾಖಲೆಗಳಿದದವು ಮತತತ ಅವುಗಳ ಬಗೆಕ್ಗೆ ಆತ ಯಾವುದೆನೇ ಪೊನೇಜರ್ರರಿ
ಮಾಡಿಲಲವೆಬ್ಯಾಂದರ ಸರಿ .
Similarly PW 3 the Manager of SBM bank admits in the
cross examination that
4 ನನೇ ಆರರನೇಪಿ ತನತ 2 ಮತತತ 3 ನನೇ ಆರರನೇಪಿಗಳಿಗೆ
ಜಾಮನೇನತದಾರಳಾಗಿ ನಿಲಲಲತ ನಿನೇಡಿದ ತನನ ಆಸತಯ ಎಲಾ
ಲ
ದಾಖಲಾತಿಗಳತ ನಿಜವಾದ ದಾಖಲತಿಗಳತ ಎಬ್ಯಾಂದರ ನಿಜ.
Similarly PW 6 being the Chief manager of the bank has
admits in the cross examination that
4 ನನೇ ಆರರನೇಪಿ ಬಬಬ್ಯಾಂಕಿಗೆ ನಿನೇಡಿದ ಮಾಹಿತಿ ಸರಿಯರತತತದೆ.
44 CC.No.20300/10
Thus, as per the above admission, it is crystal clear that
the whatever the documents produced by the accused no.4
are genuine documents and she has not created any
documents. Admittedly the accused no.4 is the borrower.
When whatever the documents given by her are genuine
documents and they are not the fake or created documents, it
cannot be hold that the accused no.4 has involved in creating
or forging the documents as alleged by the prosecution .
Merely because the accused no.4 stood as guarantor for the
loan and the accused no.2 and 3 being the principal borrower
become defaulter, it cannot be hold that the accused no.4 the
guarantor has committed the offence of cheating and any
other offence of creating the documents for the simple reason
that the whatever documents given by the accused no.4 are
genuine one and abostley she has no intention of cheating.
57. The counsel for the accused no.4 has argued that
admittedly accused no.4 is a guarantor and let bank can
initiate the recovery proceedings against accused no.2 and 3
and if they are unable to recover the same, the accused no.4
can fulfill her liability as a guarantor. But she has not
committed any offence. The arguments of the counsel for the
accused no.4 is acceptable one because merely because she
45 CC.No.20300/10
stood as a guarantor and accused no.1 has created the
documents and accused no.2 and 3 become the defaulter, it
cannot be hold that the accused no.4 is having an intention of
cheating in creating the documents and cheating the bank.
Hence, this court of the considered view that as admitted by
the PW 1, 3 and 6 since whatever the documents placed by
the accused no.4 are genuine one, question of creating or
forging does not arise. Merely because accused no.2 and 3
become the defaulter and accused no.4 is the guarantor, it
does not means to say that the accused no.4 has committed a
cheating. Hence, absolutely there is no material allegation
against accused no.4. Accordingly accused no.4 is totally
innocent for the allegation and liable to be acquitted and
absolutely there is no materials against her as alleged in the
prosecution. In view of the detailed discussion made above,
since there is a strong doubt about involvement of the
accused no.2 to 4 in creating or forging the documents and
cheating the bank, certainly the benefit of doubt has to be
extended to accused no.2 to 4. Hence, the prosecution has
utterly failed to prove the guilt of the accused no.2 to 4
beyond all reasonable doubt on the allegation made against
them. Hence, by extending the benefit of doubt on accused
no.2 to 4, since the prosecution has failed to bring home the
the guilt of accused persons, I answer the point under
46 CC.No.20300/10
reference in the Negative.
58. POINT NO.2 :
For the aforesaid reason and discussion, I proceed to
pass the following:
ORDER
Acting under section 248(1) of Cr.P.C. Accused no.2 to 4 are hereby acquitted for the offences punishable U/s.465, 468, 471, 420 r/w.34 of IPC.
The bail bond executed by the accused no.2 to 4 stands cancelled. However, Accused no.2 to 4 shall execute personal bond of Rs.50,000/ by undertaking to appear before the appellate Court, if any appeal is filed.
It is not a fit case to award victim compensation as provided U/s.357(1) of Cr.P.C., Office is directed to keep the original file and property in split up case registered against 47 CC.No.20300/10 accused No.1.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 13th day of March 2023).
(B.C.Chandrashekar) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Nanjundamurthy PW 2 : Anandkumar PW 3 : S.Udayshankar PW 4 : Prakash PW 5 : Shivanandaswamy PW 6 : Nagesh Shanbhag PW 7 : Devaiah PW 8 : Chikkaswamy PW 9 : Valibasha PW 10 : Gopal Documents marked for the Prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature Ex.P.2 : Application Ex.P.35 : Encumbrance certificates Ex.P.6 : Letter Ex.P.7 : Public notice Ex.P.8 : Affidavit 48 CC.No.20300/10 Ex.P.9 : Sanction letter Ex.P.1012 : Cheques Ex.P.13 : Memorandum of term loan Ex.P.14 : Agreement of guarantee Ex.P.15 : Original sale deed Ex.P.16 : Confirmation letter Ex.P.17 : Encumbrance certificate Ex.P.18 : Sale deed Ex.P.1923 : Letters Ex.P.24 : Credit Report declaration Ex.P.25 : Bank a/c extract Ex.P.26 : copy of Pan card Ex.P.27 : copy of Ration card Ex.P.28 : ID card Ex.P.29 : Income tax returns Ex.P.30 : Credit report Ex.P.31 : Income tax returns Ex.P.32 : Pan card Ex.P.33 : Bank Statement Ex.P.34 : computation of tax Ex.P.35 : Id card Ex.P.36 : Credit report Ex.P.37 : Declaration Ex.P.38 : Pan card Ex.P.39 : Gas receipt Ex.P.40 : Letter 49 CC.No.20300/10 Ex.P.4142 : Income tax returns Ex.P.43 : Statement of a/c Ex.P.44 : Renewal of sale agreement Ex.P.45 : Bill Ex.P.46 : Valuation report Ex.P.47 : Certificate Ex.P.48 : Agreement of Indemnity Ex.P.49 : Receipt Ex.P.50 : Confirmation of SBMs Ex.P.51 : Allotment certificate Ex.P.52 : Possession certificate Ex.P.5356 : Sale deeds Ex.P.57 : Approved plan Ex.P.58 : Sale deed Ex.P.59 : Property tax receipt Ex.P.60 : Khatha certificate Ex.P.61 : Khatha extract Ex.P.62 : visit report Ex.P.63 : Inspction report Ex.P.64 : FIR Ex.P.65 : Letter Ex.P.66 : Report
Witnesses examined for the accused:
DW 1 : Shivalingegowda 50 CC.No.20300/10 Documents marked for the accused:
Ex.D1 : FIR register (B.C.Chandrashekar) XXIV A.C.M.M., BENGALURU.