THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.44 of 2008
01-12-2014
BETWEEN:
M/s.Gold Finch Tours & Travels …..Appellant/De facto Complainant AND A.A.Khan And another.
…..Respondents THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO
CRIMINAL APPEAL No.44 of 2008
JUDGMENT:
This Criminal Appeal is preferred by the complainant challenging the Judgment dated 28.11.2007 passed in C.C.No.1030 of 2003 by the Court of the III Additional Chief Metropolitan Magistrate, at Hyderabad, whereby the learned Judge acquitted the accused for the offences under Sections 406, 420, 468 and 471 IPC.
The case of the complainant is that the complainant is a firm registered under the partnership firm has been established for the purpose of carrying on business of tours and travels. The complainant herein for the purpose of its business wanted to purchase six buses and applied for loan facility with M/s.Bombay Mercantile Cooperative Bank Limited, situated at Hyderabad for three buses. Considering the application of the complainant, the accused herein, employee of the above Bank, had sanctioned a loan facility to an extent of 70% of the cost of the 3 buses and 30% of the cost had to be paid by the complainant towards margin money. The accused sanctioned loan of Rs.30 lakhs and disbursed a sum of Rs.29 lakhs and odd. The loan facility being a term loan repayable in equated monthly instalments and the first instalment starts after two months moratorium period as specified in the sanction letter containing terms and conditions of the loan facility. However, surprisingly the accused without any intimation to the complainant had highhandedly, arbitrarily, illegally seized three buses on the ground that the complainant has not paid the first two instalments violating the terms and conditions, and later sold away the buses to third parties. The complainant further submits that the accused herein in collusion with Road Transport Authority officials got registered all the above buses transferred in the name of the third parties since as per law if the vehicles are under All India Tourist Permit under the provisions of the said Act, it can be transferred only after All India Tourist Permit is cancelled or withdrawn. Thus, the accused is liable for punishment for the offences under Sections 406, 420, 468 and 471 IPC.
To prove the case of the prosecution, P.Ws.1 to 4 were examined and Exs.P.1 to P.11 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence and on hearing the arguments on both sides, the trial Court found the accused not guilty for the offences under Sections 406, 420, 468 and 471 IPC, and accordingly acquitted the accused of the charges. Aggrieved by the same, the complainant has preferred the present criminal appeal.
Heard and perused the material available on record.
The trial Court elaborately discussed the four charges i.e., Sections 406, 420, 468 and 471 IPC, and acquitted the accused observing as under.
First charge framed against the accused under Section 406 IPC that buses were entrusted for the purpose of inspection but put in auction committed criminal breach of trust. The complainant has to prove that entrustment of any property or that any domain over property. Person entrusted property dishonestly misappropriated or converted it to his own use that property and dishonestly using or disbursing that property willfully suffering any other person so to do in violation any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract. It shows that burden on the complainant to prove that entrustment of property to accused and if accused dishonestly misappropriated that property or accused converting that property as his own or disbursing that property willfully with an intention. To prove that on behalf of the complainant side, P.Ws.1 to 4 examined. The main contention of P.W.1 that in his absence accused telephoned to P.W.3 and asked to send vehicles for inspection purpose. Subsequently that vehicles are put in auction. P.W.1 in his cross examination admitted that he has not entrusted any property to accused personally and further admitted that he does not know whether accused was transferred from the M/s. Bombay Mercantile Cooperative Bank to Aurangabad and further admitted that transaction covered by this case are between the complainant and bank. It shows that accused worked as manager some time in M/s. Bombay Mercantile Cooperative Bank. From it P.W.1 borrowed loan to purchase the vehicles. Except that there is no personal entrustment of property to accused. On the other hand there is no evidence that accused misappropriated that property and P.W.1 himself admitted that he failed to pay instalments in time. Under Ex.P11 received the notice that his vehicles are going to be auctioned as he committed default, by that time also he has not paid any amount and further admitted that he has also got knowledge regarding auction of the vehicles through paper publication. On the other hand admission of P.W.1 clearly made out that there is no entrustment of property, regarding misappropriation and disbursement with dishonest intention does not arise. He is not liable for punishment for the offence under section 406 IPC. It shows that complainant miserably failed to prove guilty against the accused for the offence under section 406 IPC.
Second charge framed against the accused is under Section 420 IPC that accused dishonestly induced complainant to deliver property which was sent for inspection purpose but subsequently put in auction. Hence, accused cheated the complainant and liable for punishment for the offences under Section 420 IPC. The prosecution has to prove that accused with dishonest intention induced the complainant. Due to that inducement delivered the property in the present case to prove that on behalf of the complainant P.Ws.1 to 4 examined and documents Exs.P.1 to P.11 marked. As can be seen from the testimony of P.W.1 in his evidence he stated that in his absence accused telephoned to P.W.3 and asked to send the vehicles for inspection of the Reserve Bank of India officials. Subsequently that were put in auction. The testimony of P.W.1 shows that and also in his cross- examination admitted that transaction covered by the case are between the complainant and bank and he further admitted that he is not aware whether the accused is working in the said Bank since 1999 and further admitted that the complainant does not know when the accused retired from service and by that time there is also civil litigations are pending and further P.W.1 in his cross examination admitted three buses covered under Exs.P.5 to P.7 are in the name of the complainant. These buses covered under Exs.P.5 registered in the name of complainant on 4.7.1997. It shows that prior to obtaining loan the vehicle is in the name of complainant and similarly vehicle covered under Exs.P.6 is in the name of complainant on 22.9.1997. It is also clearly made out that prior to obtaining loan, the vehicle covered under Ex.P.6 also in the name of complainant and he also admitted that he gave a letter to Transport authority not to charge road tax. He further admitted that unless he paid the road tax buses covered under Exs.P.5 to P.7 cannot put on road. As per Ex.P.9 hypothecation agreement the complainant has to pay tax and insurance and P.W.1 also admitted that he was failed to pay road tax and also insurance and further P.W.1 admitted that he received Ex.P.11 notice that he failed to pay the instalment and due to that they are going to put the buses in auction and further P.W.1 admitted that there is a paper publication that vehicles are going to be auctioned and further P.W.1 admitted that though he has got knowledge he failed to pay instalment in time. On the other hand there is no entrustment of property personally to the accused. Accused worked as Manager in M/s. Bombay Mercantile Cooperative Bank at Mojamjahi Market branch and it shows that the complainant failed to prove that accused induced the complainant with dishonest intention and subsequently delivered the property and P.W.2 himself in his cross examination who is official witness categorically stated that there is no mistake in transferring the vehicles under Exs.P.1 to P.3 that vehicles which are also covered under Ex.P.5 to P.7 and P.W.2 stated that he effected the transfer of the buses without following the procedure after giving notice to her to transfer that vehicles and further P.W.2 stated that if borrower failed to pay instalment the financier has got every right to obtain fresh registration certificates and transfer the vehicles and the testimony of P.W.2 also clearly made out that there is no evidence that accused induced the complainant with dishonest intention and the testimony of P.Ws. 3 & 4 also no way helpful for the complainant contention.
In view of the above foregoing reasons the complainant miserably failed to prove that accused with dishonest intention induced the complainant and delivered the property. Hence, the complainant miserably failed to prove guilty against the accused for the offence under Section 420 IPC.
Third charge framed against the accused is under Section 468 IPC that accused forged the signature of the complainant and prepared registration certificate, affidavit and no objection certificate and put in auction all the three buses. The prosecution has to prove that document is forged and that accused forged that document and accused did knowingly that forged document would be used for the purpose of cheating. Admittedly, on behalf of the prosecution P.Ws.1 to 4 examined and documents Exs.P.1 to P.11 marked. P.W.1 is the de facto complainant and he is the Managing Partner of complainant. P.W.2 is Administrative Officer of the Transport Authority. P.W.3 is wife of P.W.1, P.W.4 is family friend of P.W.1. There is no dispute regarding sending of buses and that buses put in auction. The main contention of the complainant in his evidence stated that till today he is in possession of the registration certificate books and that books prepared by forging the signature of the complainant in collusion with transport authorities. In the complainant also stated that in the first week of October, Regional Transport Authority Agent informed him that his signature was forged they transferred the vehicles in the name of other persons basing on the forged signatures prepared that complainant has no objection for transfer of the vehicles. Further he stated that subsequently he came to know that under the instructions of the accused his own agent prepared forgery documents and affidavit representing his willingness and also he stated that no objection for transfer prepared at Nampalli Courts. To support his contention he has not adduced any evidence though Regional Transport Authority official examined as P.W.2 he stated that there is no mistake in transfer of the vehicles under Exs.P.1 to P.3 and further admitted that after receiving information from the State Transport Authority regarding cancellation of All India Permit then only they transferred the ownership of the vehicles. It shows P.W.2 has supported the contention of the accused and further he has not examined any person that he was informed by somebody that his signature was forged at the time of transfer of the vehicles. Further stated that the agent of the accused forged on the instructions of the accused. To that extent also the complainant not adduced any evidence. On the other hand that document which is purported to be forged itself not filed before the court and there is no evidence that accused forged the document and used for cheating. In view of the forgoing reasons, it is clearly made out that prosecution miserably failed to prove guilty against the accused for the offence under Section 468 IPC.
Fourth charge framed against the accused is under Section 471 IPC accused with a fraudulent and dishonest intention used that forged documents as genuine one and thereby committed offence punishable under Section 471 IPC. The prosecution has to prove that documents were forged one and accused used such document and accused used it as a genuine one that he has got knowledge and he had reason to believe that it was forged one. Admittedly, to prove the charge on behalf of the prosecution P.Ws.1 to 4 examined and documents Exs.P.1 to P.11 marked. P.W.1 is the Managing Partner of the complainant firm. P.W.2 is official witness from transport authority P.W.3 is wife of P.W.1. P.W.4 is family friend of P.W.1. P.Ws.3 and 4 stated that they sent vehicle to M/s. Bombay Mercantile Cooperative bank Ltd. for inspection and subsequently they came to know that bank put the buses in auction and P.W.2 stated that regarding transfer of the vehicles in dispute. To that extent P.W.2 filed Exs.P.1 to P.3 documents and original of Exs.P.1 to P.3 filed by P.W.1 i.e. Exs.P.5 to P.7. As per the testimony P.W.1 informed that somebody informed him that with the instructions of the accused, accused agent forged the signatures of the complainant and prepared affidavit that complainant has no objection for transfer and used that document as a genuine one and cheated the complainant. That document which is alleged to be forged not filed before the court. The person, who informed to complainant about the forgery, is also not examined by complainant. Further, P.W.2 in his evidence stated that there is no mistake regarding transfer of the vehicles. On the other hand that document itself not filed before the Court and there is no evidence that accused used said document as a forged document. In view of the foregoing reasons, it is clearly made out that prosecution miserably failed to prove guilty against the accused for the offence under section 471 IPC.
On perusing the evidence available on record and the Judgment of the Court below, this Court is of the view that the trial Court has appreciated the evidence in proper perspective and the reasoning given while acquitting the accused is in accordance with law. The Judgment of the trial Court does not suffer from any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 01.12.2014 pln