Smt B Mary Sara Danamma

IN THE COURT OF THE I.ADDL.JUDICIAL MAGISTRATE OF I CLASS

AT: NIZAMABAD

Present:

Smt. B.Mary Sara Danamma,

I.Addl.Judicial Magistrate of I Class, Nizamabad.

Friday, the 18 th day of December, 2018.

C.C.No. 795 of 2015

Between:

The State of Telangana through Sub Inspector of Police, P.S. Town-IV, Nizamabad.

...Complainant

//A n d//

A1-Syed Ahmed S/o Syed Khaja, 40 years, Muslim, Bakery Business R/o H.No.9-16-11, Ahmedpura Colony, Nizamabad.

A2-Syed Jilaani S/o Syed Khaja, 45 years, Muslim, Bakery Business R/o H.No.9-16-11, Ahmedpura Colony, Nizamabad.

A3-Syed Nayeem S/o Syed Khaja, 39 years, Muslim, Bakery Business R/o H.No.9-16-11, Ahmedpura Colony, Nizamabad. …Accused no.1 to 3

This case has been finally heard on 6.12.2018 in the presence of learned Assistant Public Prosecutor for the Complainant and Sri N.Jagan Mohan, Advocate for accused no.1 to 3. Upon hearing both sides and having stood for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Sub Inspector of Police, Town-IV Police Station,

Nizamabad has filed charge sheet against the accused no.1 to 3 in Crime No. 226/2015 for the offences under Sections 326, 290, 506 r/w 34 Indian Penal Code.

CC.No. 795 of 2015 ...........................................................................................2

2.Brief averments of prosecution are as follows:

Accused persons recently purchased house in front of

LW.1 Sri Shahbaz Salaauddin and they started repair of drainage pipeline and the soil was felted infront of

LW.1 Sri Shahbaz Salaauddin house and that was interrupted to move LW.1, then he requested to accused persons to lift out the soil from infront his house, but the accused no.1 to 3 reversed on him and

LW.2 Sri Parvez Ahmed and the accused no.1 beat LW.1

Sri Shahbaz Salaauddin with Iron Rod on his face and the entire accused persons beat LW.1 Sri Hahbaz

Salaauddin and LW.2 Sri Parvez Ahmed with hands, due to which the LW.1 sustained grievous injury. Hence the complaint.

3.Basing on the report of LW.1/Sri Hahbaz Salaauddin,

LW.9/Sri R.Shankar, Sub Inspector of Police Town-IV, Police

Station has registered a case in Crime No.226/2015 for offense under Sections 326, 290, 506 r/w 34 IPC and took up investigation of the case.

4.During the course of investigation LW.9 Sub-Inspector of Police has examined and recorded the statements of witnesses, sent the injured to Hospital for treatment by issuing medical certificate, visited the scene of offence,

CC.No. 795 of 2015 ...........................................................................................3

situated at H.No.1-6-3, Phulong Street, Nizamabad and secured presence of mediators conducted scene of offence panchanama and drawn rough sketch. On 22.9.2015 LW.9

Sub Inspector of Police issued notice U/Sec.41(A) Cr.PC to accused no.1 to 3, accordingly on 24.9.2015 the accused no.1 to 3 came to Police Station Town-IV, Nizamabad, appeared before Sub Inspector of Police and voluntarily confessed to have committed this offence.

LW.8 Medical Officer who treated the injured LW.1 has issued medial certificate and opined that LW.1 injured sustained grievous injuries, hence, the section of law has altered from 290, 324, 506 r/w 34 Indian Penal Code to sec.326, 290, 506 r/w 34 Indian Penal Code and sent the all concerned by LW.9 Sub Inspector of Police, Sub Inspector of

Police enquired about the crime weapon i.e. Iron Rod, then

Accused no.1 confessed that after commission of the offence he thrown the Iron Rod on the unknown place while he escaping the crime place, as such the crime weapon could not seized. After completion of investigation filed charge sheet against accused no.1 to 3 for offence punishable under

Sections 326, 290, 506 r/w 34 IPC.

5.The case was taken on file under Sections 326, 290, 506 r/w 34 IPC against accused no.1 to 3. On appearance of

CC.No. 795 of 2015 ...........................................................................................4

accused no.1 to 3 copies of case documents were furnished to them as contemplated u/s. 207 Cr.P.C.

6.Accused no.1 to 3 were examined under Section 239

Cr.P.C and the accusation denied by them. Charges under

Sections 326, 290, 506 r/w 34 IPC against accused no.1 to 3 are framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

7.In order to prove the guilt of accused no.1 to 3, PWs1 to 6 were examined, Ex.P1 to P5 are marked.

8. After closure of the prosecution evidence, accused no.1 to 3 were examined under Section.313 Cr.P.C for the incriminating evidence appearing against them in the evidence of the prosecution witnesses. They denied the same and reported no defence evidence.

9.The point for determination is -

Whether the prosecution is able to bring

home the guilt against accused no.1 to 3

for the offence under Sections 326, 290,

506 r/w 34 IPC beyond all reasonable

doubt?

Point:-

10.PW.1 Sri Salauddin who is the defacto complainant and injured has deposed that on 20.9.2015 at 11.00 am while he was

CC.No. 795 of 2015 ...........................................................................................5

present at his house Accused no.1 to 3 came and attacked with

Iron rod and beat with hands, then he lost his upper tooth and oozing blood from his nose, then he went to Police Station and gave report to Police, motive for this incident whenever he asked accused to remove the mud it was obstructed for opening of his doors, which was placed by the accused by the time of construction of their house.

11.PW.2 Sri Syed Kamar Sha who acted as an eye witness to alleged incident has deposed that on 20.9.2015 at 10.30 am he went to meet PW.1 regarding the payment of money by PW.1 to him in respect of the plot sold by him and LW.4 Iliyan Khan, when they reached to the house of PW.1 he saw a galata between PW.1 and accused regarding throwing of debris in the land in between the house of PW.1 and the house of accused, accused no.1 brought a Rod and beat PW.1 on his mouth caused bleeding injury, accused no.2, 3 fisted PW.1.

12.PW.3 Sri Iliyas Khan who is also an eye witness to alleged has deposed that on 20.9.2015 at 10.00 am he went to PW.1 for discussing regarding purchasing of plot from his sister along with

PW.2, while they were discussing by that time PW.1 directed accused no.1 to remove the mud from the gally in between their house, Accused no.1 and PW.1 had serious discussion, accused brought a Rod and beat him on his mouth due to which PW.1 lost his tooth, Accused no.2, 3 also beat him with hands.

CC.No. 795 of 2015 ...........................................................................................6

13.PW.4 Sri Shaik Afroz who acted as panch witness for scene observation has deposed that on 20.9.2014 at 2.00 pm opposite to Madina Masjid nearer to his house Police came and prepared report in which he put his signature on it.

14.PW.5 G.Sucharitha Medical Officer who treated the injured PW.1 has deposed that on 20.9.2015 at 12.30 pm he has examined PW.1 and found following injuries:

1) Blunt injury to nose.

2) Left central incisor to tooth broken.

He opined that injury no.1 is simple in nature, might have been caused by blunt object and injury no.2 is grievous in nature, might have been caused by blunt object, age of the injuries fresh in nature, he obtained X-ray of total tooth portion of PW.1, he issued wound certificate.

15.PW.6 Sri R.Shankar Investigation Officerhas deposed that on 20-9-2015 at about 1-00 p.m., basing on the report of

PW.1 registered a case in crime No. 226/2015 for the offence

U/Secs.290, 324, 506 r/w 34 IPC and submitted First Information

Reports to all concerned officers, examined and recorded the statements of witnesses, went to scene of offence, prepared crime details form with rough sketch map, on 22-9-2015 issued 41(A) Cr.P.C Notice to accused and released them by directing to appear before the Hon’ble Court and police station as and when required. After receipt of medical certificate field section

CC.No. 795 of 2015 ...........................................................................................7

alteration memo from 324, 290, 506 r/w 34 Indian Penal Code to 326, 290, 506 r/w 34 Indian Penal Code, after completion of investigation filed charge sheet against you.

16.In order to prove the guilt of accused no.1 to 3 the prosecution has been examined PWs.1 to 6 and Ex.P1 to P5 are marked.

17.As per version of prosecution that on 20.9.2015 at about 11.00 am while PW.1 was present at his house

Accused no.1 to 3 came and attacked along with Accused no.1, armed with Iron rod and another two persons beat him with hands, due to which he lost his upper tooth, oozing blood from his nose. Immediately he went to Police Station and gave report. Motive for this incident whenever PW.1 asked the accused to remove the mud which was obstructed for opening of doors of the same which was placed by the accused by the time of construction of house. PW.2 also deposed his evidence that on that day at about 10.30 am he went to meet PW.1 regarding the payment of money by

PW.1 to him in respect of the plot sold by PW.2 and PW.3, when they reached to the house of PW.1 they noticed a galata between PW.1 and accused regarding throwing of debris in the land in between the house of PW.1 and the accused. By that time Accused no.1 Syed Ahmed brought a

CC.No. 795 of 2015 ...........................................................................................8

rod and beat PW.1 on his mouth, caused bleeding injury,

Accused no.2, 3 fisted PW.1. So, the evidence of PW.1 also corroborated with the evidence of PW.1 and as well as PW.3 also stated that while they were discussing on that day regarding purchase of plot from his sister by that time PW.1 directed Accused no.1 to remove the mud from the gally in between their houses, by that time Accused no.1 brought a rod and beat PW.1 on his mouth, due to which PW.1 lost his tooth, Accused no.2, 3 also beat PW.1 with their hands. So, the evidence of PW.3 also corroborated with the evidence of

PW.1 and 2.

18.On the other hand PW.4 who acted as panch witness by the time of scene observation categorically stated that he was present on 20.9.2014 at about 2.00 pm by the time of scene observation situated opposite to Madina Masjid nearer to his house, where Police came and observed the same in his presence, where the Police prepared report in which he put his signature, Ex.P2 is Crime Details Form.

19.It is pertinent to note that, turning to the medical evidence i.e. PW.5 who working as Civil Assistant Surgeon at

Government Hospital, Bheemgal, and who worked as CAS at

Government Hospital, Nizamabad testified by the

CC.No. 795 of 2015 ...........................................................................................9

prosecution, categorically stated that he examined PW.1 on 20.9.2015 at about 12.30 pm and found following injuries:

1) Blunt injury to nose,

2) left central inciscor to tooth broken, and gave opinion that the injury no.1 is simple in nature, might have been caused by blunt object and the injury no.2 is grievous in nature might have been caused by blunt object, age of the injuries fresh in nature.

20.The Medical Officer further deposed that he obtained the X-ray of total tooth portion of PW.1 X-ray no.776 dtd:20.9.2015 and he issued wound certificate marked as

Ex.P3 relating to PW.1. So, the evidence of PW.s 1 to 3 consist with the evidence of PW.5 Medical Officer.

21.On the basis of complaint the Investigating Officer registered this case in Crime no.226/2015 for offences under

Sections 290, 324, 506 r/w 34 Indian Penal Code. Ex.P4 original First Information Report, he examined PW.1 and recorded his statement, thereafter the Investigating Officer referred PW.1 to Government Hospital, for treatment, he proceeded to the scene of offence situated at Phulong

Street near Madina Masque in between houses of both parties i.e. 1-6-3 and 1-6-4, where he observed the scene in

CC.No. 795 of 2015 ...........................................................................................10

the presence of panch witnesses PW.4 and LW.7

MD.Shakeel, where he prepared Crime Details Form with rough sketch Ex.P2, he also secured the presence of witnesses there itself PW.2, PW.3, LW.5 MD.Ameenuddin examined and recorded their statements. During course of his investigation on 22.9.2015 he issued 41(A) Cr.PC notices to Accused no.1 to 3 and released them by giving directions to appear before the Hon'ble Court and Police Station as and when required. After receipt of Medical Certificate of PW.1, he also field section alteration memo from 324, 290, 506 r/w 34 Indian Penal Code to 326, 290, 506 r/w 34 Indian

Penal Code, Ex.P5 Section alteration memo, after completion of investigation he filed charge sheet.

22.On the other hand there are so many shops and residential houses situated nearer to scene of offence i.e.

situated in very busy locality, the defence took plea that no independent witnesses were examined, but the prosecution examined PW.3 also who is the independent witness along with PW.2 also who witnessed the alleged incident.

23.As per version of PW.1 that accused no.1 to 3 beat

PW.1 with Iron Rod on his right hand fingers and also lost his upper tooth, oozing blood from his nose, which clearly shows

CC.No. 795 of 2015 ...........................................................................................11

that accused no.1 to 3 caused bleeding injury on his mouth and the medical evidence also supported with the version of

PW.1 and other prosecution witnesses version also supported and corroborated with the PW.1 and their evidence is consistent on material aspects of causing injuries on PW.1. In the cross examination of prosecution witnesses, nothing was elicited, except suggesting that no incident took place and getting denial of it.

Section 326 Indian Penal Code deals with “voluntarily

causing grievous hurt by dangerous weapon or

means”,

Section 290 Indian Penal Code deals with “committing a public nuisance” , and also Section 506 Indian Penal Code deals with “criminally intimidation” are proved by the prosecution.

24.The medical evidence i.e. PW.5 is totally in support of the ocular testimony of PW.s 1 to 3. The PW.5 Medical

Officer issued Ex.P3 wound certificate of PW.1 and she examined PW.1 on 20.9.2015 at about 12.30 pm and gave opinion that the injury no.1 i.e. blunt injury to nose is simple in nature, might have been caused by blunt injury and the injury no.2 left central incisor tooth broken i.e. grievous in nature, might have been caused by blunt object, age of the injuries fresh in nature. The Medical Officer PW.5 also obtained the X-ray of total tooth portion of PW.1 X-ray

CC.No. 795 of 2015 ...........................................................................................12

no.776 dtd:20.9.2015. No necessity to mention the X-ray number in medical report Ex.P3 by medical officer that he obtained X-ray of total tooth portion of PW.1. Which clearly established that the PW.1 received bleeding injury at his tooth portion and also on his nose as he received blunt injury to his nose.

25.Though, the Investigating Officer failed to seize the material objects, the entire case of the prosecution cannot thrown on foot-board.

In a reported judgment of our Hon'ble Supreme Court

2011 (6) Supreme Court Cases Page 288(G.Brahm

Swaroop Vs State of U.P.) The Hon'ble Apex Court held where witness to

occurrence has himself been injured in the incident,

testimony of such witness is generally considered to

be very reliable, as he is a witness who comes within

an inbuilt guarantee of his presence at scene of crime

and is unlikely to spare his actual assailant(s) in

order to falsely implicate some one, convincing

evidence is required to discredit an injured witness.

26.In the present case also when the evidence of PW.s 1 to 3 supported with each other, inspire, confidence of the

Court, on the strength their evidence, the Court can record conviction of the accused.

CC.No. 795 of 2015 ...........................................................................................13

27.While appreciating the evidence of witnesses, minor discrepancies on trivial matters, which do not affect core or prosecution case, may not prompt Court to reject evidence in its entirely. Even if there are any minor discrepancies they can be over looked. As per version of PW.1 as well as medical evidence PW.5 and other entire evidence available on record that PW.1 sustained a grievous injury as defined under Section 320 of Indian Penal Code. But, the prosecution failed to supplied any X-ray or other medical record to show that PW.1 received grievous injury. And PW.1 also stated that Accused no.1 to 3 came and attacked PW.1 by Accused no.1, armed with Iron Rod and other two persons beat him with hands, due to which PW.1 lost his upper tooth and oozing blood from his nose. So, which clearly established that PW.1 received grievous injury as per medical evidence, also proved the same fact. The ingredients under Section 326 Indian Penal Code are proved against accused. And also further all accused made nuisance in a public place hence, the ingredients under Section 290 Indian Penal Code proved against them and also they committed criminal intimidation against the victims hence, under Section 506 r/w 34 Indian

Penal Code also proved.

28.In the result, accused no.1 to 3 are found guilty for offence punishable under Sections.326, 290 and 506 r/w 34

CC.No. 795 of 2015 ...........................................................................................14

Indian Penal Code, for the same they are convicted under

Section.248(2) Cr.P.C.

Typed to dictate to Personal Assistant, corrected and

pronounced by me in the Open Court on 18th day of December, 2018.

I.Addl.Judl.Magistrate of First Class Nizamabad.

29.When questioned about the quantum of sentence to be imposed to accused no.1 to 3, they are submitted that they have got wives and children and old aged parents, thye are only bread winners of their respective families, requesting the Court to take lenient view.

30.Considered the facts and circumstances submissions made by accused no.1 to 3 and their advocate, this court feels to take lenient view.

31.In the result, accused no.1 to 3 are found guilty for offence punishable under Section 326 IPC for the same they are convicted under section 248 (2) Cr.PC and sentenced to undergo Simple Imprisonment for a period of one (1) year each and also to pay fine of Rs.100/- (Rupees One Thousand

Only) each, in default to pay fine amount accused no.1 to 3 shall undergo Simple Imprisonment for a period of three (3) days each (total fine amount Rs.300/-[Rupees Three

Hundred Only]).

CC.No. 795 of 2015 ...........................................................................................15

32.Further accused no.1 to 3 are found guilty for offence punishable under Section 290 IPC, for the same they are convicted under Section 248(2) Cr.PC and sentenced to pay fine of Rs.100/- (Rupees One Hundred Only) each, in default to pay fine amount they shall undergo Simple Imprisonment for a period of three (3) days each (total fine amount

Rs.300/-[Rupees Three Hundred Only]).

33.Accused no.1 to 3 are also found guilty for offence punishable under Section 506 r/w 34 IPC, for the same they are convicted under Section 248(2) Cr.PC and sentenced to pay fine of Rs.500/- (Rupees Five Hundred Only) each, in default to pay fine accused no.1 to 3 shall undergo Simple

Imprisonment for a period of one (1) month each (total fine amount Rs.1,500/-[Rupees One Thousand Five Hundred

Only]).[Total fine amount of Rs.700/- each(Rupees

Seven Hundred Only) each accused no.1 to 3]

Since no property seized, no order is passed.

34. The benefits of provisions of Probation of Offenders Act could not be given to them.

35.Accused no.1 to 3 are informed about his right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba V.

CC.No. 795 of 2015 ...........................................................................................16

State of A.P. (2002 (1) ALD (Crl.) 335 A.P., and on questioning about the means to prefer appeal, they replied that he has no means to prefer appeal.

Typed to dictate to Personal Assistant, corrected and

pronounced by me in the Open Court on 18th day of December, 2018.

I.Addl.Judl.Magistrate of First Class Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW.1: Sri Shahbaz Salaamuddin-None- PW.2: Sri Syed Khamarsha PW.3: Sri Illiyas Khan PW.4: Sri Shaik Afroz PW.5: Dr.G.Sucharitha PW.6: Sri R.Shankar

DOCUMENT MARKED

FOR PROSECUTION: FOR DEFENCE: Ex.P1 Report Nil Ex.P2 Crime Details Form Ex.P3 Wound Certificate of PW.1. Ex.P4 Original First Information Report Ex.P5 Section alteration memo

MATERIAL OBJECTS MARKED

FOR PROSECUTION : FOR DEFENCE:

-Nil--Nil-

I Addl. J.F.C.M

CC.No. 795 of 2015 ...........................................................................................17

CALENDER AND JUDGMENT

IN THE COURT OF THE I ADDL.JUDL. MAGISTRATE OF I CLASS

AT NIZAMABAD.

Judgment in Calender Case No.795 of 2015 on the file of I-Addl.

Judicial Magistrate of First Class Court, Nizamabad.

Name of complainantThe State of Telangana through Sub Inspector of Police, P.S. Town-IV, Nizamabad. Names of AccusedA1-Syed Ahmed A2-Syed Jilaani A3-Syed Nayeem Nature of OffenceU/Secs.326, 290, 506 r/w 34 IPC. Finding: In the result, accused no.1 to 3 are found guilty for offence punishable under Section 326 IPC for the same they are convicted under section 248 (2) Cr.PC and sentenced to undergo Simple Imprisonment for a period of one (1) year each and also to pay fine of Rs.100/- (Rupees One Thousand Only) each, in default to pay fine amount accused no.1 to 3 shall undergo Simple Imprisonment for a period of three (3) days each (total fine amount Rs.300/-[Rupees Three Hundred Only]). Further accused no.1 to 3 are found guilty for offence punishable under Section 290 IPC, for the same they are convicted under Section 248(2) Cr.PC and sentenced to pay fine of Rs.100/- (Rupees One Hundred Only) each, in default to pay fine amount they shall undergo Simple Imprisonment for a period of three (3) days each (total fine amount Rs.300/-[Rupees Three Hundred Only]).

Accused no.1 to 3 are also found guilty for offence punishable under Section 506 r/w 34 IPC, for the same they are convicted under Section 248(2) Cr.PC and sentenced to pay fine of Rs.500/- (Rupees Five Hundred Only) each, in default to pay fine accused no.1 to 3 shall undergo Simple Imprisonment for a period of one (1) month each (total fine amount Rs.1,500/-[Rupees One Thousand Five Hundred Only]).[Total fine amount

of Rs.700/- each(Rupees Seven Hundred Only) each accused no.1 to

3]

Since no property seized, no order is passed. Sentence Date of Occurrence20.9.2015 Date of Complaint20.9.2015 Date of Apprehended of the 24.9.2015 accused Date of Release on bail 24.9.2015 Date of commencement of trail21.8.2018 Date of Closure of trial26.10.2018 Date of Sentence of Order18.12.2018 Explanation of delay-----

I Addl.Judl. Magistrate of I Class, ToNizamabad The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.

IN THE COURT OF THE I.ADDL.JUDICIAL MAGISTRATE OF I CLASS

AT: NIZAMABAD

Present:

Smt. B.Mary Sara Danamma,

I.Addl.Judicial Magistrate of I Class, Nizamabad.

Saturday on 22nd day of December, 2018.

C.C.No. 695 of 2016

Between:

The State of Telangana through Sub Inspector of Police, P.S. Town-IV, Nizamabad.

(Crime No.179/2016) ...Complainant

//A n d// Mirza Abdullah Baig S/o Mirza Gaffar Baig, 19 years, Muslim, Degree 2nd year Student at Jaya Shanker Prasad Agriculture University, Rajendra Nagar, Hyderabad R/o H.No.5-37/5, Kandakurthi Village of Renjal Mandal, Nizamabad District. …Accused

This case has been finally heard on 17.12.2018 in the presence of learned A.P.P for the Complainant and Sri G.Goverdhan, Advocate

for accused. Upon hearing both sides and having stood for

consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Sub Inspector of Police, Town-IV Police Station,

Nizamabad has filed charge sheet against the accused in

Crime No.179/2016 for offence U/Secs.304-A, 201 Indian

Penal Code and Sec.182(i), 196 of MV.Act.

2.Brief averments of the prosecution are as follows:-

On 2.8.2016 the deceased Yerrolla Sailoo after completion of his work at Eanadu News Paper Office at about 0100 hours returned to his house on his TVS Star City Motor

Cycle Bearing Registration No. TS 16 EE 5745 on the way, when he reached near Thrimurthy Shop and he try to turn

CC.No.695 of 20162

his motorcycle, in the meantime the accused by driving

Sonata Car Bearing Registration No. AP 28 CB 3024 in rash and negligent manner came from Phulong side to Hyderabad and dashed to deceased motorcycle and escaped with Car and went to the house of LW.10 Sri Khaja Ravi Kumar situated at new housing Board Colony and covered the car with blanket and try to screen the evidence. Due to which the deceased received head and left leg injuries and shifted him to Government Hospital and while undergoing treatment the deceased died at about 10.30 am on the same day.

Hence, this case.

Basing on the report of LW.1 Smt.Yerrolla laxmi, LW.17

Sub Inspector of Police, Town-IV Police Station has been registered a case in Crime No.179/2016 for the offence under Sections.304-A IPC.

During course of investigation LW.17 Sub Inspector of

Police has examined and recorded the statements of witnesses, went to Government Hospital, Nizamabad, got photographed with the help of photographer, conducted inquest over the dead body of deceased and subjected the corps to Postmortem Examination, later visited the scene of offence, conducted scene of offence panchanama in presence of mediators, seized two pieces of broken number plates in which one is the Bearing Registration No. AP 28 and

CC.No.695 of 20163

another number plate Bearing Registration No. “C” half cutting, and B 3024 was seized from the scene of offence.

On 6.8.2016 LW.17 Sub Inspector of Police issued notice

U/Sec.41(A) Cr.PC against the accused. On 8.8.2016 at 9.00 am the accused came to Town-IV Police Station,

Nizamabad and voluntarily confessed to have committed this offence, later verified the documents of the crime vehicle and found there is no insurance to the crime vehicle and the accused did not have permanent Driving Licence and he having only learners licence, as such the Sec.182(i), 196

MV.Act added to this case. LW.15 Medical Officer, who conducted Postmortem Examination over the dead body of deceased has opined that the death due to “Head Injury”.

LW.16 Assistant Motor Vehicle Inspector who inspected the crime vehicle in this case i.e. Sonata Emberra CRD1 Car

Bearing Registration No. AP 28 CB 3024 furnished his opinion that “the accident occurred was not due to any mechanical defect of the vehicle”.

After completion of investigation LW.17 Sub Inspector of Police has field charge sheet against accused for offence under Sections 304-A, 201 IPC and Secs.182(i), 196 of

MV.Act.

CC.No.695 of 20164

3.The case was taken on file under Sections 304-A, 201 IPC and Secs.182(i), 196 of MV.Act against accused. On appearance of accused copies of documents were furnished to him as contemplated u/s. 207 Cr.P.C.

4.Accused was examined under Section 239 Cr.P.C and the accusation denied by him. Charges under Sections 304-

A, 201 IPC and Secs.182(i), 196 of MV.Act against accused are framed, read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

5.In order to prove the guilt of accused, PWs1 to 10 were examined and Exs.P1 to Ex.P7 are marked. Later prosecution evidence is closed.

6. After closure of the prosecution evidence, accused was examined U/Sec.313 Cr.P.C. for the incriminating evidence appearing against him in the evidence of the prosecution witnesses. He denied the same and reported no defence evidence.

7.The point for determination is -

Whether the prosecution is able to bring

home the guilt against accused for

offence under Sections 304-A, 201 IPC

and Secs.182(i), 196 of MV.Act beyond

all reasonable doubt?

CC.No.695 of 20165

POINT:

8.PW.1 Sri Choppa Ganesh who is the cousin brother of deceased has deposed that deceased Yerrolla Sailoo is his cousin brother who died in the road accident at about two years back on one day at Thrimurthy Shop, Phulong

Chowrastha, Nizamabad while he was present at Pothangal he received phone call by informing that while the deceased was returning on bike from Eenadu Office, Nizamabad to

Vinayakanagar, and when he reached at turning at

Vinayakanagar one Car came and dashed against him, then they went to Government Hospital, Nizamabad where they noticed Yerrolla Sailoo was admitted in the Hospital nearly at about 10.00 am to 10.30 am, later succumbed with injuries, he came to know the number of crime vehicle i.e. 3024 and broken piece of number plate handed over by his brother-in- law to the Police.

9.PW.2 Sri Thokala Prasad who is the photographer has deposed that on 2.8.2016 on calling by concerned Police he obtained photos of dead body of deceased Sailoo at

Mortuary Room, Nizamabad Government Hospital and handed over the same to Police. Ex.P1 is four photographs.

CC.No.695 of 20166

10.PW.3 Sri Khaja Ravi Kumar who is an independent witness has deposed that at about 1 ½ years back he came to know through one Khaif who is his tenant that his case met with an accident.

11.PW.4 Sri Juttu Narender who is an eye witness to alleged incident has deposed that at about 2 years back on one day at 1.00 pm one Car which was coming from Phulong dashed to one person at Vinayakanagar, Nizamabad, then rider of motor cycle fell down and received injuries and died on the spot, Police came and collected the footages of

Certified copy of cameras. He turned hostile by learned

APPO.

12.PW.5 Sri Mohammad Khaif who is an eye witness to alleged incident has deposed that he do not know anything about the case facts, he also treated hostile by learned

APPO.

13.PW.6 Smt.Jaligam Mamatha has deposed that deceased Sailoo is her younger brother who died in the road accident at about 3 years back on one day while he was present at his house, she received information about the accident through one auto driver.

CC.No.695 of 20167

14.PW.7 Sri Mayawar Akshay Kumar who is also eye witness has deposed that on 2.8.2016 while he was at terrace of his house at Vinayakanagar, Nizamabad and speaking on phone and watching the road at that time he saw one car coming from Phulong to Vinayakanagar, came with high speed and suddenly turned to left side and dashed against one motorcyclist, then he went to the spot and telephoned 100 Police, the persons of car after accident fled away and ambulance came and shifted the said person to the Hospital, the alleged car Bearing Registration No. 3028, the number plate was in broken condition, he came to know the said persons died.

15.PW.8 Sri Mada Sudharshan who acted as panch witness for inquest and scene observation has deposed that at about 2 years back on one day at 12.00 noon at Government

Hospital, Nizamabad he was present by the time of inquest held by the Police, where Police prepared report in which he put his signature on the same, Ex.P3 is inquest report, the deceased died in road accident, on the same day itself at 3.00 pm at Trimurthi Enterprises, Vinayakanagar Colony,

Nizamabad Police prepared scene of offence panchanama, in which he put his signature on it, Ex.P4 is Crime Details Form.

CC.No.695 of 20168

16.PW.9 Sri Sridhara Chary has deposed that on receiving of requisition from Town-IV, Police Station he has conducted

Postmortem Examination over the dead body of deceased

Sajju at Government Hospital, Nizamabad on 2.8.2016 at 2.50 pm and found following internal or internal injuries:

1) Multiple abrasion present all over the forehead.

2) Abrasion 3 X 2 cm on nasal bridge

3) Abraded condition 2 X 2 cm outer to the right eye

4) Brased abrasion 15 X 10 cm outer aspect of left side abdomen.

5) Abrasion 2 X 1 cm back of left elbow.

6) Abrasion 1 X 1 cm on right knee cap (front)

7) Abrasion 2 X 2 cm inner aspect of right knee joint.

8) Fracture of left femour bone in its middle third.

9) Abrasion 3 X 2 cm inner aspect of right foot and abrasion 2 X 2 cm medial malleolus (right)

10) Abrasion 3 X 2 cm inner to the left big tow.

11) On scalp reflection – Scalp contusion on parital region (right) and occipital region (right)

12) Diffuse subarachmoid haemorrhage noted on right fronto parito occipital region.

Sul, mouth, tongue, leg structure, chest warns, heart, large blood vessels. Abdominal wall, samll intestine, and large intestine, urinary bladder, genetal organs, spinal column, spinal cord-NAD.

Lungs right and left, spleen – pale and other injuries mentioned in Postmortem Examination Report.

CC.No.695 of 20169

He opined that the cause of death was “Head Injury” and approximate time of death is about 3.00 to 8.00 hours prior to Postmortem Examination and died in Government

General Hospital, Nizamabad on 2.8.2016 at about 10.30 am, he has issued Postmortem Examination Report

Ex.P5.

17.PW.10 Sri P.Madhu who is Inspector of Police,

Intelligence, Hyderabad has deposed that on 2.8.2016 at 11.00 am basing on the report of PW.1 he registered a case in Crime No.179/2016 for offence U/Sec. 304-A Indian Penal

Code, issued First Information Reports to all concerned officers, Ex.P6 is the original First Information Report, examined and recorded the statements of witnesses, went to

Government Hospital, Nizamabad where noticed the dead body of deceased Sailoo at Mortuary Room, where conducted inquest over the dead body of deceased, prepared inquest report, obtained photographs of dead body of deceased with the help of photographer PW.2, went to scene of offence situated at Vinayakula Bavi

Chowrasthanagar, Nizamabad, in presence of mediators prepared Cdf with rough sketch, seized number plate of Car i.e. crime vehicle, after completion of inquest forwarded the dead body of the deceased Sailu for Postmortem

CC.No.695 of 201610

Examination, on 6.8.2016 issued notice U/Sec.41(A) Cr.PC to accused, on 8.8.2016 accused came to Police Station and he has no driving licence, then Sub Inspector of Police sent requisition to Motor Vehicle Inspector for inspecting the crime vehicle accordingly the Motor Vehicle Inspector inspected the same and issued Motor Vehicle Inspector

Report Ex.P7, after receipt of Postmortem Examination

Report and Motor Vehicle Inspector Report and after completion of investigation he field charge sheet against accused.

18.In order to prove the guilt of accused the prosecution has been examined PWs.1 to 10 and Ex.P1 to P7 are marked.

19.As per version of prosecution at about two years back on one day the deceased Yerrolla Sailoo died in the road accident at Thrimurthy Enterprises Shop, Phulong

Chowrasta, Nizamabad, by that time PW.1 received phone call and informed about the alleged accident. PW.1 is the cousin brother of deceased Sailoo. Immediately after knowing the fact PW.1 rushed to Government Hospital,

Nizamabad where PW.1 and others noticed that deceased

Sailoo was admitted in the Hospital, subsequently at about in between 10.00 am to 10.30 am the deceased Yerrolla Sailoo

CC.No.695 of 201611

succumbed with injuries. When the deceased reached at turning at Vinayakanagar, one Car came and dashed against him as per version of prosecution. The brother-in-law PW.1 handed over the broken piece of number plate to the Police.

20.Admittedly, LW.1 Yerrolla Laxmi is the adopted mother of the deceased Yerrolla Sailoo. The LW.1 Yerrolla Laxmi died due to ill-health. As per version of PW.1 he came to know about the alleged accident, immediately he went to

Government Hospital, Nizamabad where he noticed the deceased admitted in the said Hospital, subsequently, the deceased died, so the evidence of PW.1 is not the eye witness and direct evidence.

21.PW.2 who obtained photographs of deceased Yerrolla

Sailoo stated that at the request of concerned Police he obtained four photographs of dead body of deceased by name Yerrolla Sailoo and handed over the same to Police

Ex.P1. PW.3 who is the independent witness categorically stated that he came to know that through one khaif but, his

Car met with an accident. Except that he did not elicit anything in this case. PW.4 who is another independent witness categorically stated that at about 2 years back on one day at about 1.00 pm he noticed that one Black Colour

CC.No.695 of 201612

Car came from Phulong Chowrasta and dashed against one two wheelerist and fled away. Immediately the rider of the motorcyclist fell down and received injuries and died at the spot. He further deposed that he did not observe the driver of Car and he cannot say the number of the crime vehicle.

Completely turned hostile, not supported the version of prosecution. So, his evidence is not helpful for the case of prosecution. PW.5 also who is another independent eye witness categorically stated that he do not know anything about the case facts, he was not examined by the Police, completely turned hostile, not supported the version of prosecution. Ex.P2 is the contents of 161 Cr.PC statement of

PW.5.

22.Admittedly PW.6 who is the elder brother of deceased

Yerrolla Sailoo, the PW.6 categorically stated that at about 3 years back on one day while PW.6 was present at his house, he received information through one auto driver about the alleged accident that the deceased Yerrolla Sailoo died in the road accident so, his evidence is also not helpful for the case of prosecution. LW.1 Y.Laxmi is the mother-in-law of PW.6 who died at about 5 or 6 months back on one day due to ill- health. PW.7 who informed to dial 100 immediately

Ambulance came and shifted the said deceased person to

Hospital and deceased died subsequently.

CC.No.695 of 201613

23.PW.8 who acted as panch witness deposed that at about 2 years back on one day he was also present by the time of inquest held by the Police over the dead body of deceased Sailoo at Government Hospital, Nizamabad at about 12.00 noon where Police prepared report in which he put his signature, Ex.P3 is inquest report, after observing the dead body of deceased Yerrolla Sailoo they come to conclusion that the deceased died in the road accident and on the same day itself at about 3.00 pm Police observed the scene of offence, situated nearer to Thrimurthy Enterprises,

Vinayakanagar, Nizamabad where Police prepared panchanama in which he put his signature, Ex.P4 is Crime

Details Form. It is also further admitted by PW.8 that the deceased Yerrolla Sailoo is known persons to PW.8, after observing the dead body of deceased in mortuary room the

Police prepared inquest panchanama also. PW.9 who working as Assistant Professor conducted postmortem examination over the dead body of deceased Yerrolla Sailoo at Government Hospital, Nizamabad on 2.8.2016 at about 2.50 pm and gave opinion that the cause of death to the best of his knowledge and belief was “head injury” and approximate time of death about 3 pm to 8 pm prior to

Postmortem Examination Report. Subsequently the deceased Yerrolla Sailoo died on 2.8.2016 at about

CC.No.695 of 201614

10.30 am. And Ex.P5 is Postmortem Examination Report issued by Medical Officer PW.9.

24.The PW.10 Investigating Officer after registering this case he examined PW.1 and recorded his statement and he proceeded to Government Hospital, where he noticed the dead body of deceased Yerrolla Sailoo at mortuary room, he also conducted inquest over the dead body of deceased in the presence of panch witnesses PW.8, LW.14 B.Sailoo, Ex.P3

Inquest Report and obtained photographs of deceased dead body with the help of PW.2. The Investigating Officer examined the witnesses, recorded their statements, from there he proceeded to scene of offence, which is situated

Vinayakula Bavi Chowrasta Nagar, Nizamabad in the presence of same panch witnesses, where he observed the deceased and prepared Crime Details Form with rough sketch Ex.P4 and he seized the number plate of Car i.e.

Crime Details Form but the same was not produced before the Court, the PW.10 also examined remaining prosecution witnesses and recorded their statements. After completion of inquest the Investigating Officer forwarded the dead body of deceased Yerrolla Sailoo for Postmortem Examination.

During course of investigation the Investigating Officer issued 41(A) Cr.PC notice to accused on 6.8.2016, thereafter the Investigating Officer enquired the accused regarding

CC.No.695 of 201615

Driving Licence and he gave reply that he has no driving licence. The Investigating Officer filed requisition to Motor

Vehicle Inspector LW.16 Venkata Swamy for inspecting the crime vehicle accordingly the Motor Vehicle Inspector inspected the same and issued Ex.P7 report. After completion of investigation the Investigating Officer filed charge sheet against accused.

25.It is pertinent to note that PW.10 categorically admitted that he has not examined the owner of crime vehicle and the

Investigating Officer also not seized the original RC of crime vehicle, so, which crucial material for the case of prosecution. The entire prosecution evidence hinges upon the circumstantial evidence, there is no direct and material evidence against the accused. The whose names mentioned in memo of evidence are not the eye witnesses to the alleged incident. There is no direct evidence for the commission of the offence that the accused is the author of the commission of the offence. The prosecution failed to establish regarding rash and negligent driving of driver of crime vehicle, and also failed to identify the driver of crime vehicle (accused). Except their oral evidence no other material merged against the accused, and all witnesses are not the either eye witnesses or circumstantial witnesses. The entire prosecution case hinges upon the circumstantial

CC.No.695 of 201616

evidence. As per the version of prosecution i.e. PW.4 the broken number plate of crime vehicle found at the scene of offence but, the same was not seized by the Investigating

Officer. The chain of circumstances not proved by the prosecution.

26.There is no cogent, consist and considerable material against the accused.

27.In view of the above said discussion benefit of doubt goes to accused.

28.In the result, accused is found not guilty of offence punishable under Sections 304-A, 201 Indian Penal Code and

Sec.182(i), 196 of Motor Vehicle Act, for the same he is acquitted under Sec.248(1) Cr.PC. The bail bonds of accused shall stands cancelled.

Since no property seized no order is passed.

Typed to dictate to the Personal Assistant, corrected and

pronounced by me in open Court, on this the 22nd day of December,

2018.

I Addl. Judl. Magistrate of First Class, Nizamabad.

CC.No.695 of 201617

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW.1 Sri Choppa GaneshNone PW.2 Sri Thokala Prasad PW.3 Sri Khaja Ravi Kumar PW.4 Sri Juttu Narender PW.5 Sri Mohammad Khaif PW.6 Smt.Jaligam Mamatha PW.7 Sri Mayawar Akshay Kumar PW.8 Sri Mada Sudharshan PW.9 Sri Sridhara Chary PW.10 Sri P.Madhu

DOCUMENT MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P1 Four photographs Nil Ex.P2 Contents of Sec.161 Cr.PC statement of PW.5 Ex.P3 Inquest Report Ex.P4 Crime Details Form Ex.P5 Postmortem Examination Report Ex.P6 Original First Information Report Ex.P7 Motor Vehicle Inspector Report

MATERIAL OBJECTS MARKED

FOR PROSECUTION: FOR DEFENCE:

-Nil- -Nil-

I Addl. J.F.C.M

1

IN THE COURT OF THE I ADDL.JUDL.MAGISTRATE OF I CLASS

AT NIZAMABAD

Present: Smt. B.Mary Sara Danamma, I Addl. Judl. Magistrate of First Class, Nizamabad.

Thursday on 20th day of December, 2018.

CC. No. 475/2016

Between :-

Sri Shenishetti Vishwanatham S/o Venkat Rajam, 52 years, Partner of Kanaka Mahalaxmi Traders (Rice Mill) Borgoan (P) R/o H.No.1-1-80/1A, Vinayaknagar, Nizamabad.

...Complainant

And

Pabba Narsaiah S/o Badraiah, 62 years, Business R/o H.No.6-21-151, Opposite to Mahalaxmi Mandir, Giriraj College Road, Dubba, Nizamabad.

...Accused

This case was coming before me on 13.12.2018 for final hearing in the presence of Sri Jai Prakash Loya, Advocate for complainant and Sri R.S.L.Goud, Advocate for the accused and having stood over till this day for consideration this court delivered the following :-

:: J U D G M E N T ::

1.The complainant by name Shenishetty

Vishwanatham filed complaint against the accused by name Pabba Narsaiah for the offence under

Section.138 of Negotiable Instrument Act.

2.Brief averments of the private complaint are as follows:-

The accused and complainant are known to each other and having full acquaintance with each other. The complainant deals the Rice Mill Business 2 and the accused deals the business of husk. The accused used to purchase the husk from the complainant on credit basis and from 15.3.2015 to 8.5.2015. The accused purchased 2720.20 quintals of husk from the complainant @ Rs.2,025/- per quintal, total worth of Rs.5,50,840/- on credit basis and assured to pay the amount within a short time.

Further contention of complaint that on several times the complainant demanded the accused to pay the payment of said amount, but the accused postponed the same from time to time and the accused issued a cheque Bearing Registration No.

006907 dtd:15.5.2016 Rs.5,50,000/- Bank of

Maharashtra, Branch Nizamabad and assured to arrange the funds in his account to honour and satisfy the said cheque. Subsequently, on intimation to the accused, the complainant presented the said cheque through his bankers i.e.

Central Bank of India, Nizamabad Branch on 18.5.2016 but, the said cheque was returned with memo with a reason “funds are insufficient” in the account of accused. Immediately the complainant approached the accused and informed the same fact, and the complainant got issued legal 3 notice to the accused dtd:27.5.2016 calling upon him to pay the cheque amount of Rs.5,50,000/-, the accused received the said notice and gave a false reply dtd:7.6.2016. And thereafter, the complainant filed complaint against the accused.

3.After recording the sworn statement of the complainant and on the consideration of the material on record, this case was taken on file against the accused for the offence under section 138 of NI.Act.

4.On appearance of the accused, copies of documents were furnished to him as contemplated under Sec.207 Cr.PC. The accused was examined under Sec.251 Cr.PC for which he denied the offence, pleaded not guilty and claimed to be tried.

5.To substantiate his case the complainant examined himself as PW.1, CW.1 and 2 on his behalf and got marked Ex.P1 to P8 and Ex.C1.

6.After completion of complainant side evidence, the accused was examined under Sec.313Cr.PC, explaining the material evidence against him in the 4 evidence of PW.1, CW.1 and 2 and the accused denied the same and reported i.e. he has got defence.

7.No witnesses were examined and no documents were marked on behalf of accused.

8.Heard the arguments on both sides. Perused the material placed before this court.

9.Now the point for determination is __

Whether the complainant proved

the guilty against the accused for

the offence under Sec.138 of

Negotiable Instrument Act?

POINT No.1:-

10. To attract the offence under Sec.138 N.I.Act, the following ingredients are to be complained with.

I.The cheque must be issued to discharge a legally enforceable debt.

II. The cheque should be presented within six months from the date of issuance or within its validity period.

III. After dishonour of cheque the payee should give notice in writing within a month from dishonour.

IV. The payee should wait for 15 days from the date of receipt of notice by the drawer of the cheque.

5

11. The complainant almost reiterated the contents of his complaint that accused purchased the husk from the complainant on credit basis for an amount of Rs.5,50,840/-. When the demand for repayment the accused issued Ex.P2 cheque towards debt amount and when the complainant presented the same for collection it was dishonoured due to 'Insufficient Funds' in the account of accused.

12. Thecomplainantproducedfollowing documents in support of its case.

1) Ex.P1 is copy of Shivdharma Kata slips (30)

2)Ex.P2 Original Cheque Bearing Registration No. 006907 dtd:15.5.2016 for an amount of Rs.5,50,000/- executed by the accused in favour of Kanakamahalaxmi Firm and the complainant is the partner in the above said firm.

3)Ex.P3chequereturnedmemo dtd:18.5.2016 issued by Central Bank of India(CBI)

4) Ex.P4 income-tax assessment – for the year, 2016 -17 of said firm.

5) Ex.P5 office copy of legal notice dtd:27.5.2016.

6) Ex.P6 Reply notice dtd:7.6.2016

7) Ex.P7 Deed of partnership dtd:30.10.1999 6

8) Ex.P9 Copy of authorization dtd:14.9.2018 given by his wife in his favour for filing either civil or criminal cases. His wife S.Padma also one of the partner in the above said firm.

13.In support of the version of complainant, he examined CW.s 1 and 2 who are the Bank

Managers of Central Bank and Bank of

Maharashtra, Nizamabad. The CW.1 deposed that the complainant presented Ex.P2 cheque on 17.5.2016 in Central Bank, Nizamabad on behalf of

Kanakamahalaxmi Traders Firm for collections of the same. Their Bank forwarded the said cheque

Ex.P2 to the Bank of Maharashtra for collection, but the same was returned with the intimation that funds are insufficient in the account of accused. On the same day itself they returned the said cheque along with the memo i.e. Ex.P2, P3.

14. Admittedly, CW.2 also deposed that the Ex.P2 cheque issued by their Bank in the name of account holder Pabba Narsaiah (accused). As per their account statement of accused, the Ex.P2 cheque bounced and returned with a reason “funds are insufficient” in the account of accused.

15.Section 118 and 138 of Negotiable

Instrument Act unless the contrary was proved it is 7 to the presumed that the Negotiable Instrument including cheque had been made of drawn for consideration under Sec.139 of Negotiable

Instrument Act, the Court has to presume, unless the contrary was proved. That the holder of the cheque received the cheque for discharge , in whole or in part of a debt or any liability and thus in the complainant under 138 of Negotiable

Instrument Act that the court has to presume that the cheques have been issued for the debt or in legal enforceable debt or any liability. This presumption is rebuttable. However, the burden of proving that the cheque had not been issued for a debt or the liability is on the accused.

16. In KH BEENA Vs MUNIYAPPAN, reported in

2001 (2) ALD (Crl.) 824 SC = (2001) SCC 458

the Honble Apex Court held that “in view of the

provisions contained in Sections 118 and 139,

the Court has not presume that the cheque

had been issued for discharging a debt or

liability. However the said presumption could

be rebutted by the accused by proving the

contrary. Mere denial or rebuttal by accused

in the legal notice is not enough. The accused

8

had to prove by producing sufficient evidecne

that there was no debt or liability.”

17. Admittedly mere denial issuing the cheque

Ex.P2 is not sufficient to prove the case of accused but, he did not deny his signature on Ex.P2. The accused has issued Ex.P2 cheque to discharge of legal enforceable debt and deliberately failed to maintain funds to honour the cheque with a deceitful and fraudulent intention to avoid amount covered under the cheque was issued towards legally enforceable liability under Ex.P2.

18. In K.BHASKARAN Vs. SANKARAN

VAIDHYAN BALAN, reported in : 1999 (2) ALD

(Crl.) 801 (SC) = (1999) 7 SCC 510, the Apex

Court held that “as the signature in the cheque

is admitted to be that of the accused, the

presumption envisaged in Section 118 of the

Act can legally be interred 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 that

the holder of the cheque received it for the

discharge of any debt or liability. The burden

9

was on the accused to rebut the aforesaid

presumption”.

19.The initial burden of proof is on accused to rebut the said presumptions by raising a probable defense. If the discharges the said burden, the onus thereafter shifts on the complainant to prove his case. Whether the initial burden has been discharge by the accused is a question of fact. The accused need not disprove the presumption case entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence. For the said purpose, he can also reply upon evidence adduced by the complainant.

20.As per Ex.P3 cheque return memo with regard to

Ex.P2 cheque clearly established that funds are insufficient in the account of accused. Ex.P5 is legal notice issued by the complainant to the accused by informing about the bouncing of cheque Ex.P2. Subsequently the accused gave reply noticed Ex.P6 to the complainant, Ex.P7 is deed of partnership, Ex.P8 copy of authorization and Ex.C1 is letter dtd:13.11.2018 issued by one of the partner Shenishetty

Vishwanatha of Firm of Kanakamahalaxmi Traders to the

Manager Central Bank of India, Nizamabad by mentioning that “the return memo was issued by the said Bank was 10 misplaced” and requesting to issue fresh memo, after verification of original the attested copy of said letter marked as Ex.C1. Thereafter, the Bank issued Ex.P3 return memo.

21.The Hon'ble Appellant Court Court in MSR

Leathers v. S. Palaniappan and Another, (2013) 1 SCC

177 held;

Proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of 11 all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.

22.The period of limitation of the cheque is within six months from the date of issuance of cheuqe or within its validity period. According to

PW.1, the accused issued Ex.P2 cheque for

Rs.5,50,000/- dtd:15.5.2016. Here, the accused failed to establish before the Court that as to how

PW.1 came into custody of the said document/ cheque Ex.P2. Moreover, the accused is not denying his signature on Ex.P2 cheque. All these circumstances led to conclude that the accused had not raised a probable defence to rebut the statutory presumption.

23.Hence, on the basis of above material on record it is established before the Court that Ex.P2 cheque was issued towards discharge of legally enforceable debt as per presumption under sec.139 of Negotiable Instrument Act.

24. According to the complainant the accused indebted for an amount of Rs.5,50,000/- to him for 12 which he issued Ex.P2 cheque in favour of complainant for the said amount thereafter the complainant presented the same with his banker on 18.5.2016 with intimation to the accused for realization of cheque amount and the bank returned the dishonoured cheque Ex.P2 under

Ex.P3 return memo. Since the presentation of cheque is within the prescribed period, it can be said that the complainant presented the said chque within stipulated time.

25.In the instant case the complainant got issued statutory legal notice Ex.P5 to accused within stipulated time.

1) In N.Parameshwaran Unni V/s G.

Kannan and another dtd. 01-03-2017

2) In Don Ayengia v/s The State of Assam and another, dtd. 28-01-2016

The Hon'ble Appellant Court clearly

observed with regard to the cheque issued

legally for enforceable debt and the same

was dishonoured and also the Complainant

presented the cheque within the prescribed

period and also issued legal notice by

informing about the dishnour of cheque to

the Accused/Respondent within prescribed

period the complainant filed complaint.

13

26.Therefore, it can be said that the complainant followed the procedure contemplated under Negotiable Instrument Act. The complainant proved his case by producing either oral or documentary evidence against accused.

27. For foregoing reasons I am considered view that the complainant proved his case against the accused for the offence under Section 138 of

Negotiable Instrument Act.

28. In the result, accused is found guilty for offence punishable under Section 138 of Negotiable

Instrument Act and he is convicted under

Sec.255(2) Cr.PC.

Typed to dictate to the Personal Assistant, corrected and

pronounced by me in open Court, this the 20th day of December,

2018.

I.Addl.Judl.Magistrate of First Class

Nizamabad.

29.When questioned about the quantum of sentence to be imposed to the accused, the accused and his counsel submitted that he has got wife and children, and old aged parents, he is only bread winner of his family and requesting the Court to take lenient view.

14

30.Considered the facts and circumstances submissions made by the accused,

In the result, the accused is found guilty for the offence punishable U/Sec.138 of Negotiable Instruments Act for the same he is convicted U/Sec.255(2) Cr.PC and sentenced to undergo Simple Imprisonment for a period of one (1) month. The accused further liable to pay an amount of Rs.5,50,000/- (Rupees Five Lakhs Fifty Thousands Only) towards compensation to the complainant U/Sec.357 of

Cr.PC within six (6) months from to day on 20.12.2018. In default to pay compensation amount to the complainant, the accused shall under go Simple Imprisonment for a period of six (6) months.

31.Since it is an economical offence, this Court is of the opinion that either the provisions of Sec.360 Cr.PC or the provisions of probation of offenders Act, can not be applied in favour of accused.

32.The accused is informed about his right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba V.

State of A.P. (2002 (1) ALD (Crl.) 335 A.P.

Typed to dictate to the Personal Assistant, corrected and

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

I.Addl.Judl.Magistrate of First Class Nizamabad.

15

Appendix of Evidence

//Witnesses examined//

For Prosecution: For Defence:

PW.1 Sri Shenishetty Vishwanatham -None- CW.1 Sri B.Sharath Chandra CW.2 Sri S.Ravishankar

// Exhibits Marked //

For Prosecution:- Ex.P1is copy of Shivdharma Kata slips (30)

Ex.P2Original Cheque Bearing Registration No.006907 dtd:15.5.2016 for an amount of Rs.5,50,000/- executed by the accused in favour of Kanakamahalaxmi Firm and the complainant is the partner in the above said firm.

Ex.P3cheque returned memo dtd:18.5.2016 issued by Central Bank of India(CBI)

Ex.P4income-tax assessment – for the year, 2016 -17 of said firm.

Ex.P5office copy of legal notice dtd:27.5.2016.

Ex.P6Reply notice dtd:7.6.2016

Ex.P7Deed of partnership dtd:30.10.1999

Ex.P8Copy of authorization dtd:14.9.2018 given by his wife in his favour for filing either civil or criminal cases. His wife S.Padma also one of the partner in the above said firm.

Ex.C1 Letter dtd:13.11.2018

For Defence: -Nil-

I.Addl.Judl.Magistrate of First Class

Nizamabad.

1

IN THE COURT OF THE I ADDL.JUDL.MAGISTRATE OF I CLASS

AT NIZAMABAD

Present: Smt. B.Mary Sara Danamma, I Addl. Judl. Magistrate of First Class, Nizamabad.

Thursday on 20th day of December, 2018.

CC. No. 476/2016

Between :-

Sri Cheela Shekher S/o Bhairaiah, 55 years, Business, proprietor of Gomatha Rice Mill, Dharmaram R/o H.No.6- 112/2/3, Venkateshwara Colony, Dharmaram (B) Village of Dichpally Mandal, Nizamabad District.

...Complainant

And

Pabba Narsaiah S/o Badraiah, 62 years, Business R/o H.No.6-21-151, Opposite to Mahalaxmi Mandir, Giriraj College Road, Dubba, Nizamabad.

...Accused

This case was coming before me on 13.12.2018 for final hearing in the presence of Sri Jai Prakash Loya, Advocate for complainant and Sri R.S.L.Goud, Advocate for the accused and having stood over till this day for consideration this court delivered the following :-

:: J U D G M E N T ::

1.The complainant by name Sri Cheela Sheker filed complaint against the accused by name Pabba

Narsaiah for the offence under Section.138 of

Negotiable Instrument Act.

2.Brief averments of the private complaint are as follows:-

The accused and complainant are known to each other and having full acquaintance with each other. The complainant deals the Rice Mill Business and the accused deals the business of husk. The 2 accused used to purchase the husk from the complainant on credit basis and from 9.5.2015 to 30.6.2015. The accused purchased 3158.80 quintals of husk from the complainant @ Rs.1,950/- per quintal, total worth of Rs.6,15,966/- on credit basis and assured to pay the amount within a short time. Further contention of complaint that on several times the complainant demanded the accused to pay the payment of said amount, but the accused postponed the same from time to time and the accused issued a cheque Bearing

Registration No. 006981 dtd:1.5.2016 Rs.6 Lakhs

Bank of Maharashtra, Branch Nizamabad and assured to arrange the funds in his account to

honour and satisfy the said cheque. Subsequently,

on intimation to the accused, the complainant presented the said cheque through his bankers i.e.

Andhra Bank Main Branch, Nizamabad Branch on 17.5.2016 but, the said cheque was returned with memo with a reason “funds are insufficient” in the account of accused. Immediately the complainant approached the accused and informed the same fact, and the complainant got issued legal notice to the accused dtd:27.5.2016 calling upon 3 him to pay the cheque amount of Rs.6 Lakhs, the accused received the said notice and gave a false reply dtd:7.6.2016. And thereafter, the complainant filed complaint against the accused.

3.After recording the sworn statement of the complainant and on the consideration of the material on record, this case was taken on file against the accused for the offence under section 138 of NI.Act.

4.On appearance of the accused, copies of documents were furnished to him as contemplated under Sec.207 Cr.PC. The accused was examined under Sec.251 Cr.PC for which he denied the offence, pleaded not guilty and claimed to be tried.

5.To substantiate his case the complainant examined himself as PW.1 and got marked Ex.P1 to

P7.

6.After completion of complainant side evidence, the accused was examined under Sec.313Cr.PC, explaining the material evidence against him in the evidence of PW.1 and accused denied the same and reported i.e. he has got defence.

4

7.No witnesses were examined and no documents were marked on behalf of accused.

8.Heard the arguments on both sides. Perused the material placed before this court.

9.Now the point for determination is __

Whether the complainant proved

the guilty against the accused for

the offence under Sec.138 of

Negotiable Instrument Act?

POINT No.1:-

10. To attract the offence under Sec.138 N.I.Act, the following ingredients are to be complained with.

I.The cheque must be issued to discharge a legally enforceable debt.

II. The cheque should be presented within six months from the date of issuance or within its validity period.

III. After dishonour of cheque the payee should give notice in writing within a month from dishonour.

IV. The payee should wait for 15 days from the date of receipt of notice by the drawer of the cheque.

11. The complainant almost reiterated the contents of his complaint that accused purchased the husk from the complainant on credit basis for an amount of Rs.6,15,966/-. When the demand for repayment the accused issued Ex.P1 cheque towards debt amount and when the complainant 5 presented the same for collection it was dishonoured due to 'Insufficient Funds' in the account of accused.

12. Thecomplainantproducedfollowing documents in support of its case.

1) Ex.P1 is original cheque bg.no.006981 issued by the accused in the name of Gomatha Rice Mill for an amount of Rs.6 Lakhs dtd:1.5.2016.

2) Ex.P2 Cheque return memo of Andhra Bank dtd:18.5.2016.

3) Ex.P3 income-tax assessment of Gomatha Rice Mill for the year 2015 and 2016.

4) Ex.P4 Receipts of Wiighing Bridge(29)

5) Ex.P5 Account transaction in between Gomatha Rice Mill and the accused with the signatures of accused.

6) Ex.P6 Office copy of legal notice issued by PW.1 to the accused dtd:27.5.2016

7) Ex.P7 Reply Notice issued by the accused to the complainant/PW.1 dtd:7.6.2016.

13. Admittedly, the accused is the owner of four lorries and transporting the husk business with the said lorries and the contents of Ex.P1 cheque drafted by the accused which clearly established that accused doing husk business by transporting the same through his lorries, who is the owner of four lorries and he also issued cheque to PW.1, contents of Ex.P1 filled-up by the accused.

6

14. On perusal of Ex.P5 Sale Register (sale book) found the signature of accused tallied with the signature on Ex.P1 cheque, which clearly shows that the accused purchased the husk from the Rice

Mill of complainant/PW.1. But, during course of cross examination of PW.1 the accused did not take any plea against Ex.P5, kept quite, mere silence is not sufficient to prove his case.

15.Section 118 and 138 of Negotiable

Instrument Act unless the contrary was proved it is to the presumed that the Negotiable Instrument including cheque had been made of drawn for consideration under Sec.139 of Negotiable

Instrument Act, the Court has to presume, unless the contrary was proved. That the holder of the cheque received the cheque for discharge , in whole or in part of a debt or any liability and thus in the complainant under 138 of Negotiable

Instrument Act that the court has to presume that the cheques have been issued for the debt or in legal enforceable debt or any liability. This presumption is rebuttable. However, the burden of proving that the cheque had not been issued for a debt or the liability is on the accused.

7

16. In KH BEENA Vs MUNIYAPPAN, reported in

2001 (2) ALD (Crl.) 824 SC = (2001) SCC 458

the Honble Apex Court held that “in view of the

provisions contained in Sections 118 and 139,

the Court has not presume that the cheque

had been issued for discharging a debt or

liability. However the said presumption could

be rebutted by the accused by proving the

contrary. Mere denial or rebuttal by accused

in the legal notice is not enough. The accused

had to prove by producing sufficient evidecne

that there was no debt or liability.”

17. Admittedly mere denial issuing the cheque

Ex.P1 is not sufficient to prove the case of accused but, he did not deny his signature on Ex.P1. The accused has issued Ex.P1 cheque to discharge of legal enforceable debt and deliberately failed to maintain funds to honour the cheque with a deceitful and fraudulent intention to avoid amount covered under the cheque was issued towards legally enforceable liability under Ex.P1.

18.In K.BHASKARAN Vs. SANKARAN

VAIDHYAN BALAN, reported in : 1999 (2) ALD

8 (Crl.) 801 (SC) = (1999) 7 SCC 510, the Apex

Court held that “as the signature in the cheque

is admitted to be that of the accused, the

presumption envisaged in Section 118 of the

Act can legally be inerred 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 that

the holder of the cheque received it for the

discharge of any debt or liability. The burden

was on the accused to rebut the aforesaid

presumption”.

19.The initial burden of proof is on accused to rebut the said presumptions by raising a probable defense. If the discharges the said burden, the onus thereafter shifts on the complainant to prove his case. Whether the initial burden has been discharge by the accused is a question of fact. The accused need not disprove the presumption case entirety. He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence. For the said purpose, he can also reply upon evidence adduced by the complainant.

9

20.As per Ex.P2 cheque return memo with regard to

Ex.P1 cheque clearly established that funds are insufficient in the account of accused. Ex.P6 is legal notice issued by the complainant to the accused by informing about the bouncing of cheque Ex.P1. Subsequently the accused gave reply notice Ex.P7 to the complainant,

21.The Hon'ble Appellant Court Court in MSR

Leathers v. S. Palaniappan and Another, (2013) 1 SCC

177 held;

Proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said 10 amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.

22.The period of limitation of the cheque is within six months from the date of issuance of cheuqe or within its validity period. According to

PW.1, the accused issued Ex.P1 cheque for Rs.6

Lakhs dtd:1.5.2016. Here, the accused failed to establish before the Court that as to how PW.1 came into custody of the said document/cheque

Ex.P1. Moreover, the accused is not denying his signature on Ex.P1 cheque. All these circumstances led to conclude that the accused had not raised a probable defence to rebut the statutory presumption.

23.Hence, on the basis of above material on record it is established before the Court that Ex.P1 cheque was issued towards discharge of legally enforceable debt as per presumption under sec.139 of Negotiable Instrument Act.

11

24. According to the complainant the accused indebted for an amount of Rs.6 Lakhs to him for which he issued Ex.P1 cheque in favour of complainant for the said amount thereafter the complainant presented the same with his banker on 17.5.2016 with intimation to the accused for realization of cheque amount and the bank returned the dishonoured cheque Ex.P1 under

Ex.P2 return memo. Since the presentation of cheque is within the prescribed period, it can be said that the complainant presented the said chque within stipulated time.

25. In the instant case the complainant got issued statutory legal notice Ex.P6 to accused within stipulated time.

1) In N.Parameshwaran Unni V/s G.

Kannan and another dtd. 01-03-2017

2) In Don Ayengia v/s The State of Assam and another, dtd. 28-01-2016

The Hon'ble Appellant Court clearly

observed with regard to the cheque issued

legally for enforceable debt and the same

was dishonoured and also the Complainant

presented the cheque within the prescribed

period and also issued legal notice by

informing about the dishnour of cheque to

12

the Accused/Respondent within prescribed

period the complainant filed complaint.

26. Therefore, it can be said that the complainant followed the procedure contemplated under

Negotiable Instrument Act. The complainant proved his case by producing either oral or documentary evidence against accused.

27. For foregoing reasons I am considered view that the complainant proved his case against the accused for the offence under Section 138 of

Negotiable Instrument Act.

28. In the result, accused is found guilty for offence punishable under Section 138 of Negotiable

Instrument Act and he is convicted under

Sec.255(2) Cr.PC.

Typed to dictate to the Personal Assistant, corrected and

pronounced by me in open Court, this the 20th day of December,

2018.

I.Addl.Judl.Magistrate of First Class

Nizamabad.

29.When questioned about the quantum of sentence to be imposed to the accused, the accused and his counsel submitted that he has got wife and children, and old aged parents, he is only bread winner of his family and requesting the Court to take lenient view.

13

30.Considered the facts and circumstances submissions made by the accused,

In the result, the accused is found guilty for the offence punishable U/Sec.138 of Negotiable Instruments Act for the same he is convicted U/Sec.255(2) Cr.PC and sentenced to undergo Simple Imprisonment for a period of one (1) month. The accused further liable to pay an amount of Rs.6,00,000/- (Rupees Six Lakhs Only) towards compensation to the complainant U/Sec.357 of Cr.PC within six (6) months from to day on 20.12.2018. In default to pay compensation amount to the complainant, the accused shall under go Simple Imprisonment for a period of six (6) months.

31.Since it is an economical offence, this Court is of the opinion that either the provisions of Sec.360 Cr.PC or the provisions of probation of offenders Act, can not be applied in favour of accused.

32.The accused is informed about his right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba V.

State of A.P. (2002 (1) ALD (Crl.) 335 A.P.

Typed to dictate to the Personal Assistant, corrected and

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

I.Addl.Judl.Magistrate of First Class

Nizamabad.

14

Appendix of Evidence

//Witnesses examined//

For Prosecution: For Defence:

PW.1 Sri Cheela Shekher -None-

// Exhibits Marked //

For Prosecution:- Ex.P1 Original cheque bg.no.006981 issued by the accused in the name of Gomatha Rice Mill for an amount of Rs.6 Lakhs dtd:1.5.2016.

Ex.P2 Cheque return memo of Andhra Bank dtd:18.5.2016.

Ex.P3 Income-tax assessment of Gomatha Rice Mill for the year 2015 and 2016.

Ex.P4 Receipts of Wiighing Bridge(29)

Ex.P5 Account transaction in between Gomatha Rice Mill and the accused with the signatures of accused.

Ex.P6 Office copy of legal notice issued by PW.1 to the accused dtd:27.5.2016

Ex.P7 Reply Notice issued by the accused to the complainant/PW.1 dtd:7.6.2016.

For Defence: -Nil-

I.Addl.Judl.Magistrate of First Class

Nizamabad.

IN THE COURT OF THE I.ADDL.JUDICIAL MAGISTRATE OF I CLASS

AT: NIZAMABAD

Present:

Smt. B.Mary Sara Danamma,

I.Addl.Judicial Magistrate of I Class, Nizamabad.

Tuesday, the 18 th day of December, 2018.

C.C.No. 863 of 2017

Between:

The State of Telangana through Sub Inspector of Police,

P.S. Town-I, Nizamabad....Complainant

//A n d//

A1- Mohammad Amer S/o Mohammad Hussain, 24 years, Muslim, Auto Trolley Driver R/o Habeebnagar, Nizamabad.

A2- MohammedWajeedKhan S/o Mohammed Masud Khan, 30 years, Muslim, Business R/o H.NO.9- 13-346, Hajamcolony, Nizamabad. …Accused no.1 & 2

This case has been finally heard on 11.12.2018 in the presence of learned A.P.P for the Complainant and Sri Mohd. Sayeed Ahmed, Advocate for accused persons. Upon hearing both sides and having stood for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The Sub Inspector of Police, Town-I Police Station,

Nizamabad has filed charge sheet against the accused no.1 and 2 in Crime No.376/2016 for offence U/Secs.452, 324, 323 Indian Penal Code.

2. Brief averments of prosecution are as follows:

On 4.10.2016 at about 1500 hours LW.1

Sri Mohammad Adil proceeding to his house on his bike, when he reached at Malapally infront of Naveed Bakery

CC.No. 863 of 2017 ...........................................................................................2

accused no.1 parked water trolley on the middle road on that LW.1 Sri Mohammad Adil request him to keep the said trolley beside of the road, on that accused no.1 abused him with dire consequences on that he leave from the place and went to the home, after 15 minutes Accused no.1 along with

Accused no.2 and some others went to the house of LW.1

Sri Mohammad Adil and beat him with punch on his face and mouth, and also beat his paternal aunt, due to which they sustained simple injuries. Hence the complaint.

3.Basing on the report of LW.1/Sri Mohammad Adil,

LW.10/Sri N.Gourender Goud, Sub Inspector of Police, Town-I has registered a case in Crime No.376/2016 for offense

U/Secs.452, 324, 323 r/w 34 of IPC and took up investigation of the case.

4.During course of investigation LW.9 Sub-Inspector of

Police has examined and recorded the statements of witnesses, referred the injured LW.1 Sri Mohammad Adil to

Government Hospital, Nizamabad for treatment, on 5.10.2016 visited the scene of crime situated in Malapally,

Nizamabad and secured present of mediators conducted scene of offence panchanama, on 5.10.2017 the accused came to Police Station, and voluntarily confessed to have committed this offence, as such LW.9 Sub Inspector of Police

CC.No. 863 of 2017 ...........................................................................................3

issued a notice U/Sec.41(A) Cr.PC to accused by instructing to appear before the Hon’ble Court or Police Station as and when required. LW.10 Sub Inspector of Police collected medical certificate of injured and LW.9 Medical Officer who treated the injured mentioned in that the injured sustained by the injured person is “Simple in nature”. After completion of investigation LW.10 Sub Inspector of Police filed charge sheet against accused no.1 and 2 for offence under Sections 452, 324, 323 Indian Penal Code.

5.The case was taken on file under Sections 452, 324, 323 Indian Penal Code against accused no.1 and 2. On appearance of accused copies of documents were furnished to them as contemplated u/s. 207 Cr.P.C.

6.Accused no.1 and 2 were examined U/Sec.239 Cr.P.C and the accusation denied by them. Charges under Sections 452, 324, 323 Indian Penal Code against accused no.1 and 2 are framed, read over and explained to them in telugu for which they pleaded not guilty and claimed to be tried.

7.In order to prove the guilt of accused no.1 and 2, PWs1 to 5 were examined and Ex.P1 to P4 are marked.

8. After closure of the prosecution evidence, accused no.1 and 2 were examined U/Sec.313 Cr.P.C for the incriminating

CC.No. 863 of 2017 ...........................................................................................4

evidence appearing against them in the evidence of the prosecution witnesses. They denied the same and reported no defence evidence.

9.The point for determination is -

Whether the prosecution is able to bring

home the guilt against the accused no.1

and 2 for the offence under Sections 452,

324, 323 Indian Penal Code beyond all

reasonable doubt?

Point:-

10.PW.1 Sri Md.Adil who is the defacto complainant cum injured has deposed that in the year, 2016 in the month of September or October on one day while himself, LW.3

Mohammed were coming on bike from shop to their house and reached Malapally Navid Bakery, Accused no.1 stopped his auto due to which traffic was jammed, he requested accused to move the auto from there, by that time accused no.1 abused them in filthy language and went from there, after 15 minutes himself, LW.3 Mohammed were present infront of their house by that time nearly 8 or 9 persons came and beat him with stick, he received bleeding injury on his left cheek, meanwhile LW.2 came and intervened, then accused also caught hold of her chunni and thuft and beat her with stick and fled away from there, he went to Hospital for treatment where Police came and recorded his statement.

CC.No. 863 of 2017 ...........................................................................................5

11.PW.2 Sri Md.Mohammad who is independent witness has deposed that in the year, 2016 on one day while himself and PW.1 were coming on bike and reached Navid Bakery there noticed one trolley auto jammed the traffic, they requested the auto driver to move the same for which he abused and went away, after 15 or 20 minutes while himself,

PW.1 present infront of their house nearly 15 to 20 members came and beat him and PW.1, when LW.2 intervened intervened accused are also beat her by caught hold her thuft and fled away from there, LW.2 fell in unconsciousness state, then they shifted her to Hospital in auto.

12.PW.3 Sri Azeem Khan has deposed that in the year, 2016 on one day nearer to the house of PW.1 at 3.30 pm Accused no.1, 2 and other 6 or 7 persons came to the house of PW.1 and beat PW.1, LW.2 Kousar, subsequently

Police came there, then Accused no.1, 2 and others fled away from there.

13.PW.4 Sana Kousar has deposed that on 4.10.2016 at 3.00 pm while she was in kitchen room room heard cries, then came to the hall and noticed Accused no.1, 2 took PW.1 and 2 out side of the house and beat them with sticks, then she intervened, then they are also caught hold her head and

CC.No. 863 of 2017 ...........................................................................................6

beat her on her head, due to which she fell unconscious stage, at evening time she regain her conscious at Amrutha

Laxmi Hospital, Nizamabad where Police recorded her statement.

14.PW.5 Sri M.D.Thalali Khan who is Investigation

Officer has deposed that LW.8 Sri Ravindher Inspector registered this case in Crime No.376/2016 for offence

U/Sec.452, 324, 323 r/w 34 Indian Penal Code, he went there, examined and recorded the statements of witnesses, went to scene of offence, prepared Crime Details Form, on 5.10.2016 Accused no.1, 2 came and surrendered before him at Police Station, after completion of due formalities released them, and after completion of investigation and also receiving of wound certificate filed charge sheet against accused no.1 and 2.

15.In order to prove the guilt of accused no.1 and 2 the prosecution has been examined PWs.1 to 5 and Ex.P1 to P4 are marked.

16.As per version of prosecution PW.1, 2 were coming on bike from Shop to their House, when they reached

Malapally Naveed Bakery, where Accused no.1 stopped one

CC.No. 863 of 2017 ...........................................................................................7

Auto, due to which traffic was jammed. PW.1 requested them to move the Auto from there, by that time they abused in filthy language, from there PW.1, 2 and others went to

Home, subsequently after 15 minutes nearly 8 or 9 persons came and beat PW.1 with stick, received bleeding injury on his left cheek. In meanwhile PW.4 came and intervened, they also caught hold of her chunny and thuft and beat her with stick and they fled away from there. Immediately, PW.1 went to Hospital, for treatment, where Police came and recorded the statement of PW.1 at Hospital, PW.2 also deposed as single line as stated by PW.1.

17.Admittedly, the first alleged incident was occurred at the bakery of Naveed and the second alleged incident was occurred infront of the house of PW.1 but the Police observed this alleged scene of offence (2nd alleged scene of offence) situated in front of the house of PW.1 at Malapally

Village and prepared Crime Details Form Ex.P3. But, the

Investigating Officer failed to visit the scene of offence, where the first alleged incident was occurred. It is also admitted fact by PW.1, total 10 members attacked PW.1 and

PW.4 at the house of PW.1 on that day. As per version of

PW.1 they all are came and attacked them, it is not possible to elicit from which hands the PW.1 received injuries and he

CC.No. 863 of 2017 ...........................................................................................8

categorically failed to say in his chief examination from whose hands he received injuries and PW.4 also failed to reveal about the same facts. So, there is no possibility for identification of the persons who beat PW.1 and PW.4 with the stick since total 10 members came and attacked them.

So, the prosecution witnesses failed to establish the overtacts particularly. Even though, the PW.1 and 2 revealed the names of PW.1 and 2 but they did not testify regarding the fact from whose hands they received injuries. PW.3 who is the relative of PW.1 and PW.4 stated in his chief examination nearly 6 or 7 persons came and beat PW.1 and 2, subsequently Police came there. Immediately the all said persons fled away. But, PW.3 failed to elicit the names of all persons who came to the spot by the time of alleged incident. PW.4 also stated as single line as stated by PW.1 and 2.

18.It is pertinent to note that the Investigating Officer PW.5 failed to examine the neighbouring owners of alleged scene of offence who are the crucial witnesses to that effect and also there is very possibility for securing so many persons in and around the place of scene of offence since, the alleged scene of offence is situated in the hot of the Village. So, there is possibility for gathering so many persons and for

CC.No. 863 of 2017 ...........................................................................................9

witnessing the said alleged incident. But, the Investigating

Officer failed to examine them that any one persons from them who are the crucial witnesses to that effect.

19.On the other hand as per version of prosecution witnesses that accused beat them with sticks but the

Investigating Officer failed to seize the said sticks and no panchanama was prepared at the alleged scene of offence and the Wound Certificate Ex.P4 belongs to PW.1 does not contain the identification moles of PW.1 and also does not contain the name of the person who assaulted PW.1, and the

Medical Officer failed to mention the age of the injuries of

PW.1 in Ex.P4 so, there are so many lacunas in the case of prosecution and also procedure irregularities in the case of prosecution. Except the evidence of PW.1 and 2 and PW.4 who are inter related, no other independent evidence is available on record.

20.The prosecution failed to examine any one of independent witnesses and also failed to seize the stick from the alleged scene of offence . So, the prosecution failed to establish the guilt against the accused.

CC.No. 863 of 2017 ...........................................................................................10

21.In view of the said discussion benefit of doubt goes to the accused.

22.In the result, the accused no.1 and 2 are found not guilty of the offence punishable under Sections.452, 324 and 323 Indian Penal Code, thereby they are acquitted under

Sec.248(1) Cr.P.C. The bail bonds of accused no.1 and 2 shall stands cancelled.

Since no property seized no order is passed.

Typed to my dictation by Stenographer and after correction,

pronounced by me in the open court on this the 18th day of December,

2018.

I.ADDL.JUDL.MAGISTRATE OF I CLASS,

NIZAMABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE: PW.1 Sri Mohammad Adil None PW.2 Sri Md.Mohammad PW.3 Sri Azeem Khan @ Chottu PW.4 Sri Sanah Quasar PW.5 Sri Md.Thalali Khan

DOCUMENT MARKED

FOR PROSECUTION: FOR DEFENCE: Ex.P1 Complaint Nil Ex.P2 First Information Report Ex.P3 Crime Details Form Ex.P4 Wound Certificate

MATERIAL OBJECTS MARKED

FOR PROSECUTION : FOR DEFENCE:

-Nil- -Nil-

I Addl. J.F.C.M

CC.No. 863 of 2017 ...........................................................................................11

CALENDER AND JUDGMENT

IN THE COURT OF THE I ADDL.JUDL. MAGISTRATE OF I CLASS

AT NIZAMABAD.

Judgment in Calender Case No.863 of 2017 on the file of I-Addl. Judicial Magistrate of First Class Court, Nizamabad.

Name of complainantThe State of Telangana through Sub Inspector of Police, P.S. Town-I, Nizamabad.

Names of AccusedA1-Mohammad Amer A2-Mohammed Wajeed Khan

Nature of OffenceU/Secs.452, 324 and 323 IPC.

Finding: In the result, the accused no.1 and 2 are found not guilty of the offence punishable under Sections.452, 324 and 323 Indian Penal Code, thereby they are acquitted under Sec.248(1) Cr.P.C. The bail bonds of accused no.1 and 2 shall stands cancelled. Since no property seized no order is passed.

SentenceAcquitted

Date of Occurrence4.10.2016

Date of Complaint4.10.2016

Date of Apprehended of 5.10.2017 the accused

Date of Release on bail ___

Date of commencement 29.8.2018 of trail

Date of Closure of trial23.11.2018

Date of Sentence of 18.12.2018 Order

Explanation of delay-----

I Addl.Judl. Magistrate of I Class, ToNizamabad

The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.