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IN THE COURT OF V ADDL. JUDL.MAGISTRATE OF I CLASS :: NELLORE
Tuesday, the 26th day of November, 2019.
:PRESENT:
ASEERVADAM PAUL REDDYPOGU
V Addl. Judl. Magistrate of I Class.
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Calender Case No.1003/201 5
1.Chinthamreddy Venkateswarlu, S/o Dasaradha Rami Reddy, aged 30 years, R/o Basinepalli, S.R.Puram Mandal, SPSR Nellore District.
2.Vemulapatik Rama Rao, S/o late Venkata Ramanaiah, aged 50 years.
3.Vemulapati Dhanuja, W/o V. Ramana Rao, aged 45 years R/o D.No.10306E3D, South Janathapet, Near Nawab
buildings, Kavali town, SPSR Nellore District.......Complainants
Vs.
D. Balagopal Reddy, S/o Not known, Hindu, aged… years, Practicing Advocate, R/o d.No.24/2405, Santhi
Nagar, Opp. K.V.R. Petrol Bunk, Nellore City. .... Accused.
This case came up on 06.11.2019 for final hearing before me in the presence of Sri M. Suryaprakasa Rao, Advocate for complainant and of Sri P.B. Sudhakar Rao, Advocate for accused, and the matter having stood over for consideration till this day, this court delivered the following:
JUDGMENT
This is a private complaint filed by the complainant u/s 190 r/w 200 of
Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.” ) for the offence under Secs. 384, 419, 420. 426, 427 and 506 I.P.C against Accused.
2. The case of the complainant in brief is as follows:
(i) The 1st complainant on the assurance and guarantee given by complainants 2 and 3 paid Rs.8,00,000/ to one Yellanti Sujatha. As said
Sujatha did not pay single pie, complainants 2 and 3 paid the said amount to 1st complainant as promised. The complaints approached the accused stating that one Yellati Sujatha and her husband Venkateswarlu fell due to them in a sum of Rs.8,00,000/ and inconsideration thereof Yellanti Sujatha has executed a promissory note and also issued a post dated cheque for the said sum to be payable on demand made by them. As the said dispute was not 2 amicably settled between the complainants and Yellanti Sujatha and her husband/Venkateswarlu, the complainants approached the accused to file proper complaint on the post dated cheque and suit on the said promissory note.
(ii) After narrating the case by the complainants herein to the accused advocate, he has fixed a fee, Court fee and other miscellaneous expenses to a tune of Rs.15,000/. Soon after taking up the case, the accused herein received another sum of Rs.10,000/ from the complainants, who had also handedover connected documents along with cheque and in turn accused advocate took the signatures of complainant No.1, who originally lent the amount to Yellanti Sujatha. The accused informed the complainants that he will file a complaint under Sec.138 and 142 of NI Act by complying mandatory provisions as contemplated under law and asked the complainants to see him after one month.
(iii) The complainants accordingly started appearing before the accused counsel continuously for a period of more than 2 years. The complainants being totally innocents about the court of law blindly believed the accused and used to approach him once in a fortnight or in a month. Sometimes the accused used to give slips also by mentioning the date of adjournments and some case number whenever 2nd and 3rd complainants used to approach and insist on him. Finally, the complainants 1 to 3 demanded to give their case file as the looser/venkateswarlu was suffering financial crisis. In the meantime having found that the debt would not be recovered from Yellanti Sujatha and her husband Chinthamreddy Venkateswarlu insisted the complainants to refund of his amounts as he lent the same on the advice of the complainants and the complainants duly repaid the said amount of Rs.8,00,000/ with interest of Rs.5,00,000/ totaling Rs.13,00,000/ to the said Ch.
Venkateswarlu and the same was transferred the said promissory note to
Vemulapati Dhanuja, 2nd complainant. But the accused advocate saying usual 3 replied of adjournments and hence suspected the conduct of advocate accused.
When seriously questioned about the status of the case and the case number in which court it is pending, the accused advocate not able to answer consistently.
(iv) The complainants on their enquiry came to know that the accused with an intent to cheat and thereby extort unlawful cash in the name of Court
Fee and other expenses. Having no other alternative they reported the matter to Superintendent of Police, Nellore who in turn referred the matter to Mandal
Legal Services Authority, Kavali and the accused did not turn up before the said authority and on repeated summons closed P.L.No.10/2015 and directed the complainants to approach appropriate forum to initiate criminal case against the accused advocater.
(v) The accused advocate being in noble profession cheated the complainant and thereby dishonestly made them to believe and extorted amount of Rs.15,000/ and Rs.10,000/ of receiving fees and not filing the case and also colluded with opposite party for illegal money and fraudulently prevented complainants from enjoying the fruits of litigation. Hence, the complaint under Secs.384, 417, 419, 420, 426, 427 and 506 of IPC.
3. This Court on recording of the sworn statements of complainants and on consideration of the material on record took cognizance of the of case under sec.420 of IPC and ordered process to the accused advocate.
4. On appearance of the accused, copies of documents are furnished as contemplated under section 207 Cr.P.C.
5. The accused were examined U/Sec. 246 Cr.P.C., and a charge under
Sec.420 of IPC has been framed, readover and explained to the accused in
Telugu to which he denied, pleaded not guilty and claimed to be tried.
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6. To prove its case the prosecution has examined P.Ws.1 to 4 and marked Exs.P1 to P14. Prosecution evidence is closed.
7. After closure of prosecution side evidence, accused were examined under Sec.313 Cr.P.C. on the incriminating circumstances appearing against him in the evidence of prosecution witnesses, which he denied and reported no defence evidence.
8. Heard both sides. Perused the material on record.
9. Now the point for consideration is that “Whether the complainant proved case against the accused for the offences punishable U/Sec.420 I.P.C. beyond all reasonable doubt?”
P O I N T:
10. The learned defence counsel argued that basing on the sworn statements of P.Ws.1 and 2, the Hon’ble Court took cognizance of the offence against the accused under Sec.420 IPC. Ex.P1/Private complaint contain six pages of complaint. PW2 admitted that except signature on last page, she did not put her signature on each page of the complaint. On 28.2.2015, the complaint was returned by this Court as there is no signature of Advocate. The complainant did not put his signature on each page of complaint. Hence,
Ex.P1 cannot be taken into consideration. The accused has no prior acquaintance with the complainants prior to this case. Pw4 alleged to be introduced the accused to PW1. Except filing of anticipatory bail no transaction took place between complainant and accused. There are so many material omissions and contradictions between the evidence of P.Ws.1 to 3.
There are discrepancies in the evidence of P.Ws.1 to 3. The contention of learned defence counsel that they approached the accused and entrusted the case file for Rs.15,000/ fees. Regarding entrustment of fees to the accused there are discrepancies in the evidence of P.Ws.1 to 3. Pw2 deposed that one
Yellanti Sujatha demanded her to give Rs.15,00,000/. But, Pw1 gave an 5 amount of Rs.8,00,000/ through Pw2. There is no iota of evidence that Pw2 gave an amount of Rs.8,00,000/ to PW1 and the same was given to Yellanti
Sujatha. PW1 deposed that PW4 introduced him to accused. Except that nothing was deposed by him. The crucial document filed in Ex.P6 typed N.I.
Act documents filed by complainant. No where the signature of accused was found on those documents. Hence, those documents are created by P.Ws.1 and 2 for this case purpose. PW3 deposed Yellanti Sujatha approached Pw2 and requested amount for marriage purpose. But whereas PW2 deposed that
Yellanti Sujatha approached her for amounts for doing Aqua culture business.
There are discrepancies in the evidence of P.Ws.2 and 3. The complainant failed to prove there must be dishonest inducement to deliver property by accused. No mensrea elicited and proved in Ex.P1 complaint or in evidence of
P.Ws.1 and 2. It is an admitted fact that at the time of taking documents no inducement made by accused. Hence, Sec.420 IPC not attracted. The complainant filed C.D. and video fabricated by them for the purpose of this case. PW3 admitted that he was working in NSR Educational Institutions.
The purpose of the above NSR Educational trust is to provide medical seats all over India by taking some commission. The relative of accused who is now settled in abroad gave an amount of Rs.30,00,000/to the Head of the above said NSR Educational Trust. But the said amount neither returned nor they provided medical seat to the relative of accused. When accused asked to repay the amount PW4 colluded with Pw1 and foisted a false case against him.
Hence prayed to acquit the accused.
11. The evidence of Pw1/Chinthamreddy Venkateswara Reddy deposed that in the year 2011, PW1 lent an amount of Rs.8,00,000/ to one Yellanti
Sujatha through Complainant No.3/V.Dhanuja . She executed a promissory note in favor of PW1 and also promise to repay the amount within 3 months.
When PWI asked Yellanti Sujatha to repay the amount she issued a cheque for Rs.8 Lakhs in the month of December, 2012. PW1 presented the said cheque for collection and the same was dishonored for the reason of funds 6 insufficient. Then PW1 issued legal notice through one Advocate by name
Srinivasa Kiran from Kavali to Yellanti Sujatha. She filed a ST & SC case against him, PW2, PW3. Police enquired and referred the case as false. PW1 received reply notice from Yellanti Sujatha. In the 3rd week of January, 2013
PW1, P.W2 and LW3 approached accused along with reply notice and cheque and requested to file a case U/Sec.138 r/w 142 of N.I. Act against
Sujatha and paid Rs.15,000/ as advocate fees. Later the accused told PW1 that he filed a case against Sujatha and it is postponed for adjournments. PW1 wandered around accused for a period of 2½ year about the case. Later PW1 came to know that accused did not file any case. PW1 took case file from accused and took video at the time of taking case file. Later PW1 filed case against accused before lok adalath Kavali. But accused did not attended
before Lok adalath. Then he met Superintendent of police Nellore and prayed
to do justice. In one occasion PW1 received the amount of Rs.13 Lakhs from
PW2/ Dhanuja as his father fell ill. As police did not take any action against accused, PW1 approached this Honorable court and filed Ex.P1/ private complaint.
12. Learned defence counsel contended that Ex.P1/Private complaint contains six pages and there are no signatures on page No.1 and 4.
Admittedly, there are signatures of Pw2 on each page of complaint. It is evident from the record of this case. The present complaint filed on 24.4.2015.
Since four years of passing of time there is every possibility of witness to forget whether she signed on each page of the complaint or not. Moreover PW1 is the main victim and complainant in this case. Hence the contention of learned defence counsel there are no signatures of PW2 on each page of complaint has no force.
13. The learned defence contended that the signatures of advocate column as well as complainant’s column in Ex.P6 has been erased by witnesses. The complainants 1 to 3 themselves colluded with each other and 7 fabricated Ex.P6 false documents for the purpose of this case. But, in cross examination, PW1 admitted that he signed on Ex.P6 documents and he does not know who struck off his signatures. Admittedly, PW1 is victim and de facto complainant. He has no legal knowledge how to prepare the complaint along with sworn affidavit and delay condone petition as well as other documents. Admittedly in Ex.P6 documents i.e., in complaint copy it was clearly mentioned that “the address of the complainant for service of all notices is that of their advocates, “Sir 1. D. Bala Gopal Reddy, B.Com.,B.L., 2. B.
Malayakumar, B.Com., B.L., Magunta Statue, Opp. Santhi Towers, Nellore3” has clearly established that the accused prepared Ex.P6 documents with legal knowledge. But, returned the same after lapse of 2 ½ years without filing them
before the Hon’ble Court of Addl. Judl. Magistrate of I Class, Kavali.
14. Learned defence counsel further contended that there is no documentary proof except oral evidence of PWs1and 2 that Exs.P6 documents are prepared by witnesses. But, in Ex.P6 documents/ the complaint copy itself is admitting the fact that the accused being an advocate and having legal knowledge prepared the document. Hence, Ex.P6 were prepared by accused is believable.
15. Furthermore, the complainant filed Ex.P7 CD along with conversation between accused and PWs2 and 3. In Ex.P7 video clearly visible that the accused returned the case file to PW2. The Hon’ble Apex Court while dealing with a case, under Sec.65B of Indian Evidence Act held that certificate is not mandatory for marking Electronic Evidence judicially in the interest of justice. Sec.65B of Indian Evidence Act which deals with admissibility of
Electronic evidence in Court proceedings will have an impact on criminal trial wherein number of cases call detailed records, CCTV footage, Mobile Video recording and CDs. are reliable upon considering the evidence both oral and documentary i.e., in Ex.P7 Video recording recorded by PW3 at the time of returning of case file to Pw2 clearly visible that accused was returning the 8 case file. Hence the contention of P.Ws.1 to 3 that accused returned the case file to Pw2 is acceptable and believable.
16. The evidence of P.ws.1 and 2 clearly establish that PW1 lent amounts to one Yellanti Sujatha on the assurance of PW2. Exs.P2 and P3 original cheque and promissory note filed along with Ex.P1 complaint clearly shows that Yellanti Sujatha executed promissory note and issued cheque to
Pw1 for due discharge of the debt covered under the promissory note. PW1 approached the accused to file a case in the month of January, 2013. On that accused fixed Court fee and other miscellaneous expenses to a tune of rs.15,000/ and soon after taking up the case the accused received another sum of Rs.10,000/ from PW1. PW1 handedover all the documents along with original cheque and original promissory note. The accused made believe
P.Ws.1 and 2 that he will file complaint under Sec.138 r/w 142 of N.I. Act by complying mandatory provisions as contemplated under law and told them to see him after one month. The evidence of PW1 and PW2 clearly shows that accused took documents in 3rd week of January, 2013. But, accused without filing the documents and kept quiet for a period of 2 years.
17. The learned defence counsel further contended that accused has no prior acquaintance with PW1. It is evident that the evidence of PW4 clearly shows he introduced accused to PW1 and asked him to suggest a known advocate. The accused assured PW1 that he will take up the cheque case and promissory note case. After passing of 4 days PW1 handedover one cheque and promissory note to accused. After passing of 15 days accused advocate came to his office. Then PW4 enquired him about the case of PW1.
Accused replied that he already filed the cases and both are in progress. PW1 telephoned to A1 and asked him to enquire accused about his cases. On that
PW4 made a phone call to accused and he replied the cases of PW1 are in progress. The crossexamination of PW1 did not shaken in any manner to disbelieve his evidence. Moreover in cross0examination, it is admitted that 9
PW4 and PW1 approached the accused to file bail application in S.C. & ST case filed against P.Ws.1 and 2. Hence the evidence of PW4 is believable that he introduced accused to PW1 as an advocate to file NI Act and promissory note cases of PW1.
18. The evidence of Pw1 clearly establishes that the accused is an advocate and he cheated him. At the time of handing over the documents/ original cheque and promissory note to file N.I. Act case and promissory note case as well, the accused returned back the documents along with Ex.P6 after lapse of 2 ½ years. At that time the accused is bound by legal law to file
N.I.Act case before the Hon’ble Court basing on Ex.P6 documents given by
Pw1 and accused has also legal contract to protect the interest of Pw1 by filing the cases. But, accused kept the documents Exs.P2 and P3 original documents without filing for a period of 2 ½ years and returned the same to
Pw1 after he wandered around accused for 2 ½ years. It is clearly established that accused has knowledge that his act caused wrongful loss to PW1 and hence committed cheating. Though the accused had no intention, there is no doubt the accused has knowledge about the consequences of the circumstances if he did not file the case. Learned defence counsel contended that there is no mensrea and dishonest intention proved by PW1. Hence,
Section 420 IPC not attracted. But, in this case the evidence of P.Ws.1 to 4 and
Exs.P1 to P8 clearly establish the ingredients under Sec.418 IPC are proved.
Pw1 proved that accused has knowledge about nonfiling of his case and caused wrongful loss to him. It is an admitted fact that accused is known accused and well acquaintance with legal knowledge. The evidences of P.Ws.1 to 4 and documents filed on behalf of the complainants Exs.P1 to P14 establish the case was fallen under Sec.418 IPC. Section 418 IPC deals with cheating by a guardian, a trustee, a PLEADER, an agent, or manager of a
Hindu family, a Karnavan of turwad in Malabar or bydirectors or managers of a bank in fraud of the shareholders and depositors.
10 19 To prove the case under Sec.418 IPC the complainant must establish:
(i)Accused cheated the complainant
(ii)At the time of offence accused was bound by law or legal contract to protect the interests of the person whom he cheated;
(iii)The obligation related to the transaction involving the cheating;
(iv)Accused had the knowledge that his act was likely cause wrongful loss to the person cheated and whose interest he was bound to protect.
20. In this case the main victims are P.Ws.1 and 2. PW2 gave amounts to PW1. PW1 approached accused and handed over Exs.P2 and P3 documents to file cheque bounce case and promissory note case against
Yellanti Sujatha. But, accused cheated PW1 without filing the cases, as an advocate to file the cases that too after receiving his fees. But, without filing he caused wrongful loss to the complainant.
21. By legal contract, the accused is bound to protect the interest of
PW1. He committed cheating without filing the cases. The accused had knowledge that his act would cause wrongful loss to Pw1 in whose interest he was bound to protect. The knowledge of the accused that he is likely to cause wrongful loss to the person cheated is an essential element of the offence under
Sec.418 IPC. Though the charge framed under Sec.420 IPC is not proved, but this Court finds that the accused has committed the offence under Sec.418 of
IPC and that the accused acted with knowledge that nonfiling of cases for a period 2 ½ years is likely to cause wrongful loss to PW1.
22. Now the question for consideration is whether the accused has committed the offence under Sec.418 of IPC though he was not charged. Here as per Section 222(2) Cr.P.C. reads as “When a person is charged with an offence and facts proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it”. Here in this case offence under Sec.418 of IPC is a minor offence for the offence under
Sec.420 IPC. So as charge was framed for the offence under Sec.420 IPC, he may be convicted for the minor offence under Sec.418 IPC as per Sec. 222(2)
Cr.P.C. though he was not charged for the same.
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23. In view of above foregoing discussion, it is held that the accused is found not guilty for the offence under Sec.420 IPC. But, he is found guilty of the offence under Sec.418 IPC although he was not charged for the same as per
Sec.222(2) Cr.P.C. and accordingly he is convicted of the same under
Sec.248(2) Cr.P.C.
24. In the result, accused is found not guilty for the offence under
Sec.420 IPC. But, he is found guilty of the offence under Sec.418 IPC although he was not charged for the same as per Section 222 (2) Cr.P.C. and accordingly he is convicted of the same under Sec.248(2) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from today onwards as per section 437A Cr.P.C. The unmarked property, if any, is ordered to be destroyed after expiry of appeal time.
Typed to my dictation by steno directly, and pronounced by me in the Open Court, this the 26th day of November, 2019.
V. Addl. Judl. Magistrate of I Class, Nellore.
25. Accused is questioned with regard to quantum of sentence, Accused has submitted that he is having wife and children and old aged mother and he is also suffering with old age ailments and he is sole bread winner of his family and pleaded mercy of the Court.
26. It is not fit case to invoke the provisions of P.O. Act. However, considering the dependency of the family members of the accused, I am taking a lenient view with regard to quantum of sentence, which would meet the ends of justice.
27. In the result, Accused is sentenced to undergo simple imprisonment for a period of one (1) year and to pay a fine of Rs.10,000/(Rupees ten thousand only) in default of payment of fine to under simple imprisonment for a period of one month..
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28. The accused is informed about his right to prefer appeal against this judgment to the Hon’ble District and Sessions Judge, Nellore. He is also informed about his right to free legal aid and to prefer to appeal. He is also informed that they can approach the Hon’ble Secretary, District Legal Services,
Authority, Nellore for appointment of free legal Aid. The office is directed to supply a free copy of judgment forthwith.
Typed to my dictation by steno directly, and pronounced by me in the Open Court, this the 26th day of November, 2019. Sd/R. Aseervadam Paul V Addl. Judl. Magistrate of I Class, Nellore. ComplainantAppendix of Evidence Accused Witnesses Examined for
PW1: Ch. Venkateswara Reddya None PW2: V. Dhanuja PW3: C. Susmitha PW4: Peram Venkateswarlu
Documents Marked
Ex.P1: Complaint of Pw1 Ex.D1:Signature PW2 Ex.P2: Original Promissory note dt.11.9.2011in the deposition in Ex.P3: Original cheque along with return memoCC254/2015 along with Ex.P4: Copy of report along with receipt given chief and cross. to S.P.Nellore Ex.P5: Certified copy of orders passed by MLSC, Kovur Ex.P6: Typed papers of complaint prepared by accused Ex.P7: CD showing conversation between Complainants & accused Ex.P8: Transfer of promissory note by PW1 in favour of 3rd complainant Ex.P9: Conversation of Telugu Transalation containing10 pages Ex.P10:Office copy of legal notice Ex.P11:Office copy of reply notice Ex.P12: Sanction order issued by SDPO, Kavali Ex.P13: Registered settlement deed dt.24.1.1990 executed by Biradavolu Bujjamma in favour of vemulapati Ramarao Ex.P14: Certified copy of registered settlement deed dated 24.1.1990 executed by Vemulapati Rama Rao in favour of Vemulapati Dhanuja
Material objects Marked
Nil
Sd/R. Aseervadam Paul
V A J M F C
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CALENDER AND JUDGMENT IN CC.1003/2015 ON THE FILE OF V ADDL, JUDL. MAGISTRATE OF I CLASS :: NELLORE. ****
Date of
0ccurrence Complaint Apprehension ReleaseCommencementCloseSentence or on bailof trailof trialOrder
Prior to 3.12.15 22.2.18 4.4.18 5.9.19 26.11.19
24.4.15
Complainant &1Chinthamreddy Venkateswarlu, S/o Dasaradha Rami Reddy, aged 30 Crime No.years, R/o Basinepalli, S.R.Puram Mandal, SPSR Nellore District. 2Vemulapati Rama Rao, S/o late Venkata Ramanaiah, aged 50 years. 3Vemulapati Dhanuja, W/o V. Ramana Rao, aged 45 years R/o D.No.10306E3D, South Janathapet, Near Nawab buildings, Kavali town, SPSR Nellore District.
Description of D. Balagopal Reddy, S/o Not known, Hindu, aged… years, Practicing Advocate, R/o accused:D.No.24/2-405, Santhi Nagar, Opp. K.V.R. Petrol Bunk, Nellore City.
Offence:Under Secs.384, 419, 420, 426, 427 and 506 IPC Plea of the :Not guilty accused Finding of the :Guilty
Judge
Sentence or :In the result, accused is found not guilty for the offence under Sec.420 IPC. But, he is orderfound guilty of the offence under Sec.418 IPC although he was not charged for the same as per Section 222 (2) Cr.P.C. and accordingly he is convicted of the same under Sec.248(2) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from today onwards as per section 437-A Cr.P.C. The unmarked property, if any, is ordered to be destroyed after expiry of appeal time. Accused is questioned with regard to quantum of sentence. Accused has submitted that he is having wife and children and old aged mother and he is also suffering with old age ailments and he is sole bread winner of his family and pleaded mercy of the Court.It is not fit case to invoke the provisions of P.O. Act In the result, Accused is sentenced to undergo simple imprisonment for a period of one (1) year and to pay a fine of Rs.10,000/-(Rupees ten thousand only) in default of payment of fine to under simple imprisonment for a period of one month.. The accused is informed about his right to prefer appeal against this judgment to the
Hon’ble District and Sessions Judge, Nellore. He is also informed about his right to free
legal aid and to prefer to appeal. He is also informed that they can approach the Hon’ble Secretary, District Legal Services, Authority, Nellore for appointment of free legal Aid. The office is directed to supply a free copy of judgment forthwith.
Reasons for :This is a private complaint taken on file on 3.12.15. The accused appeared on 22.2.18 examined under Sec.239 and charge under Sec.420 IPC was delay framed and posted for trial to 4.4.18 on which day PW1was examined and Exs.P1 to P8 are marked. On 4.6.19 PW2 was examined and during crossexamination Ex.D1 was marked.PW3 was examined on 13.8.2019 and Exs.P9 to P14 are marked. On 5.9.10 PW4 was examined, complainant evidence was closed. Accused was examined u/s 313 Cr.P.C. on 16.9.19, reported no defence. Arguments heard and judgment was
pronounced on 26.11.19. The delay is mainly due to nonappearance of
accused and witnesses. Hence, the delay.
Sd/ R.Aseervadam Paul
V ADDL. JUDL. MAGISTRATE OF I CLASS,
Nellore.
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Copy submitted to:
Hon’ble The Chief Judl. Magistrate-cum-
Principal Senior Civil Judge, Nellore.