Bangalore District Court
Uma vs Yashaswani on 28 February, 2025
KABC030766782019
Presented on : 19-10-2019
Registered on : 19-10-2019
Decided on : 28-02-2025
Duration : 5 years, 4 months, 9 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the 28th day of February-2025
:Present: Sri.Thimmaiah.G B.A. LLB.
30th ACJM, Bengaluru.
C.C.No.24756/2019
Judgment U/s.355 of Cr.P.C.
Date of Offence ----------------
Complainant State by Subramanyapura Police
Station,
R/by. Learned Senior APP
V/s.
Accused A1. Yeshaswini
W/o. Mahesh,
Aged about 36 years,
R/at. No.B-203, G.R. Lavender,
Behid MS.Ramaiah building,
Kothanur Dinne,
J.P.Nagar, 8th Phase,
Bengaluru Ciyt.
Judgment 2 C.C.No.24756/2019
A2. Mahesh @
Dadiya Mahesh,
( Split up)
Offences U/sec, 3 and 4 of the Karnataka
Prohibition of Expensive Usury Act
and U/ sec., 504, 506 R/w sec.,
34 of IPC.
Plea Recorded on: 10.11.2021 and
accused persons are Pleaded not
guilty.
Examination U/sec., On 28.02.2025
313 of Cr.P.C recorded
on:
Final Oder Accused No.1 is Acquitted.
Date of Order 28.02.2025
Thimmaiah.G
30 ACJM, Bengaluru.
th
JUDGMENT
The PSI of Subramanyapura Police Station has filed
charge sheet against accused persons for the offences
punishable U/sec, 3 and 4 of the Karnataka Prohibition of
Expensive Usury Act and U/ sec., 504, 506 R/w sec., 34 of
IPC.
Judgment 3 C.C.No.24756/2019
2. The brief facts of the prosecution case are as
follows:-
It is alleged that, the Cw.1 had taken hand loan of Rs.
1,80,000/- from the accused No.1 and later the accused No.1
demanded the 10% interest for the above said loan amount,
further the Cw.1 had put the chit with the accused No.1 when
ever the chit amount was given to the accused No.1, she had
added that chit amount to the interest to the above said
amount and not even given the chit to the Cw.1. Further the
accused No.1 obtained the blank cheques from the Cw.1 and
withdrawn the more amount pertaining to the above said loan
amount. Further the accused persons came to the house of
Cw.1 situated within the jurisdiction of Subramanyapura
Police Station, In front of BMTC bus depo, PP Layout,
Uttarahalli Layout and given the life threat to the Cw.1 if he
not pay back due amount they will kill the Cw.1 and abused
him in filthy language and thereby the accused persons have
committed the above said alleged offences which are
punishable U/sec, 3 and 4 of the Karnataka Prohibition of
Expensive Usury Act and U/ sec., 504, 506 R/w sec., 34 of
IPC.
3. During the pendency of the case, the accused No.2 is
split up. After filing the charge sheet, cognizance taken for the
offences punishable U/sec, 3 and 4 of the Karnataka
Prohibition of Expensive Usury Act and U/ sec., 504, 506
Judgment 4 C.C.No.24756/2019
R/w sec., 34 of IPC against the accused No.1 and accused
No.1 was released on bail. Copy of the prosecution papers
furnished to the accused No.1 as required U/Sec.207 of
Cr.P.C. Heard before charge. Charge has been framed and read
over to the accused No.1 language known to her wherein she
has denied the same and claim to be tried.
4. In order to secure the Cw.3 to 7 witness this court
issued Summons and Proclamation. But even though the
sufficient time give to the concerned police, the concerned
police failed to secure these witness. In this regard relied on
the following Hon’ble High Court, full bench Judgment of the
Madras High Court, passed in The State ( Tamil Nadu) V/s
Veerappan and Others, on 24 March 1980, AIR 1980
MAD260-ILR 3 MAD 245 where in it held as below:
2. Of the two questions which have been
referred to this Full Bench, the first one, namely,
whether under Section 255(1) Cr. P. C., a
Magistrate can acquit the accused if the
prosecution fails to apply for the issue of
summons to any witness and does not produce
the witness for several hearings and does not
serve summons on the witnesses despite
having been granted sufficient opportunity to
serve the summons or to produce the witnesses,
is the one that directly arises for determination
in these appeals. The second question which
arises for determination by us incidentally is
whether a Magistrate can acquit the accused
Judgment 5 C.C.No.24756/2019under Section 248(1) Cr. P. C., if the prosecution
does not apply for the issue of summons to any
of the witnesses and does not produce the
witness for several hearings and does not serve
the summons on the witnesses despite having
been granted sufficient opportunities to serve
the summons on the witnesses or to produce
the witnesses.
3. In all these appeals, the learned
Magistrate acquitted the accused under Section
255(1) Cr. P. C., on the ground that even though
the cases had been posted for hearing on
various dates and summons had been issued
to the witnesses for all the hearings, the
witnesses were not produced on any of the
hearing dates and in spite of a notice issued
that the case would be disposed of without
examining the witnesses if they are not
produced the prosecution did not choose to let
in any evidence and as such the Magistrate
found that the prosecution had no evidence to
let in.
15. In State of Madh. Pra. v. Kaluthawar,
1972 Cri LJ 1639, a Division Bench of the
Madhya Pradesh High Court observed as
follows: “It was the duty of the prosecution to
make necessary arrangements for the
production of its witnesses…. The Police must
always remember that it has got a duty to the
court and they cannot just send a challan and
think that the rest will be done by the court.
When nobody appeared in t he court to inform
what the reason was for non-appearance of the
Judgment 6 C.C.No.24756/2019
witnesses, the court could legitimately come to
the conclusion that the police was not very
serious in prosecuting the offence which was a
minor one. Under Section 245, the Magistrate
can record an order of acquittal if there is no
evidence to hold the accused guilty. If the
prosecution did not take proper steps to produce
the witnesses, or ask the court to give them
time to do the same, or to issue fresh summons,
the court was not bound to fix another date.
The police has a duty towards the citizen.
When the accused is brought before the court
and the prosecuting department does not take
any steps it will be an abuse of the process of
the court to continue the trial. Bringing a person
before the court accusing him of some offence is
a serious matter and however petty the offence
may be, the prosecuting department, must do
its duty towards the accused as well as the
court. When once the accused is challaned
there is no privilege given to the police to remain
absent”.
16. There are quite a number of decisions in
which it had been held that an acquittal of the
accused on the failure of the prosecution to
produce the witnesses is not legal. (Vide State
v. Kaliram Nandlal, ), the State of Mysore v.
Ramu, 1973 Mad LJ (Crl.) 116: (1973 Cri LJ
1257) (Mys); State of Mysore v. Kalilulla Ahmed
Sheriff. AIR 1971 Mys 60; Kanduri Misra v.
Sabadev Kunda, (1962) 2 Cri LJ 295; State of
Orissa v. Sibcharan Singh, ; State of Mysore v.
Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ
Judgment 7 C.C.No.24756/2019
1478) (Mys); State of Mysore v. Shanta, 1972
Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973
Cri LJ 548 (Mad); Public Prosecutor v.
Sambangi Mudaliar, ; State of Kerala v.
Kunhiaraman, 1964 Mad LJ (Cri) 330 (Ker);
State of Mysore v. Narasimha Gowda, AIR 1965
Mys 167; State of Gujarat v. Thakorbhai
Sukhabhai, , State of U.P. v. Ramjani, All LJ
1126; Lakshmiamma Kochukuttiamma v.
Raman Pillai, AIR 1952 Trav-Co 268; State v.
Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker);
Emperor v. Varadarajulu Naidu, AIR 1932 Mad
25 (2); State of Kerala v. Desan Mary, 1960
Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of
Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR
1963 J & K 23); R. K. V. Motors and Timbers
Ltd. v. Regional Transport Authority,
Trivandrum, ; K. K. Subbier v. K. M. S.
Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR
1942 Mad 452 (1)); State of Tripura v. Niranjan
Deb Barma, 1973 Cri LJ 108 (Tripura); Apren
Joseph v. State of Kerala, 1972 Mad LJ (Cri)
10: (1972 Cri LJ 1162) (Ker). As against these
decisions, there are the following decisions in
which it has been held that acquittal on the
ground of non-production of witnesses by the
prosecution was proper.
23. On the question as to whether the
Magistrate can acquit an accused at all under
Section 251A (11), Cr. P. C., if the prosecution
failed to produce their witnesses, a Division
Bench of the Gujarat High Court observed in
State of Gujarat v. Bava Bhadya (1962)’2 Cri
Judgment 8 C.C.No.24756/2019
LJ 537 (2), as follows: “Where a charge Is
framed In a warrant case on police report, if
owing to the failure of the prosecution to
produce their witnesses and owing also to the
failure of the prosecution to make full
endeavour to serve the summonses according
to the provisions contained in Sections 69, 70
and 71, Cr. P. C., 1890, there is no evidence
before the Magistrate, the Magistrate can acquit
the accused under Section 251A (11).”
” In State of Karnataka v. Subramania Setti
1980 Mad LJ 138: (1980 CA LJ NOC 129), a
Division Bench of the Karnataka High Court
referring to the decisions in State of Mysore v.
Narasimha Gowda (1964) 2 Mys LJ 241: (AIR
1965 Mys 167) and the State of Mysore v. Abdul
Hameed Khan (1969) 1 Mys LJ 4: (1970 Cri LJ
112 (Mys)), observed that the real distinction
between the two decisions is as to whether
there was remissness and want of diligence on
the part of the prosecuting agency in producing
the witnesses before the Court and therefore the
principle laid down in Abdul Hameed Khan’s
case applied to the facts of the case with which
the Division Bench was concerned. We may riots
here that in Abdul Hameed Khan’s case, it was
found on the facts that the prosecution was not
at all diligent as the non-bailable warrants
issued to the witnesses had neither been served
nor returned to the court by the concerned police
and it was therefore held that where the
prosecution was not diligent in producing its
witnesses and had failed to serve the bailable
Judgment 9 C.C.No.24756/2019warrants on the witnesses and return the same
the Magistrate would be justified in refusing to
grant an adjournment and to proceed to acquit
the accused on the material on record. We may
note here that in State of Karnataka v.
Subramania Setti 1980 MLJ 138 the Division
Bench was dealing with a24. After carefully
considering all the aforesaid decisions and the
views expressed therein, we are of the view that
if the prosecution had made an application for
the issue of summons to its witnesses either
under Section 242(2) or 254(2) of the Criminal
Procedural Code it is the duty of the court to
issue summons to the prosecution witnesses
and to secure the witnesses by exercising all the
powers given to it under the Criminal Procedure
Code, as already indicated by us and if still the
presence of the witnesses could not be secured
and the prosecution also either on account of
pronounced negligence or recalcitrance does not
produce the witnesses after the Court had given
it sufficient time and opportunities to do so, then
the Court, being left with no other alternative
would be justified in acquitting the accused for
want of evidence to prove the prosecution case,
under Section 248, Cr. P. C., in the case of
warrant cases instituted on a police report and
under Section 255(1), Cr. P. C. in summons
cases, and we answer the two questions
referred to us in the above terms.
Hence, the Cw.3 to 7 are dropped. Moreover, this case 07
years old. In order to prove the guilt of the accused No.1 the
Judgment 10 C.C.No.24756/2019prosecution has examined 03 witnesses as PW.1 to PW.3 and
got marked 06 documents as Ex.P1 to P.6.
6. Heard both sides and perused the evidence available
on record.
7. Upon hearing arguments advanced from both sides
and on perusal of materials placed on record, following points
arise for consideration:
POINTS
1. Whether the prosecution proves
beyond all reasonable doubt that, the
Cw.1 had taken hand loan of Rs.
1,80,000/- from the accused No.1 and
later the accused No.1 demanded the 10%
interest for the above said loan amount,
further the Cw.1 had put the chit with
the accused No.1 when ever the chit
amount was given to the accused No.1,
she had added that chit amount to the
interest to the above said amount and not
even given the chit to the Cw.1. Further
the accused No.1 obtained the blank
cheques from the Cw.1 and withdrawn
the more amount pertaining to the above
said loan amount and thereby committed
an offence punishable U/sec, 3 and 4 of
the Karnataka Prohibition of Expensive
Usury Act?
Judgment 11 C.C.No.24756/2019
2. Whether the prosecution proves
beyond all reasonable doubt that, further
the accused persons came to the house of
Cw.1 situated within the jurisdiction of
Subramanyapura Police Station, In front
of BMTC bus depo, PP Layout, Uttarahalli
Layout and given the life threat to the
Cw.1 if he not pay back due amount they
will kill the Cw.1 and thereby committed
an offence punishable U/sec.,506 R/w
sec., 34 of IPC?
3. Whether the prosecution proves
beyond all reasonable doubt that, further,
the accused persons abused the Cw.1 in
filthy language and thereby committed an
offence punishable U/sec.,504 R/w sec.,
34 of IPC?
4. What order.?
8. My findings to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final order
for the following:
REASONS
9. POINTS NO.1 TO 3: These points are inter
connected to each other and have taken for discussion in
common to avoid repetition of the facts and evidence. Further,
Judgment 12 C.C.No.24756/2019
I am of the opinion that, I need not repeat the entire case of
the complaint here also, since I have already narrated the
same at the inception of this judgment.
10. The Pw.1.Shivashankar, who is the incident witness
and husband of Cw.1 to the case, he has deposed in his
evidence before the court that, Cw.1 is his wife and she died
on 21.06.2018 and he knows the accused No.1, further his
wife not taken any loan amount from the accused No.1 and
there was no quarrel between themselves and regarding the
same he had not given any statement before the police.
11. The Pw.2.Vajramuni,K who is the IO witness to the
case, he has deposed in his evidence before the court that, On
20.09.2027 at 11.50 pm, while he was in charge of the police
station, he received a copy of the written complaint given by
Cw-1 and registered the case and submitted the first report to
the court. On 21.09.2017, he visited the place where the crime
taken place and on the basis of Cw-1 shown the place where
the crime taken place, he conducted a panchanama from 10
am to 11 am in the presence of the panchanas Cw-4 and 5. On
25.09.2017, he received the statements of Cw-2 and 3. Cw-2
has given a statement to me. On 26.09.2017, the 1st accused
in this case was taken and produced by the female constable
Renukamma, the 1st accused was interrogated and arrested,
and the voluntary statement of the 1st accused was recorded
in accordance with the arrest rules,in her statement, she has
Judgment 13 C.C.No.24756/2019
said that if he comes with her, she will produce the Xerox copy
of the check given by Cw.1 and the bank return memo in his
possession. Then, on the statement of the 1st accused, he took
her to the house of the 1st accused and after conducting a
face-to-face interrogation of the accused, Cw-6 and 7, he seized
the Xerox copy of the Canara Bank check No. 353539 and the
Xerox copy of the bank memo given by the 1st accused and
then entered them in the inventory and submitted them to the
court. Further handed over the case file to Cw9 for further
investigation.
Further, the learned counsel for the accused had cross
examined the said witness, where in he stated that, not
mentioned the reasons for delay complaint in Ex.P3, the
complainant had written the complaint and bought to the
police station, no documents were collected regarding the
identification of the accused and address of the accused and
further denied the rest of the suggestions put by the learned
counsel for the accused.
12. The Pw.3. Madhu.K who is the Further IO witness to
the case, he has deposed in his evidence before the court that,
on 05.05.2018 he got the case file from the Cw.8 for further
investigation and since the investigation of over and prima
faice proven against the accused submitted the charge sheet
before the court and to his higher officers.
Judgment 14 C.C.No.24756/2019
13. It is the paramount duty of the prosecution to
establish the guilt of the accused No.1 beyond all reasonable
doubt. Unless the guilt is established beyond all reasonable
doubt, the accused No.1 can not be held guilty of the alleged
offenses.
14. In this case, in order to secure the Cw.3 to 7
respectively this court issued summons and proclamation. In
spite of the sufficient time given to the police, the concerned
police have failed to secure these witnesses and Cw.3 to 7
dropped. Moreover, during the pendency of the case, the
complainant/Cw.1 is reported to be dead and non examination
of the material witness is fatal to the prosecution case. As
such the case against the accused No.1 is certainly would be
entitled to benefit of the doubt. Regarding this relied on the
following Judgment.
On this point held in, (2016) 10 SCC 519 – AIR 2016 SC
4581 in para 56, Hon’ble Apex held thus hereunder:
”56. It is a trite proposition of law, that suspicion
however grave, it cannot take the place of proof and that
the prosecution in order to succeed on a criminal charge
cannot afford to lodge its case in the realm of ”may be
true”’ but has to essentially elevate it to the grade of
”must be true”. In a criminal prosecution, the court has
a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof and in a situation
where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent
Judgment 15 C.C.No.24756/2019miscarriage of justice, benefit of doubt is to be extended
to the accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or
non-existent but as entertainable by an impartial,
prudent and analytical mind, judged on the touchstone
of reason and common sense. It is also a primary
postulation in criminal jurisprudence that if two views
are possible on the evidence available one pointing to
the guilt of the accused and the other to his innocence,
the one favourable to the accused ought to be adopted.”
15. Thus, the above Hon’ble Apex Court decision has
opt to the present case on hand and the accused No.1 entitled
to the benefit of the reasonable doubt. Moreover, non
examination of material witness who is reported to be dead, is
fatal to the prosecution case. The prosecution has not able to
prove the alleged offences against the accused No.1 beyond all
reasonable doubt. Therefore, I Answer to the Points No.1 to
3 in the Negative.
16. POINT NO.4: In view of the above findings on Point
No.1 to 3, I proceed to pass the following:
: ORDER :
In the exercise of powers conferred U/Sec.
248(1) of Cr.P.C., the Accused No.1 is hereby
Acquitted of the offences punishable U/sec, 3 and
4 of the Karnataka Prohibition of Expensive Usury
Act and U/ sec., 504, 506 R/w sec., 34 of IPC.
Judgment 16 C.C.No.24756/2019
The bail bond of Accused No.1 and surety
extended for further 6 months in order to comply
Sec.437A of Cr.P.C. Thereafter, this bail bond
automatically stands cancelled.
(Dictated to the Stenographer directly on computer and after corrections
made by me and then pronounced by me in the Open Court on this the 28 h day of
February -2025).
(Thimmaiah.G)
30 ACJM, Bengaluru.
th
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE
PROSECUTION:
P.W. 1 : Sri. Shivashankar
P.W.2 : Sri. Vajramuni.K
P.W.3 : Sri. Madhu.K
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of Cw.1
Ex.P.2 : C/c of Complaint
Ex.P.3 : FIR
Ex.P.4 : Spot Mahazar
Ex.P.4(a) : Signature of Pw.2
Ex.P.5 : Self Statement of the Accused No.1
Judgment 17 C.C.No.24756/2019
Ex.P.5(b) : Signature of accused No.1
Ex.P.5(a) : Signature of Pw.2
Ex.P.6(a) : Seizure Mahazar
Ex.P.6(a) : Signature of Pw.2
Ex.P.7 : C/c of the cheque
Ex.P.8 : Return of Memo from the SBI Bank
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
-NIL-
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE
PROSECUTION
-NIL-
(Thimmaiah G)
30th ACJM, Bengaluru.
Judgment 18 C.C.No.24756/2019
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