A.geethavani, Ajcj, Atp

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPL. MOBILE COURT, ANANTHAPURAMU.

Present:- Smt A. Geetha Vani, Addl. Judicial First Class Magistrate,

Ananthapuramu.

(FAC) Judl. First Class Magistrate, Spl. Mobile Court,

Ananthapuramu.

Monday, the 9 th Day of April, 2018

CALENDAR CASE No.2/2008

Between :-

State Represented by the Drugs Inspector,

Anantapur. ... Complainant

AND

1) M/s. Brij Textiles, 68 Khyber Pass, Civil Lines, Delhi – 110054. (A-1)

2) Sri Sandeep Gupta, aged about 40 years, S/o. Late Sri A.L. Gupta, Managing Partner & Manufacturing Chemist, M/s. Brij Textiles, 68 Khyber Pass, Civil Lines, Delhi 110054, Resident of 39/23, Shakti Nagar, Delhi – 7. (A-2)

3) Sri Rohit Gupta, aged about 37 years, S/o. Late Sri A.L. Gupta, Working Partner M/s. Brij Textiles, 68 Khyber Pass, Civil Lines, Delhi - 110054, Resident of 39/23, Shakti Nagar, Delhi – 7. (A-3) … Accused Nos.1 to 3.

This case coming on 22.03.2018 for final hearing before me in the presence of the learned Assistant Public Prosecutor for Prosecution and of Sri A.V. Siva Reddy, Sri A. Dasthagiri Basha, Advocates for A-1,

A-3 upon hearing both sides and on perusing the material on record, and the matter having stood over for consideration till this day, and this Court delivered the following:-

JUDGMENT

1. The Drug Inspector, Anantapur filed charge sheet against A-1 to

A-3 for the offences under Secs.27 (d), 28-A of Drugs and Cosmetics Act.

2. The case of the complainant is that A-1 is the licensed firm to manufacture and sell drugs and is represented by A-2 and A-3. A-1 had contravened section 18 (a) (i) of the Act by way of manufacture for sale and 2 for sale of drug which is not of standard quality. A-2 is the Managing Partner and manufacturing chemist of the accused firm A-1. A-2 had contravened section 18 (a) (i) of the Act by way of manufacture for sale and for sale of drug which is not of standard quality. A-3 is the working partner of the accused firm A-1. A-3 had contravened Sec.18 (a) (i) of the act by way of manufacture for sale and for sale of drug which is not standard quality. The complainant T. Eswar Reddy prayed that necessary legal process may be issued against the accused and the accused maybe dealt with as per law.

3. After filing charge sheet, this case was taken cognizance by the

Addl. Judl. Magistrate of I class, Anantapuramu for the offence U/Sec. 22 (3) of Drugs and Cosmetics Act and numbered as C.C.191/2007. As per the proceedings of Hon'ble District and Session Judge, Anantapurmu in Order Dis

No.821 dt.11-09-2007 this case was transferred to this court and renumbered the same as C.C.2/2008.

4. On appearance of A-1 to A-3, copies of case records were furnished to them as required Under Sec. 207 of Cr.P.C.

5. The accused A-1 to A-3 were examined Under Sec.251 of Cr.P.C and the substance of accusation for the offence U/Sec 22 (3) of Drugs and

Cosmetics Act was read over and explained to them in Telugu. They pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution examined PWs-1 to 4 and marked Exs.P-1 to P-27 and Mo.1 on its behalf.

7. After closure of prosecution side evidence, the accused A-1 to A-3 were examined under Sec.313 of Cr.P.C and they denied the incriminating evidence deposed against them by the prosecution witnesses and reported no defence evidence on their behalf.

8. Heard both sides.

3

9. Now, the point arose for determination is:

“ Whether the prosecution proved the guilt of the accused A-1

to A-3 for the offences U/Sec 22 (3) of Drugs and Cosmetics Act

beyond all reasonable doubt?” 10. P O I N T :-

11. The learned Asst. Public Prosecutor argued that basing on the evidence available on record the accused are liable for conviction.

12. On the other hand the learned counsel for the accused A-1 and

A-3 presented written arguments and argued that the entire case of the prosecution rests on the evidence of PW.1 Drug Inspector of Ananthapuramu on Ex.P.1. Section 21 of Drugs and Cosmetics Act 1940 deals with appointment of Drug Inspectors and also Area assigned to them. Ex.P1 marked on behalf of the prosecution. Ex.P1 is the appointment order of PW.1 it shows that throughout state PW.1, one K. Rajetha and one G. Srinivas were appointed as Drug Inspectors. PW.1 in his cross-examination deposed that “It is true Ex.P-1 is issued at the time of first appointment. After Ex P1

I have moved from place to place. At the time of my appointment approximately 40 to50 inspectors are working in the state of A.P. It is true as per sec 22 of drugs act the drug inspector is authorized to exercise his power within his prescribed local area. It is true two drug inspectors are working in Anantapuram District. There is no gazette showing physical boundaries of the drug inspectors. It is true there is no specific gazette pertaining to Adimurthy area comes under Anantapuramu drug inspector local jurisdiction. It is true except Ex P1 there is no other gazette notification placing me for the local area of Anantapuramu.

13. Further the learned counsel for the accused also placed the below mentioned citations 1) 1999 Crl. Law Journal 4449 State of

Maharastra Vs. R.A. Chandrawarkar and others, wherein the Hon’ble 4

Court in Para No.41 held that “Taking into account all the purposes and objects of the Act ad the powers conferred on the Drug Inspector who is the vital authority to initiate the prosecution, I hold that the appointment of

Drug Inspector can only be through a Official Gazette Notification and not otherwise. I am also of the opinion that such a notification should also indicate the area in which such a Drug Inspector can operate and exercise his powers, and the same should not be left to conjectures and surmises of the public”.

14. Further the Hon’ble Court in para No.42 held that “In the instant case, admittedly, there is no Official Gazette Notification appointing Mr. V.D.

Patil as a Drug Inspector for Greater Bombay area and as such, Mr. V.D Patil cannot claim to be a Drug Inspector for Greater Bombay area atleast up to 21st April, 1988 on which date the said notification was published. In the instant case, as observed earlier, the sample was taken on 29th September, 1987, was sent for analysis on 6th October, 1987 and the complaint was filed on 22nd March, 1988. Till such time there was no Official Gazette Notification notifying Mr. V.D. Patil as a Drug Inspector for Greater Bombay area. In view of the aforesaid very serious infirmity which goes to the root of the matter, I hold that the said Drug Inspector Mr. V.D. Patil had no authority whatsoever to seize the said samples of Drug Vanmycetin Opticops and forward the same for analysis to the Government Analyst and that he had no jurisdiction whatsoever to launch the said prosecution and file the criminal complaint against the accused on 22nd March, 1988”.

15. 2) [2007] 2 Crimes (HC) 358 reported in M/s.Gaba

Pharmaceuticals, Hyderabad and Anr. Vs. State of A.P, wherein the

Hon’ble Court held that “A perusal of Section 21 goes to show that the

Government may be notification in the Official Gazette appoint a person to be the Inspector for such area as may be assigned by the State 5

Government. Except Ex.P1, no other document is filed to show that PW.1 was duly appointed by the Government by issuing a notification in the

Official Gazettee for the purpose of taking samples in Koti zone. Ex.P1 is the notification issued by the Government appointing PW.1 as a Drug Inspector for the entire area i.e., he was initially appointed as Drug Inspector for the entire area, but for the purpose of carrying out the objects in the Drugs and

Cosmetics Act, the Government has to issue a notification duly notifying the area under which the Inspector can discharge his duties”.

16. “The provisions of Sections 20 and 21 of the Act have not been complied with in spite of the fact that the accused raised objection before the Trial Court as well as Appellate Court. It is expected that the prosecution has to produce the Gazette notification. Since the Gazette notification as published in the Official Gazette has not been placed before the Courts below, illegal and improper findings are given. Further in view of the jurisdiction of the Public Analyst and Inspector has been taken, there is no need to adjudicate the other grounds as contended by the learned counsel

for the petitioners. In the above circumstances, the judgment impugned is

liable to set aside”.

17. In the present case PW.1 in his cross-examination deposed that ““It is true Ex P1 is issued at the time of first appointment. After Ex P1 I have moved from place to place. At the time of my appointment approximately 40 to50 inspectors are working in the state of A.P. It is true as per sec 22 of drugs act the drug inspector is authorized to exercise his power within his prescribed local area. It is true two drug inspectors are working in Anantapuram District. There is no gazette showing physical boundaries of the drug inspectors. It is true there is no specific gazette pertaining to Adimurthy area comes under Anantapur drug inspector local jurisdiction. It is true except Ex P1 there is no other gazette notification 6 placing me for the local area of Anantapuram “. On perusal of Ex.P1 it is an

Official Gazette Notification conferring powers to PW.1, Rajitha and

Srinivasulu as Drug Inspectors throughout A.P State. In Ex.P1 there is no specification to which area PW.1 was confined to. In the present case admittedly PW.1 was not specified to which area he was given powers to life the samples.On perusal of the Hon’ble High Court Judgments, the Hon’ble

High Court reported in [1999] 0 Crl.L.J 4449 State of Maharastra Vs.

R.A. Chandrawarkar and others, wherein the Hon’ble Court in Para No.41 held that “Official Gazette Notification should also indicate the area in which such a Drug Inspector can operate and exercise their powers and the same should not be left to conjectures and surmises of the public”. In the preset case also there is no specification of area to which PW.1 was empowered to lift the samples.

18 The counsel for the accused argued that Pw1 did not restore a portion of the sample and it is a breach of sec 23(4) (iii) of drugs and cosmetic Act and 25 (2) (3)(4) of drugs and cosmetic Act. Pw1 did not restore a sample to accused -1 firm manufacture therefore provisions of 23(4)(iii) not complied with. Therefore the accused suffered prejudice.

19. SECTION 23 (4) of drugs and cosmetics Act 1940 “ 4. The inspector shall restore one portion of a sample so divided or one container, as the case may be , to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:

i) one portion or container he shall forthwith send to the Government

Analyst for test or analysis.

ii) the second he shall produce to the court before which proceedings. In any are instituted in respect of the drug.

7 iii) the third, where taken he shall sent to the person if any whose name address and other particulars had been disclosed under sec 18-A.

20. The counsel for the accused argued that Pw1 did not follow the procedure contemplated by law. one of the portion of sample did not restore

21. On perusal of the evidence on record and from the evidence of the Pw1 in his cross examination he deposed that “he drawn 4 portions of samples one portion is handed over to PW.2, one portion handed over to

PW.3, one portion sent to Drug controller laboratory Hyderabad for analysis.

The other portion was sent to the Hon’ble court and the same was already marked as MO-1”.So as per the version of Pw1 he did not restore one sample with him so he did not follow the mandatory provisions as contemplated under law.

22. Further the counsel for the accused argued that since the name of the accused is discovered as manufacturer he is entitled to receive the portion of the sample. But he has not received any thing hence the accused prejudiced.

23. On perusal of the evidence of Pw1 in his cross examination he deposed that he came to know A1 is the manufacturer of the sample drug material. He has not sent any copy to the accused as per under sec 25 issuing section 18(A) notice and he did not restore any potion of sample under section 23(4) (3) drugs and samples. As per his evidence Pw1 has not sent any sample to A1. So Pw1 has not followed section 23(4) (3).

24. The counsel for the accused submitted that provisions of section 25 are mandatory. It deals with the rights of the accused. The Government analyst shall deliver analytical report in triplicate and signed copies to drug inspector. It is mandates to the drug inspector he shall deliver a signed copy to the person from whom the sample taken and 2nd copy to the person 8 whose name was discovered u/s 18 (A) of the drugs and cosmetic Act.

Another copy shall retain with him to file in the court. Here in this case the

Accused did not receive any signed copy of the analyst report hence he lost his challenging right for reanalysis before central drugs laboratory under sec 25(3) as contemplated by law.

25.Section 25(2) of drugs and cosmetic Act - 2). The inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken (and another copy to the person , if any, whose name ,address and other particulars have been disclosed under sec 18A) and shall retain the third copy for use in any prosecution in respect of the sample.

Section 25 (3) of Drugs and cosmetic Act:–

3) any document purporting to be a report signed by a Government

Analyst under this chapter shall be evidence of the facts stated there in and such evidence shall be conclusive unless the person from whom the sample was taken(or the person whose name, address and other particulars have been discovered under section 18 A ) has within twenty eight days of the receipt of a copy, notified in writing the inspector the court before which any proceedings in respect of the sample are pending that he intends to adduce in contraversion of the report.

4) Unless the sample has already been tested or analyzed in the central drugs laboratory where a person has under sub section (3) notified his intention of adducing evidence in contravene of a government analyst report the court may of its own motion or in its discretion at the request either of the complaint or the accused’ cause the sample of drug (or cosmetic) produced before the magistrate under sub-section(4) of section 23 to be sent for test or analysis to the said laboratory which shall make 9 the test or analysis and report in writing signed by or under the authority of the director the central drugs laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.

26. The counsel for the accused placed the judgments:- 1). 1993(1) Crimes 739 A.P .Between Vetcha Venkataraju Vs State of A.P where in it was held in judgment in Drugs Inspector C.D.S.C.O (South) zone, Madras Vs Modern Drugs 1982(2) Cr.l.J 2285 “ section 25 is mandatory and is should be complied with. Strict observance of the provision is imperative. As the analyst report is conclusive evidence of its contents it is absolutely necessary to observe corresponding security and safe guards. The right is a very valuable right for, within 28 days of the receipt of the copy of the report, accused can notify in writing to the inspector to the court that he intends to adduce evidence in contravention of the report. The prosecution cannot deny the right by not serving a copy of the analyst report on the accused. Where there is a denial of the right, prosecution is not entitled to secure the conviction of the accused.

2) 2005(1) ALT (Crl.) 227 (A.P), Between Drug inspector,

Prakasam District, rep.by the public prosecutor Vs Ponnam Devala

Rao, Prop.M/s Pharma surgical cotton Industries, guntur district.

wherein the Hon’ble court held in para.... “12. On appreciation of the evidence of PW.1, the learned Magistrate observed:

“When the Drugs Inspector is conscious that, he has to give one sample of the Drug to the manufacturer after lifting the sample of the drug, to the manufacturer, one portion of the sample to District Medial and Health

Officer, Ongole from whom he lifted the sample. As per the evidence of PW.1 one portion of sample was sent to the Analyst and second; one to the

District Medical and Health Officer, Ongole from whom he lifted the sample 10 and he kept the other two with him. Thus he complied only part of Section 23 (4) of the Act. The intend of Section 23 (4) is that the same sample he lifted should be available with the person from whom he lifted the sample and also the manufacturer and for that reason, it is clearly provided that, the

Drugs Inspector has to give one portion of the sample to the person from whom the sample is lifted and the other is to the manufacturer. Thus PW.1 has clearly contravened Section 23 (4) of the Act.”

3. 1982 Cr..L.J 2285 Madras .Between Drug inspector ,

Central Drugs standard control organization (South) Zone madras-6

Vs M/s Modern Drugs and another. Where in it was held in para 22 of the judgment “ section 25 is mandatory and it should be complied with strict observance of the provision is imperative. As the analysis report is conclusive evidence of its contents. It is absolutely necessary to observe corresponding security and safeguards, the right is very valuable right for, within twenty eight days of the receipt of the copy of the report accused can notify in writing to the inspector or to the court that he intends to adduce evidence in contravention of the report. The prosecution cannot deny the right by not serving a copy of the analysis report on the accused. Where there is a denial of the right prosecution is not entitled to secure the conviction of the accused.

27. On perusal of the evidence of Pw1 he delivered a signed copy of the analyst report to Pw3, Pw4 and one signed copy was filed before court which is marked as Ex P6. As per the evidence of the Pw1 he discovered accused is the manufacturer and for final source of supplier. As such accused is entitled to received the signed copy of the analyst report under sec 25(2). As rightly argued by the counsel for the accused the accused is entitled to receive the copy of the analyst report as per the sec 25(2) but he did not receive the same hence the accused is lost his statutory 11 right under sec 25(3) of drugs and cosmetic Act. The above Hon’ble

Judgments are applicable to the present facts of the case. The manufacturer did not receive the analyst report. Pw1 delivered a analyst report signed copy of the analyst to Pw.3, Pw.4 and one signed copy was filed before court which is marked as Ex P6. As per the evidence of the Pw1 he discovered accused is the manufacturer and for final source of supplier. Thus he complied only part of the section 23(4) of the Act. The intend of section 23 (4) is that the same sample he lifted should be available with the person from whom he lifted the sample and also the manufacturer and for that reason it is clearly provided that the Drugs inspector has to give one portion of the same to the person from whom the sample he lifted and other is to the manufacturer. Thus Pw1 clearly contravened sec 23(4) of the Act.

28. The counsel for the accused submitted that under section 25(4) the accused lost his statutory right to request the court to send the portion of the sample to the central drugs labs for further analysis, since the complainant filed the complaint and accused summoned the court after the expiry of the shelf life of the sample drug. For which he relied the followig citations.

1. 2017 Cr.L.J 2931 SC between Laborate Pharmaceuticals India Ltd and others Vs State of Tamil Nadu. Where in it was held in para 8 of the

Judgment “The cognizance of the offence alleged in the present case was taken on 4th march 2015 though it appears that the complaint it self was filed on 28th November 2012. According to the appellant the cough syrup had lost shelf life in the month of November 2012 it self. Even otherwise is reasonably certain that on the date when cognizance was taken the shelf life of the drug in question had expired. The magistrate therefore could not have sent the sample for the reanalysis by the central laboratory.

12 2). 2008 AIR (SC)1939 = 2008 7 SCC 196 Between M/s

Medicament Biotech Ltd and Another Vs Rubina Bose,Drug Inspector.

Where in it was held in para 18 of the judgment... “Unique Farmaids’s case” ….” in para 12 of the judgment ‘’……. By the time of the matter reached to the court, the shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the insecticide analyst was, therefore not conclusive. A valuable right had been conferred on the accused to have the sample tested form the central insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus prejudicing them in their defence.”

3) 2003 (1) A.L.T. Crl 67 A.P between Mallela Lakshmi and others Vs State of Andhra Pradesh. in which it was held in para 10 of the judgment “ It is clear from the principles laid down by the supreme court in the afore said decisions that the samples have to be tested by central laboratory before the expiry of the shelf life of he sample, if the shelf life of the sample expires it causes prejudice, hence the complaint made against the accused gets vitiated and their valuable right is lost.

29. It is an admitted fact that the in the chief examination of Pw1 as per Ex P2, Mo-1 is manufactured in the year July 2003 and expiring date is july 2005. bearing manufacturing license No 1139/92 manufactured by

M/s Brij Textiles,New Delhi. The cognizance was taken by the court in the year 2007 .i.e 5-2-2007 and posted to 3-5-2007 by that time the shelf life of the sample was expired. As per the above referred citations once self life was expired the sample is unfit for further analysis. So the accused had lost his statutory right under sec 25(4) of the drugs and cosmetic Act .

30. The counsel for the accused submitted that under sec 34(1)(2) of drugs and cosmetic act. As per Sec 34(1) of drugs ad cosmetic Act every 13 person of the company is responsible for committing of offence of the company. Sec 34(2) the person who is responsible and offence was committed due to either negligence or convenience of the person incharge of the company. To attract these provisions there is no record . A1 firm is a partnership firm it is equated with the company incorporated as per explanation given under section34 of Drugs and cosmetic Act.

31. On perusal of the record and evidence of Pw1 in his cross examination he deposed that basing on strength of Ex 25 he was implicated

A2 and A3. He further deposed that “It is true i have not mention in my complaint the name of the person from whom i have obtained the complaint. It is true Ex 25 pertaining to partnership agreement dt 1-4-1992.

the POP is manufactured in the year 2003. it is true I have not enquired whether on the date of manufacture of POP the Ex A25 partnership deed was in existence or not”. On perusal of the Ex 25 it is Photostat copy in the year of 1990 . The alleged offence in the year 2003..Ex A25 is Photostat copy. To prove the genuineness of the Ex A25 the prosecution did not examine any of the witness to prove the genuineness of the Ex A25.

32. The counsel for the accused submitted that the Pw1 failed to adduce any evidence that A2, A3 are responsible for the affairs of A1 firm.

Pw1 did not attribute against A2 and A3 that the offence was committed due to either negligence or commence of A2 A3. A2 and A3 are protected under the provisions of the sec 34 of the drugs and cosmetic act.

33. He placed a citations reported in 1).1998 (2) A.L.T (Crl). 92 SC between State of Haryana Vs Brij Lal

Mittal & Co. where in it was held in para 8 of the judgment ….. section 34(1) of the Act which reads as under: ‘’ offences by companies: (1) Where an offence under this Act has been committed by a company every person who 14 at the time the offence was committed , was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised at due diligence to prevent the commission of such offence’’ “It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfills both above requirements so as to make him liable. conversely, without being director a person can be in charge of and responsible to the company for the conduct of its business. From the complaint in question we, however , find that except bald statement that the respondents were directors of the manufactures there is no other allegations to indicate, even prima facie, that they were in charge of the company and also responsible to the company for the conduct of its business”.

2).2005(1) ALD Crl 956 A.P. between N.Dandapani and another Vs

State of A.P. where in it was held in para 10 of the judgment - “ Now it has to be examined as to whether the petitioners will come under the purview of the principles as laid down by the apex court in the decisions cited supra.

I have perused the copy of the complaint. Except the status of the petitioners and the procedure as to the taking of sample nothing is mentioned as to the primary ingredients as to whether the petitioners here 15 in are overall control of the day to day business of the firm. No other material is also adduced to show prima facie to that effect”.

34. On perusing the evidence as well as in the complaint there is no any specific allegations against the A2 and A3. And also Pw1 did not place any evidence that A2 and A3 are responsible for the day to day affairs of the A1. To prove the allegation of the prosecution the prosecution relied on

Ex P25. Pw1 also deposed that on the strength of Ex P25 he implicated A2 and A3. On perusal of Ex 25 it is Photostat copy of partnership deed in the year of 1992 . The alleged offence in the year 2003..Ex A25 is Photostat copy. Pw1 failed to examine any of the witnesses to prove the alleged partnership between A1 and A2 , A3 that as on the date of the alleged offence A2 and A3 are in the company, mere marking of Ex P25 photostat copy of the partnership deed cannot be said that it is proved, hence benefit of doubt goes to the A2 and A3.

35. The counsel for the accused submitted that Ex P6 is not analyzed according to the POP bandage. Ex P6 is analytical report of the sample material according to form 17 the sample is plaster of parries bandage cloth. Ex P6. Analytical report is disclosing that “ quantity received “ that the cotton cloth of plain weave. It shows analysis are not doe on sample material on Roller Bandage POP . The same was admitted by the Pw1 that the analysis was done with reference to schedule F II of Drugs and cosmetic

Act. The schedule FII belongs to cloth bandage. Where has the sample have

POP bandage. So Ex P6 is not reliable.

36. On perusal of the evidence of the Pw1 in his cross examination he deposed that “ It is true the sample taken was bandage of POP Bandage and Ex P6 is tested according to schedule F/II. I have studied

Pharmaceutical sciences. it is true as per schedule F/II Drugs and cosmetic

Act it consists of Rolled bandage but not POP bandage. On perusal of the 16

Ex.P6 it was mentioned 2x10cm x4mt cotton cloth of plain weave. As per the admission of the Pw1 analyst conducted analysis for cloth bandage but not POP. In this regard there is no explanation by the prosecution.

37. As above stated, this Court is of the opinion that the prosecution failed to prove the offences U/S 22(3) of the drugs and cosmetic Act and the Accused are not liable for the said offences. And the accused are entitled for the acquittal.

38. In the result, the accused A-1 to A-3 are found not guilty for the offence under Sec.22 (3) of Drugs and Cosmetics Act and they are accordingly acquitted under Sec.255 (1) of Cr.P.C. MO.1 shall be destroyed after appeal time is over.

Typed to my dictation directly in my laptop by the Stenographer, corrected and pronounced by me in the open Court, on this the 9 th day of April, 2018.

Addl. Judl. First Class Magistrate, Ananthapuramu. (FAC) Judl. First Class Magistrate , Spl. Mobile Court, Ananthapuramu.

Appendix of Evidence

Witnesses Examined

Prosecution Defence

PW.1 : K. Das. Nil PW.2 : T. Eswara Reddy. PW.3 : R. Manohar Reddy. PW.4 : T. Srinivas.

Exhibits marked .

prosecution. Defence

Ex.P1 : Xerox Copy of Gazette. Nil Ex.P2 : Form 17. Ex.P3 : Form 17-A. Ex.P4 : Receipt. Ex.P5 : Form 18 along with two receipts. Ex.P6 : Analysis Report along with covering letter.

17

Ex.P7 : Notice dt.25.06.2004. Ex.P8 : Reply of R. Manohar Reddy dt.20.06.2004. Ex.P9 : Notice dt.28.06.2004. Ex.P10: Reply letter dt.29.06.2004 Ex.P11: Purchase bill No.7799. Ex.P12: Letter dt.23.07.2004 to M/s. Sun Shine Pharmaceutical along with postal receipt. Ex.P13: Acknowledgment. Ex.P14: Notice along with receipt. Ex.P15: Acknowledgment. Ex.P16: Reply from Dayanand Medical Agency, Pharmaceutical Distributors. Ex.P17: Xerox Copy of Purchase bill No.1745 dt.14.08.2003 Ex.P18: Returned original bill vide covering letter dt.06.08.2004 along with postal receipt. Ex.P19: Acknowledgment. Ex.P20: Notice dt.06.08.2004 to A-1. Ex.P21: Acknowledgment. Ex.P22: permission orders dt.21.07.2004 and copy of Drugs Controller dt.27.07.2004. Ex.P23: Requisition to Drugs Controller, New Delhi dt.18.08.2004 and 06.12.2004. Ex.P24: Acknowledgment. Ex.P25: Xerox Copy of Form 26, declaration form, Form 24 and partnership deed form along with two letters dt.03.02.2005. Ex.P26: Report to the Director General, Drugs Controller Administration, Hyderabad dt.07.03.2005 Ex.P27: letter dt.16.04.2004.

Mos marked on behalf of

Prosecution Defence

MO.1 : Bandage of 2x10x4 Roller. Nil

AJFCM FAC/JFCM.

18

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPL. MOBILE COURT, ANANTHAPURAMU.

Present:- Smt A. Geetha Vani, Addl. Judicial First Class Magistrate,

Ananthapuramu.

(FAC) Judl. First Class Magistrate, Spl. Mobile Court,

Ananthapuramu.

Thursday, the 29 th Day of March, 2018

CALENDAR CASE No.494/2007

Between :-

State Represented by the Drugs Inspector,

Anantapur. ... Complainant

AND

1) Sri Nettem Loknath Chowdhary, aged about 29 years, S/o. Sri Vishwanath, D.No.12/3/979, 2nd Floor, Vidyuth Nagar, Anantapur. Native of Venkatadripalli Village Kalyandurg Taluk, Working as Assistant at M/s. Devi Diagnostic Centre, Adimurthy Nagar, Anantapur. (A-1)

2) M/s. Vijayalakshmi Agencies, 10/348, Aravinda Nagar, Anantapur – 515 001. (Fictitious Unlicensed firm), Operated at 2nd floor, D.No.12/3/979, Vidyuth Nagar, Anantapur. Represented by Sri Nettem Loknath Chowdary. (A-2)

3) Dr. L. Venkata Ramana, aged about 57 years, S/o. L. Lakshmanna, Director Devi Diagnostic Centre, Adimoorthy Nagar, Anantapur. (A-3)

4) Sri M. Sudhakar Rao, aged about 35 years, Proprietor M/s. Akhil Diagnostic & Surgicals, Shop No.5, Manikanta Complex, Kurnool Road, Ongole. (A-4). … Accused Nos.1 to 4.

This case coming on 08.03.2018 for final hearing before me in the presence of the learned Assistant Public Prosecutor for Prosecution and of Sri B. Karibasappa, Advocate for A-1, A-2 and A-4 and of Sri B.

Viswanath, Advocate for A-3 upon hearing both sides and on perusing the material on record, and the matter having stood over for consideration till this day, and this Court delivered the following:-

JUDGMENT

1. The Drug Inspector, Anantapur filed charge sheet against A-1 to

A-4 for the offences under Secs.22 (3), 27 (b) (ii) of Drugs and Cosmetics

Act.

2. The case of the complainant is that the A-1 had contravened section 18 (c) of the Act by stocking for sale and for selling and for offering for sale Drugs without possessing a valid license for the said purpose. A-1 had contravened Section 18 (A) of the Act by not disclosing the name and address of the person from whom A-1 had acquired the seized drugs and not producing the purchase bills for all the seized drugs. A-2 is a fictitious firm represented by A-1 under the banner of which the purchase and sale of drugs was taken up by A-1 without valid drug licence at D.No.12/3/979,

Vidyuth Nagar, Anantapur, and A-2 hand contravened Sec. 18 (c) of the Act by stocking for sale and for selling and for offering for sale drugs without possessing a valid license for the said purpose. A-3 had contravened Section 18 (A) of the Act by not disclosing the name and address of the person from whom he had acquired the seized drugs, A-3 had contravened Section 22 (1) (cca) of the Act by not producing the purchase bills for all the seized drugs and by not providing the required information called for U/S.22 (1) (d) of the

Act. A-4 had contravened Section 22 (1) (cca) of the Act by not producing the required documents and by not providing the required information called for U/S.22 (1) (d) of the Act. On 14.02.2005 at about 10:15 AM 51 types of drugs, 4 sale bill books and 16 documents were seized from A-1 from 2nd floor of D.No.12/3/979, Vidyut Nagar, Ananthapuramu by PW.1. The accused

A-1 to A-4 had also not provided any documents (purchase bills) for the seized drugs. The seized items are all drugs with the meaning of Sec. 3 (b)

(i) of the Drugs and Cosmetics Act 1940 and the complainant prayed that necessary legal process may be issued against A-1 to A-4.

3. After filing charge sheet, this case was taken cognizance by the

Addl. Judl. Magistrate of I class, Anantapuramu for the offence U/Sec. 22 (3) of Drugs and Cosmetics Act and numbered as C.C.190/2007. As per the proceedings of Hon'ble District and Session Judge, Anantapurmu in Order Dis

No.5710 dt.12-09-2007 this case was transferred to this court and renumbered the same as C.C.494/2007.

4. On appearance of A-1 to A-4, copies of case records were furnished to them as required Under Sec. 207 of Cr.P.C.

5. The accused A-1 to A-4 were examined Under Sec.251 of Cr.P.C and the substance of accusation for the offence U/Sec 22 (3), 27 (b) (ii) of

Drugs and Cosmetics Act was read over and explained to them in Telugu.

They pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution examined PWs-1 to 6 and marked Exs.P-1 to P-70 on its behalf.

7. After closure of prosecution side evidence, the accused A-1 to A-4 were examined under Sec.313 of Cr.P.C and they denied the incriminating evidence deposed against them by the prosecution witnesses and reported no defence evidence on their behalf.

8. Heard both sides.

9. Now, the point arose for determination is:

“ Whether the prosecution proved the guilt of the accused A-1,

to A-4 for the offences U/Secs 22 (3), 27 (b) (ii) of Drugs and

Cosmetics Act beyond all reasonable doubt?” 10. P O I N T :-

11. The learned Asst. Public Prosecutor argued that basing on the evidence available on record the accused are liable for conviction.

12. On the other hand the learned counsel for the accused A-1 and

A-2 presented written arguments and argued that the entire case of the prosecution rests on the evidence of PW.1 Drug Inspector of Ananthapuramu on Ex.P.1. Section 21 of Drugs and Cosmetics Act 1940 deals with appointment of Drug Inspectors and also Area assigned to them. Ex.P1 marked on behalf of the prosecution. Ex.P1 is the appointment order of PW.1 it shows that throughout state PW.1, one Rajetha and one Srinivas were appointed as Drug Inspectors. PW.1 in his cross-examination deposed that “the Ananthapuramu District divided as two areas for exercising the jurisdiction in terms of Sec.25 of Drugs and Cosmetics. It is true for

Ananthapuramu area one drug inspector excercising in his jurisdiction and for Hindupur Area another Drug Inspector exercising in the jurisdiction”.

When such is the case there is no specific order to PW.1 enabling him to lift the samples.

13. Further the learned counsel for the accused also placed the below mentioned citations 1) 1999 Crl. Law Journal 444 of 9 State of

Maharastra Vs. R.A. Chandrawarkar and others, wherein the Hon’ble

Court in Para No.41 held that “Taking into account all the purposes and objects of the Act ad the powers conferred on the Drug Inspector who is the vital authority to initiate the prosecution, I hold that the appointment of

Drug Inspector can only be through a Official Gazette Notification and not otherwise. I am also of the opinion that such a notification should also indicate the area in which such a Drug Inspector can operate and exercise his powers, and the same should not be left to conjectures and surmises of the public”.

14. Further the Hon’ble Court in para No.42 held that “In the instant case, admittedly, there is no Official Gazette Notification appointing Mr. V.D.

Patil as a Drug Inspector for Greater Bombay area and as such, Mr. V.D

Patil cannot claim to be a Drug Inspector for Greater Bombay area atleast up to 21st April, 1988 on which date the said notification was published. In the instant case, as observed earlier, the sample was taken on 29th September, 1987, was sent for analysis on 6th October, 1987 and the complaint was filed on 22nd March, 1988. Till such time there was no Official Gazette Notification notifying Mr. V.D. Patil as a Drug Inspector for Greater Bombay area. In view of the aforesaid very serious infirmity which goes to the root of the matter, I hold that the said Drug Inspector Mr. V.D. Patil had no authority whatsoever to seize the said samples of Drug Vanmycetin Opticops and forward the same for analysis to the Government Analyst and that he had no jurisdiction whatsoever to launch the said prosecution and file the criminal complaint against the accused on 22nd March, 1988”.

15. 2) [2007] 2 Crimes (HC) 358 reported in M/s.Gaba

Pharmaceuticals, Hyderabad and Anr. Vs. State of A.P, wherein the

Hon’ble Court held that “A perusal of Section 21 goes to show that the

Government may be notification in the Official Gazette appoint a person to be the Inspector for such area as may be assigned by the State

Government. Except Ex.P1, no other document is filed to show that PW.1 was duly appointed by the Government by issuing a notification in the

Official Gazettee for the purpose of taking samples in Koti zone. Ex.P1 is the notification issued by the Government appointing PW.1 as a Drug Inspector for the entire area i.e., he was initially appointed as Drug Inspector for the entire area, but for the purpose of carrying out the objects in the Drugs and

Cosmetics Act, the Government has to issue a notification duly notifying the area under which the Inspector can discharge his duties”.

16. “The provisions of Sections 20 and 21 of the Act have not been complied with in spite of the fact that the accused raised objection before the Trial Court as well as Appellate Court. It is expected that the prosecution has to produce the Gazette notification. Since the Gazette notification as published in the Official Gazette has not been placed before the Courts below, illegal and improper findings are given. Further in view of the jurisdiction of the Public Analyst and Inspector has been taken, there is no need to adjudicate the other grounds as contended by the learned counsel

for the petitioners. In the above circumstances, the judgment impugned is

liable to set aside”.

17. In the present case PW.1 in his cross-examination deposed that “it is true I have not filed any document or proof before this court to show that I was appointed as Drug Inspector for Anantapuramu in exercising the jurisdiction at the time of this case. On perusal of Ex.P1 it is an Official

Gazette Notification conferring powers to PW.1, Rajitha and Srinivasulu as

Drug Inspectors throughout A.P State. In Ex.P1 there is no specification to which area PW.1 was confined to. In the present case admittedly PW.1 was not specified to which area he was given powers to life the samples. On perusal of the Hon’ble High Court Judgments, the Hon’ble High Court reported in [1999] 0 Crl.L.J 4449 State of Maharastra Vs. R.A.

Chandrawarkar and others, wherein the Hon’ble Court in Para No.41 held that “Official Gazette Notification should also indicate the area in which such a Drug Inspector can operate and exercise their powers and the same should not be left to conjectures and surmises of the public”.

18. Further in the citation No.2 the Hon’ble High court reported in [1999] 0 Crl.L.J 4449 State of Maharastra Vs. R.A. Chandrawarkar and others, wherein the Hon’ble High Court held that .............. but for the purpose of carrying out the objects in the Drugs and Cosmetics the

Government has to issue a notification duly notifying the area under which the Inspector can discharge his duties.

19. In the preset case also there is no specification of area to which

PW.1 was empowered to lift the samples.

20. Further it is alleged by the prosecution that A-1 and A-2 violated

Sec.18 (C) of the Act by stocking and exhibiting for sale without any valid license. In this regard the learned counsel for the accused argued that admittedly by PW.1 in his cross-examination there was no name board and no business transaction was going on when PW.1 was alleged to be visited the shop. In this regard on perusal of the evidence of PW.1 in his cross- examination he deposed that “there is no board affixed in front of the alleged scene of offence floor indicating for sale of drugs, it is true at the time of inspection none of the customers transacted with A-1 about the drugs. It is true there is no availability of cash in connection with the drugs and I have not seized amount in portion of area.

21. The learned counsel for the accused placed a citation reported in 2006 (3) ALT (Crl.) 245 A.P in Para No.9 the Hon’ble Justice Yethirajulu held that “in the present case, there is no evidence to show that the petitioner had any shop or he was selling the drugs as proved by the prosecution that the tablets were recovered from his possession. Under

Section 27-A (i) (ii) read with 18 of the Act is must be proved by the prosecution affirmatively that he was selling the drugs stocked with him. The possession of drugs does not appear to be punishable under any of the provisions of the Act. If the essential ingredients of Section 27 of the Act are not satisfied, the petitioner has to be given the benefit of doubt and acquitted”.

22. In the present case also admittedly there was no name board affixed in front of the alleged scene of offence floor and no transaction was taken place when PW.1 was alleged to be visited the scene of offence. So as per the Hon’ble High Court Judgment it cannot be said that the Drugs were stored for the purpose of selling and they cannot be held liable.

23. The learned counsel for the accused A-3 presented a written arguments and argued that A-3 is a doctor by profession running a nursing home called as Devi Nursing Home and also a directed to Devi Diagnostic

Centre, Adimurthy Nagar, Ananthapuramu. A-3 filed an application before this court for release of drugs seized by PW.1 and the Hon’ble Court released the seized property under Ex.P-27. At the time of release of drugs PW.1 did not make any objection to release the seized drugs. After releasing the drugs from this court to A-3, PW.1 issued a notice Ex.P32 to A-3 to disclose the names of manufacturer and questioned A-3 why did not take action under Sec.18 (a) and 22 (1) (b) of the Act for disclose the names of manufacturer and documents relating to same. In this regard A-3 gave reply under Sec.P-34. Ex.P34 clearly mentioned that PW.1 seized the material along with entire purchased bills from Lokanath Chowdary. Since the entire purchased bills were seized from Lokanath Chowdary the question of submitting bills by A-3 does not arise. In this regard also there is no denial from PW.1. As rightly contended by the learned counsel for the accused A-3

Ex.P34 clearly mentioned that PW.1 seized the material along with entire purchased bills from Lokanath Chowdary. As such this court is of the opinion that it cannot be said that A-3 is liable for not handing over bills.

24. It is the allegation of the prosecution that A-2 is fictitious firm represented by A-1 under the banner which the purchase and sale of drugs was taken by the accused without valid drug license at D.No.12-3-1979, 2nd

Floor, Vidyut Nagar, Ananthapuramu. Further the contention of A-2 is admittedly there was no name board and no transaction was occurred at the scene of offence. Further as per the complaint A-2 is shown as M/s. Vijaya

Lakshmi Agencies, D.No.10-144, Aravinda Nagar, Ananthapuramu – 515 001 (fictitious unlicensed firm) operated at 2nd Floor D.No.12-3-979 at Vidyut

Nagar, Ananthapuramu reptd., by Nettem Loknath chowdary as per Sec.34

(a) Company means a body corporate and includes a firm or other association of individuals. As per the complaint M/s. Vijaya Lakshmi Agencies is a fictitious unlicensed firm reptd. by A-1. A firm having legal entity alone can by prosecuted and not a fictitious unlicensed firm. How can there be a representative to a fictitious unlicensed firm. If M/s. Vijaya Lakshmi Agencies is really an unlicensed firm operated by A-1 in order to cheat the public and also PW.1, It is the duty of PW.1 to give complaint against A-1 for selling drugs by fabricated documents in the name M/s. Vijaya Lakshmi Agencies which is a fictitious unlicensed firm in order to cheat the department and also the public. Further in the cross-examination of PW.1 he admits that he did not remember whether he visited M/s. Vijaya Lakshmi Agencies,

D.No.10-348, Aravinda Nagar, Ananthapuramu. He did not ascertain the municipal authorities regarding the D.No.10-348, Aravinda Nagar and further he did not make any correspondence to the Commercial Tax

Authorities and Sales Tax authority about the existing of M/s. Vijaya Lakshmi

Agencies D.No.10-348, Aravinda Nagar, Ananthapuramu.

25. In this regard as per the complaint at the first instance the allegation is that A-1 is in possession of the drugs for sale without any license, thereby contravened Se.18 (c) of the Act and is liable for punishable under Sec.27 (b) (ii) of the Act against Loknath Chowdary (A-2) representing M/s. Vijaya Lakshmi Agencies (fictitious unlicensed firm) contravened U/S.18 (c) of the Act and also liable for punishment U/S.27 (b)

(ii) of the Act. It is nothing but double geopirdue moreso how can there can be a representative a fictitious unlicensed firm as the firm itself is not an existence and this court cannot take cognizance against A-2. In viiew of the same taking cognizance against A-2 is against law as there cannot be a representative to dead firm i.e., the firm which is not in existence.

26. Further the prosecution examined PW.2 and PW.3 that they are independent witnesses and acted as panchayatdars at the time of alleged seizure. It is admitted by both PW.2 and pW.3 in the cross-examination they are running medical shops and their licenses, renewals, business is under the direct control of PW.1. There are number of residential houses with shops etc.., around the place of alleged seizure. But PW.1 intentionally chosen PW.2 and PW.3 who are running medical shops as their business are under a directive supervision and control. Further PW.3 is running medical shop in MIG Colony, Housing Board which is at a distance of 2 Kms from the scene of offence. All these facts clearly establish that Pws.2 and 3 are not independent panchayatdars and not residents of that locality. This court considers with the argument of the learned counsel that PW.2 and PW.3 are running medical store there will be direct control over PW.2 and PW.3 by

PW.1, hence this court is of the opinion that the evidence of PW.2 and PW.3 is no way helpful to the case of the prosecution.

27. In cross examination of Pw.1 he deposed “I have not taken steps for serving summons to act as a panchayatdars. The radius 2 or 3 km of the scene of offence is residential area. But Pw1 did not examine any independent witness. He deposed that Pw2 and Pw3 are medical shop owners. He also deposed he has not secure any local inhabitants of that locality as panchyatdars.

28. PW.4 and PW.5 are the persons who transacted business with

M/s. Vijaya Lakshmi Agencies, Aravinda Nagar, 1st Cross, Ananthapuramu.

Ex.P48 dt.22.2.2005 is the reply given by PW.4 stating that they have sold the said drugs diagnosed kits to Mr. Loknath Chowdary as he had showed a copy of drug license valid till 31.12.2006 issued on M/s. Vijaya Lakshmi

Agencies, Aravinda Nagar, 1st Cross, Anantapuramu signed by Asst. Director,

Drugs Control Authority, Kadapa. In the cross – examination it is admitted that “it is true the license is valid up to 2006 to M/s. Vijaya Lakshmi

Agencies accordingly he sold the goods for the year 2004-05. As per the license M/s. Vijaya Lakshmi Agencies, Aravinda Nagar, 1stcross,

Ananthapuramu it was existence at the time of transaction. His transaction is only M/s. Vijaya Lakshmi Agencies, Aravinda Nagar, Ananthapuramu. Ex.P58 is reply letter given by PW.5 in Ex.P58 it is clearly mentioned that HIV and

HAPA Cards Kids each from M/s. Vijaya Lakshmi Agencies, D.No.10-348,

Aravinda Nagar, Aantapuramu. As some items were refused and the same were returned to M/s. Vijaya Lakshmi Agencies, from ANL Service LR

No.07921154 on 27.01.2005.

29. It is further argued that the prosecution wants suppress the truth from stage to state. Ex.P60 is the letter addressed by PW.1 to PW.5 and Ex.P-68 is the reply given by PW.5 in Ex.P60. PW.1 asked to supply 1)

Xerox Copy of ANL, LRP; 2) payment was made to Loknath Chowdary or

G.Loknath because their appeared discrepancy with regard to the signature on revenue stamp on the voucher receipt. 3) If the said sale was executed by M/s Vijayalakshmi Agencies at 10/348, Adimoorthy Nagar or 10/348,

Aravinda Nagar. Ex.P68 is the reply given by PW.5 stating that the kits were received by courier service on 30.11.2004 from Sri Vijaya Lakshmi Agencies, 10-348, Aravinda Nagar, Ananthapuramu. Total bill amount was paid to G.

Loknath on camp at Kadiri on 7.12.2004 by taking stamped receipt who returned the kits to N. Chowdary, Vijayalakshmi Agencies, Aravindanagar,

Ananthapuramu by ANL parcel service as requested by G. Loknath who is on tour. In page-4 of cross-examination of PW.1, PW.1 admits any act attracting offences under IPC during our investigation, we must initiate action before the police. As per Ex.P60 he himself admits payment was made to Loknath Chowdary or G. Loknath. There is a disturbance with regard to the signature on revenue stamp, and on the voucher receipt.

Further the sale was executed M/S.Vijayalakshmi Agencies at 10/348,

Adimurthy Naghar or 10/348 Aravindanagar and the kits were returned to by

ANL Parcel service to Vijayalakshmi Agencies as requested by G. Loknath.

30. In view of the above discrepancy relating to fabrication of documents door number and names etc., PW.1 won’t prefers any complaint to the police only in order to save G. Loknath who is running M/s.

Vijayalakshmi Agencies in Door No.10/348, Aravindanagar, Ananthapuramu who supplied all documents having business rivalry with Devi Diagnostic center represented by A-3. In order to get rid of all these things PW.1 intentionally figured M/s. Vijayalakshmi Agencies, 10/348, Aravindanagar (Fictitious unlicensed firm) operated at 2nd floor 10-3-379, Vidyuth Nagar,

Ananthapuramu represented by A-1.

31. It is further argued that as per the complaint A-2 is shown as “M/s. Vijaya Lakshmi Agencies, 10/348, Aravindanagar, Ananthapuramu – 515 001,” (fictitious unlicensed firm) operated at 2nd floor, 12-3-979 at

Vidyuth Nagar, Ananthapuramu represented by Nettem Loknath Chowdary.

Section 34 of the drugs and cosmetics Act deals with offences by companies.

As per section 34 (a) “company means a body corporate and includes a firm or other association of individuals. As per the complaint M/s. Vijaya Lakshmi

Agencies is a fictitious unlicensed firm represented by A-1. A firm having legal entity alone can be prosecuted and not a fictitious unlicensed firm. How can there be a representative to a fictitious unlicensed firm. If M/s. Vijaya

Lakshmi Agencies is really a unlicensed firm operated by A-1 in order to cheat the public and also PW.1, it is the duty of PW.1 to give a complaint to the police against Loknath Chowdary for selling drugs by fabricating documents in the name M/s. Vijaya Lakshmi Agencies which is a fictitious unlicensed firm in order to cheat the Department and also the public. As already submitted earlier PW.1 won’t prefer any complaint to the police as he is fully aware that M/s. Vijaya Lakshmi Agencies is in existence. In the cross-examination PW.1 admits he did not remember whether he visited

M/s. Vijaya Lakshmi Agencies, 10/348, Aravindanagar, Ananthapuramu. He did not ascertain the Municipal Authorities regarding the D.No.10/348,

Aravindanagar and further he did not made any correspondence to the commercial Tax Authorities and sales tax authority about the existence of

M/s. Vijaya Lakshmi Agencies, 10/348, Aravindanagar, Ananthapuramu.

32. As rightly argued by the counsel for the accused if M/s Vijaya

Lakshmi Agencies is really unlicensed firm operated by A1 in order to cheat public and Pw1 it is duty of Pw1 to give complaint to the police against

Loknath Chowdary for selling drugs by fabricating documents in the name of

Vijaya Lakshmi Agencies which is a fictious and unlicensed firm in order to cheat the department and police, but Pw1 did not prefer any police complaint to the police so it seems that Pw1 have knowledge that the M/s

Vijaya Lakshmi Agencies is in existence. In the cross examination of Pw1 he deposed that he did not remember whether he visited M/s Vijayalakshmi

Agencies, D.No 10-348,Aravinda Nagr , Anantapuram . He did not ascertain the municipal authorities regarding D.No 10-348, Aravinda Nagar and he did not make any correspondence to the commercial tax authorities and sale tax authority about existing of M/s Vijayaakshmi Agencies D.No 10-348

Aravinda Nagar Anantapuram.

33. As per the evidence of Pw.4 he sold the drugs diagnosed kits to

Loknath Chowdary as he showed a drug licence valid till 31-12-2006. In the cross examination of Pw.4 he deposed ” it is true the licence valid upto 2006 to M/s Vijaya lakshmi Agencies and accordingly I sold the goods for the year 2004-2005. As per licence M/s Vijayalakshmi Agencies, Aravinda nagar 1st cross was in existence at the time of our transaction. My transaction is only M/s Vijayalakshmi Agencies Aravindanagar 1st cross

Anantapuram. As per the evidence of the Pw5 In his chief examination he purchased HIV kits and some other kits from M/S Vijaya Lakshmi Agencies

Anantapuram knowing that he is supplying the same at cheaper rates without compromising the quality and company standards. He issued a reply letter to Pw1 on 15-3-2005 regarding the purchase of HIV kits and other kits from M/s Vijaya lakshmi Agencies . In his cross examination he deposed that it is true in Ex.P.58 he has mentioned that HIV kits were supplied 50 packs instead of 10 packs. Then he sent back the same to M/s

Vijayalakshmi Agencies by KNL service letter No 07921154 on 27.1.2005.

As per the evidences of Pw.4 and Pw.5 M/s Vijayalakshmi Agencies is in existence at 1st cross, Aravindanagar, Anantapuram and they have transactions with the M/s Vijayalakshmi agencies, Anantapuram.

34. On perusal of the evidence of the Pw6 he is the owner bearing

Door No 12-3-979 in Vidyth Nagar Anantapuram. In the year 2004 he let- out the 1st floor to A1. At that time , A1 said he is working in a diagnostic center. Anantapuram, in his cross examination he deposed that there is no existence of M/s Vijaya laksmi agencies in his house premises at the time of offence. Except doing as an employee A1 was not doing any business. A1 is not capable of doing any business on his own. So as per his evidence in 1st floor of vidyuth nagar, Anantapuram A1 is not doing any business in the name of M/s Vijaya lakshmi agencies. Further Pw.1 did not examine nearby the witnesses in house bearing D.No 12-3-979 of the Vidyuth Nagar that

A1 is doing business without having any licence, and no explanation offered in this regard.

35. In view of the above discussion prosecution is failed to prove its case beyond all reasonable doubts. Hence the accused is entitled for acquittal.

36. In the result, the accused A-1, A-3 and A-4 are found not guilty for the offence under Sec.22 (3) of the Act and A-2 is found not guilty for the offence under Sec.27 (b) (ii) of the Act and they are accordingly acquitted under Sec.255 (1) of Cr.P.C. The bail bonds of A-1 to A-4 shall be in force for a period of six months in terms of Sec.437-A Cr.P.C.

Typed to my dictation directly in my laptop by the Stenographer, corrected and pronounced by me in the open Court, on this the 29 th day of March, 2018.

Addl. Judl. First Class Magistrate, Ananthapuramu. (FAC) Judl. First Class Magistrate , Spl. Mobile Court, Ananthapuramu.

Appendix of Evidence

Witnesses Examined

Prosecution Defence

PW.1 : K. Das. Nil PW.2 : T.S. Phani Kumar. PW.3 : K. Nagendra. PW.4 :G. Niranjan Reddy. PW.5 : Dr. R. Venkateswarlu. PW.6 : D. Venkatesulu.

Exhibits marked

prosecution. Defence

Ex.P1 : Copy of Gazette Notification. Nil Ex.P2 : Form 16 dt.14.02.2005. Ex.P3 : Mediators Report. Ex.P4 : Four bill books. Ex.P5 : Voucher of Star marketing Agency, Kurnool dt.27.10.2004. Ex.P6 : Bill of Star marketing Agency, Kurnool with Invoice No.1166 dt.04.10.2004.. Ex.P7 : Bank Voucher of SBI for Rs.9,990/-. Ex.P8 : Demand Draft dt.06.11.2004 of SBI. Ex.P9 : Bank Voucher dt.07.10.2004 for Rs.9,999/- of SBI. Ex.P10: Demand Draft dt.07.10.2004 for Rs.9,999/- of SBI. Ex.P11: Bank Voucher dt.06.09.2004 for Rs.5,000/- of SBI. Ex.P12: Demand Draft of SBI dt.06.09.2004 for Rs.5,000/-. Ex.P13: Letter of Akhil Diagnostics and surgical addressed by A-4 M. Sudhakar Rao to A-1 dt.08.10.2004. Ex.P14: Cash transfer receipt of SBI, Anantapur for Rs.6,280/-. Ex.P15: Bank Voucher for Rs.1,750/-. Ex.P16: Bank draft dt.01.09.2004 for Rs.1,750/-. Ex.P17: Bank draft dt.31.08.2004 for Rs.5,000/- of SBI. Ex.P18: Bank Voucher dt.29.11.2004 for Rs.13,400/- of SBI. Ex.P19: Bank draft dt.29.11.2004 for Rs.13,400/- of SBI. Ex.P20: Invoice No.2815 dt.12.10.2004 of Srinivas X-Ray and allied products, Nellore to Vijaya Lakshmi Agencies, Aravinda Nagar, Ananthapuramu A-2. Ex.P21: Invoice No.2228 dt.03.09.2004 of Srinivas X-Ray and Allied products, Nellore issued A-2. Ex.P22: Mediators Report and property.

Ex.P23: Form-B. Ex.P24: Notice. Ex.P25: Reply dt.25.02.2005 by Registered Post. Ex.P26: Reply report of A-1 to PW.1. Ex.P27: Order of Court dt.15.03.2005 for release of property to A-3 Dr. L.Venkataramana. Ex.P28: Requisition of A-3 to PW.1 for return of property as per the orders of AJFCM Court, Ananthapuramu. Ex.P29: Letter dt.18.03.2005. Ex.P30: Mediators Report. Ex.P31: Letter dt.19.03.2005. Ex.P32: Notice U/S.18 A and 22 (1) (cca) & (d) of Drugs and Cosmetics Act to A-3 by Regd. Post. Ex.P33: Acknowledgment. Ex.P34: Reply of A-3. Ex.P35: Envelop cover. Ex.P36: Notice dt.28.03.2005. Ex.P37: Acknowledgment. Ex.P38: Notice to the Prop. M/s.Star marketing agencies, Kurnool by registered post. Ex.P39: Postal Acknowledgment. Ex.P40: Reply dt.21.02.2005. Ex.P41: Invoice No.1166 attested by Star marketing agencies. Ex.P42: Receipt No.1348 for Rs.3,000/- dt.27.10.2004 issued to A-1 by Star marketing agencies. Ex.P43: Envelop. Ex.P44: Notice dt.15.02.2005. Ex.P45: Postal Acknowledgment. Ex.P46: Notice dt.15.02.2005 issued by PW.1 to the Prop. Srinivasa X-ray and allied products, Nellore. Ex.P47: Receipt of Postal Acknowledgment relevant to Ex.P46. Ex.P48: Reply dt.22.02.2005 was received from LW.4. G. Niranjan Reddy. Ex.P49: Copy of drug license pertaining to LW.4 G. Niranjan Reddy. Ex.P50: Envelop cover relating to Ex.P48 and 49. Ex.P51: Notice dt.20.02.2005 to the building owner Sri D. Venkatesulu. Ex.P52: Notice dt.10.03.2005 to the building owner Sri D. Venkatesulu. Ex.P53: Postal acknowledgment relevant to Ex.P52. Ex.P54: Reply dt.20.03.2005 from LW.6 D. Venkatesulu. Ex.P55: The envelop related to Ex.P54. Ex.P56: Notice dt.07.03.2005 was sent to the Medical Superintendent, Area Hospital, Kadiri. Ex.P57: Postal acknowledgment relevant to Ex.P56. Ex.P58: Reply dt.15.03.2005. Ex.P59: Postal acknowledgment relevant to Ex.P58. Ex.P60: Notice dt.21.03.2005 sent by PW.1 to LW.5 Dr. R. Venkateswarlu. Ex.P61: Postal acknowledgment relevant to Ex.P60. Ex.P62: Reminder dt.12.04.2005 was sent by speed post to LW.5 Dr. R. Venkateswarlu. Ex.P63: Reply notice dt.23.03.2005 from LW.5 was received by PW.1. Ex.P64: Cash/Credit Bill No.3377 dt.26.11.2004 of M/s. Vijaya Lakshmi Agencies A-2 Firm attested by LW.5. Ex.P65: Cash/Credit Bill No.3378 dt.27.11.2004 of A-2 firm attested by LW.5 Dr. R. Venkateswarlu. Ex.P66: Cash/Credit Bill No.3379 dt.29.11.2004 attested by LW.5 Dr. R. Venkateswarlu.

Ex.P67: Cash/Credit Bill No.3380 dt.30.11.2004 attested by LW.5 Dr. R. Venkateswarlu. Ex.P68: Copy of Reply dt.23.03.2005 received from LW.5 Dr. R. Venkateswarlu. Ex.P69: Envelop relevant to Ex.P68. Ex.P70: letter dt.15.03.2005.

Mos marked on behalf of

Prosecution Defence

Nil

AJFCM FAC/JFCM.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPL. MOBILE COURT, ANANTHAPURAMU.

Present:- Smt A. Geetha Vani, Addl. Judicial First Class Magistrate,

Ananthapuramu.

(FAC) Judl. First Class Magistrate, Spl. Mobile Court,

Ananthapuramu.

Wednesday, the 28 th Day of March, 2018

CALENDAR CASE No.11/2012

Between :-

State Represented by the Inspector of Police,

II Town P.S., Anantapur. ... Complainant

AND

1) K. Pattan Munny, age 30 years, W/o. Mahaboob Basha, Venkata Rao Nagar, Anantapur Town.

2) T. Chandravathi, age 48 years, W/o. Suryanarayana, D.No.6-5-123, Anantapur Town. … Accused Nos.1 and 2.

This case coming on 14.03.2018 for final hearing before me in the presence of the learned Assistant Public Prosecutor for Prosecution and of Sri N.P. Sreenivasulu, Advocate for A-1 and of Sri Shaik

Habibullah, Advocate for A-2, upon hearing both sides and on perusing the material on record, and the matter having stood over for consideration till this day, and this Court delivered the following:-

JUDGMENT

1. The Inspector of Police, II Town P.S, Anantapur filed charge sheet against A-1 and A-2 for the offences under Secs.420, 406 I.P.C in

Crime No.330/2009.

2. The case of the prosecution as per the charge sheet is that,

PW.1 T. Padma (Defacto complainant) is the resident of Maruthi Nagar,

Anantapur Town and running a Beauty Parlour and she got acquaintance with A-1 who is a member of Star Group and used to visit the beauty parlour. Later A-1 was moved closely with PWs.2 to 4 and had taken money from them with a promise of high interest and A-1 also gave interest to

PWs.1 to 4 at twice and thrice regularly. For which PWs.1 to 4 believed on A-

1. There-after PW.1 gave an amount of Rs.12,40,000/- to A-1 around 4 to 5 times for interest. PWs.2 to 4 were also given an amount of Rs.7,80,000/-, 3,00,000/- and Rs.1,50,000/- respectively and some of the neighbourers of

PW.1 also gave amounts to A-1. Later A-1 did not give any interest to PWs.1 to 4 and also to the neighbourers. When PWs.1 to 4 asked A-1 for repayment of amount, A-1 simply stated that total amount was given to A-2 for additional interest and for the business purpose. PWs.1 to 4 enquired with A-2 about their money, but she denied the knowledge of the offence.

Due to the movement of innocence of PWs.1 to 4, A-1 and A-2 with an intent to cheat them by taking money from PWs.1 to 4 for huge interest. On the report of PW.1, PW.9 R.Prathap Reddy, S.I of Police, II Town P.S.,

Anantapur registered a case in Cr.No.330/2009 for the offences under Secs 406, 420 I.P.C and investigated into. During the course of investigation,

PW.9 examined PWs.1 to 6 and recorded their statements and seized the articles which are incorporated in the mahazarnama on 06.11.2009 in the presence of mahazardars i.e., PWs.7 and 8. Later PW.9 collected the evidence regarding purchase of gold ornaments by A-1 and A-2 from the shop of PW.6 worth of Rs.4,76,065/-After completion of investigation, K.

Krishna, Inspector of Police, Anantapur II Town P.S. filed charge sheet against A-1 and A-2 for the offences U/Ss.420, 406 I.P.C.

3. After filing charge sheet, this case was taken cognizance by the

Addl. Judl. Magistrate of I class, Anantapuramu for the offences U/Ss.420, 406 I.P.C and numbered as C.C.284/2010. As per the proceedings of Hon'ble

District and Session Judge, Anantapurmu in Order Dis No.3886 dt.11.07.2011 this case was transferred to this court and renumbered the same as C.C 11/2012.

4. On appearance of A-1 and A-2, copies of case records were furnished to them as required Under Sec.207 of Cr.P.C.

5. The accused A-1 and A-2 were examined under Sec.239 Cr.P.C and a charge U/Secs.420, 406 I.P.C was framed, read over and explained to

A-1 and A-2 in Telugu. They pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution examined PWs-1 to 9 and marked Exs.P-1 to P-16.

7. After closure of prosecution side evidence, the accused A-1 and

A-2 were examined under Sec.313 of Cr.P.C and they denied the incriminating evidence deposed against them by the prosecution witnesses and reported no defence evidence on their behalf.

8. Heard both sides. The learned counsel for A-1 and A-2 filed their written arguments. Perused the written arguments of A-1 and A-2.

9. Now, the point for determination is:

“ Whether the prosecution proved the guilt of A-1 and A-2 for

the offences Under Secs.420, 406 I.P.C beyond all reasonable

doubt?” 10. P O I N T :-

The learned Asst. Public Prosecutor argued that the prosecution examined Pws.1 to 9 and Ex.P1 to P16 marked. All the witnesses supported the case of the prosecution that A-1 and A-2 cheated Pws.1 to 5 thereby the accused A-1 and A-2 are liable for conviction and prayed to convict the accused.

11. On the other hand the learned counsels for the accused A-1, A-2 presented their written arguments and argued that Pws.1 to 5 deposed

before this court that they have given huge amounts to A-1 for interest and

inturn A-1 given the amounts to A-2 . Subsequently A-1 and A-2 failed to return the same to Pws.1 to 5. Admittedly the prosecution witnesses are doing small business and regarding source of income they deposed that they have obtained amounts from others, but the said persons were not examined before this court. Further no documentary evidence adduced

before this court to show that the prosecution witnesses Pws.1 to 5 gave

such a huge amount to A-1. The independent witnesses Pws.7 and 8 VRO’s were examined before this court that Exs.P-10 to P-14 seized in their presence, but PW.7 and PW.8 failed to identify A-1 and A-2 before this court, hence their evidence is no way help to the case of the prosecution. Further some bills i.e., Ex.P-2 to Ex.P-7 were marked through PW.6 that some of the gold ornaments were purchased by the accused in the Jewelary shop of PW.6, but Exs.P-2 to P-7 are no way connected to this case and they cannot be taken into consideration, hence the prosecution failed to establish its case against A-1 and A-2 and prayed to acquit the accused.

12. To substantiate the case of the prosecution, the prosecution examined PW.1 T. Padma. PW.1 deposed that A-1 is her customer in the parlour as such she has got acquaintance with her. A-1 is member of star

Podupu Sangam and she made efforts for joining PW.1 and other witnesses and used to ask amount on credit basis, due to acquaintance and belief PW.1 gave an amount of Rs.12,40,000/- to A-1. A-1 also paid one or two times interest towards borrowed amount and subsequently A-1 failed to repay the amounts and was postponing saying that she has given the amount to A-2 and whenever A-2 returned back the amount A-1 will return the same to

PW.1. As A-1 failed to repay the amount even after repeated demands, PW.1 approached II Town P.S and gave police report. In the cross-examination by the counsel for A-2, PW.1 deposed that “the timing hours of my parlour is 10:00 AM to 7:00 PM, per day I earn money upto Rs.1000/-“. PW.1 further deposed that “A-2 never came to my parlour”. PW.1 further deposed that “my husband doing welding work as a welder.” “my husband every month earn Rs.30,000/- on his work.” “I do not know remaining members in Star

Podupu group.”

13. In the cross-examination by the counsel for A-1, PW.1 deposed that “before 6 months of giving police report I have got acquaintance with

A-1, A-1 was running Kirana Shop;A-1 also selling ‘Dosa’ in the shop for her livelihood”. PW.1 further deposed that the work of star group is that the star groups will give amount to the member together approximately Rs.10,000/- in turn member has to pay per month Rs.250/- upto completion of

Rs.10,000/-. PW.1 further deposed that she took amount of Rs.2,00,000/- from Ramu son of Eswarappa, Rs.1,00,000/- from Narendra, Rs.4,00,000/- from Siva Sankar, Rs.50,000/- from one Sharada, Rs.1,00,000/- from one

Ashok, Rs.1,00,000/- from Ramu S/o. Muthyalappa and Rs.2,00,000/- her personal amount.

14. On perusal of the evidence of PW.1 she deposed that she gave

Rs.12,40,000/- to A-1 which was taken by PW.1 from others and

Rs.2,00,000/- is her personal amount, but in the present case the named persons were not examined. As per PW.1 she gave huge amounts to A-1, but in this regard there is no execution of any documents. The law assists those that are vigilant with their rights, and not those that sleep thereon. In this regard there is a legal magazine Vigilantibus Et Non Dormientibus Jura

Subveniunt. Further PW.1 deposed in her chief examination A-1 is member of Star Podupu Sangam and as per the efforts made by A-1, PW.1 entered into the said group. PW.1 also deposed in her cross-examination that the duty of Star Podupu Sangam is one member will be given approximately

Rs.10,000/- and the amount will be repaid per month Rs.250/- up to completion of Rs.10,000/-. When it is a such case how PW.1 gave an amount of Rs.12,40,000/- to PW.1 is doubtful. Further she deposed that she gave the amount to A-1 on interest basis, but in this regard there is no document.

15. The prosecution examined PW.2, she deposed that she gave an amount Rs.7,80,000/- for interest in the month of August and the same was reduced two books. The borrower i.e., A-1 paid an amount of Rs.5,000/- as interest and later A-1 failed to repay the amount. In the cross-examination by the counsel for A-1, PW.2 deposed that “in my tailoring work I earn

Rs.6,000/- per month. PW.2 further deposed that “firstly Rs.25,000/- was given to A-1 in the year 2009 and second time I have borrowed an amount of Rs.1,00,000/- from one Sailaja and handed over to A-1 in the year June 2009.” “I have taken Rs.4,00,000/- from the said Sailaja and within one week I have obtained Rs.1,00,00/- from the said Sailaja and from one

Padmavathi”. I have obtained Rs.40,000/- in July month and again from one

Radhika I have borrowed an amount of Rs.50,000/- and after one week again I have borrowed from one Radhika an amount of Rs.25,000/- and from one Parvathi Rs.30,000/- and in the month of August 2009 from my grand father Anjineyulu Rs.15,000/- and in the month of August 2009 from one Radhamma borrowed an amount of Rs.10,000/- and from one

Ganapathi an amount of Rs.20,000/- and from one Venkatamma

Rs.30,000/- and from one Gopal RTC driver Rs.50,000/- and from one

Medical store Parvathi Rs.5,000/- and gave the amounts to A-1.

16. In the cross-examination the counsel for A-1, PW.2 deposed “it is true we have not directly given the amount to A-2, it is true I have not stated before the police I am not having any proof showing that we have given amount”.

17. On perusal of the evidence of PW.2 she deposed that she gave

Rs.7,80,000/- to A-1 which was taken by her from others, but in the present case the named persons were not examined. As per PW.2 she gave huge amounts to A-1, but in this regard there is no execution of any documents.

18. The prosecution examined PW.3 Sujatha, she deposed that she gave an amount of Rs.3,00,000/- to both A-1 and A-2. In the said amount

Rs.1,50,000/- was fixed deposit amount of her daughter and Rs.1,50,000/- borrowed from her relatives. A-1 and A-2 paid two weeks interest and after that evading to pay the amount. In the cross-examination she deposed that “I am doing tailoring work, per day I earned Rs.150/- or Rs.200/-, my husband is working in hotel and earn Rs.150/- per day.

19. On perusal of the evidence of PW.3, she deposed that she gave an amount of Rs.1,50,000/- to A-1 which is the fixed deposit amount of her daughter and remaining Rs.1,50,000/- borrowed from her relatives, but in this regard she did not file any documentary proof before this court.

Admittedly PW.3 is doing tailoring work and her husband is working in a hotel and their earnings are Rs.150/- or Rs.200/- per day. When such is a case how the huge amount of Rs.3,00,000/- was given by PW.3 to A-1 and

A-2 without any documentary proof is not explained by PW.3, hence which is doubtful.

20. Coming to the evidence of PW.4 N. Parvathi, she deposed that she has given Rs.1,50,000/- to A-1 for interest without execution of any promissory note due to faith on A-1, inturn A-1 gave the said amount to A-2 and she was paid one month interest. Subsequently A-1 failed to repay the amount. In the cross-examination PW.4 deposed that “I am doing tailoring work in my house, per day I earn approximately Rs.100/- to Rs.200/-, I have obtained loan in Star Group Rs.10,000/-, in each group 10 persons will be there; The star group persons directly come to us and collect the amounts......” PW.4 further deposed “........ I have brought the amount from one Asthari in my village. In this regard there is no documentary proof.

21. Coming to the evidence of PW.5 C. Kalavathi, she gave an amount of Rs.3,50,000/- to A-1. In the said amount Rs.50,000/- was her personal amount and Rs.3,00,000/- brought by her on interest. In the cross-examination by counsel for A-1, PW.5 deposed that “my husband doing Pourohityam and earned Rs.10,000/- per month. We are saving approximately Rs.5,000/- to Rs.6,000/- per month. We are also saving amount by way joining in chit. PW.5 further deposed that I have obtained

Rs.10,000/- as a loan installment for one week I have to pay Rs.175/- to

Star Group, total for one year. I have lifted the chit in the year 2007 for

Rs.50,000/- and Rs.50,000/- I have obtained from our milk vendor by name

K. Nagi Reddy residence of Kattakindapalli Village and from Meena Sari Shop

Rs.50,000/- and from one Teacher who is working in Mudigubba Rs50,000/-, from my brother Rs.1,50,000/-, who is residence at Karnataka by name

Subash Chandra in the year 2009. In the cross-examination the counsel for

A-2, PW.5 deposed that A-1 gave the amount to A-2 in her presence and A-2 purchased some gold in Bhagya Lakshmi Jewelary Shop, but she cannot say how much gold was purchased by A-2 in the jewelary shop of Bhagya

Lakshmi.

22. In this regard the prosecution examined PW.6 T.V. Suresh

Babu, he deposed that he is doing jewellary business in Gandhi Bazar, Old

Town, Ananthapuramu, since 20 years. On 11.11.2009 has received a letter from S.I Prathap Reddy with a request whether A-1 and A-2 purchased any gold items in his shop. On 13.11.2009 PW.6 gave written reply with all details. Ex.P2 is the replay letter dt.30.11.2009 receipt dt.30.09.2009 is

Ex.P3. He further handed over receipt dt.10.10.2009 Ex.P-4 receipt dt.08.06.2009, Ex.P-5 receipt dt.02.10.2009, Receipts dt.05.10.2009 is

Ex.P-7 to the police. On perusal of Ex.P-3 to P-5 they are bills in the name of

Bhagya Jewellers, but they are not containing any signatures of the owner of the shop. On perusal of Ex.P-3 to Ex.P-5 this court is of the opinion that there is no reason to consider that the gold ornaments purchased only with the amounts given by the prosecution witnesses to A-1 and A-2.

23. On perusal of the evidences of PW.7 P. Vijaya Bhaskar Reddy

VRO and PW.8 K. Sree Hari VRO, they deposed that on 06.11.2009 around 2:00 PM as per the instructions of the then Tahsildar both of them proceeded to II Town P.S, Ananthapuramu and acted as mediators. From the police station they accompanied to S.I of police and their staff and reached to Venkat Rao Nagar, D.No.6-5-123 and their police searched the house and found one trunk box and seized LIC bonds, documents pertaining to land of

Kakkalapalli Sy.No.5 and gold estimation receipts, one yellow colour note book and cheetilu, total 11 items are seized under cover of a mahazarnama under Ex.P8. But both the mediators failed to identify A-1 and A-2 in the present case. The Investigating Officer failed to show any connection to the house bearing D.No.6-5-123 to the accused herein. When both the mediators who were examined by the prosecution failed to identify the accused, this court is of the opinion that their evidences are no way helpful to the case of the prosecution.

24. On perusal of the evidence of PW.9 R. Pratha Reddy, Inspector of Police Vigilance and Enforcement Department, Ananthapuramu, he deposed that on 02.02.2011 at 6:00 PM while he was present in the police station, PW.1 came to the police station and presented a written police report, basing on which he registered a case under Ex.P-9 and during the course of investigation, he examined the witnesses and recorded their statements. On 06.11.2009 he visited the house of A-2 Chandravathi and searched the house and seized LIC market policy No.654853216 and document pertaining to the plot No.67 to 69 in Sy.No.5 of Kakkalapalli

Village in the name of Surya Narayana and LIC Jeevan policy No.653580167 and Postal R.D Book Account book No.1515359 under Ex.P2. In the cross- examination PW.9 admitted that “it is true except postal R.Ds i.e., Ex.P-13 and Ex.P-14 remaining documents are not in the name of A-2. It is true

Ex.P-13 and P-14 are opened in the year 2007 i..e, to the alleged offence. It is true we have filed estimation bills without consisting names and signatures of seller in the bills. Ex.P-7 does not relates to the accused and it is school fee receipt”. On perusal of the evidence of PW.9 he seized Exs.P-10 to P-14 in the house bearing D.No.6-5-123 which is said to the house of A-2.

On perusal of Ex.P-10 it is the LIC Policy bond dt.31.10.2007 for an amount of Rs.20,000/-. Ex.P-11 is the house site document in the name of

K.Suryanarayana, who is the husband of A-2. On perusal of Ex.P-11 it is the document dt.26.04.2005 wherein K. Surya Narayana S/o. Thamineni

Narasimhappa purchased scheduled mentioned property from one Bhoomi

Reddy Kaliyavani W/o. Bhoomi Reddy Ramanjula Reddy. But the present case was registered on 02.11.2009 at 6:00 PM and the property under Ex.

P-11 was purchased on 26.04.2005 and there is no connection between Ex.

P-11 and the present alleged offence. Further Ex.P10 LIC policy bond dt.31.10.2007 and it is also started long back to the date of registration of

FIR. On perusal of Ex.P-12 it is LIC dt.28.03.2004 for Rs.1,00,000/- in the name of K. Chandravathi A-2 and it also shows no connection to the present alleged offence as it was commenced in the long back i.e., dt.28.3.2004. On perusal of Ex.P-13 Postal R.D book No.1515359 dt.20.06.2007 in the name of T. Chandravathi A-2 shows on 20.06.2007 an amount of Rs.1500/-, on 04.07.2007 an amount of Rs.3,000/-, on 16.08.2007 an amount of

Rs.4,500/-, on 12.09.2007 an amount of Rs.6,000/-, on 16.10.2007 an amount of Rs.7,500/-, on 14.11.2007 an amount of Rs.9000/-, on 15.12.2007 an amount of Rs.10,500/-, on 15.01.2008 an amount of

Rs.12,000/-, on 13.02.2008 an amount of Rs.13,500/-, on 13.03.2008 an amount of Rs.15,000/-, on 11.04.2008 an amount of Rs.16,500/-, on 13.05.2008 an amount of Rs.18,000/-, on 12.06.2008 an amount of

Rs.19,500/-, on 12.07.2008 an amount of Rs.21,000/-, on 11.08.2008 an amount of Rs.22,500/-, on 11.09.2008 an amount of Rs.24,000/-, on 14.10.2008 an amount of Rs.25,500/-, on 10.11.2008 an amount of

Rs.27000/-, on 13.12.2008 an amount of Rs.28,500/-, on 16.01.2008 an amount of Rs.30,000/-, on 14.02.2009 an amount of Rs.31,500/-, on 13.03.2009 an amount of Rs.33,000/-, on 20.4.2009 an amount of

Rs.34,500/-, on 13.5.2009 an amount of Rs.36,000/-, on 11.06.2009 an amount of Rs.37,500/-, on 13.07.2009 an amount of Rs.39,000/-, on 12.08.2009 an amount of Rs.40,500/-, on 11.09.2009 an amount of

Rs.42,000/-, on 12.10.2009 an amount of Rs.43,500/- respectively are deposited. Ex.P14 it is RD pass book No.1515360 dt.20.06.2007 the deposits are shown dt.20.06.2007 an amount of Rs.1500/-, on 04.07.2007 an amount of Rs.3000/-, on 16.08.2007 an amount of Rs.4,500/-, on 12.09.2007 an amount of Rs.6,000/-, on 16.10.2007 an amount of

Rs.7,500/-, on 14.11.2007, an amount of Rs.9,000/-, on 15.12.2007 an amount of Rs.10,500/-, on 15.01.2008 Rs.12,000/-, on 13.02.2008

Rs.13,500/-, on 13.03.2008 an amount of Rs.15,000/-, on 11.4.2008 an amount of Rs.16,500/-, on 13.05.2008 an amount of Rs.18,000/-, on 12.06.2008 an amount of Rs.19,500/-, on 12.07.2008, an amount of

Rs.21,000/-, on 11.08.2008 an amount of Rs.22,500/-, on 11.09.2008 an amount of Rs.24,000/-, on 14.10.2008 an amount of Rs.25,500/-, on 10.11.2008 an amount of Rs.27.000/-, on 13.12.2008 an amount of

Rs.28,500/-, on 16.01.2009 an amount of Rs.30,000/-, on 14.02.2009 an amount of Rs.31,500/- on 13.03.2009 an amount of Rs.33,000/-, on 20.04.2009 an amount of Rs.34,500, on 13.05.2009 an amount of

Rs.36,000/-, on 11.06.2009 an amount of Rs.37,500/-, on 13..07.2009 an amount of Rs.39,000/-, on 12.08.2009 an amount of Rs.40,500/-, on 11.09.2009 an amount of Rs.42,000/-, on 12.10.2009 an amount of

Rs.43,500/- respectively.

25. In the present case the prosecution witnesses PWs.1 to 5 alleged that A-1 is member of Star Podupu Sangam and she made efforts to join their prosecution witnesses and thereby the amounts received from Pws.1 to 5 by A-1 inturn given to A-2. Pws.1 and 2 deposed that in the transaction of

Star Podupu Sangam usually an amount around Rs.10,000/- will be given to members and the same will be paid by way of installments up to clear of

Rs.10,000/-. When such is a case the transaction should be limited to Star

Podupu Sangam to take the loan amounts and to repay the same, but in the present case the contention of Pws.1 to 5 that they have given huge amounts to A-1 on interest and A-1 inturn given the same to A-2. It is the separate transaction to the star Podupu Sangam. Further the deposited amounts as per Ex.P-13 and P-14 are not tallied with that of the depositions given by the prosecution witnesses i.e., Pws.1 to 5. Further Ex.P-16 marked on behalf of the prosecution shows that there is a chit transaction in between some persons, but the names of the persons mentioned in Ex.P-16 are no way connected with the prosecution case in any manner. Further in

Ex.P-16 in the last column shown some signatures and the Investigating

Officer did not take any steps to whom the said signatures are belongs to.

26. Section 406 IPC punishment for Criminal breach of trust:

“Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both”.

27. In the present case the prosecution failed to prove that there was a entrustment with the property or with any dominion over the property and accused A-1 and A-2 dishonestly misappropriates or converts their own use or dishonestly uses or dispossess the property in violation of any direction of law.

28. Section 420 IPC Cheating and dishonestly inducing delivery of property:- “Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being covered into a valuable security, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine”.

29. In the present case no inducement was proved against A-1 and

A-2 and due to the inducement made by A-1 and A-2, the property was delivered to A-1, A-1 inturn delivered to A-2 are also not proved and that the property was delivered by the inducement was altered or destroy the whole or any part of valuable security. In the present case through the

Investigating Officer Exs.P-10 to P-14 marked and the prosecution failed to prove that the properties concerned in Ex.P-10 to P-14 are due to conversion of the alleged amounts given by Pws.1 to 5 to A-1 or A-2.

30. On perusal of the entire case on hand, it is the case of the prosecution that Pws.1 to 5 gave huge amounts to A-1 and inturn A-1 gave the said amounts to A-2. But no witness depose the date of alleged payments to A-1. Further Pws.1 to 3 deposed that they have not seen whether A-1 gave the alleged amounts to A-2. Pws.4 and 5 deposed that in their presence A-1 gave the alleged amounts to A-2. There is no corroboration in between the prosecution witnesses Pws.1 to 5 and there is no clarity that each of the witness gave the amounts to A-1 whether separately and jointly and there is no clear transactions established by the prosecution in between Pws.1 to 5 and A-1, A-2. Further both the mediators

Pws.7 and 8 said to be present at the time of seizure of the E xs.P-10 to P- 14 did not identify the accused. Though Ex.P-2 to Ex.P-7 bills marked through PW.6 they are not clearly proved that those ornaments were purchased with the amounts given by Pws.1 to 5 to A-1 and intrun A-1 to

A-2.

31. As above stated this court is of the opinion that the prosecution is failed to prove this case beyond all reasonable doubts for the offences

U/Ss.420, 406 IPC.

32. In the result, the accused A-1 and A-2 are found not guilty for the offences under Secs.420, 406 I.P.C and they are accordingly acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of A-1 and A-2 shall be in force for a period of six months in terms of Sec.437-A Cr.P.C.

Typed to my dictation directly in my laptop by the Stenographer, corrected and pronounced by me in the open Court, on this the 28 th day of March, 2018.

Addl. Judl. First Class Magistrate, Ananthapuramu. (FAC) Judl. First Class Magistrate , Spl. Mobile Court, Ananthapuramu.

Appendix of Evidence

Witnesses Examined

Prosecution Defence

PW.1 : T. Padma. Nil PW.2 : G. Padmavathi. PW.3 : Sujatha. PW.4 : N. Parvathi. PW.5 : C. Kalavathi. PW.6 : T.V. Suresh Babu. PW.7 : P. Vijaya Bhaskar Reddy. PW.8 : Karanam Sri Hari. PW.9 : R. Prathap Reddy, S.I of Police.

Exhibits marked

prosecution. Defence

Ex.P1 : Complaint of PW.1. Nil Ex.P2 : Reply letter dt.30.11.2009. Ex.P3 : Receipt dt.30.09.2009. Ex.P4 : Receipt dt.10.10.2009. Ex.P5 : Receipt dt.08.06.2009. Ex.P6 : Receipt dt.02.10.2009. Ex.P7 : Receipt dt.05.10.2009. Ex.P8 : Mahazarnama dt.06.11.2009. Ex.P9 : First Information Report. Ex.P10: LIC Policy bond dt.31.10.2007 for an amount of Rs.20,000/-. Ex.P11: House site document in the name of K. Suryanarayana. Ex.P12: LIC Jeevan Anand Policy. Ex.P13: Postal RD Book No.1515359. Ex.P14: Postal RD Book No.1515360. Ex.P15: Letter dt.12.11.2009. Ex.P16: Yellow colour rough book.

Mos marked on behalf of

Prosecution Defence

Nil

AJFCM FAC/JFCM.

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU.

Calendar cases tried by the Judicial First Class Magistrate, Spl. Mobile Court, Anantapuramu.

Commence Apprehension Released Close of Sentence Offence Report -ment of of Accused on Bail Trial or Order Trial '02.11.2009 '02.11.2009 '07.11.2009 '11.11.2009 '27.11.2012 '14.11.2017 '28.03.2018

Judgment in C.C.No. 11 of 2012 on the file of the Judicial Magistrate of First Class, Spl. Mobile Court, Anantapuramu.

Complainant: The Sub Inspector of Police, II Town P.S., Ananthapuramu

Crime No: 330/2009

Father's Age Religion Calling Residence Mandal Name of the Name Accused

W/o. Mahaboob K. Pattan Munny 30 Yrs. Muslim -- Anantapuramu Basha Anantapuramu

W/o. T. Chandravathi 48 Yrs. Hindu -- Anantapuramu Suryanarayana Anantapuramu

Offence: U/Secs. 420, 406 I.P.C.

Finding: Found Not Guilty.

Sentence: In the result, the accused A-1 and A-2 are found not guilty for the offences under Secs.420, 406 I.P.C and they are accordingly acquitted under Sec.248 (1) of Cr.P.C. The bail bonds of A-1 and A-2 shall be in force for a period of six months in terms of Sec.437-A Cr.P.C.

(FAC) Judl. First Class Magistrate Spl. Mobile Court, Anantapuramu.

Copy submitted to the Hon’ble I Addl. Sessions Judge, Anantapuramu.

Copy to the Superintendent of Police, Anantapuramu.

1

BEFORE THE JUVENILE JUSTICE BOARD, ANANTAPURAMU.

Present: Smt. A. GEETHA VANI,

Principal Magistrate,

Juvenile Justice Board, Anantapuramu.

Smt. V.L. Kameswari, Board member

Sri. K. Sreenivasulu, Board Member

Friday, the 20 th day of April, 2018.

Juvenile Calendar Case. No.11 / 2017

Between:-

State, Sub Inspector of Police, Dharmavaram Town Police Station. complainant.

AND Sake Syam Kumar, aged 16 years, S/o S. Narayanaswamy, R/o D.No.23/243, Sainagar, Dharmavaram Town. juvenile in conflict with law.

This case is coming-up for final hearing before me on 17-04-2018 for disposal before me in the presence of Assistant Public

Prosecutor for the complainant and of Sri. K. Sreenivasa Reddy,

Advocate for the juvenile in conflict with law and upon hearing both sides and on perusing the material on record and the matter having stood over for consideration till this day and this court delivered the following:-

J U D G E M E N T

1)The Sub Inspector of Police, Dharmavaram Police Station submitted final report inCr.No.186/2015 for the offences punishable U/S 324 R/W 34 IPC against the Juvenile in conflict with law.

2

2)The brief facts of the prosecution is that on 09.06.2015 at 8.00pm, defacto-complainant-M. Prabhakar and M. Prathap were present at coconut shop, in the meantime one customer came to there and standing middle of the coconut shops of adult offender and defacto-complainant. After observing coconuts, the said customer came to defacto-complainant shop to have drink of coconut water. On that adult offender A1 grew wild against M. Prathap scolded as “yemira naakoduka naa vaddaku vachina vyaparanni neevu piluchukuntavaa” caught hold iron stool and beat to M. Prathap, then he kept left hand safe guard. On that the said blow hit on left palm and sustained bleeding injury. Again adult offender A1 fisted on nose due to which blood oozing out from the nose of Prathap sustained swellings due to which prathap fell down. Again adult offender A1 and Syamkumar (juvenile in conflict with law) both kicked with legs on back of M.

Prathap. Then, defacto-complainant rescued from the clutches of A1 and juvenile in conflict with law. Later, while defacto-complainant was present at his coconut shop after 20 minutes, adult offenders A1, A3 and A4 and juvenile in conflict with law came to defacto-complainant with common intention with intent to beat defacto-complainant with dire consequences attacked defacto-complainant and pushed down and beat with hands and legs. Due to which defacto-complainant sustained scratches on his left elbow and over right eye, bleeding injury on right leg, swelling injury on right shoulder. After completion of investigation, final report filed.

3)After careful perusal of material on record and the Police Report, the cognizance of the offence was taken on file U/S 324 R/W 34 IPC 3 against the juvenile in conflict with law.

4)On appearance of the juvenile in conflict with law, relevant copies of documents were furnished to him as contemplated U/sec. 207 Cr.P.C.

5) The juvenile in conflict with law was examined Under Section 251 Cr.P.C for the contravention punishable U/S 324 R/W 34 IPC and the allegations were read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be enquired.

6)In order to prove the case of the prosecution, the prosecution got examined PW1 to PW6 and got marked Ex.P1 to Ex.P6. On the other hand neither the witnesses nor the exhibits marked on behalf of the defence.

7)The juvenile in conflict with law was examined U/sec. 313 Cr.P.C.

By putting incriminating evidence available from the evidence or prosecution witnesses for which he denied and reported no defence evidence.

Heard arguments on both sides and perused records.

8)After due consultation with the board members and this court intend to frame the point below:

9)Now the point that arises for determination is:

Whether the Prosecution bring home

4

the guilt of Juvenile in conflict with

law for the offence punishable U/S

324 R/W 34 IPC to the satisfaction of

this Board?

Point:-

10)The learned Assistant Public Prosecutor examined PW1 to PW6,

Ex.P.1 to P6 marked. All the witnesses supported the case of the prosecution, except PW4. Basing on the evidence of the supported witnesses, the juvenile is liable for punishment, hence prayed to punish the juvenile.

11)On the other hand the learned counsel for the juvenile argued that there is no corroboration in between the injured and PW3, PW4 who are said to the eye witnesses examined by the prosecution before this board. Due to business rivalry PW1 filed a false case against the juvenile and the juvenile is not liable for punishment, hence prayed to acquit the juvenile.

12)To substantiate the case of the prosecution case the prosecution examined PW1 M. Prabakar, he deposed that he is doing coconut business, on 9.6.2015 around 8.00 p.m, at Kalajyothi circle while he was at his shop one person stood in between PW.1’s shop and adult offender shop came towards his shop for purchasing coconuts. In the mean time adult offender No.1 abused his brother Pw2 Pratap how he called the customer to his shop when the customer is coming to their shop. Then adult offender no.1 also hit to pw.2 with an iron stool and the Pw.2 to protect himself put his left hand and the stool hit his palm 5 due to which he sustained a bleeding injury. Adult offender no.1 also hit

Pw.2 Pratap on his nose with his fist due to which he sustained bleeding injury on his nose. Adult offender no.1 along with juvenile pushed down

Pw.2 to ground and beat him with legs. At that time PW.1 was returning back after having breakfast and rescued PW.2 from the hands of adult offender. Then PW.2 went to police station but returned back as he was afraid of the adult offender. Around 4 p.m., i.e., 20 minutes of the earlier incident while PW.1 was at his shop juvenile along with adult offenders came to his shop and beat PW.1 with hands and legs. PW.1 sustained injury over right hand, right leg and pain in his right shoulder.

PW.1 also sustained a scratch injury over his right eye. At that time one

V. Anjaneyulu rescued PW.1 from the hands of the adult offender. Then

PW.1 went to Government hospital, Dharmavaram for treatment of his injuries. Police came to hospital examined him and recorded his statement under Ex.P.1.

13)The prosecution examined PW.2 M. Prathap deposed that on 09.6.2015 at about 8.00 p.m, while he was in their coconut shop a customer came there and stood in between their shop and adult offender shop and then he came to his shop to purchase coconuts. On that adult offender no.1 grew wild and abused that PW.2 called the customer to his shop while the customer going to shop of adult offender no.1 and also hit PW.2 with an iron stool which hit his left palm due to which he sustained bleeding injury. Adult offender no.1 also fisted PW.2 on his nose due to which PW.2 nose started bleeding and

PW.2 sustained swelling injury. Then he fell down and adult offender no.1 along with juvenile who is son of adult offender no.1 beat PW.2 6 with hands and legs indiscriminately. Then PW.1 came there and rescued PW.2 from the hands of adult offender no.1 and juvenile. Pw.2 went to police station but he afraid of the adult offender and did not file report and came back. Then PW.2 went to Hospital in the mean time after 20 minutes of first incident adult offender no.1 to 3 along with juvenile attacked Pw.1 and caused injuries on his body and Pw.1 came to hospital for treatment of the injuries. Then pw.1 filed a report before police.

14)On perusal of the evidences of PW1 and PW2, there is no corroboration in between the evidences of PW1 and PW2 regarding the sustaining of alleged injuries. Admittedly there is a business rivalry in between the juvenile and the injured. On perusal of Ex.P.5 and P6 they are the wound certificate of PW.1 and 2 , on perusal of Ex.P.5 it is the wound certificate of PW.1 as per Ex.P.5, PW.1 sustained no.1 a abrasion over right elbow of 2x2 cms, No.2 A abrasion over right ankle region of 1x1 cms. No.3 An abrasion over right forehead of 2x2 cms and the opinion of the doctor that the injuries no.1 to 3 are simple in nature. On perusal of Ex.P.6 wound certificate PW.2 M. Pratap it shows PW.2 sustained No.1 Bruish over nose of 3x3 cms, No.2 an abrasion over left palm is 2x2 cms and the opinion the injury no.1 and 2 are simple in nature. PW.3 P. Bharath Kumar deposed that on 09.06.2015 at 8.20 p.m, while PW.3 went to scene of offence area to get tablets he found adult offender along with juvenile beating pw.1 and PW.3 tried to separate them. PW.3 along with others rescued Pw.1 from the hands of the adult offender. PW.3 came to know the names of juvenile and adult offender at the scene of offence. Police examined him on the night of 7 the incident and also on the next day morning. On his enquiry he came to know that the galata started between Pw.1 and juvenile along with adult offender due to business rivalry. On perusal of the evidence of

PW.3, he did not whisper any specific overt acts against PW.1 and 2 by the juvenile. So the evidence of PW.3 is no way helpful to the case of the prosecution.

15)The prosecution examined PW4 P. Rangareddy deposed that he went to Ananthapuramu on 09.06.2015 and got down at Kala Jyothi

Circle around 7.30 p.m., and was waiting for bus to go to Medapuramu.

At that time PW.4 seen Pw.1 Prabhakar, Pw.2 Pratap, the juvenile,

Ramanji, Ramajineyulu. PW.4 observed Pw.1 and Pw.2 were taking to hospital. PW.4 did not witness the incident personally. On the perusal of the evidence of PW4 admittedly he is not the eye witness to the alleged incident.

16)The prosecution examined PW.5 T. Noor Mohammad deposed that he is working as head constable at Dharmavaram Urban PS from 13.03.2013 to till date. On 09.06.2015 he was an in-charge to

Dharamavaram Urban Police Station at 11.30 p.m, he received an information from Govt.,Hospital, Dharmavaramu and accordingly PW.5 visited the hospital and recorded the statement of Pw.1 and return back to police station and handed over the statement of Pw.1 to Circle

Inspector of Police Harinath Babu. Basing on the statement of Pw.1,

PW.6.N.K.Munenaik H.C.2132 registered a case.

17)The prosecution examined PW6 N.K. Munenaik deposed that he is 8 working as H.C.2132 at Dharmavaram Urban Police Station from 01.02.2015 to till date. On 10.06.2015 at 12.45 p.m, while he was acting in charge SHO of Dharmavaram Town PS Pw.5 came to the police station and produced the statement of Pw.1 along with medical intimation before PW.6. Basing on the statement of Pw.1 he registered a case in Cr.No.186/15 U.sec. 324 R/w 34 IPC under Ex.P3. PW.6 visited the scene of offence and secured the presence of Pw.1 to Pw.4 and one

Anjaneyulu examined them and recorded their statements, observed the scene of offence and drawn rough sketch under Ex.P4. PW.6 issued 41-A Cr.P.C notices to juvenile and adult offenders. On 21.06.2015 PW.6 produced the juvenile before the Hon’ble Board and handed over CD file to Sri M. Subbaramaiah SI of police he verified the investigation done by PW.6 and during the course of further investigation he received wound certificates of Pw.1 and Pw.2 under Ex.P5 and P6 and filed charge sheet before the Hon’ble JFCM court against adult offenders and final report before the Hon’ble Board.

18)On perusal of the evidence of PW.5 and PW.6 they are the official and interested witnesses. It is settled legal position that the evidence of the injured, witnesses must be corroborated with the evidence of eye witnesses.

19)At this juncture, this Court relied upon the decision reported in

Thaman Kumar (Vs) State of UP.

The Apex court held - dimensions of the conflict between

medical evidence and oral testimony in SCC P. 389 para 16.

2003 (3) SCR 1190.

9

Appeal Crl. 425 of 1996.

“....... The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim or of type which are possible by weapon of assault but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However in the second and third categories no such inference can straight away be drawn. The Manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many others similar factors will have to be taken into consideration in judging the reliability of ocular testimony.

20. The offence U/sec. 324 IPC, the prosecution has to prove (i) that the accused caused by his act bodily pain, disease or infirmity to the complainant (ii) that he did such act intentionally or with knowledge that it would cause the pain etc. (iii) that it was unprovoked and that the accused caused it by means of an instrument, for shooting, stabbing or cutting or by a instrument, which used a weapon if likely to cause death or by means of fire etc., and there can be a conviction even in the absence of a wound certificate or opinion of a medical officer where the oral evidence is safe and 10 reliable in providing the nature of the weapon used as per the decision “ State of Kerala (V) Haridasan 1978 Crl.L.J. 1204 ( Kerala).

In the present case, injuries deposed by pw1 and PW2 are

not tallied with the wound certificate, hence it creates doubt

whether the accused caused injury to Pw.1.

21)In the present case PW.3 and 4 were examined, PW.3 did not whisper any specific overt acts against PW.1 and 2 by the juvenile in conflict with law. PW.4 deposed that he did not witness the alleged incident. As admittedly there is a business rivalry in between PW.1,

PW.2 and the juvenile and as there is no support of independent witnesses, hence this Board is of the opinion that the benefit of doubt goes to juvenile.

22)On perusal of entire case hand, the prosecution failed to prove its case beyond all reasonable doubts and the juvenile in conflict with law is entitled for acquittal.

23) In the result, juvenile in conflict with law is found not guilty for the offence U/S 324 IPC and hence he is acquitted U/sec. 255 (1)

Cr.P.C.

Typed to my dictation by Senior Stenographer, corrected and

pronounced by me in open Court, this the 20th day of April, 2018.

1) 2)

Member Principal Magistrate,

Juvenile Justice Board Juvenile Justice Board

Anantapuramu. Anantapuramu.

11

Appendix of evidence

Witnesses examined for

Prosecution Defence

PW1 : M. Prabhakar. None. PW2 : M.V. Pratap. PW3 : P. Bharath Kumar. PW4 : P. Ranga Reddy. PW5 : T. Noor Mohammad. PW6 : N.K. Munenaik.

Exhibits marked for the Prosecution

Ex.P1 : complaint. Ex.P2 : 161 Cr.P.C Statement of PW4. Ex.P3 : Certified copy of First Information Report. Ex.P4 : Certified copy of Rough Sketch. Ex.P5 : Certified copy of Wound Certificate of PW1. Ex.P6 : Certified copy of Wound Certificate of PW2.

Exhibits marked for the Defence

- Nil -

Material Objects marked

-NIL-

Prl. Magistrate,

J.J.B., ATP.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPL. MOBILE COURT, ANANTHAPURAMU.

Present:- Smt A. Geetha Vani, Addl. Judicial First Class Magistrate,

Ananthapuramu.

(FAC) Judl. First Class Magistrate, Spl. Mobile Court,

Ananthapuramu.

Wednesday, the 4 th Day of April, 2018

CALENDAR CASE No.21/2012

Between :-

State Represented by the Sub-Inspector of Police, Anantapur Rural P.S. …Complainant

AND

1) Sugali Mahesh Naik, age 30 years, S/o.Dasu Naik, Venkatampalli Pedda Thanda, Vajrakarur Madal.

A-1 was split up from C.C.No.200/2011

dt.29.04.2012. … Accused No.1.

2) Sugali Seena Naik, age 30 years, S/o. Thippe Naik, Naik Nagar, Anantapur Town.

3) Sugali Ramanji Naik, age 30 years, S/o. Bojja Naik, Y.S.R Colony, Kurugunta Village, Anantapur Rural Mandal.

4) Sugali Raghava Naik, age 28 years, S/o. Rupla Naik, Y.S.R Colony, Kurugunta Village, Anantapur Rural Mandal.

The accused A-2 to A-4 was acquitted U/S.320 (8) Cr.P.C in C.C.No.200/2011 in Lok Adalat on 29.04.2012 … Accused Nos.2 to 4.

This case coming on 29.03.2018 for final hearing before me in the presence of the learned Assistant Public Prosecutor for Prosecution and of Sri B. Narayana Reddy, Advocate for the Accused No.4 upon hearing both sides and on perusing the material on record, and the matter having stood over for consideration till this day, and this Court delivered the following:-

JUDGMENT

1. The Inspector of Police, Anantapur Rural P.S filed charge sheet against A-4 for the offence under Secs.323, 324 r/w.34 I.P.C in Crime

No.7/2011.

2. The case of the prosecution as per the charge sheet is that, there are ill-feelings between A-1 to A-4 on one hand and PW.1 B. Mallamma on the other hand with regard to the land dispute. On 19.01.2011 at 4:30

PM A-1 to A-4 armed with sticks and stones and abused PW.2 B. Dharma

Naik. Then PW.1 questioned the accused about abusing her husband i.e.,

PW.2. Then A-2 and A-3 pushed PW.1 down by holding her both hands. A-3 beat on her chest with stone, meantime one Jaya Bai, B. Sreenivasa Naik,

PW.2 went to rescue of PW.1, the accused beat them with stones, hands and legs. Later the injured were shifted to Government General Hospital,

Ananthapuramu in an auto. On the statement of PW.1, PW.5 A. Nagappa,

Head Constable, Ananthapuramu Rural P.S registered a case in

Cr.No.7/2011 U/Ss.323, 324 r/w..34 I.P.C and investigated into the case.

During the course of investigation, PW.5 examined the witnesses and recorded their statements. Dr. Ramakrishna Chowdary, Govt. General

Hospital, Ananthapuramu examined PW.1, PW.2 and B. Jaya Bai and issued wound certificate opining that the injuries sustained by them are simple injuries. On 25.01.2011 the accused A-1 to A-4 themselves voluntarily surrendered before this court. After completion of investigation, K. Ajay

Kumar, Sub-Inspector of Police, Ananthapuramu Rural P.S filed charge sheet against A-1 to A-4 for the offences U/Ss.323, 324 r/w.34 I.P.C.

3. After filing charge sheet, this case was taken cognizance by the

Addl. Judl. Magistrate of I class, Anantapuramu for the offences U/S.323, 324 r/w.34 I.P.C and numbered as C.C.246/2009. As per the proceedings of

Hon'ble District and Session Judge, Anantapurmu in Order Dis No.3886

dt.17.08.2011, this case was transferred to this court and renumbered the same as C.C.200/2011.

4. On 29.04.2012 A-1 was split up from C.C.No.200/2011 and renumbered as C.C.No.21/2012.

5. On appearance of A-1, copies of case records were furnished to him as required under Sec.207 of Cr.P.C.

6. The accused A-1 was examined under Sec.239 Cr.P.C and a charge U/Secs.323 and 324 I.P.C was framed, read over and explained to

A-1 in Telugu. He pleaded not guilty and claimed to be tried.

7. To prove its case, the prosecution examined PWs-1 to 5 and marked Exs.P-1 to P-8.

8. After closure of prosecution side evidence, the accused A-1 was examined under Sec.313 of Cr.P.C and he denied the incriminating evidence deposed against him by the prosecution witnesses and reported no defence evidence on his behalf.

9. Heard both sides.

10. Now, the point for determination is:

“ Whether the prosecution proved the guilt of A-1 for the

offences under Secs.323, 324 I.P.C beyond all reasonable doubt?”

11. P O I N T :-

The learned Asst. Public Prosecutor argued that the prosecution examined Pws.1 to 5 and Ex.P-1 to P-8 marked. Unfortunately PWs.3 and 4, who are the eye witnesses to the incident did not support the case of the prosecution. PW.1 is the defato complainant. PW.2 is the husband of PW.1, both of them supported the case of the prosecution. PW.5 is Assistant Sub-

Inspector of Police, he investigated the matter and filed charge sheet. Basing on the evidence of PWs.1, 2, and 5, the accused is liable for conviction.

Hence prayed to convict the accused.

12. On the other hand the learned counsel for the accused argued that there is no corroboration in between the evidence of PWs.1 and 2. The prosecution examined PWs.3 and 4 stating that they are the witnesses at the time of the alleged incident, but they did not support the case of the prosecution. Further one Smt B. Jaya Bai and Sri B. Sreenivasa Naik, cited as witnesses and injured in the charge sheet were not examined before this court, hence the prosecution failed to establish its case beyond all reasonable doubt and accused are entitled for acquittal and prayed to acquit the accused.

13. To substantiate the case of the prosecution, the prosecution examined PW.1 B. Mallamma, she deposed that about 3 years back A-1 to

A-4 came to her house and were abused her husband for the incident occurred long before and in the mean time A-2 caught hold the hand of

PW.1 and dragged her, A-3 and A-1 beat her with legs, thereby she sustained injuries to her left knee and on her right knee and also on right leg. One Smt B. Jaya Bai and Sri B. Sreenivasa Naik came to rescue of PW.1, the accused A-1 to A-4 also beat one Smt B. Jaya Bai and Sri B. Sreenivasa

Naik with sticks and caused bleeding injuries to both of them. In the meantime the husband of PW.1 B. Dharma Naik ran away from the scene of offence and subsequently he returned back and shifted the injured to Govt.

General Hospital, Ananthapuramu in an auto. On the next day PW.1, Smt

B.Jaya Bai, Sri B. Sreenivasa Naik and PW.2 went to Police station and lodged a report.

14. On perusal of the evidence of PW.2 B. Dharma Naik, he deposed that on 19-09-2011 around 4-30 P.M while he was present in the locality, the accused came to him and abused him. When PW.1 questioned them, the accused beat PW.1 with hands and kicked PW.1 and also beat her with stones and sickle, thereby PW.1 sustained injuries on her chest and right shoulder. The accused A-1 Mahesh Naik thrown sickle at the scene of offence and PW.1 escaped. In the cross-examination PW.2 deposed that he was in the house of B. Sreenivasa Naik at the time of alleged beating of PW.1. He did not see the alleged beating of PW.1. On perusal of evidence of PWs.1 and 2, admittedly PW.2 is not the eye witness for the alleged beating of

PW.1. PW.1 in her chief-examination deposed that she sustained injuries to her left knee, right knee and also right leg. The wound certificate marked regarding the alleged injuries of PW.1 under Ex.P-6 shows no external injuries found on PW.1. Ex.P-6 doesn’t disclose the alleged injuries to PW.1 on her left knee, right knee and also right leg. So the evidence of PW.1 is not corroborated with the alleged injuries deposed by her with that of Ex.P-

6. It is settled legal position that the wound certificate must be corroborated with the injures deposed by the victim. At this juncture this court relied on the decision reported in;

2003 (3) SCR 1190.

Appeal Crl. 425 of 1996.

Between

Thaman Kumar (Vs) State of UP.

The Apex court held - dimensions of the conflict between medical

evidence and oral testimony in SCC P. 389 para 16.

“....... The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There be a case where there is total absence of injuries which are normally caused by a particular weapon.

There is another category where though the injuries found on the victim or of type which are possible by weapon of assault but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However in the second and third categories no such inference can straight away be drawn. The Manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many others similar factors will have to be taken into consideration in judging the reliability of ocular testimony.

15. The offence U/sec. 324 IPC, the prosecution has to prove (i) that the accused caused by his act bodily pain, disease or infirmity to the complainant (ii) that he did such act intentionally or with knowledge that it would cause the pain etc. (iii) that it was unprovoked and that the accused caused it by means of an instrument, for shooting, stabbing or cutting or by a instrument, which used a weapon if likely to cause death or by means of fire etc., and there can be a conviction even in the absence of a wound certificate or opinion of a medical officer where the oral evidence is safe and reliable in providing the nature of the weapon used as per the decision “ State of Kerala (V) Haridasan 1978 Crl.L.J. 1204 ( Kerala).

In the present case the injuries deposed by Pw.1 are not tallied with the wound certificate, hence it creates doubt whether the accused caused injury to Pw.1.

16. Further PW.1 in her chief-examination deposed that at the time of alleged incident Smt B. Jaya Bai and Sri B. Sreenivasa Naik intervened to rescue of PW.1, but the accused A-1 to A-4 beat both of them and caused bleeding injuries. The police failed to produce Smt B. Jaya Bai and Sri B.

Sreenivasa Naik before this court to record their evidence. On perusal of the wound certificates marked for Sri. B. Sreenivasa Naik under Ex.P-8 no external injuries found on the person of B. Sreenivasa Naik. Ex.P-7 marked on behalf of Smt B. Jaya Bai shows a complaint of chest pain and tenderness present at the right cheek and the wound certificate was issued on the opinion that the injuries are simple in nature. But the police failed to produce

Smt B. Jaya Bai and Sri B. Sreenivasa Naik before this court to record their evidence and the docket order dt.20.03.2018 shows that a report was filed by the S.H.O of Police Station concerned that Smt B. Jaya Bai and Sri B.

Sreenivasa Naik whereabouts are not known.

17. PW.3 M. Rama Naik, PW.4 Sugali Kesamma were examined

before this court, but they did not support the case of the prosecution and

they deposed that they did not know anything about the facts of the case.

Though the prosecution cross-examined PWs.3 and 4 except marking their

Sec.161 Cr.P.C statements nothing was elicited in favour of the prosecution.

18. PW.5 A. Nagappa, Asst. Sub-Inspector of Police was examined

before this court, he deposed previously he worked as Head Constable,

Ananthapuramu Rural Police Station from 15.02.2010 to 08.11.2013. On 20.01.2011 at 9:30 AM he received medical admit intimation from GGH,

Ananthapuramu and he visited hospital and recorded the statement of PW.1.

Then he returned back to his police station and registered the present case under Ex.P-4. Again he visited to the GGH, Ananthapuramu on the same day and secured PW.1, B. Jaya Bai, PW.2 and B. Srinivasa Naik examined them and recorded their statements. On the same day he visited the scene of offence and drawn rough sketch under Ex.P5. On 25.01.2011 the accused came and surrendered before the court and was remanded. During the course of investigation, PW.5 received Exs.P-6 to P-8 and after completion of investigation Sri K. Ajay Kumar, S.I of Police, Ananthapuramu Rural P.S filed charge sheet on the investigation of PW.5.

19. It is the case of the prosecution that the accused beat PW.1, Smt

B. Jaya Bai and Sri B. Sreenivasa Naik and caused injuries, but the police failed to produce the witnesses Smt B. Jaya Bai and Sri B. Sreenivasa Naik

before this court. Though PW.1 and PW.2 were examined before this court,

PW.2 is admittedly is not the eye witness for the alleged beating of PW.1.

The evidence of PW.1 is not corroborated with the alleged injuries sustained by her with that of wound certificate issued by the doctor under Ex.P-6.

PW.1 deposed in her chief-examination that Smt B. Jaya Bai and Sri B.

Sreenivasa Naik were beaten by A-1 to A-4 with sticks and caused bleeding injuries, but on perusal of wound certificates that were issued on behalf of

Smt B. Jaya Bai under Ex.P7 and Sri B. Sreenivasa Naik under Ex.P-8 have not shown any bleeding injuries. It is settled legal position that basing on the sole testimony of the victim conviction can be sustained, but in the present case the evidence of PW.1 was not corroborated with wound certificate issued on her behalf Ex.P-6. Therefore, this court does not see any reason to convict the accused and the accused is entitled for acquittal.

20. As stated above this court is of the opinion that the prosecution failed to prove its case beyond all reasonable doubt for the offences

U/Ss.323, 324 I.P.C against A-1 and the accused A-1 is entitled for acquittal.

21. In the result, the accused A-1 is found not guilty for the offences

U/Ss.323, 324 of IPC and he is acquitted U/s.248(1) of Cr.P.C. The bail bonds of A-1 shall be in force for a period of six months in terms of Sec.

437-A of Cr.P.C.

Partly d ictated to the Personal Assistant, transcribed by him, corrected and pronounced by me in the open Court, on this the 4 th day of April, 2018.

Sd/- A. Geetha Vani

Addl. Judl. First Class Magistrate, Ananthapuramu. (FAC) Judl. First Class Magistrate, Spl. Mobile Court, Ananthapuramu.

Appendix of Evidence

Witnesses Examined

Prosecution Defence PW.1 : B. Mallamma, Complainant Nil PW.2 : B. Dharma Naik. PW.3 : M. Rama Nayak. PW.4 : Sugali Kesamma. PW.5 : A. Nagappa, ASI of Police.

Exhibits marked

prosecution. Defence

Ex.P1 : Complaint of PW.1 Nil Ex.P2 :Sec.161 Cr.P.C statement of PW.3. Ex.P3 : Sec.161 Cr.P.C statement of PW.4. Ex.P4 : First Information Report. Ex.P5 : Rough Sketch. Ex.P6 : Wound Certificate of PW.1. Ex.P7 : Wound Certificate of Smt B. Jaya Bai. Ex.P8 : Wound Certificate of Sri B. Sreenivasa Naik.

Mos marked on behalf of

Prosecution Defence

Nil

Sd/- A.G.V.

AJFCM FAC/JFCM.

// True Copy //

Addl. Judl. First Class Magistrate, Ananthapuramu. (FAC) Judl. First Class Magistrate, Spl. Mobile Court, Ananthapuramu.