Sri B. Sudheer Kumar

1

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE:: KADAPA.

Present: Sri B. Sudheer Kumar, B.Com.B.L.,

Principal Sessions Judge, Kadapa.

Friday this the 27th day of April, 2012.

Crl.Appeal No. 99 of 2011.

1Name of the Court from which II Addl. JFCM, Kadapa. the Appeal is received 2No. of the case in that courtCC No: 260/2010 3Name and Description of the 1.Mallampati Jyarami Reddy S/o Rami Appellant in that court.Reddy, 36 years, D.No: 26/367, Medical Representative, Bangaraiah kottalu, Proddatur, now at D.No: 37/1041, Nehru Nagar, kadapa. 2.Kuppam Subbareddy S/o Jayarami Reddy, aged 23 years, Yelugupalli Village, Sidhout Mandal, now working as a Manager, Manasa Sarover Hotel, Kadapa. 3.Arava Sreenivasulu Reddy S/o Arava lakshmi Reddy, aged 26 years, D.No:1/167, Salabad Village, Ontimitta Mandal, Medical representative, Kadapa. 4The sentence and law under A.1 to A.3 are convicted U/Sec. 248 (2) which it was imposed in the Cr.P.C. for offence punishable U/Sec. 509 lower court.IPC and they are sentenced to under go RI for 3 months and also to pay a fine of Rs.3000/- each IDSI for 03 months. 5Whether the sentence is Appellants are released U/Sec. 4 of confirmed/modified/reversed Probation of Offenders Act on the and if modified, the modification.appellants executing a bond for Rs.10,000/- each with two sureties for like sum each for keeping peace and good behavior and they shall be under the supervision of District Probation Officer for a period of two years with a condition that as and when required to under go the sentence when called upon.

DATE OF

Presen-FilingNotice Bail bond Appellant HearingJudgment/ tationissued by ifthe is ordered Order. the court appellant to appear to appearis let out on bail

21-07-2011 25-07-2011 12-8-2011 --- -- 20-04-2012 27-04-2012

This Criminal Appeal is coming on 10-04-2012 for hearing before me in the presence of Sri G.S. Murthy and Sri G Sreenivasula Reddy, Advocates

for the Appellant and of Public Prosecutor for Respondent/State and upon

2 perusing material available on record and after hearing both sides, I do adjudge and pass the following :

J U D G M E N T

1. This appeal is preferred by the appellants/A-1 to A-3 aggrieved against the conviction Judgment in C.C.No. 260/2010, dated:

8-7-2011 on the file of II Additional Judicial Magistrate of First Class, Kadapa.

The appellants were charged for committing the offences punishable U/Sec.

506 and 509 IPC. The learned trial Judge after considering the material placed by the prosecution, gave benefit for the offence charged U/Sec. 506

IPC, but as regards the offence charged U/Sec. 509 IPC the learned trial

Judge accepted the case of prosecution and recorded a conviction and

sentenced the appellants/A-1 to A-3 to under go R.I for a period of three months each and were also sentenced to pay a fine of Rs.3,000/- each in default to suffer simple imprisonment for a period of three months each.

In brief the grounds of appeal are as follows :

2. the learned trial Judge having found appellants not guilty for the offence U/Sec. 506 IPC also ought to have recorded an acquittal for the offence U/Sec. 509 IPC as the evidence do not inspire confidence. The independent witness P.Ws. 4 and 5 turned hostile and the learned trial Judge based his findings on the interested witness testimonies. The learned trial

Judge, failed to consider the material discrepancies and erroneously recorded

a conviction. Hence to set aside the conviction Judgment and acquit the accused.

3. Record is called for. Heard arguments.

4. The learned counsel for appellants argued, the learned trial Judge based the findings on the sole testimony of P.W.1 without there being any corroboration, as regards A-1 and A-3 there is no substantive evidence and as regards A-2 it is a development made by the complainant.

The learned trial Judge without considering any of the aforesaid, recorded a 3 conviction. Hence to consider the material and set aside the conviction

Judgment.

5. The learned Public Prosecutor argued, the testimony of the defacto complainant the victim when there is no motive or vengeance is attributed and the victim is consistent there is no need for specific corroboration. The independent witness P.Ws. 4 and 5 though turned hostile, it do not make any difference when the testimony of the victim is consistent.

The learned trial Judge after having considered the evidence minutely recorded a conviction, which is perfectly justified and hence argued the appeal is devoid of merits.

6. Before formulating the point for consideration, in brief the prosecution story in the trial Court is appropriate to be referred : the parties would be arrayed as they arrayed in the trial Court.

7. A-1 is aged 36 years, medical representative, A-2 is aged 23 years, working as Manager in Manasa Sarovar Hotel, Kadapa and A-3 is also medical representative aged 28 years. All the three had taken a room nearby almost opposite to the house of the defacto complainant, who is a student studying II intermediate. It is the case of the complainant and the prosecution that the girl who is aged around 17 years used to go to her college passing by the room of A-1 to A-3 and used to return back to her house and whenever she passed by A-1 to A-3 used to make abusive gestures and utter insulting words insulting her modesty. But the complainant kept quite bearing the same.

8. While the matter stood thus, it is the case of prosecution that on 24-8-2010 while the girl was returning from college after 6-30 p.m.

and when proceeding to her house , on noticing the same A-1 to A-3 came out of the room, kept their motor cycle across and ask the name of the girl and also gestured using abusing words insulting her modesty and uttering the words insulting the complainant. When the complainant became panicy, the nearby persons one Venugopal and Munaiah intervened and chastised the 4 accused, for which accused left. The complainant went to her house and informed the same to her mother. There upon on the same day night at about 8-30 p.m. the girl lodged a complaint before Chinnachowk Police , where in M. Venugopal Raju H.C.No. 1074 of Chinnachowk Police Station, registered a case as a case in Cr.No. 137/2010 U/Sec. 509 IPC, examined the witnesses on the same day and thereafter the subsequent investigation was taken up by Sub-Inspector of Police and on 26-8-2010 accused were arrested and they were sent for remand and later the charge sheet is filed.

9. The learned trial Judge had taken cognizance of the case

U/Sec. 506 and 509 IPC and after following due procedural law examined the accused, they denied , charges U/Sec. 506 and 509 IPC were framed read over and explained and accused claimed to be tried. Hence the trial.

10. In order to prove its case in the trial Court prosecution examined P.Ws. 1 to 7 and marked Ex.P-1 to Ex.P-5.

11. After closure of prosecution evidence accused were examined U/Sec. 313 Cr.P.C by the learned trial Judge appraising them of the incriminating material spoken against them by the witnesses, they denied . No defence witness are examined, no documents marked.

12. The learned trial Judge, after having considered the material on record, observed the material placed by the prosecution fell short for the offence charged U/Sec. 506 IPC and acquitted the appellants for the said offence, but found guilty the appellants herein for the offence U/Sec.

509 IPC and recorded a conviction, which is now assailed.

13. In view of the contentions raised the following point which would emerge for consideration is :

whether the findings of the learned trial

Judge in recording a conviction U/Sec. 509 IPC is

justified or whether his findings warrants any interference ?

5

14. Before proceeding further into the material on record the settled principles of law is appropriate to be referred namely :

when the testimony of the victim is consistent and cogent, and when no motive is attributed or seen, the court is not precluded from accepting the testimony, even though there is no corroboration and even though the other witness turned hostile . Interestedness is not a ground to discard the testimony of a witness, more particularly when no motive is observed.

15. Keeping in the mind the aforesaid, now I would refer the essential ingredients of Sec. 509 IPC :

i).Any uttering of a word making a sign or gesture ii).Making the aforesaid with an intention that the victim would understand that her modesty is being effected or touched would suffice.

16. Therefore the essential ingredients of Sec. 509 IPC are that the intention on part of accused and for that purpose uttering certain words which are targeted intending to insult the modesty of a women suffice to bring within the purview of Sec. 509 IPC. It is not relevant that the exact words should be placed on record, because some times the words which are suffered by the victim particularly a young girl would not be in a position to utter or repeat. Therefore, the settled law is, even though the exact words could not be placed on record, yet if the Court finds that the words uttered and gestures made by the accused are done with an intention to insult the modesty of a girl, would suffice to bring within the purview of Sec. 509 IPC.

17. Keeping the aforesaid settled principles in mind, I would now refer the testimonies. P.Ws. 4 and 5 who are nearby and who chastised accused turned hostile. P.W.4 stated , he knows the accused and they are his customers. Then naturally he will not have any inclination to support the complainant who is neither relative nor have any interest. Like wise P.W.5 who is also examined by the prosecution to prove of their chastising accused did not support, but he stated he knows P.W.1 the victim and her parents 6

P.Ws. 2 and 3 and accused and they are residing in the same locality, to the rest he denied. Therefore, the accused being residents of the same locality of the victim girl is a fact proved.

18. Now coming to the actual part of the complaint of the victim. The girl is aged 17 years, studying II intermediate, she mentioned in

Ex.P-1 that whenever she passes by the room of the accused to go to her college and while returning, accused used to accost her and used to behave in an indecent manner uttering bad words and used to make signs indirectly humiliating her modesty and she tolerated , but on 24-8-2010 while she was returning back to the house at about 6-30 p.m. while passing by the house of accused, accused A-1 kept their motor cycle across hindering the girl to pass, stopped her and made signs and used bad words. If considered the contents of Ex.P-1 and the age of the girl as 17 years and when the girl is passing lonely, if the acts of accused at that juncture are considered with reference to the particulars mentioned in Ex.P-1, though no specific words are uttered , yet the intention of accused categorically show their intention to insult the modesty of the victim. It is pertinent to note, the victim is totally stranger.

Earlier there were no disputes nor any reason is seen even in her testimony that she had any motive or vengeance and she lodged a complaint to settle scores with accused.

19. Now coming to the testimony of P.W.1, she had specifically mentioned that whenever accused used to see , they used to utter indecent words and used to state that what would be her cost. That word by itself is sufficient to directly infer the intention of accused, that with an intention to insult her modesty uttered such words as referred above in

Ex.P-1 the victim had not stated the specific utterances or words, but she specifically mentioned that accused used to use bad words insulting her and humiliating.

20. As on date of incident on 24-8-2010 her testimony is to the effect that , when she reached nearby, A-1 stopped his vehicle and 7 prevented her from proceeding and he had humiliated her by saying numbers like 11 and 16 and he repeated the indecent words which he used to utter earlier and she also mentioned about the earlier instances specifically though they are not mentioned specifically in her Sec. 161 Cr.P.C statement, but that will not make any difference, because what the witness stated in Court is a substantive piece of evidence.

21. She further stated, on the same day she informed to her mother and they went and lodged a complaint and she further stated thereafter accused sent some persons requesting to withdraw the complaint and when she refused she was even threatened with dire consequences. She specifically stated she tolerated earlier, but when the conduct of the accused became unbearable and unable to bear the indecent comments, she placed the matter before her mother. This witness was cross-examined at length and it is suggested to this witness that when accused mistakenly dashed, the case was foisted and accused even pleaded alibi , stating that they were not even present at that time. She was examined on the same day by the Head

Constable.

22. P.W.2 is the mother, she was also grilled, but during cross-examination she did not budge and she is specific that her daughter used to inform about the indecent behaviour of accused and on the date of incident her daughter informed unable to bear. It is her testimony that she questioned accused , for which accused adamantly replied and that they can do what ever they like and unable to bear , the complaint is lodged by her daughter P.W.1. To this witness also it is suggested that as if this case was foisted when the motor cycle of accused hit P.W.1 accidentally and accused were also beaten, which suggestion is denied.

23. P.W.3 is a Head constable and the father of P.W.1, he too deposed the same facts that he was informed bout the conduct of accused.

Naturally the girl would fear to inform the father, when she is facing some humiliation or indecent attitude by others, unless the such attitude becomes 8 unbearable to her. That is what precisely could be observed from the testimony of P.W.3 the father. Peculiarly it is suggested to this witness, accused were in their respective jobs and they did not commit any offence, but this case was foisted. This witness is a Head constable in the Police

Department and if he had intention to fix accused, there would be many ways, but the testimony of this witness P.W.3 show the tolerant nature. The remaining evidence is that of P.Ws. 6 and 7.

24. If considered the aforesaid, it may be a fact that in Ex.P-1

P.W.1 mentioned the name of A-1 and two others and in her testimony

before Court she not only mentioned against A-1 and A-3, but also

specifically mentioned against A-2 and as on the date of incident the acts committed by A-2 are specifically mentioned and it is not the case that A-1 and A-3 were absent or not present at that time at all and there is no denial of their presence at the time of incident and nothing is suggested to P.W.1 the victim whose testimony alone remained and if considered the totality of the circumstances when P.Ws. 4 and 5 who are suppose to speak the truth and when their presence is not denied, when they turned hostile on the discrepancies referred in the testimony of P.W.1 alone, her testimony cannot be discarded.

25. Therefore when considered the aforesaid evidence intoto,

I am of considered view, the acts committed by A-1 to A-3 aptly fall within the purview of Sec. 509 IPC which the learned trial Judge had discussed at length and recorded a conviction.

26. Therefore, I find no reasons to interfere with the conviction findings of the learned trial Judge.

27. Now the point which comes for consideration is whether accused can be given some benefit as it is found they are the first offenders, having no previous criminal record and as they are having fixed abode. In this case District Probation Officer report is called for and the enquiries of the

District Probation Officer show that, all accused have no criminal background 9 and they are having fixed abode and they came from middle class agricultural families, having dependants.

28. If considered the Sec. 4 of Probation of Offenders Act, when the accused are found not guilty with the offence punishable to death or imprisonment for life and if the Court is of opinion that instead of sentencing the accused, the Court can after being satisfied by calling the report of District Probation Officer can order for release.

29. Therefore, having regard to the nature and having regard the appellants/accused being first offenders, I am of considered view, instead of sentencing them to imprisonment and fine as done by the learned trial Judge, I am of considered view, appellants can be released U/Sec. 4 of

Probation of Offenders Act on the appellants executing a bond for

Rs.10,000/- each with two sureties for like sum each for keeping peace and of good behaviour and they shall be under the supervision of District

Probation Officer for a period of two years with a condition that as and when required to under go the sentence when called upon. Hence ordered accordingly.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in the open Court, on this the 27th day of

April, 2012.

Sd/-. B. Sudheer Kumar,

Principal Sessions Judge,

Kadapa.

1

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE

KADAPA.

Present : Sri B.Sudheer Kumar, B.Com., B.L.,

Principal Sessions Judge, Kadapa.

Friday the 18 th day of May , 2012.

Criminal Appeal No. 112/2011.

1Name of the Court from which II Addl. Judicial Magistrate of 1st Class Court, the Crl. Appeal is received Kadapa. 2No. of the case in that courtCC No; 214/2010. 3Name and Description of the Yatham Pullaiah @ Probhakar S/o Pedda Appellants.Papanna, 26 years, Yadava by caste, native of Animala (V), V.N.Palle Mandal, , now at D.No. 6, Mettakulam, Padmavathamma koil Street, Chennai City, Tamilnadu State. 4The sentence and law under The accused is sentenced to under go which it was imposed in the rigorous imprisonment for two years and also lower court.sentenced to pay a fine of Rs.10,000/- I.D.S.I., for six months for the offence punishable U/Sec. 420 IPC. 5Whether the sentence is Appeal is allowed and the accused is confirmed/modified/reversed found not guilty for the offences and if modified, the punishable U/Sec.420 IPC , and the modification.conviction Judgment recorded by the learned II Additional Judicial Magistrate of First Class, Kadapa in C.C.No. 214/2010, dated: 9-8-2011 is set aside and accordingly he is acquitted U/Sec. 386(b)(i) of Cr.P.C.The fine amount paid is ordered to be returned to the appellant after appeal time is over.

DATE OF

Presen-FilingNotice Bail Appellant HearingJudgment/ tationissued by bond if is Order. the court the ordered to appearappellant to appear is let out on bail 18-8-201120-8-201126-8-2011------26-4-201218-5-2012

This Criminal Appeal is coming on 26-04-2012 for hearing before me in the presence of Sri Ajay Kumar Veena, Advocate for the appellants and the

Public Prosecutor for the Respondent /State and upon perusing the records and after hearing the arguments on both sides, I do adjudge the following.

J U D G M E N T

1. This appeal is preferred by the appellant against the conviction Judgment in C.C.No. 214/2010 on the file of II Additional Judicial

Magistrate of First Class, Kadapa. The appellant is charged for committing

2 the offence punishable U/Sec. 420 IPC. The learned trial Judge after having considered the material on record, recorded a conviction and sentenced the appellant to under go Rigorous Imprisonment for a period of two years and also sentenced to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for a period of six months. The same is now assailed with the following grounds :

2. The learned trial Judge failed to consider the material placed by the prosecution do not fall within the purview of Sec. 420 IPC and the case is of pure civil in nature under the contractual obligations. Inspite of the admissions of the complainant as well as the Investigation Officer , yet the trial Court on an erroneous assumption that the appellant cheated, recorded a conviction which either on fact or on law would not sustain. Hence to consider the material on record, allow the appeal and set aside the conviction Judgment.

3. Record is called for. Heard arguments.

4. The learned counsel for appellant taking the Court through the testimonies of the witnesses including the testimony of the

Investigation Officer argued, the charge U/Sec. 420 IPC would not primafaciely lie, as the transaction is of pure civil nature and is of contractual nature. The learned trial Judge without considering the legal implications of

Sec. 420 IPC , recorded a conviction which is liable to be set aside and therefore argued , to set aside the conviction Judgment.

5. The learned Public Prosecutor supported the findings of the learned trial Judge.

6. Before formulating the point for consideration, the matrix of the case is appropriate to be referred : the parties would be arrayed as they arrayed in the trial Court.

7. Accused is a resident of Animela village of Kadapa

District. Like wise the defacto complainant Peeraiah , Fakruddin, Mastan were also residents of the same area and Proddatur. It is alleged on 15-2-2008 when the defacto complainant and the others approached accused who was residing at Chennai for securing jobs at Singapore , he had collected 3

Rs.1,40,000/- from Peeraiah, to arrange to send the son in law of Peeraiah and also collected Rs.85,000/- from Mastan who was an electrician and executed two bonds giving an undertaking that if he could not secure the visas to go to Singapore, he would return the amount within two months.

8. It is alleged , later on when P.W.3 Masthan along with the son in law of P.W.1 Peeraiah when went to Chennai, they could not find accused. Therefore, the complaint is lodged on 10-12-2008 and set the case in motion. The same was registered by the Assistant Sub Inspector of Police

S. Mahammad as a case in Cr.No 71/2008 U/Sec. 420 IPC and after completion of investigation the charge sheet is laid.

9. In the trial Court accused is defended by his counsel. The learned trial Judge after following due procedural law, framed charge U/Sec.

420 IPC against the accused, accused denied and claimed to be tried. Hence the trial.

10. In order to prove its case in the trial Court prosecution examined P.Ws. 1 to 7 and marked Ex.P-1 to Ex.P-5.

11. After closure of prosecution evidence accused was examined by the learned trial Judge U/Sec. 313 Cr.P.C appraising him of the incriminating material spoken against him by the witnesses, he denied and examined one V. Jagadeesh Kumar as D.W.1 of the same area who went to

Singapore on the arrangements made by the accused and who worked there and marked Ex.D-1 to Ex.D-7 the resident certificate of accused and the employment certificates and visa of the said V. Jagadeesh Kumar.

12. The learned trial Judge, after having considered the material on record, on the premise that when accused had taken the amount and executed a bond that he will arrange visa and when the same is not arranged and when he was not found at chennai when the complainant and others approached, observed it amounts to cheating and therefore, recorded a conviction, which is now assailed, referred above.

13. In view of the contentions raised the following point which would arise for consideration is :

4

1. whether prosecution proved their case against the accused that he fraudulently and dishonestly in order to cheat the defacto complainant and others, collected the amounts in order to say that he committed the offence punishable U/Sec. 420 IPC ?

2. Whether the findings of the learned trial Judge warrants any interference ?

POINT NO.1:

14. Before dealing with the testimonies of the witnesses, it is appropriate to refer as to the ingredients of Sec.420 IPC.

15. In order to prove the case U/Sec. 420 IPC cheating, the essential ingredients of dishonesty as defined U/Sec. 24 of IPC, fraudulent intention U/Sec. 25 of IPC are initially to be proved to bring within the purview of the Sec. 415 IPC which defines cheating. In order to bring within the purview of Sec. 420 IPC it has to be established not only accused has cheated , but also by doing so had dishonestly induced the person who was cheated to deliver any valuable property or to do any act. In order to justify a conviction U/Sec. 420 IPC , deception right from the initial stage has to be proved and apart from that prosecution also has to prove dishonest inducement and it is for the prosecution to prove the representation made was right from the beginning is false to the knowledge of accused at the time he made it. Therefore, if considered the settled law, playing fraud or inducing a person dishonestly and fraudulently right from the inception is a primary ingredient which the prosecution has to prove.

16. In Hridaya Ranjan Pd. Verma and others Vs. State of

Bihar and Another reported in 2000(1) ALD ( Crl.) at page 848, in a similar set of facts in Para No. 15 and 16 the lordships of Hon'ble Supreme

Court as observed as follows :

“ In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of 5 inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.

From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. “

17. In Maripalli Mahirathnam Gupta Vs. State of Andhra

Pradesh, reported in 2000(2) ALD ( Crl.) at page 496, in a similar set of facts in a cheque dishonor case , in Para No.7 it was observed as follows :

“ It is manifest, on a perusal of the said section, that two elements are required to bring forth the said offence. Firstly, that there shall be deception played by a person fraudulently and dishonestly inducing another, either to deliver any property to that person or to consent that person shall retain any property ; and secondly there shall be intention inducement of any person to do or omit to do anything which that person would not do, or omit to do but for the deception played and which act or omission causes or likely to cause damage or harm to that person either in body or mind or reputation or property. Taking into consideration the facts and circumstances peculiar to this case, the first part of the section has obviously no application to the instant case. Coming to the second part, there must be an 6 intentional inducement on the part of the offender to do or to omit to do anything by the other person who but for the inducement would not do it or omit to do it. It is not ended there. That act or omission either causes or likely to cause any damage to the person or property . “

18. Keeping the aforesaid in mind, I would now refer the testimonies.

19. According to P.W.1 when his son in law P.W.2 intended to go to Singapore for job, since he knows the accused who appears earlier had sent some persons to Singapore, approached and accused informing that he would arrange and collected Rs.1,40,000/- and executed Ex.P-1 promissory note/bond agreeing to repay, if visa could not be secured within two months.

Like wise on the same day one Masthan P.W.3 also approached and paid

Rs.85,000/- for which accused also executed a promissory note/bond promising if he could not arrange for sending to Singapore that he would repay the same within two months. P.W.4 is the attestor of the two promissory notes/bonds.

20. According to P.Ws. 1 to 3, after 1 ½ months after the transaction, accused took them to Madras for confirming the tickets and later again when they went, they found accused was not in the house. There upon they immediately lodged a complaint.

21. Now coming to the testimony of P.W.5 the Sub-Inspector of Police, who registered the case. He had categorically deposed, when P.W.1 approached him with the two bonds executed by accused and informed the facts, he advised P.W.1 to file civil suit, but P.W.1 insisted for registering the case. Probably to extract the amount at the earliest possible time without taking re-course in a Civil Court of law.

22. Therefore, if considered the testimony of P.W.5 the

Investigation Officer, he is conscious of the fact that the nature of the case is of a pure civil nature. Further P.Ws. 1 to 3, the attestor P.W.4 and P.W.5 the

Investigation Officer categorically admitted that accused executed two promissory notes/bonds that he would repay the amount, if he could not 7 arrange for sending the P.Ws. 2 and 3 to Singapore. It is not as though accused without having any basis made a promise. Ifconsideredthe testimony of D.W.1, which fact is not denied by the prosecution that D.W.1 is working at Singapore and he went to Singapore on the arrangements made by the accused.

23. If considered the aforesaid material, practically there is no iota of material to infer that accused right from the inception with an intention to deceive and with an intention to defraud and cheat , dishonestly induced P.Ws. 1 and 3 to part with the amount. It is pertinent to note in the chief examination of

P.W.1 the complainant, who is the father in law of P.W.2 itself, he had specifically mentioned that, when his son in law intended to go to Singapore, they approached the accused and it is not accused, who approached with a promise, and if considered the subsequent sequence, at the best the factual aspects come within the purview of breach of contract or breach of an undertaking or a promise and nothing beyond , to bring within the purview of penal provision ingredients to attract Sec. 420 IPC.

24. Therefore, in view of the aforesaid, I am of considered view, simply because the accused was not found at the residence on a particular day, it would not amount to escaping as observed by the learned trial Judge. Hence in view of aforesaid, I am of considered view, the findings of the learned trial Judge cannot sustain either on fact or on law.

POINT NO.2:

25. In view of the aforesaid, appeal is allowed and the accused is found not guilty for the offences punishable U/Sec.420 IPC , and the conviction Judgment recorded by the learned II Additional Judicial

Magistrate of First Class, Kadapa in C.C.No. 214/2010, dated: 9-8-2011 is

set aside and accordingly he is acquitted U/Sec. 386(b)(i) of Cr.P.C.The fine amount paid is ordered to be returned to the appellant after appeal time is over.

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

pronounced by me in the open Court, on this the 18th day of May, 2012.

Sd/- B. Sudheer Kumar,

Principal Sessions Judge,

Kadapa.

In the Court of the Principal District Judge, Kadapa.

Present:-Sri B. Sudheer Kumar, B.Com.B.L.,

Principal District Judge, Kadapa

Friday this the 27th day of April, 2012.

G.O.P.No.45/2012.

(In the matter of Minor -- M. Mubasheera - Date of Birth : 5-3-1999 )

Patan Ameer Khan S/o Khadar Khan, Muslim, aged 63 years, business, residing at D.No: 3/5/237, Islam Puram, Pulivendula, Kadapa District. … PETITIONER -- versus -

NIL. … RESPONDENT.

This petition is coming on 10-4-2012 for final hearing before me in the presence of Sri S.R.SREE RAMA MURTHY, Advocate for the Petitioner and the respondents remained exparte. Upon hearing the counsel for the petitioner and on perusal of the material papers on record, this court passed the following :

O R D E R

1. This application is filed U/Sec. 10 of Guardian and Wards

Act by the maternal uncle of the minor child to declare the petitioner as the guardian for the person and property of the minor girl aged 12 years

M. Mubasheera and to manage her properties including operation of bank locker , savings accounts, Fixed Deposits and to permit him to withdraw the interest accrued thereon for the purpose of education of the minor child.

2. Notice is ordered for vide publication in Praja Sakthi

Telugu daily news paper and also by beat of tom tom and by affixing notice in the District Court, Collector's office and M.R.O office, Pulivendla. No objections received and no objectors are also present.

3. The petitioner is examined as P.W.1, marked Ex.A-1 to

Ex.A-7 the death extract of the father of the minor child along with the death extract of the mother of the child, family members certificate, study certificate, xerox copy of pass book and the letter addressed by the State 2

Bank of India.

4. Heard arguments.

5. Point for consideration is whether the petitioner can be appointed as guardian to the person of the minor girl M. Mubasheera, aged 12 years and can he be permitted to manage the properties of the minor child.

6. Petitioner is maternal uncle of the girl is not within the prohibited degrees of the Muslim Law and there no other near relatives than the petitioner here in as could be seen from the family members certificate

Ex.A-2 issued by the Tahsildar and in the said Certificate Ex.A-2 it is specifically mentioned that the minor child is under the care and custody of the petitioner herein and no adverse interest is seen.

7.As on date of death of the father of the minor child, her mother predeceased and the father was working as conductor in A.P.S.R.T.C, he got savings account and has to receive the benefits from his Department and the bank authorities also directed the petitioner to obtain a certificate from the Court permitting him to act as guardian on behalf of the minor girl , to operate the bank locker and for custody of the articles in the locker for the benefit of the minor.

8. No adverse interest is seen and when the petitioner is not within the prohibited degrees to act as guardian under Muslim Law to the minor child, I am of considered view, having regard to the paramount importance of the welfare of the child, who is under the care and custody of the petitioner here in who is also educating her, he can be appointed as guardian.

9. Hence, petition is allowed and the petitioner is appointed as Guardian to the minor child Mubasheera and the property, and the petitioner shall act in accordance with the Sec. 34 of the Guardian and Wards 3

Act and could be called upon to account for as and when directed and is also directed to execute a bond to that effect and has to account for all the transactions made on behalf of the child exclusively for the welfare of the minor child till she attains majority.

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

pronounced by me in the open court this the 27th day of April, 2012.

Sd/- B. Sudheer Kumar,

Principal District Judge,

Kadapa.

APPENDIX OF EVIDENCE

Witnesses examined for Petitioner : PW.1P. Ameer Khan.

Witnesses Examined for Respondent : -- None --

Exhibits marked for Petitioner : Ex.A.1Death Certificate of M.Abdul Hafeez issued by Municipal Corporation, Kadapa.. Ex.A.2Family Member Certificate issued by the Thasildar , Kadapa.. Ex.A.3Study Certificate of Jamiatus Salihat Niswan. Ex.A.4Birth Certificate of Jamiatus Salihat Niswan. Ex.A.5Original Pass Book of SBI, Main Branch of late M.Abdul Hafeez. Ex.A.6Death Certificate of Fathumunnisa Begum. Ex.A.7Letter sent by SBI, Main Branch, Kadapa, dt. 19-12-2011.

Exhibits marked for Respondent : -- NIL --

Sd/- B. Sudheer Kumar,

Pdj., Kadapa.

Case Historyhttp://172.17.68.2/swecourtis/kiosk/cases/case_no.ph..

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In the Court of :SC/ST Court -Cum- IV Additional District Judge, Kadapa

Case No. :CRLA/0400061/2011 Simpathi Fakruddin and another Vs Inspector of Police ,CCS P.S.,Kadapa

Date : 14-09-2011

Business: A-1 present. A-3 produced in C.P. Kadapa. Orders pronouned. Vide commons judgment. In the result,the appeal if partly allowed and A1 the first Appellant is found not guilty for the offences punishable U/Sec356 ,411 IPC and he is acquitted U/Sec.248-1 r/w Sec.386-b-i of C r.PC and the fine amount is paid is ordered to be return to A-1 after appeal time is over. Further A3 is found not guilty for the offence U/Sec420IPC and he is acquitted U/S248-1r/w Sec.386- b-i Cr.PC and the sentence of imprisonment and fine imposed is setaside for the said offence. But in so far as for the offence punishable U/S411IPC,the meterial placed by the prosecution categorically proved.Therefore the conviction against A3 for the offence U/S411 IPC is confirmed,and he is ordered to be released in this case,if not required in any other case.MOs1,2 are already returned to PW1 by the learned trial Judge and the finding holds good. Nature of Disposal: ACQUITTAL Disposal Date: 14-09-2011 SC/ST Court -Cum- IV Additional District Judge, Kadapa 1 of 124/09/24, 17:56

Case Historyhttp://172.17.68.2/swecourtis/kiosk/cases/case_no.ph..

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In the Court of :SC/ST Court -Cum- IV Additional District Judge, Kadapa

Case No. :SC/0400223/2011 Inspctor of Police,Porumamilla Vs Shaik Nagoor Valli @ Mothadi Nagoor Valli

Date : 30-09-2011

Business: accused produced from central prison Kadapa Judgment pronounced. vide separate one in the result accused found not guilty for the offence punishable u/sec 302,506 IPC and as such he is accquited under sec 232 Cr.P.C and he shall be released forth with ,if not required in any other case pending . MO 1 to 5 and 7 and8 which are blood stained cloths recovered from the person of deceased . And guilt and plastic mattesses which are until for human use or ordered to be destroyed after appeal time is over . And MO .6 four silver Toe rings are ordered to be returned to PW1 after Appeal time is over . The unmarked property which are the gunny bag amd cloths recovered from the person of accused and all ordered to be destroyed after appeal time is over Nature of Disposal: ACQUITTAL Disposal Date: 30-09-2011 SC/ST Court -Cum- IV Additional District Judge, Kadapa 1 of 124/09/24, 17:57