Sri. B. Leela Venkata Seshadri

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE CUM

JUDICIAL MAGISTRATE OF I CLASS :: PUTTUR.

PRESENT: Sri Busam Leela Venkata Seshadri,

Principal Junior Civil Judge cum Judicial Magistrate of I Class.

Monday, the 16 th day of March, 2020

O.S.No.22 of 2019

Between:

Puligundla Kumari... Plaintif

And:

N. Munichandra Chowday @ N.M.C.Chowdary... Defendant

This suit is coming up before me on 10-03-2020, for final hearing in the presence of Sri Ch. Koteswara Rao & Sri K. Purushotham, Counsels for the Plaintiff and of Sri T.M. Purushotham and Sri L. Bhaskar Rao, Counsels for defendant and on perusal of records, having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit is filed by the plaintiff for recovery of sum of

Rs.2,57,900-00 (Rupees Two Lakhs Fifty Seven Thousand and Nine

Hundred only) being principal and interest due on promissory note

dated 05-12-2015 for Rs.1,50,000-00 (Rupees One Lakh Fifty

Thousands only) with further interest and costs from and out of estate of deceased N. Radhamma lying in the hands of defendant and for costs.

2.The brief averments of the plaint are that:

One Nallabothu Radhamma wife of N.Kondama Naidu is mother of defendant and she had borrowed a sum of Rs.1,50,000/- from the plaintiff on 05-12-2015 for her family expenses and on the same day she executed a demand promissory note in favour of the plaintiff promising to repay the same with interest at the rate of 24% per annum on her demand or order.

Inspite of repeated demands the deceased N. Radhamma did not choose to repay the debt due under the suit promissory note and she had been postponing the same on some ground or other. The borrowing of amounts by the mother of the defendant is to the knowledge of defendant. On 21-02-2016 she died. After her death the defendant attorned to repay the said debt. The defendant is only son to said N. Radhamma and he succeeded her estate being a sole legal heir and he is liable to pay the debt due by the deceased N.

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Radhamma. Finally on 17-11-2018 the plaintiff got issued a legal notice calling upon the defendant to repay the suit promissory note debt and the defendant is having knowledge of the said notice neither complied nor replied.

The defendant is not an agriculturist and so Act IV/1937,

Act VII/1977 etc., have no application.

Hence, the suit.

3.Defendant filed written statement by denying the allegations of the plaint in point wise and para wise.

Further stated that plaintiff send legal notice to defendant at first instance on 23-09-2017 for the promissory note for

Rs.1,50,000/- dated 04-01-2016 and the defendant gave suitable reply on 11-10-2017. After receiving the notice, plaintiff kept quite and later on issued another notice on 31-01-2018 by changing Advocate for the promissory note for Rs.1,50,000/- dated 04-11-2015, for which this defendant issued suitable reply on 09-02-2018 to the plaintiff. Again the plaintiff issued another notice on 17-11-2018 to this defendant which was alleged to have been mentioned in the plaint. In the above said reply notices this defendant clearly mentioned that the alleged suit promissory note is created and forged one and got issued the notices only to get wrongful gain.

It is known fact that the mother of the defendant ie., the deceased N. Radha is illiterate person and putting her Thumb

Impression instead of signature. After receiving plaint and documents in this case, the defendant came to know that there is signature in the promissory note and it is concocted for the purpose of this suit and to get wrongful gain.

Defendant is bachelor and he is only legal heir to his properties. Taking advantage of the said fact, plaintiff and her kith and kin hatched a plan to knock away the properties. There is no necessity to borrow such amount of Rs.1,50,000/-.

Finally prays to dismiss the suit with costs.

4.Basing on the pleadings of both parties the following issues are framed for the purpose of trial.

1.Whether the promissory note dated 05-12-2015 executed by the deceased Radhamma for Rs.1,50,000/- in favour of the plaintiff is true, valid and supported by consideration and binding on the defendant?

2. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for?

3 3.To what relief?

5.During the course of trial, on behalf of plaintiff, the plaintiff herself got examined as PW1. Ex.A-1 to Ex.A-3 are marked on behalf of the plaintiff. One of the attestor of Ex.A-1 got examined as PW2.

6.On behalf of defendant, defendant himself got examined as

DW1. Through him Ex.B-1 to Ex.B-5 are marked. Two third parties to the suit got examined as DW2 and DW3.

7.Heard arguments on both sides. Perused the records and written arguments of defendant.

Issue No.1 :-

8.In view of rival contentions of the parties, the initial burden lies on the plaintiff. In support of the case of the plaintiff, she herself got examined as PW1. She filed chief examination affidavit intune with the contents of her plaint pleadings. She clearly and categorically deposed that Nallabothu Radhamma who is mother of defendant borrowed a sum of Rs.1,50,000/- from her on 05-12-2015 for her family expenses and on the same day she executed a demand promissory note in her favour promising to repay the same with interest at the rate of 24% per annum on her demand or order and inspite of repeated demands the deceased N. Radhamma failed to discharge the amount during her life time and she also demanded the defendant after the death of said Radhamma to discharge the same from out of the estate of deceased Radhamma and the defendant failed to discharge the same. Through her record of evidence received as Ex.A-1 to Ex.A-3.

Ex.A-1 is Promissory note dated 05-12-2015 executed by Radhamma in favour of the plaintiff for a sum of Rs.1,50,000/-; Ex.A-2 is Office copy of legal notice dated 17-11-2018 along with one postal receipt and

Ex.A-3 is Registered sale deed dated 07-05-1984, vide Doc.No.1021 of 1984 executed by one Kondama Naidu and on behalf of minor as

Guardian, in favour of Hemantha Naidu (father of plaintiff).

9.In support of the case of the plaintiff, plaintiff also got examined one of the attestor of Ex.A-1 -suit promissory note as PW2.

PW2 clearly and categorically deposed that the deceased Radhamma who is mother of the defendant borrowed a sum of Rs.1,50,000/- on 05-12-2015 and in consideration of the same, deceased Radhamma executed suit promissory note in favour of the plaintiff agreeing to repay the same with interest @ 24% per annum on her demand or to her order. He further clearly and categorically deposed that in his presence consideration was passed, deceased Radhamma signed in the suit promissory note and he attested the suit promissory note.

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Learned counsel for the defendant cross examined PW1 and PW2 at length but failed to elicit any animosity between PW1 and PW2 on one hand and the defendant on the other hand and also failed to elicit any useful information infavour of the case of the defendant. The plaintiff by examining herself as PW1 and got examining one of the attestors of

Ex.A-1 as PW2 and got marking of the documents Ex.A-1 to Ex.A-3 is able to discharge her initial burden. Now, the burden shifts on the defendant. Let us see whether the defendant discharged the burden or not?

10.To substantiate the case of the defendant and to discharge the burden on him, defendant himself got examined as DW1, he filed chief examination affidavit in tune with the contents of the written statement. Through him Ex.B-1 to Ex.B-5 documents are received as evidence.

11.As seen from the evidence, it is elicited that PW2 who is not only the attestor of Ex.A-1 - suit promissory note but he is also the father of the plaintiff and also own blood brother of the deceased

Radhamma. As seen from the written statement pleadings and the evidence, defendant strongly denied about the relationship and pleadings to the extent that he do not know who is plaintiff herein. On this aspect, on perusal of the evidence of DW1 it shows that during course of cross examination he deposed that one Nallabothu Narappa

Naidu is his paternal grand father and N. Kodanda Naidu is his father and N. Radhamma is his mother. He pleaded ignorance and deposed that he do not know the brothers and sisters of his mother and he donot know how many children his maternal grand parents got. He further pleaded ignorance that he do not know the name of the father of his mother and he donot know one Hemanth Naidu is the brother of his mother. He also even went to the extent of denying that his father sold the property under Ex.A-3 to the brother of his mother and in that document, his mother signed as one of the identifying witness. The deposition of the witness-DW1 in pleadings ignorance about his maternal grand father and his children itself shows that the defendant concealed the true facts that the PW2 is none other than the brother of his mother and it shows that inorder to evade the debt he even went to the extent of denying the relationship of the parties.

12.In support of the case of the defendant, he got examined two independent witnesses as DW2 and DW3. DW2 filed chief examination affidavit that he know the mother of the defendant for the 5 past 10 years and she is not a signatory and she used to put her

Thumb Impression. On coming to the cross examination DW2 deposed that he has completed B.Tech course and now doing real estate business. He further deposed that he is giving evidence in a land case and the suit is filed by Chowdary (defendant) against Kumari(plaintiff) and he donot know why the defendant filed the suit against plaintiff and in that circumstances this court on the requisition of the witness permitted him to go through the contents of the chief examination once again. On further cross examination DW2 clearly and categorically deposed that on the instructions of Chowdary (defendant) his chief examination affidavit contents were prepared. He further went to the extent of saying that Radhamma borrowed a sum of Rs.3,000/- from him and executed promissory note in the end of the year, 2015 and further volunteers that in the month of October, 2015 it was discharged and he was not in possession of the said promissory note.

He further deposed that he do not know the properties possessed by the said Chowdary and his mother. He further astonishingly stated that he donot know reading and writing of Telugu language. He further deposed that defendant is his villager. On perusal of the entire chief examination and cross examination of DW2 it clearly goes to show that

DW2 is villager of defendant and he is close associate and he do not know regarding the particulars of the suit who filed the suit against whom and what is the nature of the suit. Though he is a B. Tech graduate, in his cross examination he deposed that he cannot read and write Telugu language astonishingly. He further deposed that his chief examination affidavit is also prepared on the instructions of the defendant but not on the instructions of the witness. The evidence of

DW2 clearly goes to show that only to help the defendant he came to the court to give evidence without knowing the particulars of the case and why he came to the court to give evidence. So his evidence is no way helpful to the case of the defendant.

13.As seen from the evidence of DW3, he filed chief examination affidavit that he is first attestor in the Unregistered

Registered Will executed by N. Radhamma under Ex.B-5. On perusal of the cross examination of the DW3 it shows that he also donot know who filed the suit against whom and for what purpose the suit is filed.

His evidence further shows that he donot know even the contents of his chief examination affidavit. His evidence further shows that he donot know when Radhamma died. His evidence further shows that 6

Ex.B-5 Will was prepared at the Sub-Registrar Office, Karvetinagar and he signed before the Sub-Registrar Office and the said document was also registered and it was registered about 30 years ago.

14.On careful perusal of evidence of DW3 it shows that his entire evidence is contrary to his chief examination affidavit as well as contrary to the Ex.B-5 un-Registered Will. Astonishingly DW3 deposed that it was a Registered Will about 30 years ago at the Sub-Registrar

Office, Karvetinagaram. It goes to show that Ex.B-1 was not executed by the deceased Radhamma as pleaded by the defendant and there are suspicious circumstances over the execution of the Unregistered

Will - Ex.B-5. So, Ex.B-5 is not established by removing all suspicious circumstances. Even the defendant failed to take any steps to establish that the Thumb Impression contained in Ex.B-5 is that of the deceased

Radhamma, for the reasons best known to the defendant.

15.As seen from the pleadings and the evidence defendant contending that the deceased Radhamma was a Thumb Impressionist and not signatory. As stated above except Ex.B-5 Unregistered Will, which is not proved in accordance with law, there is no any other evidence produced by the defendant to show that his mother deceased

N. Radhamma was a Thumb Impressionist and she never used to sign.

On the other hand, the plaintiff got marked Ex.A-3 which is Registered sale deed dated 07-05-1984, vide Doc.No.1021 of 1984 executed by one Kondama Naidu and on behalf of minor as Guardian, in favour of

Hemantha Naidu ie., father of plaintiff. On perusal of this document it shows that this is a Registered Sale deed executed by the father of the defendant by name N.Kondama Naidu who is son of Narappa Naidu in favour of Hemantha Naidu (PW2) and it shows identifying witness column N. Radhamma wife of Kondama Naidu signed as identifying witness. As seen from the evidence of DW1 in his cross examination,

DW1 clearly and categorically deposed his father name as Kondama

Naidu and his paternal grand father name is Narappa Naidu and he further admitted that N.Radhamma who is his mother is the wife of said N. Kondama Naidu and the said relationship and the particulars are tallying with the document Ex.A-3. The other evidence of DW1 pleaded ignorance with regard to Ex.A-3 itself shows that it is the defendant who is concealing the true and material facts that though his mother Radhamma was a signatory and she signed as a identifying witness in Ex.A-3 and is intentionally deposing false that Radhamma is only a Thumb impressionist. So, inview of the evidence of Ex.A-3 it 7 clearly establishes that the deceased N. Radhamma was a signatory and so the signature contained in Ex.A-1,suit promissory note is that of the deceased N. Radhamma. If really the signature on the Ex.A-1 is not that of signature of N. Radhamma then the defendant might have taken steps to send the documents for comparison of the disputed signatures for opinion of the Handwriting Expert. In this case defendant failed to take any such steps inspite of opportunity. Further if really the plaintiff is an unknown person, how can the plaintiff forged the signature of the deceased N. Radhamma and what is the necessity for the plaintiff to file the suit against the defendant. Absolutely the defendant failed to establish any ill-will or grudge in between the plaintiff and the defendant to file the suit by fabricating Ex.A-1. The reasons tried to explain by the defendant is not supported by any legal evidence and not inspiring the confidence of the court. Further no ordinary prudent man can file a suit against an unknown person by forging the records and forging the signatures and no ordinary man will kept quite if any such case is filed against him. In this case the defendant failed to take any such steps against the plaintiff and the attestors and scribe of Ex.A-1 and no criminal case filed against them.

On this aspect also there is no proper explanation. The defendant is not a layman. But he is a graduate.

16.As seen from the arguments of the learned counsel for the defendant that prior to filing of the suit, the plaintiff issued legal notices and the defendant issued reply notices and there is a variation in the date of the promissory note and the amount claimed and so the plaintiff approached the court by forging the Ex.A-1. On this aspect, the defendant relied on Ex.B-1 to Ex.B-4. As seen from Ex.B-1, it is a served copy of legal notice issued by one S. Naveen Kumar, Advocate

dated 23-09-2017 to the defendant. The plaintiff disputing Ex.B-1 that

she never issued the said legal notice through the said Advocate. So, the burden is on the defendant to establish the same. The defendant failed to produce any proof of service of Ex.B-1. In Ex.B-1 there is no signature of the plaintiff also. So, it creates a serious doubt with regard to Ex.B-1 as it is not supported by any evidence. Ex.B-2 is said to be the office copy of reply notice dated 11-10-2017 said to be issued by the defendant to the above said legal notice to Sri S. Naveen Kumar,

Advocate, Tirupati for the Ex.B-1 legal notice. As seen from Ex.B-2, there is no proof of service filed to show that it was issued by the

Defendant and no postal receipt filed, no served acknowledgment filed, 8 no signature of the concerned Advocate by name S. Naveen Kumar in document of the said reply notice. When the plaintiff disputing Ex.B-1 and Ex.B-2, the burden is on the defendant to establish the same. As stated above, the defendant failed to establish Ex.B-1 and Ex.B-2, so they cannot be taken in to consideration as they are established by producing evidence.

17.Ex.B-3 is concerned it is said to be Served copy of legal notice dated 31-01-2018 issued by the plaintiff through Sri Pulikonda

Balaji, Advocate, Tirupati on behalf of the plaintiff to the defendant. On perusal of evidence, it shows that plaintiff gave explanation that she approached the said Advocate but inspite of the fact that she gave an amount of Rs.7,000/- to the said Advocate and several times visited his office, there is no response from him and so she donot know whether the said Pulikonda Balaji issued notice or not. It is a fact that the said notice is not containing the signature of the plaintiff. As seen from

Ex.B-3 it shows that it was issued on behalf of the plaintiff and it appears that without the knowledge of the contents of notice to the plaintiff it was issued. There is no dispute that Ex.B-4 is Office copy of reply notice issued by Sri D. Srinivasulu, Advocate dated 09-02-2018 on behalf of defendant to the above said legal notice to Sri Pulikonda

Balaji, Advocate, Tirupati along with one postal receipt and one served postal acknowledgement. Ex.B-4 is supported by a postal receipt and also served postal acknowledgment card. So, Ex.B-4 can be taken into consideration that the defendant issued reply notice under Ex.B-4. As seen from Ex.B-4, no where in Ex.B-4, defendant mentioned about the issuance of reply notice under Ex.B-2. So, Ex.B-1 to Ex.B-4 are no way helpful to the case of the defendant in discharge of his burden.

18.Yet another point in this case is that the plaintiff got issued legal notice under Ex.A-2 on 17-11-2018 along with one postal receipt was marked. With regard to Ex.A-2 as seen from the evidence of DW1, he clearly and categorically admitted about receiving of Ex.A-2 - legal notice. Admittedly, there is no reply notice from the defendant. So, non issuing reply notice for Ex.A-2 notice is another strong circumstance which demolishes the plea taken by the defendant. Mere denying of the case of the plaintiff without producing any legal evidence is not sufficient to discharge the burden on the defendant.

19.A presumption arises U/Sec.118 of Negotiable Instruments

Act that whenever the suit promissory note is established or proved, then it is presumed that Ex.A-1 is supported by consideration. The said 9 presumption is rebuttable presumption. In this case, as stated above, except the oral assertion of the defendant and the contrary evidence to the pleadings during the course of cross examination, there is no any other supporting material produced before this court in the process of discharge of burden and to rebut the legal presumptions. Hence, this court is of the opinion that the defendant failed to discharge his burden and also failed to rebut the legal presumptions.

20.On considering the totality of the facts and circumstances of the case, this court is of the opinion that the plaintiff is able to establish that the deceased N. Radhamma who is none other than the mother of the defendant borrowed an amount of Rs.1,50,000/- on 05- 12-2015 from the plaintiff and in consideration of the same she executed Ex.A-1, suit promissory note agreeing to repay the same with interest @24% per annum on her demand or to order. Hence this court is of the opinion that the suit promissory note executed by deceased

Radhamma under Ex.A-1 is true, valid, supported by consideration and as the defendant being the son of deceased Radhamma, the same is binding on the defendant. Accordingly, the above issue is answered in favour of the plaintiff and against the defendant.

Issue No.2 :-

21.In view of the findings in Issue No.1 in favour of the plaintiff and as there is no evidence from the defendant to show that the deceased N.Radhamma during her life time paid any amount towards

Ex.A-1, either interest or principal and after the death of deceased

Radhamma, there is no evidence to show that the defendant paid any amount either towards interest or principal from out of the estate of deceased N. Radhamma and hence the plaintiff is entitled to recover the suit amount with subsequent interest @ 12% per annum from the date of filing of the suit till the date of decree, thereafter @ 6% per annum from the date of decree till the date of realization on the

principal amount of Rs.1,50,000/- due under promissory note Ex.A-1

from and out of the estate of the deceased N. Radhamma which is lying in the hands of the defendant. Accordingly, the above issue is answered in favour of the plaintiff and against the defendant.

Issue No.3 :-

22.In view of the findings in Issue Nos.1 and 2 in favour of the plaintiff, the plaintiff is entitled for decree of the suit as prayed for.

23.In the result, the suit is decreed with costs in favour of the plaintiff directing the defendant to pay a sum of Rs.2,57,900-00 10 (Rupees Two Lakhs Fifty Seven Thousand Nine Hundred only) to the plaintiff with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree, thereafter at the rate of 6% per annum from the date of decree till realization on

principal sum of Rs.1,50,000-00 (Rupees One lakh Fifty Thousand only)

from and out of the estate of the deceased N. Radhamma lying in the hands of defendant.

Dictated to the Stenographer after his transcription, corrected and

pronounced by me in the open court, this the 16 th day of March,

2020.

Principal Junior Civil Judge

cum Judicial Magistrate of I Class,

Puttur

APPENDIX OF EVIDENCE

Witnesses examined for Plaintif:- Defendant:- PW1 : Puligundla Kumari. DW1 : N. Munichandra Chowdary @ N.M.C.Chowdary. PW2 : V.Hemantha Naidu.DW2 : B. Ganesh. DW3 : B. Ravi.

Exhibits marked on behalf

Plaintif :-

Sl.ExhibitDescription of the document. No.No.

1. Ex.A-1Promissory note dated 05-12-2015 executed by Radhamma in favour of the plaintiff for a sum of Rs.1,50,000/-.

2. Ex.A-2Office copy of legal notice dated 17-11-2018 along with one postal receipt.

3. Ex.A-3Registered sale deed dated 07-05-1984, vide Doc.No.1021 of 1984 executed by one Kondama Naidu and on behalf of minor as Guardian, in favour of Hemantha Naidu (father of plaintiff). Defendant :-

Sl.ExhibitDescription of the document. No.No.

1. Ex.B-1Served copy of legal notice dated 23-09-2017 issued by the plaintiff through Sri S.Naveen Kumar, Advocate, Tirupati.

2. Ex.B-2Office copy of reply notice dated 11-10-2017 issued by the defendant to the above said legal notice to Sri S. Naveen Kumar, Advocate, Tirupati.

3. Ex.B-3Served copy of legal notice dated 31-01-2018 issued by the plaintiff through Sri Pulikonda Balaji, Advocate, Tirupati.

4.Ex.B-4Office copy of reply notice dated 09-02-2018 issued by the defendant to the above said legal notice to Sri Pulikonda Balaji, Advocate, Tirupati along with one postal receipt and one served postal acknowledgement.

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5.Ex.B-5Unregistered Will dated 19-02-2008 said to be executed by Radhamma (laminated document in two pages)

PJCJ cum JMFC,PTR 12

Fair Judgment in O.S.No.22/2019 Dt.16-03-2020

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IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

TIRUPATI

Present: Sri B. Leela Venkata Seshadri,

II Addl., Judl.Magistrate of Ist Class,

Tirupati.

Tuesday, the 4 th day of April 2017

C.C. No.422 of 2014

State, represented by the Sub-Inspector of Police, Traffic Police Station,Tirumala. Cr.No.38 of 2014. … Complainant -Versus.

R.Chandran, age 36 years, S/o R.Srinivasulu Naidu, K.C.Palli Village Penumuru Mandal of Chittoor District, Driver, Hindu.

… Accused

This case is coming before me on 30th day of March, 2017 for final hearing in the presence of the learned Assistant Public Prosecutor for the State and of Sri

T.Gopichand, Advocate for the accused, upon hearing the arguments on both sides, perusing the records and having stood over for consideration till this day, this court delivered the following :-:-

J U D G M E N T

The Sub-Inspector of Police, Traffic Police Station, Tirumala laid charge sheet against the accused in Cr.No.38 of 2014 for the offence under section 304-A of Indian

Penal Code and 134(a) & (b) r/w 187 of M.V.Act

2. The brief averments of charge sheet are as follows:-

On 15.09.2014 at about 03.15 P.M. at GNC toll gate Srivenkatapatham outer ring road, at the entrance of outer ring road, near GNC arch, Tirumala, wherein the accused being the driver of APSRTC Mangalam depot bus bearing registration number

AP 29 Z 3125, drove the same in a rash and negligent manner, lost control over the vehicle, collided against a female person S.Bujjamma (Sulabha worker in Tirumala). As a result she fell down on road and then the front right wheel and rear right wheels of the bus were ran over on her waist to both legs ankles. As a result she received severe 2 bleeding and crushes injuries over her waist to both leg ankles and died on the spot.

After the accident the accused bus driver went away along with the crime vehicle.

Adverting to the above, basing on the statement of the defacto complainant, a case in Cr.No.38 of 2014 for the offence Under Section 304-A of Indian Penal Code and section 134(a) & (b) r/w 187 of M.V.Act was registered and investigated into.

During the course of investigation, witnesses were examined including defacto complainant by the Sub-Inspector of Police, Traffic Police Station, Tirumala, recorded their statement at the scene of offence and plotted the rough sketch of the scene of offence and prepared scene observation maharanama in the presence of mediators.

After the accident the scene of offence was captured before evacuate the dead body of the deceased.

During the course of investigation conducted inquest over the dead body of the deceased S.Bujjamma from 09.30 P.M. to 11.30 P.M. on 16.09.2014 at mortuary verandah, S.V.Medical College, Tirupati in the presence of mediators and inquest to panchayatdars. During the inquest the Sub-Inspector of Police, Traffic Police Station,

Tirumala sent the dead body of the deceased to the forensic professor, S.V.Medical

College, Tirupati on the same day under the escort to know the correct cause of the death.

During the course of further investigation on 18.09.2014 at 11.30 A.M. the accused was arrested by the Sub-Inspector of Police, Traffic Police Station, Tirumala on his surrender in the police station and released on bail.

Dr. S.Venkateswar Rao, M.D.D.O., Assistant Professor, Department of Forensic

Medicine, S.V. Medical College, Tirupati who examined and conducted autopsy over the dead body of the deceased has opined that the cause of death to the best of his knowledge and belief was shock and HAEMORRAGE as a result of multiple wounds sustained and issued postmortem examination certificate accordingly. The case is under investigation for want of accidental inspection report of the crime vehicle.

3 S.Siva Sankar, Motor Vehicle Inspector, Tirupati who conducted vehicle inspection over the crime vehicle has opined that the accident was occurred not due to any mechanical defect of the vehicle and issued accidental inspection report accordingly. After completion of investigation, charge sheet has laid under the above

Section of Law.

3. Cognizance of the offence under Section 304-A of Indian Penal Code and 134(a) and (b) r/w 187 of M.V.Act. was taken against accused and issued summons.

4. On appearance of the accused before the Court, Copies of documents as contemplated under section 207 Cr.P.C., were furnished to him.

5. The accused was examined under section 251 of Cr.P.C., for the accusation leveled against him. The sum and substance of the accusation for the offence under section 304-A of Indian Penal Code and 134(a) and (b) r/w 187 of M.V.Act was read over and explained to him in vernacular. He pleaded not guilty and claimed to be tried.

6. In support of the case of prosecution, the prosecution has examined totally twelve witnesses as P.Ws 1 to 12 and marked Exs.P-1 to P-7. Ex.P-1 is the Statement of P.W.1 dated 15.09.2014, Ex.P-2 is Inquest report, Ex.P3 is scene observation

Mahazarnama dated 15.09.2014, Ex.P4 is Accident Inspection report issued by Motor

Vehicle Inspector, Ex.P5 is Postmortem Certificate of deceased S.Bujjamma, Ex.P6 is

First Information Report in Cr.No.38/2014 of Traffic Police Station, Tirumala and

Ex.P7 is Rough Sketch of scene of offence.

7. After closure of prosecution evidence, the accused was examined under

Sec.313 of Cr.P.C. The incriminating circumstances against the accused are read over and explained to the accused. He denied the same and reported no defence evidence.

8. Heard arguments. Perused the material available on record.

9. POINT: - Whether the prosecution is able to establish the guilt of

the accused for the offence 304-A of Indian Penal Code and 134(a) and (b)

r/w 187 of M.V.Act, beyond all reasonable doubt or not ?

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ARGUMENTS

10.The learned Assistant public Prosecutor argued before the Court that the evidence of prosecution witnesses coupled with exhibits marked in this case would clearly establish that the accused is the driver of the crime vehicle and due to his rash and negligence driving and not taking precautions, the accident was occurred which resulted in the death of one S.Bujjamma. Further argued that accused has not provided first aid and not intimated to nearest police station. Further argued that the prosecution proved its case beyond all reasonable doubt. Finally, prays to convict the accused.

11.The learned counsel for the defence argued that the accused is innocent, falsely implicated in this case and no such incident was happened as stated by the prosecution. He argued that the accident did not occur due to rashness, high speed or negligence on the part of driver of the bus but the accident was occurred due to negligence of the deceased only. Further argued that to get insurance claim false case is foisted against the accused. Further argued that except the interested testimonies of prosecution witnesses there is no any evidence to prove that the accident was occurred due to the negligence of the accused. He further argued that the prosecution failed to prove manner of the incident and that the accused drove the vehicle in rash and negligent manner. He further argued that the prosecution failed to prove the guilt of the accused, beyond all reasonable doubt. Finally, prays to acquit the accused.

EVIDENCE:-

12. To substantiate the case of the prosecution, the prosecution has examined totally twelve witnesses as P.Ws 1 to 12. I have gone through the evidence.

13. P.W.1 is the defacto complainant cum eye witness to the alleged incident.

He is working as Home Guard, TTD, Vigilance Wing, Tirumala. He tried to depose the evidence in tune with the contents of Ex.P1. He identified the driver of the crime vehicle. In his cross examination, he deposed that during his check up there is no possibility to see or observe the other things. He further deposed that there is arch 5 between check point and the scene of offence. He further deposed that there is no possibility for him to witness the incident from the place of checking. He further deposed that he has not witnessed incident directly and after hearing the sound and after the traffic police constable raised alarm, he rushed to the scene of offence. He further deposed that he cannot say exactly how the accident was occurred.

14. P.W.2 is Private Security Guard in TTD, Vigilance Wing, Tirumala. He tried to deposed the evidence in chief in tune with evidence of P.W.1. In his cross examination, he too deposed that during the his check-up there is no possibility to see or observe the other things. He further deposed that he has not witnessed the incident directly. He further deposed that after hearing the sound of barricade and after the traffic police constable alarm, he rushed to the scene of offence. He further deposed that he cannot say exactly how the accident was occurred.

15. P.W.3 is another eye witness to the alleged incident. She tried to depose in tune with the evidence of P.W.1 in chief about her presence and regarding accident. In her cross examination she deposed that she cannot say who is at fault.

16. P.W.4 is the Traffic Police Constable working in Tirumala and eye witness to the alleged incident. He tried to depose his presence at the time of the incident in chief examination. In his cross examination, he deposed that the crime vehicle bus stopped for a while at GNC checking point and then moved.

17. P.W.5 is the husband of the deceased. He deposed about his coming to know about the accident and death of the deceased. P.W.6 is son of the deceased, he also deposed on the same lines of P.W.5.

18. P.W.7 is one of the inquest panchayatdar. He deposed about his presence at the time of inquest held over the dead body and his attestation.

19. P.W.8 is the Mahazar to the scene observation mahazarnama. In his cross examination, he deposed that there is one speed breaker immediately after checking the vehicles at GNC.

6

20. P.W.9 is also said to be an eye witness to the incident. He tried to depose that while himself and Traffic Police P.W.4 discharging their duties then P.W.4 started running towards place of incident and on noticing, he also rushed to the place of incident. In spite of granting opportunity the learned counsel for the accused failed to cross examine P.W.9. Hence, cross examination of P.W.9 closed.

21. P.W.10 is Motor Vehicle Inspector. He deposed about inspecting the crime vehicle bus and issuing certificate with an opinion that the accident occurred was not due to mechanical defects of the crime vehicle.

22. P.W.11 is the Assistant Professor who worked in Department of Forensic

Medicine, S.V.Medical College and Hospital, Tirupati. He deposed about his conducting autopsy over the dead body of the deceased and issuing of postmortem certificate.

23. P.W.12 is the Sub-Inspector of Police. He deposed about registering the case, visiting the scene of offence, examining the witnesses, preparing the rough sketch of the scene of offence and arrest of the accused on his surrender. In his cross examination, he deposed that at the GNC toll gate all the vehicles should stop for a while, after checking, the vehicles will move further. He further deposed that there is no speed breaker immediately after the GNC. He further deposed that the road at the scene of offence is curve.

MARSHALING OF FACTS AND ANALYSIS OF EVIDENCE:-

24. It is the case of the prosecution that the accused being the driver of the crime vehicle bus bearing No.AP 29 Z 3125, drove the same in a rash and negligent manner, lost control over the vehicle, collided against deceased S.Bujjamma resulting which she fell down on road and then the front right wheel and rear right wheels of the bus were ran over on her and she received severe bleeding and crushed injuries over her waist to both leg ankles and died on the spot and thereby the accused is liable for conviction.

7

25. In this case, P.W.1 is the defacto complainant cum eye witness, P.W.2 ,

P.W.3, P.W.4 and P.W.9 are the eye witnesses to the alleged incident, P.W.5 is the husband of deceased, P.W.6 is son of deceased, P.W.7 is the inquest panchayatdar to the inquest, P.W.8 is one of the Mahazar to the scene observation Mahazarnama,

P.W.10 is the Motor Vehicle Inspector, P.W.11 is the Assistant Professor who conducted autopsy over the dead body of the deceased and P.W.12 is the police officer who investigated the case.

26. The First point is that whether the accused is the driver of the crime vehicle at the time of alleged incident or not? On perusal of the arguments, evidence and cross examination there is no dispute that the accused is the driver of the crime vehicle bus bearing No.AP 29 Z 3125. The counsel for the accused fairly admitted that the accused is the driver of crime vehicle at the time of the alleged incident and denied the manner of the incident and other allegations. As seen from the records at the time of examination of the accused under section 313 Cr.P.C., the accused has not denied that the accused is the driver of the crime vehicle. So, in view of the facts and circumstances of the case and the evidence available this court can safely come to conclusion that the accused is the driver of the crime vehicle bus bearing No.AP 29 Z 3125 at the time of incident. Hence, this point is answered in favour of the prosecution.

27. On coming to the aspect that whether the accused drove the crime vehicle in rash and negligent manner resulting which death of the deceased or not? On perusal of the evidence, P.W.1 is the defacto complainant and eye witness to the incident. P.W.2 is also an eye witness to the incident. A careful perusal of their evidence, P.W.1 and

P.W.2 are working at GNC tollgate which is situated near by the scene of offence. On perusal of cross examination of P.W.1 and P.W.2 they clearly and categorically deposed that there is no possible for them to witness the incident from the GNC tollgate. They further deposed that they cannot say exactly how the accident was occurred. They further deposed that after hearing of the sound, alarm of the Traffic

Police they rushed to the scene of offence. So, the evidence of P.W.1 and P.W.2 clearly 8 goes to show that they have not witnessed the incident directly and so they cannot say the manner of the incident and who is at fault. In these circumstances, the evidence of

P.W.1 and P.W.2 is no way helpful to the case of the prosecution with regard to the manner of the incident.

28. P.W.3 is one who said to be an eye witness to the alleged incident and Sulabh worker. In her cross examination she deposed that she cannot say who is at fault at the time of incident. P.W.9 who was present at the time of alleged incident has not deposed about the manner of the incident. He also stated that he has not witnessed the incident so non-cross examination of P.W.9 is no way effect the case of the defence.

P.W.4 is said to be traffic police constable who was present at the time of the alleged incident. He tried to depose the manner of the incident and that the accused is at fault.

On perusal of evidence P.W.9 who said to eye witness has not deposed that P.W.4 also witnessed the incident. Admittedly, P.W.4 is traffic police constable working in

Tirumala Traffic Police Station wherein the present crime is registered. So P.W.4 is a interested witness in the case of the prosecution. Further, it has not proved by producing any evidence that P.W.4 is on duty at the scene of offence at the time of alleged incident. In these circumstances and in view of the above evidence, the presence of P.W.3, P.W.4 and P.W.9 at the time of the alleged incident creates a doubt in the mind of the court. Further their evidence is also no way helpful to the case of the prosecution to come conclusion that the accused being the driver of the crime vehicle drove the same in rash and negligent manner causing death of the deceased.

29. As seen from the evidence and rough sketch, the road at the scene of offence is having sufficient width. The evidence clearly goes to show that the road at the scene of offence is a curve. These are the prevailing condition at the scene of offence. The evidence of the prosecution witnesses and the evidence of investigation officer clearly goes to show that there is no possible for the loaded bus to go in a high speed manner. So, driving of the crime vehicle in high speed manner at the scene of offence does not arise. As seen from the evidence, the investigation officer has failed to 9 examine any one of the inmates of the crime vehicle bus. There is no explanation on this aspect. None of the witnesses examined deposed about the manner of the incident.

The evidence of alleged eye witness as discussed above is no way helpful to the case of the prosecution. It is settled law that no assumptions and presumptions can be drawn.

30. As seen from the evidence, P.W.5 who is husband of the deceased and P.W.6 who is the son of deceased, they are only hear say witnesses. Hence, their evidence is no way helpful to the case of the prosecution. Further the investigation officer in the charge sheet in the list of witnesses shown the name of one N.Chandra Sekhar,

Assistant Motor Vehicle Inspector as the officer who conducted road test of crime vehicle. But, in fact P.W.10 is the Motor Vehicle Inspector who conducted the road test of the crime vehicle. On petition by the prosecution he was examined as P.W.10. This shows how the investigation conducted in this case.

31. With regard to the death of the deceased there is no dispute. On this aspect, the evidence of P.W.7 inquest panchayatdar, Ex.P2 inquest report, the evidence of

P.W.11 Professor who issued postmortem certificate of the deceased, Ex.P5 postmortem certificate and the evidence of investigation officer along with the documents in this case can be taken into consideration.

32. As seen from the evidence of the prosecution witnesses, the prosecution witnesses with regard to the arrest of the accused gave different versions. As seen from the evidence of P.W.1, he deposed that after alleged incident immediately he along with P.W.4 stopped the bus caught hold of the driver of the bus i.e., accused and produced before Traffic Police Station, Tirumala and at that time 20 persons were gathered at the scene of offence and subsequently driver of the crime vehicle ran away.

As seen from the evidence of P.W.3 who is said to be an eye witness to the incident, her evidence is silence with regard to the caught hold of the accused and producing the accused before the traffic police station, Tirumala. As seen from the evidence of P.W.4 he deposed that himself and P.W.1 caught hold the accused and brought him to GNC tollgate and when he was enquiring with regard to the accident, driver of the bus 10 absconded from the place. As seen from the evidence of P.W.9 he deposed that P.W.4 caught hold bus and bus driver and brought the driver to the place of the accident.

P.W.12 deposed that the accused voluntarily surrendered before him. So, the evidence of P.W.1 to 4 and 9 who are said to be eye witnesses is not consistent and corroborating with regard to the material particulars of the case. They deposed evidence beyond their section 161 Cr.P.C. statements which creates a doubt in the mind of the court with regard to the case of the prosecution as stated by the prosecution. Hence, the allegations under section 134(a) and (b) r/w 187 of M.V.Act is also not proved by the prosecution beyond reasonable doubt.

33. On conglomeration of the above evidence, this court is of the opinion that the evidence of P.W.1 to P.W.12 is not consistent and corroborating with each other and with regard to the material particulars of the case. The prosecution able to establish the death of the deceased and that the accused is the driver of the crime vehicle at the time alleged incident. But, the prosecution failed to prove the guilt of the accused that the accused being the driver of the crime vehicle bus drove the same in a rash and negligent manner resulting death of the deceased, beyond all reasonable doubt. The accused is entitled benefit of doubt and the benefit of doubt goes in favor of the accused.

34. In the result, this Court found the accused is not guilty for the offence under section 304-A of Indian Penal Code and 134(a) and (b) r/w 187 of M.V.Act and thereby he is acquitted under section 255 (1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as per Section 437 (A) of Cr.P.C.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, this the 4th day of April, 2017

II Addl. Judl. Magistrate of First Class,

Tirupati.

Appendix of evidence.

Witnesses examined.

For Prosecution :- For Defence :- PW.1 G.Balaji - None PW.2 G.J.Phaneendra Baby 11 P.W.3 B.Subbarathnamma P.W.4 K.Venugopal P.W.5 S.Venkatasubbaiah P.W.6 S.Suresh Babu P.W.7 M.Penchalaiah P.W.8 M.Anand P.W.9 P.Venkatesh P.W.10 S.Siva Sankar, Motor Vehicle Inspector P.W.11 Dr.S.Venkateswara Rao, Assistant Professor P.W.12 G.Muralikrishna, Sub-Inspector of Police

Exhibits marked. For Prosecution :- Ex.P1 Statement of P.W.1 dated 15.09.2014

Ex.P2 Inquest report

Ex.P3 Scene observation Mahazarnama dated 15.09.2014

Ex.P4 Accident Inspection report issued by Motor Vehicle Inspector

Ex.P5 Postmortem Certificate of deceased S.Bujjamma

Ex.P6 First Information Report in Cr.No.38/2014 of Traffic Police Station, Tirumala

Ex.P7 Rough Sketch of scene of offence. For Defence :- Nil.

Material objects : Nil

II A.J.M.F.C. TPT.

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IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS :: TIRUPATI

Calender and Judgment

C.C.No. 422 of 2014

Date of offence: 15-09-2014

Date of report: 15-09-2014

Date of taken on file: 18-11-2014

Date of apprehension: 08-01-2015 (Appearance before court)

Date of commencement of trial: 08-02-2017

Date of close of trial : 22-03-2017

Date of Judgment: 04-04-2017

Complainant:The Sub-Inspector of Police, Traffic Police Station, Tirumala. Cr.No.38 of 2014.

Name of the F’s NameAgeCallingReligionResidencMandal accusede R.Chandran, age 36 years, S/o R.Srinivasulu Naidu, K.C.Palli Village Penumuru Mandal of Chittoor District, Driver, Hindu

Section of Law : Causing death by rash and negligent act punishable under section 304-A IPC.

: Not providing first aid to the injured persons and also having not informed the accident to the nearest police station is punishable under section 134 (a) & (b) r/w 187 of M.V. Act

Finding : Found not guilty

Sentence : In the result, this Court found the accused is not guilty for the offence under section 304-A of Indian Penal Code and 134(a) and (b) r/w 187 of

M.V.Act and thereby he is acquitted under section 255 (1) of Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as per Section 437 (A) of Cr.P.C.

II Addl. Judl. Magistrate of First Class,

Tirupati.

1

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

TIRUPATI

Present: Sri B. Leela Venkata Seshadri,

II Addl., Judl.Magistrate of Ist Class, Tirupati.

Wednesday, 15 th day of March, 2017

STC. No. 294 of 2016

Thalluru Ramesh, Son of T.Rangappa Naidu, Hindu, aged about 38 years, residing at Vemuru Village and Post, Tirupati Rural Mandal, Chittoor District.

… Complainant -Versus.

Mittapalli Janardhan Reddy, Son of M.Sidda Reddy, Hindu, aged about 37 years, residing at Durgasamudram Village and Post, Tirupati Rural Mandal, Chittoor District.

… Accused

This case is coming up before me on 14th day of March, 2017 for final hearing in the presence of learned counsel Sri K.Chakravathy for complainant and of learned counsel Sri M.Purushotham Reddy and R.Venkatesh for the accused, upon hearing on both sides, upon perusing the material available on record and having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The complainant filed the complaint under section 200 of Cr.P.C., for the offence Under Section 138 r/w 142 of the Negotiable Instrument Act, 1881 against the accused.

2. The brief averments of the complaint are as follows:-

The accused approached the complainant and borrowed a sum of

Rs.10,00,000/- (Rupees Ten Lakhs only) from the complainant on 2nd April 2014 to meet his business necessities and in consideration of the same the accused executed a demand promissory note in favour of the complainant agreeing to repay the same with interest at the rate of 24% p.a., on demand or order. In spite of repeated demands made by the complainant, the accused did not choose to repay either interest or 2

principal amount due under the above said promissory note and postponing the same

on some ground or other. Finally, the accused issued a cheque for a sum of

Rs.7,00,000/- (Rupees seven lakhs only) bearing cheque No.338584 dated 30.04.2015 drawn on Canara Bank, Tirupati in favour of the complainant towards partial discharge of the above said legally enforceable debt. On the instructions of the accused, the complainant presented the said cheque for collection on 30.04.2015 into his Bank i.e. Andhra Bank, Ramanuja Circle, Tiruchanoor Road Branch, Tirupati for collection and the said cheque was returned with an endorsement memo as “FUNDS

INSUFFICIENT” on 02.05.2015. The same was informed to the accused. But, accused has not taken steps to pay the said amount due. Hence, the complainant got issued a legal notice on 07.05.2015 calling upon the accused for the payment of the said amount due on the dishonoured cheque within 15 days from the date of receipt of the notice.

On 09.05.2015 the accused acknowledged the said notice and issued reply notice to the complainant on 20.05.2015 with all false allegations. Hence, the complaint.

3. After recording the sworn statement of the complainant, this court has taken the cognizance of the offence under section 138 of Negotiable Instrument Act, 1881 against the accused and issued summons to the accused.

4.On appearance of the accused, copies of necessary documents as required under section 207 Cr.P.C., were furnished to him.

5.The accused was examined U/s 251 Cr.P.C., for the accusation leveled against him for the offence under section 138 r/w 142 of Negotiable Instrument Act, 1881. The sum and substance read over and explained to the accused in Vernacular.

He pleaded not guilty and claimed to be tried in accordance with law.

6.To prove the case of the prosecution/complainant, the complainant has got examined himself as P.W.1 and one of the attestor of Ex.P1 has examined as P.W.2 and marked Exs.P-1 to P-6. Ex. P-1 is the promissory note dated 02-4-2014 executed by the accused in favour of complainant, Ex P-2 is the cheque bearing No. 338584, 3

dated 30.4.2015 forRs.7,00,000/-, Ex P-3 is the cheque return memo dated

02.5.2015, Ex P-4 is the office copy of legal notice dated 07-5-2015 along with postal receipt, Ex. P-5 is the letter dated 06-6-2015 issued by the Superintendent,

Department of Post Office, Tirupati and Ex P-6 is the reply notice dated 20.5.2015.

7. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C. He denied the incriminating evidence found from the evidence of prosecution witnesses and reported no defence evidence.

On behalf of accused, no witnesses are examined and no documents are marked.

8. Heard on both sides and also perused the entire case records with relevant documents.

9. The points for determination are: - 1) Whether the accused has

issued the cheque and whether the cheque under question has been issued

in discharge of legally enforceable debt or other liability?

2) Whether there is compliance of service of legal notice of demand

upon the accused as contemplated under section 138 of Negotiable

Instrument Act ?

3) Whether the complainant/prosecution is able to establish the guilt

of the accused for the offence under Section 138 r/w 142 of Negotiable

Instrument Act, 1881 , beyond all reasonable doubt or not ?

POINT No.1 :- Whether the accused has issued the cheque and whether

the cheque under question has been issued in discharge of legally

enforceable debt or other liability?

10.To substantiate the case of the complainant, the complainant himself got examined as P.W.1. He gave evidence in tune with the contents of the complaint.

Through him Ex.P1 to ExP6 are marked. In his evidence, P.W.1 clearly and categorically deposed about the transaction between him and the accused. He clearly 4 and categorically deposed that the accused borrowed an amount of Rs.10,00,000/- for his business necessities and in consideration of the same executed a promissory note (Ex.P1) and subsequently in discharge of the same, the accused issued Ex.P2 cheque.

He further deposed that he presented the cheque for collection and the same was returned with an endorsement memo “FUNDS INSUFFICIENT”, vide Ex.P3. He further deposed that he issued statutory legal notice and that the accused issued reply notice on 20.05.2015 with all false allegations and so he filed the present complaint.

11. In support of the contentions of PW1, he also got examined one of the attestor of the Ex.P1 promissory note as PW2. He deposed evidence corroborating the evidence of PW1 with regard to borrowing of the amount by the accused and in consideration of the same executing the promissory note (Ex.P1) and his attestation.

The evidence of PW1 and PW2 is consistent and corroborating with each other and with the contents of exhibits marked in this case. As such, it can be believed that the accused issued Ex.P2 cheque for the discharge of the legally enforceable debt and same is returned as “FUNDS INSUFFICIENT” by the Bank authorities.

12. On perusal of Ex.P4 cheque return memo, it clearly goes to show that the Bank authorities returned the cheque for the reason “FUNDS INSUFFICIENT ”, but not for any other reasons in the cheque return memo. Since, there is no contrary evidence produced by the accused in this regard, the evidence of P.W.1 and PW2 can be relied on. Hence, the complainant is able to discharge his initial burden.

13. Once signature upon cheque and promissory note is proved or admitted, then statutory presumptions under section 118 and section 139 of Negotiable Instrument

Act come into play and the burden to rebut them lies upon the accused. It is an admitted position of law that if signature in the cheque is proved to be that of the accused, the presumption envisaged in section 118 of the Negotiable Instrument Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume 5 that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumptions. The offence under section 138 of Negotiable Instrument Act is a technical offence in nature. The complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused.

14. Whether the accused rebutted the presumptions or not? Let us see the evidence.

During the course of evidence, the learned counsel for accused tried to elicit that there is no capacity for the complainant to lend an amount of Rs.10,00,000/-. P.W.1 during his evidence clarified his capacity to lend such an amount. At this juncture it is pertinent to mention that on perusal of records it shows that Ex.P6 is admittedly issued by the accused through Advocate. On perusal of contents of reply notice (Ex.P6), it shows that in the year 2009 the accused borrowed an amount of

Rs.2,00,000/- for the purpose of bore well and also purchase of cows. Further stated that at the time of said debt the complainant insisted and received blank cheque and promissory note in question as security but even after discharging of the debt totally, in spite of the accused repeated demands the complainant postponing on some pretext or other and giving evasive answers and that the complainant being close friend the accused has not taken any legal steps so far. On the other hand on perusal of cross examination to P.W.1, it shows that the counsel for the accused completely deviated from the contents of the reply notice and put suggestions to P.W.1 during cross examination that one B.Chandramouli (P.W.2) got filed this case through P.W.1 and that the accused is not having acquaintance with the complainant and signature of the accused is forged on Ex.P1 and Ex.P2. So, the plea taken by the accused in the reply notice and the plea taken during cross examination of the P.W.1 by the counsel for the accused are two different versions which are contradicting with each other. This itself shows that the story set up by the accused appears to be false. Further, the contents of 6 reply notice shows that the accused himself stated that he borrowed an amount of

Rs.2,00,000/- in the year 2009 from the complainant and the same was alleged to be discharged. So, this itself shows the capacity to lend amount by the complainant. As seen from the evidence of P.W.1 he deposed that he is getting an amount of

Rs.3,00,000/- income from agriculture and he is having saving account in three banks. If really P.W.1 is in possession of Ration card even though he is not entitled, it is for the concerned department to take action against the P.W.1. In these circumstances possession of Ration card by the P.W.1 alone is not a ground to disbelieve the evidence of P.W.1. On over all perusal of evidence, it shows that the accused is aware that Ex.P1 and Ex.P2 are in possession of the complainant. If really the accused has discharged the debt taken by him as contended in reply notice why the accused has not taken any steps for all these years in issuing any notice demanding the complainant to return those valuable documents. Absolutely, no evidence produced

before this court in support of the contentions of the accused.

15. Another plea taken by the accused at the time of cross examination of P.W.1 that signature of the accused are forged is also appears to be taken for the purpose of the case. Nothing prevented the accused seeking expert opinion if really the signatures of the accused are forged on the promissory note Ex.P1 and cheque Ex.P2. In Ex.P6 reply notice the accused has not stated that he has not put his signatures on Ex.P1 and

Ex.P2. No steps taken by the accused in this regard. Further more, Bank authorities who are competent persons to verify the signatures of the account holder also not returned the cheque for the reasons that the signature of the account holder is differs.

The accused failed to produce any satisfactory evidence to prove his contentions in the process of discharge of his burden. In the absence of any evidence, this court cannot come to a conclusion that the accused rebutted the presumptions. On the other hand the complainant is able establish his case.

7

16. On considering the totality of the facts and circumstances of the case, this court is of the opinion that the accused issued the cheque Ex.P2 to the complainant for partial discharge of legal enforceable debt under Ex.P1. Hence, this point is answered in favour of the complainant and against the accused.

POINT No.2: Whether there is compliance of service of legal notice

of demand upon the accused as contemplated under section 138 of

Negotiable Instrument Act ?

17. As seen from the evidence and material records the statutory legal notice

Ex.P4 was served on the accused and the accused also issued reply notice Ex.P6 denying the allegations. So, this court is of the opinion that there is proper service of statutory legal notice upon the accused.

18. In view of the aforesaid discussion, this court is of the opinion that there is proper service of legal notice of demand upon the accused as envisaged under section 138 Proviso (b) of Negotiable Instrument Act. Hence, this point is answered in favour of the complainant and against the accused.

POINT No.3:- Whether the complainant/prosecution is able to establish

the guilt of the accused for the offence under Section 138 r/w 142 of

Negotiable Instrument Act, 1881 , beyond all reasonable doubt or not ?

19.The accused to probablies his defence, he has not produced any oral or documentary evidence. Simply denying the evidence of the complainant is not sufficient and to disprove the same, the accused has to take his own steps to discard and to disprove the evidence of the complainant by producing the evidence before this court. In the cross examination of P.W.1 he put mere suggestions which are not helpful to the case of the accused and the suggestions put to P.W.1 were denied by him.

Mere suggestions to the complainant without placing any other material to substantiate his case is not sufficient. There are no other probable circumstances placed by the accused in the process of discharging of his burden.

8

20. The accused failed to point out the circumstances leading to a doubt either on the complainant version or leading to conclusion probablise the defence version. In

Section 313 Cr.P.C., examination also the accused did not give any proper explanation.

There is nothing on record to show that P.W.1 had any ill will, grudge and oblique motive against the accused and out of which he filed the false complaint.

21. In the above said facts and circumstances of the case and in the light of the evidence this court is of the opinion that the complainant is able to prove that the accused issued the cheque vide Ex.P-2 in partial discharge of legally enforceable debt.

Ex.P-2 cheque came to be dishonoured for the reason “FUNDS INSUFFICIENT”.

Statutory notice issued under section 138 of Negotiable Instrument Act calling upon the accused to pay the amount covered under the cheque. Despite the knowledge the accused not paid the amount.

22. On conglomeration of the above evidence, this court of the opinion that the complainant has established his case against the accused for the offence under section 138 r/w 142 of the Negotiable Instrument Act, beyond all reasonable doubt.

23. In the result, this court found the accused is guilty of the offence U/s 138 r/w 142 of Negotiable Instrument Act and thereby he is convicted under section 255(2) Cr.P.C.,

Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the open court, this the 15th day of March, 2017.

II Addl. Judl. Magistrate of First Class,

Tirupati.

When the accused questioned with regard to quantum of sentence, for which he stated that he is the sole bread winner of the family and he has to take care his family who are depending on him and if he is put into jail, his entire family will be put to lot of suffer. He further requested to take lenient view.

On considering the facts and circumstances of the case, nature of offence in this 9 case and submission of accused, this court is of the opinion that that imposing of fine to the accused is not sufficient to meet the ends of the justice in view of the commercial transactions. Hence, the accused is sentenced to under go simple imprisonment for a period of One Year for the offence under section 138 r/w 142 of Negotiable

Instrument Act and he is liable to pay fine of Rs.5,000/-. In default of payment of fine, suffer simple imprisonment for a period of Three Months. The remand period undergone by the accused, if any, shall be given set off as contemplated under section 428 Cr.P.C., The accused is informed about his right to appeal and right to free legal aid.

Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the open court, this the 15th day of March, 2017.

II Addl. Judl. Magistrate of First Class,

Tirupati.

Appendix of evidence.

Witnesses examined.

For Complainant :-

P.W.1 T.Ramesh (Complainant)

P.W.2 B.Chandramouli

For Defence :-

None

Exhibits marked.

For Complainant :-

Ex.P-1 Promissory note dated 02-4-2014 executed by the accused in favour of complainant

Ex P-2 Cheque bearing No. 338584, dated 30.4.2015 for Rs.7,00,000/-

Ex P-3 Cheque return memo dated 02.5.2015

Ex P-4 Office copy of legal notice dated 07-5-2015 along with postal receipt

Ex.P-5 Letter dated 06-6-2015 issued by the Superintendent, Department of Post Office, Tirupati

Ex P-6 Reply notice dated 20.5.2015.

For Defence :-

Nil

Material objects : -Nil-II A.J.M.F.C. TPT.

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IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS, TIRUPATI.

Present: Sri B. Leela Venkata Seshadri, II Addl., Judl.Magistrate of Ist Class, Tirupati.

Tuesday, 14 th the day of March, 2017

C.C.No.224/2014

Between:-

The State of A.P. Rep by the Sub Inspector of Police, I Town Police Station, Tirumala. Cr.No.13 of 2014. ….Complainant. And:-

Shaik Mohammad Farooq @ Bhasha, age 47 years, S/o Abdul Raheem, resident of D.No.4-3-418, Giripuram, Tirupati, Muslim.

….Accused.

This case is coming on 13th day of March, 2017 before me for final hearing in the presence of learned Assistant Public Prosecutor for the State and of Sri T.Yellappa, Advocate for the accused, upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following:-

J U D G E M E N T

The Sub Inspector of Police, I Town Police Station, Tirumala laid charge sheet against the accused in Cr.No.13 of 2014 for the offence under section 420 of the Indian Penal Code.

2.The brief averments of the charge sheet are as follows:-

On 16.04.2014 the defacto complainant C.Shaji and his villagers about 40 (forty) members proceeded from their village as pilgrimage tour in

Tourist bus. On the same day the defacto complainant telephoned accused and requested to make arrangements for accommodation and darshan at

Tirumala. On 21.04.2014 early hours the defacto complainant, S.Ravi Kumar, 2

E.Dharmajan, S.Suresh and S.Rajan and other pilgrims reached Tirupati.

There the accused provided accommodation in Reddy Bhavan, Mangalm

Road, Tirupati to them about 40 persons by taking an amount of Rs.6,000/- from them. The accused made contact with defacto complainant for an amount of Rs.16,000/- for providing darshan at Tirumala and then will drop at Reddy Bhavan for that the defacto complainant and other pilgrims gave an amount of Rs.7,000/- to the accused and will give rest of the amount of

Rs.9,000/- after return from Tirumala to Reddy Bhavan, Tirupati. The accused brought the defacto complainant and other pilgrims to Tirumala in a

RTC Bus by purchasing up and down tickets at Alipiri Bus stand, Tirupati.

The accused dropped them near ATC Bridge, Tirumala which leads to

Rs.300/- special darshan queue line by informing that he will give tickets at

Rs.300/- tickets counter but accused did not present at Rs.300/- tickets counter. Then, the defacto complainant and other pilgrims have taken

Rs.300/- tickets with their amount and have darshan. Later, they met the accused who was present in front of Ram Bhageecha Guest House, Tirumala and questioned about not given Rs.300/- tickets to them for that the accused gave reckless reply and went away from there.

Adverting to the above, basing on the report, a case in Cr.No.13 of 2014 for the offence under section 420 of the Indian Penal Code was registered and investigated into.

During the course of investigation, the Sub Inspector of Police, II

Town Police Station, Tirumala examined the witnesses and recorded their statements. On 21.04.2014 at 06.15 P.M. near Ram Bhageecha Guest House,

Tirumala, the Sub Inspector of Police, I Town Police Station, Tirumala has arrested the accused in the presence of two mediators. On confession made by the accused that he had taken an amount of Rs.7,000/-, among it, he had 3 paid Rs.3,490/- for up and down tickets to the 40 persons from Tirupati to

Tirumala and return on 21.04.2014 and an amount of Rs.1,500/- sent to his house through unknown person for family expenses. The remaining

Rs.2,000/- kept in his possession. The Sub Inspector of Police, I Town

Police Station, Tirumala has drafted mahazarnama for arresting of the accused, confession statement of accused and seizure of cash of Rs.2,000/-, 6 (six) APSRTC Bus tickets (total fare of Rs.3,490/-), one cell phone belongs to the accused from the possession of accused in the presence of mediators and duly attested by them. The arrested accused was sent to the court for judicial custody. Subsequently, the accused was enlarged on bail.

During the course of further investigation, the Sub Inspector of

Police, I Town Police Station, Tirumala has examined and recorded the statement of Y.Krishnamoorthy who is the manager in Reddy Bhavan,

Mangalam Road, Tirupati and given 15 rooms in the name of the accused on 21.04.2014 by taking an amount of Rs.5,250/-. Further, the Sub Inspector of

Police, I Town Police Station, Tirumala has seized original receipt No.9748, booking No.30021989, dated 21.04.2014 at 04.37 A.M. and also seized three pages xerox copies of Reddy Bhavan register Book which are having particulars of arrival and departure of pilgrims and other particulars in them for the dates of 20.04.2014 to 22.04.2014 which produced by

Y.Krishnamoorthy at Reddy Bhavan, Tiruapti under cover of police proceedings drafted at 10.00 A.M., on 23.04.2014. After completion of investigation charge sheet has been laid for the above Sections of law.

3.Cognizance of the offence Under Sections 420 of the Indian

Penal Code was taken against the accused and issued summons as the accused is on bail.

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4.On appearance of the accused before the Court, Copies of documents as contemplated under section 207 Cr.P.C., were furnished to him.

5.The accused was examined U/Sec. 239 Cr.P.C., for the accusation leveled against him. He denied the same. Hence, upon hearing and on perusal of records charge under sections 420 of the Indian Penal

Code has been framed, read over and explained to the accused in vernacular.

The accused pleaded not guilty and claimed to be tried.

6.In support of the case of prosecution, the prosecution has examined totally seven witnesses as P.Ws 1 to 7 and marked Exs.P-1 to P-8 and M.O.1 is One Nokia phone model C-02-00. Ex.P.1 is the Report of P.W.1

dated 21.04.2014, Ex.P2 is section 161 Cr.P.C. statement of P.W.3, Ex.P3 is

the receipt issued by Reddy Bhavana pertaining to said accommodation,

Ex.P4 is signature portion of P.W.5 in the Mahazarnama dated 21.04.2014,

Ex.P5 is signature portion of P.W.6 in the Mahazarnama dated 21.04.2014,

Ex.P6 is First Information Report in Cr.No.13/2014 of I Town P.S., Tirumala,

Ex.P7 is Mahazarnama dated 21.04.2014 and Ex.P8 is bus tickets.

7.After closure of the prosecution evidence, the accused was examined under Sec.313 of Cr.P.C. The incriminating circumstances against the accused are read over and explained to the accused in vernacular. He denied the same and reported no defence evidence.

8. Heard arguments. Perused the material available on record.

9. The point for determination is:- Whether the prosecution is able to establish the guilt of the accused for the offence under sections 420 of

Indian Penal Code, beyond all reasonable doubt or not ?

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ARGUMENTS

10. The learned Assistant Public Prosecutor argued before the court that the evidence of the prosecution witnesses coupled with the exhibits marked in this case would clearly establish that the accused committed the offences leveled against him and hence the accused is liable for conviction.

11. The learned defence counsel for the accused argued that the accused is innocent, he did not commit any offence, that he is falsely implicated in this case and no such incident was happened as stated by the prosecution. He further argued that independent witnesses examined by the prosecution turned hostile and the evidence available is the interested testimony of the prosecution witnesses and the same is not consistent and corroborating with each other and with regard to the material particulars of the case, so no importance need be given to that evidence. He further argued that entire investigation is table investigation and all the material prepared in the police station for the purpose of the case only. He further argued that the prosecution failed to prove the guilt of the accused, beyond all reasonable doubt. He finally prays to acquit the accused.

EVIDENCE:-

12. To substantiate the case of the prosecution, the prosecution has examined totally seven witnesses as P.Ws 1 to 7. I have gone through evidence.

13. P.W.1 is the defacto complainant. He tried to depose evidence in tune with the contents of the report. Through him Ex.P1 is marked. In his cross examination, he deposed that he do not know the contents of Ex.P1. He further deposed that he do not know the reading and writing of Telugu 6 language as well as English languages and he do not know who wrote the contents of Ex.P1. He further deposed that police not examined him with regarding to this case and not recorded his section 161 CrP.C. statement.

14. P.W.2 and P.W.3 are the friends of P.W.1. They did support the case of the prosecution by deposing that they do not know the accused. The learned Assistant Public Prosecutor cross examined the witness P.W.3 with the permission of the court but failed to elicit any useful information in favour of the accused except marking of section 161 Cr.P.C. statement of

P.W.3.

15. P.W.4 is the Manager at Reddy Bhavanam, Tirupati. He deposed about allotment of the rooms to the pilgrims and issuing of receipts for the said rooms.

16. P.W.5 and P.W.6 are the mediators to the arrest and seizure of the properties from the possession of the accused under cover of

Mahazarnama Ex.P7. They turned hostile by deposing that while they were present with their taxi at Rambhageecha bus stand area, police called them and obtained their signatures in a written papers and they do not know the contents of the Mahazarnama. The learned Assistant Public Prosecutor cross examined the witnesses with the permission of the court but failed to elicit any useful information in favour of the accused.

17. P.W.7 is the Sub-Inspector of Police who investigated the case.

He deposed about registering the case, visiting the scene of offence, seizure of cash and Nokia phone, arrest of the accused under cover of Mahazarnama and filing of the charge sheet after completion of investigation. In his cross examination, he deposed that he do not know reading and writing of Kanada

Lanugage. He further deposed that he has not obtained the signature of the

P.W.1 in Col.No.14 of FIR Ex.P6.

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MARSHALING OF FACTS AND ANALYSIS OF EVIDENCE:-

18. In this case P.W.1 is defacto complainant cum victim, P.W.2 and

P.W.3 are the friends of P.W.1, P.W.4 is the Manager at Reddy Bhavanam,

Tirupati, P.W.5 and P.W.6 are the mediators to the arrest and seizure of properties from the possession of the accused under cover of Mahazarnama and P.W.7 is the Sub-Inspector of Police who investigated the case.

19. As seen from the evidence, P.W.1 is the defacto complainant and one of the victim in this case. He did not support the case of the prosecution.

He deposed that he do not know the contents of Ex.P1. He further deposed that he do not know the accused who is present in the court hall. He further deposed that police did not examine him and recorded his statement. So, non support of the defacto complainant (P.W.1) is one of the great set back to the case of the prosecution. The prosecution also examined other victims in this case as P.W.2 and P.W.3. They also did not support the case of the prosecution and they did not depose any incriminating material against the accused. Non support of the other victims is another set back to the case of the prosecution. The prosecution has examined Manager of Reddy

Bhavanam, Tirupati as P.W.4. He did not depose any incriminating material against the accused. His evidence is to that effect that he allotted rooms to the victims and issued receipt. There is no dispute with regard to the pilgrims occupying the room in Reddy Bhavanam, Tirupati and that his evidence is no way helpful to the case of the prosecution to come to conclusion that the accused is the person who allegedly cheated the pilgrims.

20. To prove arrest and seizure of the properties from the possession of the accused under cover of Mahazarnama, the prosecution has examined the mediators as P.W.5 and P.W.6. On coming to the court they completely turned hostile. Except admitting their signatures they did not 8 depose any incriminating material against the accused. Non support of the mediators to the Mahazarnama is another set back to the case of the prosecution. In these circumstances, it creates a doubt with regard to the arrest of the accused and seizure of properties under cover of Mahazarnama as stated by the prosecution.

21. Now, the remaining evidence is the evidence of P.W.7 who is the investigation officer in this case. He deposed as per contents of the charge sheet. In his cross examination, he deposed that he recorded the statement of P.W.1 as P.W.1 stated to him in English language. Whereas P.W.1 deposed that he do not know writing and reading of English language and police has not recorded his statement. So, the evidence of investigation officer is not corroborating by any one of the witnesses examined by the prosecution.

Further, as seen from the First Information Report in Column No.14 there is no signature of the defacto complainant which is mandatory. There is no explanation on this aspect from the prosecution or from the evidence of investigation officer. It is settled law that Confession to the extent of commission of offence from the accused cannot be acted upon in as much as such confessions are hit by Section 25 and 26 of the Indian Evidence Act.

The prosecution also failed to produce evidence that M.O.1 mobile phone and cash belongs to the accused person which alleged to be seized from the possession of the accused. The crucial witnesses victims in this case have not supported the case of the prosecution. There are no ingredients to attract the offence under section 420 of Indian Penal Code.

22. On conglomeration of the above evidence, this Court is of the opinion that the, the evidence of P.W.1 to P.W.7 is not consistent and corroborating with each other and with regard to the material particulars of the case. There are number of reasonable doubts which are unexplained by 9 the prosecution. Basing on this type of evidence, this court cannot come to conclusion that the prosecution is able to prove the guilt of the accused for the offence under section 420 of Indian Penal Code, beyond all reasonable doubt. The benefit of doubt goes in favor of the accused.

RESULT:-

23. In the result this Court found the accused is not guilty for the offence under sections 420 of the Indian Penal Code and thereby he is acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of Six months from the date of this Judgment as per provisions of Section 437(A) of Cr.P.C.

DISPOSAL OF CASE PROPERTY:-

The unmarked case property i.e. cash of Rs.2,000/- which was deposited in Treasury vide Challan No.0000009754, dated 27.05.2014 shall be confiscated to the state after appeal time is over. The case property i.e.

M.O.1 One Nokia phone model C-02-00 shall be confiscated to the state after appeal time is over.

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in the open court, this the 14th day of March, 2017.

II Addl. Judl. Magistrate of First Class, Tirupati.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

Prosecution:- Defence P.W.1 C.Shaji None P.W.2 S.Ravi Kumar P.W.3 E.Dharmajan P.W.4 Y.Krishna Murthy P.W.5 G.Krishna P.W.6 R.Suri P.W.7 B.Reddy Naik, Sub-Inspector of Police

EXHIBIT MARKED FOR

ProsecutionDefence Ex.P1 Report of P.W.1 dated 21.04.2014 Ex.P2 Section 161 Cr.P.C. statement of P.W.3 Ex.P3 Receipt issued by Reddy Bhavana pertaining to said accommodation, Ex.P4 Signature portion of P.W.5 in the Mahazarnama dated 21.04.2014, 10

Ex.P5 Signature portion of P.W.6 in the Mahazarnama dated 21.04.2014, Ex.P6 First Information Report in Cr.No.13/2014 of I Town P.S., Tirumala, Ex.P7 Mahazarnama dated 21.04.2014 Ex.P8 Bus tickets.

MATERIAL OBJECTS MARKED

M.O.1 One Nokia phone model C-02-00.

II AJCJ, TPT

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THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS :: TIRUPATI

CALENDAR AND JUDGMENT

CALENDER IN C.C. NO. 224 of 2014

Date of offence: 21-04-2014

Date of report:21-04-2014

Date of taken on file:24-05-2014

Date of apprehension: 10-09-2014 (Appearance before court)

Date of commencement of trial : 31-03-2016

Date of close of trial :08-03-2017

Date of Judgment :14-03-2017

Complainant : The State of A.P rep. by the S.I of Police, I Town P.S., Tirumala. Cr.No.13 of 2014. Name ofF’s NameAgeCallingReligionResidenceMandal the accused Shaik Mohammad Farooq @ Bhasha, age 47 years, S/o Abdul Raheem, resident of D.No.4-3-418, Giripuram, Tirupati, Muslim Offence and Sec. of Law :

Cheating and thereby dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security punishable under section 420 of the Indian Penal Code.

Finding : Found not guilty for the offence under section 420 of IPC.

Sentence or Order of the Court:-

In the result this Court found the accused is not guilty for the offence under sections 420 of the Indian Penal Code and thereby he is acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall remain in force for a period of Six months from the date of this Judgment as per provisions of Section 437(A) of Cr.P.C. The unmarked case property i.e. cash of Rs.2,000/- which was deposited in Treasury vide Challan No.0000009754, dated 27.05.2014 shall be confiscated to the state after appeal time is over. The case property i.e. M.O.1 One Nokia phone model C- 02-00 shall be confiscated to the state after appeal time is over

II Addl. Judl. Magistrate of First Class, Tirupati.

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IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS TIRUPATI

Present: Sri B. Leela Venkata Seshadri, II Addl., Judl.Magistrate of Ist Class, Tirupati.

Thursday, the 16 th day of March, 2017

C.C. No.384 of 2014

State, represented by Sub-Inspector of Police, East Police Station, Tirupati. Cr.No.376 of 2014. … Complainant -Versus.

Madnyam Murali Krishna, age 21 years, S/o M.Posana Reddy, owner of Sri Sai Krishna Mobiles at D.No.372, Bandla Street, Tirupati, r/o D.No.16-6-451, Karnala Layout, Tirupati. Hindu. … Accused

This case is coming before me on 15th day of March, 2017 for final hearing in the presence of the learned Assistant Public Prosecutor for the

State and of Sri L.Balaji, Advocate for the accused, upon hearing on both sides and upon perusing the material available on record, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of Police, East Police Station, Tirupati laid charge sheet against the accused in Cr.No.376 of 2014 for the offence under section 292(2) (a) of Indian Penal Code.

2. The brief facts of the case of the prosecution are as follows:-

On 03.09.2014 on receipt of credible information and instructions of the Inspector of Police, East Police Station, Tirupati about downloading the abscene video scenes to DVD in “Sri Sai Krishna Mobiles”, Bandla Street,

Tirupati, the Sub-Inspector of Police, East Police Station, Tirupati along with his staff left the police station at 10.45 A.M. and on the enroute near TTD 2 Vishnu Nivasam, secured the presence of two mediators and reach “Sri Sai

Krishna Mobiles” shop situated in D.No.372, Bandla Street, Tirupati town at 11.00 A.M. and found one male person is sitting in the counter keeping a monitor with CPU (system) in front of him. On seeing the police party, he tried to switch off the computer and remove the DVD attached to the computer but in the presence of mediators, thwarted him and informed him about receiving information about loading the obscene video scenes to DVD, for which he voluntarily admitted to have obscene video scenes in his computer and he used to download the same into the DVD for users for money and confessed in the following lines without one's pressure in the presence of mediators. So confessed, he produced his computer (system) and

DVD before him. Then he viewed the obscene video scenes stored in the computer as well as in the DVD in the presence of the mediators. In the computer there is one file on the desktop (monitor) in the name of “MMM” having 165 obscene video bits. In the DVD there are 165 obscene video bits.

Then he verified the CPU, Monitor, Keyboard, Mouse (System) and DVD in the presence of mediators and seizued 1) One black coloured CPU Acer company, 2) One Black coloured Acer company monitor, 3) One black coloured Acer company mouse, 4) One black coloured Acer company Ky board, 5) One Silver coloured sony company DVD, 6) Two black coloured power cables in the presence of two mediators under a cover of Mahazarnama duly attested by them Adverting to the above, basing on the Mahazaranama a case in Cr.No.376 of 2014 for the offence Under Section 292(2) (a) of Indian

Penal Code was registered and investigated into. The accused was sent to the court for judicial custody. Subsequently, the accused was released on bail.

After completion of investigation charge sheet has been laid against the accused for the above section of law.

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3. Cognizance of the offence Under Section 292(2) (a) of Indian

Penal Code against the accused was taken and issued summons to the accused as the accused is on bail.

4. Copies of documents as contemplated under section 207 Cr.P.C., were furnished to him.

5. The accused was examined U/Sec. 239 Cr.P.C. for the accusation levelled against him. He denied the same. Upon hearing and on perusal of records, a charge under section 292(2) (a) of Indian Penal Code has been framed, read over and explained to him in vernacular. The accused pleaded not guilty and claimed to be tried.

6. In support of the case of prosecution, the prosecution has examined totally four witnesses as P.Ws 1 to 4 and marked Exs.P-1 to P-4 and M.O.1 is

Acer CPU, M.O.2 is Acer Monitor, M.O.3 is Acer Mouse, M.O.4 is Keyboard,

M.O.5 is one DVD and M.O.6 is Two black colour power cables. Ex.P1 is signature portion of P.W.1 on the Mahazarnama dated 03.09.2014, Ex.P2 is signature portion of P.W.2 on the Mahazarnama dated 03.09.2014, Ex.P3 is

Mahazarnama dated 03.09.2014 and Ex.P4 is First Information Report in

Cr.No.376 of 2014 of East Police Station, Tirupati.

7. After closure of prosecution evidence, the accused was examined under Sec.313 of Cr.P.C. The incriminating circumstances against the accused are read over and explained to the accused in vernacular. He denied the same and reported no defence evidence.

8. Heard arguments. Perused the material available on record.

9. The point for determination is: - Whether the

prosecution is able to establish the guilt of the accused for the

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charge under section 292(2) (a) of Indian Penal Code, beyond all

reasonable doubt or not ?

10.The learned Assistant Public Prosecutor argued before the court that the evidence of prosecution witnesses coupled with exhibits marked in this case would clearly establish that the accused committed the offence levelled against him and hence he is liable for conviction.

11.The learned defence counsel argued that the accused is innocent falsely implicated in this case and no such incident was happened as stated by the prosecution. He further argued that police foisted false case against the accused for statistical purpose. Further argued that the police failed to obtain search warrant in accordance with law and that the alleged search and seizure is not in accordance with law. He further argued that the evidence P.W.1 to

P.W.4 is not consistent and corroborating with each other and there are material contradictions in their evidence. He further argued that prosecution failed to prove the guilt of the accused, beyond all reasonable doubt. He finally prays to acquit the accused.

EVIDENCE:

12. To substantiate the case of the prosecution, the prosecution has examined totally four witnesses as P.Ws 1 to 4. I have gone through the evidence.

13. P.W.1 and P.W.2 are the mediators to the arrest of the accused and seizure of properties under cover of Mahazarnama. They did not support the case of the prosecution by deposing that they do not know the facts of this case, on one day the East police called them to Police Station and obtained their signatures on some written papers and they have not gone through the contents of it. They admitted their signatures alone and denied the contents.

5 The learned Assistant Public Prosecutor declared these witnesses as hostile and cross examined the witnesses with the permission of the court, but failed to elicit any useful information in favour of the prosecution.

14. P.W.3 is Head Constable working in East Police Station, Tirupati.

He tried to depose evidence in tune with the contents of the Mahazarnama. In his cross examination, he deposed that Bandla Veedhi is a residential and commercial area. He further deposed that at the time of alleged incident there are several persons near and around the scene. He further deposed that they have not secured the mediators of that locality.

15. P.W.4 is the Sub-Inspector of Police who investigated the case. He deposed about arrest of the accused and seizure of the properties under cover of Mahazarnama, registering the case and filing of the charge sheet after completion of investigation. In his cross examination, he deposed that Bandla

Veedhi is a busy locality with residential houses as well as commercial complexes. He further deposed that P.W.1 is the Manager of the Pavan Travels and P.W.2 is the Manager of Komatla travels. He further deposed that he has not obtained the signatures of the accused and the mediators on the labels affixed to the contraband. He further deposed that he has not mentioned the serial number, batch number, other descriptive particulars in the

Mahazarnama regarding the contraband. He further deposed that he has not affixed any label or obtained any signatures of the accused and the mediators on the DVD and that similar types DVDs available in open market. He further deposed that he has not examined any one of the independent witness at the

Bandla Veedhi.

MARSHALING OF FACTS AND ANALYSIS OF EVIDENCE:-

16. It is the case of the prosecution that the accused was in possession of obscene video scenes in his computer and downloading the same to DVDs to 6 sell the same to public to earn money and the Sub-Inspector of Police, East

Police Station, Tirupati caught hold the accused and seized his computer and other instruments, DVD under cover of Mahazarnama in the presence of mediators. So, the accused is liable for conviction.

17. In this case P.W.1 and P.W.2 are the mediators to the Mahazarnama,

P.W.3 is Head Constable and P.W.4 is the Sub-Inspector of Police who detected the case, registered the case and filed the charge sheet after completion of investigation.

18. On perusal of entire evidence, the mahazarnama is a crucial document basing on it the law was set into motion. As seen from the evidence “Sri Sai Krishna Mobiles” situated in a busy commercial locality. There is no dispute that the scene of offence is situated in a busy commercial locality. The investigation officer who has credible information about the offence must follow the procedure laid down under law while searching, seizing and arrest of the accused according to law. When search and seizure has to be done by the investigation officer he has to secure the respectable local inhabitants of that area as mediators. As seen from the evidence, the Sub-Inspector of Police

P.W.4 has failed to secure any one of the respectable local inhabitants of the scene of offence area, though, there is every possibility to secure them. On this aspect, there is no explanation from the prosecution or from the evidence of P.W.4. The alleged mediators said to be secured and present at the time of preparation of Mahazarnama are examined as P.W.1 and P.W.2. Admittedly, they are not the residents of scene of offence area. Further, they did not support the case of the prosecution. They turned hostile without deposing any incriminating material against the accused except admitting their signatures in the Mahazarnama. Non securing of respectable inhabitants at the scene of offence area and non support of the alleged mediators P.W.1 and P.W.2 to the 7 Mahazarnama is also a great set back to the case of the prosecution. Added to this, the investigation officer has also failed to produce any evidence showing any nexus between the accused and Sri Sai Krishna Mobiles shop. P.W.4 also failed to examine who is owner of Sri Sai Krishna Mobiles and who is owner of the shop. As seen from the evidence, the Sub-Inspector of Police P.W.4 at the time of seizure of the properties M.O.1 to M.O.6 failed to follow the mandatory procedure and failed to affix any label which contains signatures of the accused as well as signatures of the alleged mediators. On this aspect also there is no explanation from the prosecution or from the evidence of

P.W.4. In these circumstances, the arrest of the accused and seizure of the contraband M.O.1 to M.O.6 under cover of Mahazarnama in the presence of mediators as stated by the prosecution creates a doubt in the mind of the court.

19. Now, the evidence available is the evidence of P.W.3 Head Constable and P.W.4 Sub-Inspector of Police. P.Ws.3 and 4 are police officials working in East Police Station, Tirupati. P.W.3 is the subordinate to P.W.4. It is the contention of the learned counsel for the accused that the Mahazarnama was prepared in the police station and M.O.1 to M.O.6 were planted for the purpose of case and obtained signatures as the mediators and the case is foisted for statistical purpose. As discussed above P.W.4 is the police officer who detected the case, registered the case and investigated the entire case.

P.W.3 and P.W.4 are police officials and interested in the case of the prosecution. Their evidence without corroboration from any independent evidence is not safe to base conviction in view of the above discussion. On perusal of Mahazarnama there are number of corrections in the contents.

Initials also not put at the places of correction. Further on perusal of DVD primafacie it shows it is an empty DVD. But, as per evidence it should contain 8 obscene videos. There is no explanation on this aspect. Further, there is no any complaint from anybody against the accused. The accused has not claimed any ownership over the M.O.1 to M.O.6. As seen from the evidence and arguments it is the case of the accused that they were planted for the purpose of case.

20. On considering the totality of the facts and circumstances of the above case, this court is of the opinion that the evidence of P.W.1 to P.W.4 is not consistent and corroborating with each other and with regard to the material particulars of the case. There are material contradictions in the evidence of the prosecution witnesses. The case of the prosecution is filled up with unexplained doubts which are reasonable in nature. Basing on this type of evidence, this court cannot come to conclusion that the prosecution established guilt of the accused for the offence under section 292(2) (a) of

Indian Penal Code, beyond all reasonable doubt. The accused is entitled for benefit of doubt and the benefit of doubt goes in favour of the accused.

RESULT:-

21. In the result, this Court found the accused is not guilty for the offence under section 292(2) (a) of Indian Penal Code and thereby he is acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as per

Section 437 (A) of Cr.P.C.

DISPOSAL OF CASE PROPERTY:-

The case properties i.e. M.O.1 Acer CPU, M.O.2 Acer Monitor, M.O.3

Acer Mouse, M.O.4 Keyboard, M.O.6 Two black colour power cables shall be 9 confiscated to the state after appeal time is over and M.O.5 One DVD is ordered to be destroyed after appeal time is over. (CPR No.198/2014)

Dictated to the Personal Assistant, transcribed by him, corrected

pronounced by me, in the open court, on this the 16th day of March, 2017.

II Addl. Judl. Magistrate of First Class, Tirupati.

Appendix of evidence.

Witnesses examined.

For Prosecution :- For Defence :- PW.1 V.K.SimhadriNone PW.2 K.Ramesh P.W.3 Pardhasarathi, Head Constables P.W.4 M.Eshwar Sub-Inspector of Police

Exhibits marked. For Prosecution :-

Ex.P1 Signature portion of P.W.1 on the Mahazarnama dated 03.09.2014, Ex.P2 Signature portion of P.W.2 on the Mahazarnama dated 03.09.2014, Ex.P3 Mahazarnama dated 03.09.2014

Ex.P4 First Information Report in Cr.No.376 of 2014 of East Police Station, Tirupati.

For Defence :- Nil.

Material objects :

M.O.1 Acer CPU

M.O.2 Acer Monitor

M.O.3 Acer Mouse

M.O.4 Keyboard

M.O.5 One DVD

M.O.6 Two black colour power cables.

II A.J.M.F.C.

10

IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE

OF FIRST

CLASS :: TIRUPATI

Calender and Judgment

C.C.No. 384 of 2014

Date of offence: 03-09-2014

Date of report: 03-09-2014

Date of taken on file: 15-10-2014

Date of apprehension: 10-12-2015 (Appearance before court)

Date of commencement of trial: 20-02-2017 Date of close of trial : 13-03-2017

Date of Judgment: 16-03-2017

Complainant:The Sub-Inspector of Police, East P.S., Tirupati. Cr.No. 376 of 2014

Name of the F’s NameAgeCallingReligionResidencMandal accusede Madnyam Murali Krishna, age 21 years, S/o M.Posana Reddy, owner of Sri Sai Krishna Mobiles at D.No.372, Bandla Street, Tirupati, r/o D.No.16-6-451, Karnala Layout, Tirupati. Hindu

Section of Law : Whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation or for purposes of sale, hire distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet paper, drawing, painting, representation or figure or any other obscene object whatsoever are liable for punishment under Sec.292(2)(a) of IPC.

Finding : Found not guilty

Sentence :

In the result, this Court found the accused is not guilty for the offence under section 292(2) (a) of Indian Penal Code and thereby he is acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months from the date of this judgment as per Section 437 (A) of Cr.P.C. The case properties i.e. M.O.1 Acer CPU, M.O.2 Acer Monitor, M.O.3 Acer Mouse, M.O.4 Keyboard, M.O.6 Two black colour power cables shall be confiscated to the state after appeal time is over and M.O.5 One DVD is ordered to be destroyed after appeal time is over. (CPR No.198/2014)

II Addl. Judl. Magistrate of First Class,

Tirupati.