Final Order 1

Order Details: Copy  of Judgment
Pdf Text: – 1 – C.C.NO.2353/PW/2018
Received on : 28/08/2018
Registered on : 28/08/2018
Decided on : 04/08/2022
Duration : 03 Y. 11 M. 07 D.
Exh. : 07
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44th COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY A. I. SHAIKH)
(JUDGMENT U/SEC. 355 OF CODE OF CRIMINAL PROCEDURE)
(CNR NO.:MHMM190084402018)
(a) The serial No. of the case; : C.C.NO.2353/PW/2018
(b) The date of commission of
the offence;
: 08/04/2018
(c) The name of the complainant
(if any);
: The State (Versova Police Station
in C. R. No. 146/2018)
(d) The name of the accused
persons and their parentage
and residence;
: Sunny Malkhan Athwal,
Age 28 Years,
Occupation – Sweeper,
R/o.Anand Nagar,
Near Yusuf Office Colony,
New Link Road,
Jogeshwari (W), Mumbai.
(e) The offences complained of
or proved ;
: Under Sections 379 of the Indian
Penal Code.
(f) The plea of the accused and
their examination (if any); : The accused pleaded not guilty
(g) The final order; : The accused is acquitted.
(h) The date of such order; : 04/08/2022
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Ms. Seema Mokal, APP for the State.
Mr. Dilip Kerkar, Advocate for the accused.
J U D G M E N T
(Delivered on 4th August, 2022)
1. The accused is prosecuted for the offence punishable under
Section 379 of the Indian Penal Code.
2. In brief, it is the case of the prosecution that on
08/04/2017 at about 9.30 hrs. informant went to Sat Bangala Market
for his work and shopping. At about 10.15 hrs she went to Axis Bank
A.T.M. machine which is situated at Siddhart Nagar Co.op.Hous.
Society Sat Bangala, Andheri (W), Mumbai for withdrawing money. At
that time she kept her phone at A.T.M. Machine and withdrawn the
money from A.T.M. card. Thereafter, she went to the house. After
reaching to the house she searched her phone but it was not found on
the purse. She come to know that when she went to withdraw the
money she kept her phone on A.T.M. Machine. She suddenly went to
place of A.T.M. Machine but her phone was not found there. She
inquired about the phone with Axis Bank, Sat Bangla, Andheri (W),
Mumbai. She came to know somebody had theft her phone. Therefore,
informant went to the Police Station and lodged complaint about theft
of her phone.
3. On the basis of the report given by the informant, crime no.
146/2018 came to be registered against the accused. During
investigation I.O. arrested the accused. During further investigation
I.O. recorded statement of witnesses. After completion of investigation,
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I.O. filed chargesheet.
4. The charge is framed against the accused for the above
mentioned offence. The accused pleaded not guilty and claimed to be
tried. The prosecution has examined three witnesses in total. The
statement of the accused under Section 313 of the Code of Criminal
Procedure came to be recorded. His defence is of total denial.
5. The points for determination alongwith my findings
thereon as under :
Sr.No. POINTS FINDINGS
1] Does the prosecution prove that
accused committed theft of Iphone
6, black colour worth of
Rs.20,000/ of complainant
Jasmine Sanjeev Kharkar?
In the negative
2] What order ? The accused is acquitted
R E A S O N S
AS TO POINT NO. 1 :
6. The prosecution examined three witnesses in total in this
case. P.W.No.1 Jasmine Sanjeev Kharkar is the informant. P.W.No.2
Dattatray Popat Bibve is the panch witness and P.W. No.3 Avinash
Pandurang Jadhav is the Investigating officer.
7. Jasmine Sanjeev Kharkar (P.W.1) deposes at Exh.4 that
incident occurred on 08/04/2018 at Axix Bank ATM, Sat Bangala.
When she withdrawing the amount from ATM, she kept mobile at the
machine. When she reached to her house she remembered that she
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forgotten her mobile at the ATM machine. When she returned back to
the ATM machine she didn't found her mobile phone. Thereafter, on
second day she lodged complaint to the police station at Exh.5. Her
phone was of IPhone. After some days police called her and told her
that they found mobile phone from one person. She identified her
mobile. Police has shown her the person who had theft her mobile.
8. During her crossexamination she stated that she had not
given details of her mobile phone to the police. After her FIR she again
visited the police station within 10 to 12 days. She denied that her
mobile was not stolen by anyone. Mobile shown to her are different
mobile.
9. Dattatray Popat Bibve (P.W.2) deposes at Exh.5A that
police had called her at the police station and taken her signature. He
do not know about anything. Police had not called him to act as a
panch and not prepared any panchanama. Advocate of accused has
declined to crossexamine P.W.No.2, panch witness.
10. Avinash Pandurang Jadhav (P.W.3) deposes at Exh.6 that
he was attached to Versova Police Station from 2017 to 2021. He was
on duty officer when Jasmine Kharkar, informant, came to police
station and filed complaint that her Iphone 6 left at ATM and
somebody had stolen it. he registered complaint. Thereafter, he
investigate the crime. He visited to the spot of incident and seen the
CCTV footage. he recorded the statement of witnesses. Thereafter,
accused has surrendered the said mobile to police station. He prepared
panchanama before panchas. Thereafter, he filed chargesheet.
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11. During his crossexamination he denied that the said
mobile was found at ATM machine and he saw the accused in the CCTV
footage when he is withdrawing his money. He further denied that he
had not prepared spot panchanama.
12. I have gone through the evidence of the witnesses and
record of proceeding. There is no any reliable and concrete evidence to
show that at the relevant time the alleged incident of theft has taken
place. Therefore, it cannot be ruled out that a false case may be filed by
the informant against the accused.
13. Though sufficient opportunity were given to the
prosecution, they failed to examine other witnesses including Pancha
witness and another investigating officer. No any incriminating
evidence came on record against the accused during evidence of
informant and Investigating Officer. The evidence of all witnesses is
formal in nature. The oral evidence adduced by the prosecution is not
corroborative, reliable and not supporting to the prosecution case. The
prosecution failed to prove the charges levelled against the accused.
Hence, I answer Point No. 1 in the negative.
AS TO POINT NO.2:
14. The prosecution failed to prove guilt of the accused beyond
reasonable doubt. Therefore, the accused is liable to be acquitted. In
the result, in answer to Point No.2, I pass the following order:
ORDER
1. The accused Sunny Malkhan Athwa is hereby acquitted of the
offence punishable under Section 379 of the Indian Penal Code
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vide Section 248 (1) of the Code of Criminal Procedure.
2. Bail bond of the accused stands cancelled.
3. The accused to execute P.R. Bond of Rs.15,000/(Rupees
Fifteen Thousand only) vide Section 437–A of the Code of
Criminal Procedure for appearance before the higher court, if
said court issues notice to him for his appearance in the matter
in which present judgment is challenged, if any.
4. Seized muddemal property is already returned to the informant
on Supratnama, it to be retained with her.
The Judgment is transcribed directly on the computer and
pronounced in open Court.
Mumbai ( A. I. Shaikh )
Metropolitan Magistrate,
Date: 04/08/2022 44 th Court, Andheri, Mumbai.
spj
Typed on : 04.08.2022
Signed on : 04.08.2022
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