Budihal R.B, J.

This revision petition is filed challenging the legality and correctness of the judgment and order of conviction dated 3.4.2007 passed by the JMFC-II, Davanagere, in C.C. No.2050/2003 and also the judgment and order dated 31.12.2009 passed by the I Additional District and Sessions Judge, Davanagere in Crl. Appeal No.49/2007.

2. Brief facts of the case of prosecution are that, the respondent-complainant is a resident of Davanagere City and employed in State Bank of Mysore, Harihara Branch. The revision petitioner-accused is carrying on Share Brokerage business under the name and style of M/s. Vardhaman Shares and Securities and M/s. Davanagere Shares and Securities Pvt. Ltd., Chowkipete, Davanagere City. The revision petitioner-accused in the month of August 1998 had met the respondent-complainant and told the respondent- complainant that he is a broker in Mumbai Share Market and that he had got a direct contact and he assured the respondent-complainant to get more profits. If the respondent-complainant invests money, the revision petitioner-accused will do business on behalf of respondent-complainant and get profit to the respondent-complainant. So saying, the petitioner induced and made the respondent to believe his words. The respondent started paying money to the petitioner, as demanded by the petitioner from September 1998, which money was hard earned out of agriculture by the father of the respondent. The respondent-complainant in total had paid Rs.1,45,000/- to the petitioner and that for having received the amount, the petitioner had issued number of receipts to the respondent. Excluding this, the petitioner had also received from the respondent, 22 shares of Hindustan Lever Company worth about Rs.50,000/- and its market value is about Rs. 45,000/- and also 100 shares of Reliance Petroleum worth in market about Rs.6,000/- for sale. The petitioner issued confirmation note which was prepared by him in favour of the respondent with regard to the investments made by him on behalf of the respondent-complainant.

3. In the complaint, it is further stated that the petitioner had issued duplicate receipts, which were prepared by him to the respondent stating that in the aforesaid shares, the shares belong to Moser Bear Company was purchased in an auction conducted by Mumbai Share Market, as the shares of Moser Bear Company was not available in the market on that day. Whenever the respondent-complainant demanded the petitioner-accused to give him original share certificates, the petitioner used to reply to the respondent stating that the same has not come from Mumbai brokers and he will hand it over to the respondent when he receives the same. But according to the confirmation note issued by the petitioner, the petitioner has not purchased the shares in the name of the respondent. The petitioner-accused had cheated the respondent-complainant by creating false documents and also by making the respondent-complainant to believe him. The confirmation note issued by the petitioner-accused was prepared by himself and it does not contain the order number, time of purchase, (SEBI) Registration number, name of main broker with whom the petitioner-accused to deal with, address, all these are not mentioned in the confirmation note and even it does not contain the signature of the petitioner- accused. It is further case of the complainant that the revision petitioner-accused by creating false documents committed breach of trust, cheating, making wrongful loss to the respondent. The said offences are punishable under Sections 409, 417, 420, 465 and 468 of Indian Penal Code.

4. When the matter was referred by the JMFC Court to the police for investigation, the police investigated the matter and filed the charge sheet.

5. The prosecution, in order to prove its case, examined two witnesses as P.Ws.1 and 2 and produced the documents as per Exs.P.1 to P.27 and on the side of the accused, D.Ws.1 to 3 were examined and the document