Smt.B.Sunitha

1

IN THE COURT OF THE V ADDL. DISTRICT & SESSIONS JUDGE:

NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE)

Monday, this the 3rd day of December 2018

Present: Smt. B.SUNITA

IV Additional District & Sessions Judge,

(FAC) V Additional District & Sessions Judge,

Nellore.

CRIMINAL APPEAL No.405/2016

1.Criminal Appeal No.:-Criminal Appeal No.405 of 2016

2.From which court the appeal :-I Additional Assistant Sessions Judge, preferredNellore

3.Number of the case in that :-S.C.No.174 of 2012 court

4.Number of the Appeal:-C.A.No.405/2016

5.Name and Description of the :- 1. Sangam Murali, Appellants/Accusedson of Subrahmanyam, aged about 41 years, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.

2. Gampala Venkata Ramanaiah, son of Ramaiah, aged about 39 years, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.

3. Gampala Venkaiah, son of Sulamaiah, aged about 40 years, Muthrasi by caste, native of Jangalapalli village of Chittamur Mandal, now at Mypadu village of Indukurpet Mandal, SPSR Nellore District.

4. Gampala Radhaiah, son of Varahala Swamy (Late), aged 40 years, Rice Mill Driver, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.

6.Name and Description of the :- 1. Public Prosecutor, District Court, Respondent/ComplainantNellore.

2. State: S.H.O., Indukurpet P.S., Nellore

7.The sentence and law under:-In the result, the accused No.1 to 4 are which it was imposed in Lowerfound guilty for the offence punishable Courtunder Section 307 IPC and accordingly they are convicted under Section 235 (2) Cr.P.C.

A-1 to A-4 are sentenced to undergo rigorous imprisonment for a period of four years each and also to pay fine of Rs.2,500/- each, in default simple imprisonment for one month for the 2 offence punishable under Section 307 IPC. Out of the fine amount of Rs.10,000/- a sum of Rs.8,000/- shall given to PW-2/Gampala Veda Narayana under Section 357 (3) Cr.P.C. The detention period of imprisonment undergone by the accused/ A-1 to A-4 during trial and investigation i.e., from 15.4.2010 to 27.4.2010 shall be given set off under Section 428 Cr.P.C. MO-1 to MO-8 shall be destroyed after appeal time is over.

8.Whether confirmed /modified /:-In the result, the appeal preferred reverted and, if modified, the by the appellants/A-1 to A-4 against modification the conviction and sentence in S.C.No.174/2012 dated 30.11.2016 on the file of I Additional Assistant

Sessions Judge, Nellore is hereby

confirmed by dismissing this appeal.

9.Date of Presentation:-01-12-2016

10.Date of filing:-01-12-2016

11.Date of notices issued by the :-01-12-2016 Court to appear 12Date of bail bond if the :-30-11-2016 Appellants has been let out on bail

13.Date of respondent ordered to :-06-01-2017 appear

14.Date of hearing:-23-11-2018

15.Date of order:-03-12-2018

16.Name of the appellant counsel:-Sri P.Ayyappa Reddy Advocate, Nellore.

17.Name of the respondents :-Additional Public Prosecutor, counselNellore.

Sd/- B.Sunita

IV ADDL. DISTRICT & SESSIONS JUDGE

(FAC) V Additional District & Sessions Judge,

NELLORE.

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IN THE COURT OF THE V ADDL. DISTRICT & SESSIONS JUDGE:

NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE)

Monday, this the 3rd day of December 2018

Present: Smt. B.SUNITA

IV Additional District & Sessions Judge,

(FAC) V Additional District & Sessions Judge,

Nellore.

CRIMINAL APPEAL No.405/2016

1. Sangam Murali, son of Subrahmanyam, aged about 41 years, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.

2. Gampala Venkata Ramanaiah, son of Ramaiah, aged about 39 years, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.

3. Gampala Venkaiah, son of Sulamaiah, aged about 40 years, Muthrasi by caste, native of Jangalapalli village of Chittamur Mandal, now at Mypadu village of Indukurpet Mandal, SPSR Nellore District.

4. Gampala Radhaiah, son of Varahala Swamy (Late), aged 40 years, Rice Mill Driver, Muthrasi by caste, Mypadu village of Indukurpet Mandal, SPSR Nellore District.… Appellants/Accused

Vs.

1. Public Prosecutor, District Court, Nellore.

2. State: S.H.O., Indukurpet P.S., Nellore… Respondent/Complainant

This appeal coming on 23.11.2018 for final hearing before me in the presence of Sri P.Ayyappa Reddy, advocate for the appellants and Additional Public Prosecutor, Nellore and upon hearing both sides, this court stood over for consideration till this day and this court delivered the following:-

J U D G M E N T

1.Memorandum of Criminal Appeal is filed under section 374 (3) Cr.P.C. against conviction and sentence imposed in S.C.No.174/2012 on the file of I Additional

Assistant Sessions Judge, Nellore, wherein appellants No.1 to 4 were found guilty for the offence punishable under Section 307 IPC and accordingly they were convicted under

Section 235 (2) Cr.P.C. and were sentenced to undergo rigorous imprisonment for a period of four years each and also to pay a fine of Rs.2,500/- each. In default of payment of fine, they shall under go simple imprisonment for a period of one month 4 for the offence punishable under Section 307 IPC. Out of fine amount of Rs.10,000/- a sum of Rs.8,000/- shall be given to PW-2/Gampala Veda Narayana under Section 357 (3) Cr.P.C. The detention period of imprisonment undergone by the accused A-1 to A- 4 during trial and investigation i.e., from 15.4.2010 to 27.4.2010 shall be givena set off under Section 428 Cr.P.C. MO-1 to MO-8 shall be destroyed after appeal time is over.

2.Parties are arrayed as they were referred before the trial court;

3.Brief case of prosecution as per charge sheet is that, the SI of Police,

Indukurupet police station filed a charge sheet against the accused in Cr.No.51/2010 for the offences punishable u/s 307, 324, 326 read with 34 IPC contending that;

(i) There are ill-feelings between accused and Gampala Penchalaiah/LW-1 in connection with ridges in agricultural fields. On 28.03.2010 at 11-00 a.m., while A-1 was in his land at Mypadu, Gampala Penchalaiah/LW-1 and his two sons Gampala

Veda Narayana/LW-2 and Gampala Revanth Kumar/LW-10 beat him with deadly weapons and inflicted bleeding injuries to A-1, for which a crime was registered in crime No.36/2010 under Section 324 read with 34 IPC of Indukurpet Police Station.

(ii) On 10.4.2010 at about 2.30 a.m., A-1 to A-4 gathered in the cattle shed of

G.Rama Subbaiah and waiting for arrival of Gamapala Veda Narayana/LW-2. At about 03-00 a.m., when Gampala Penchalaiah/LW-1 and Gampala Veda Narayana/LW-2 were coming to main road to go to Nellore to bring vegetables and reached near the

Car shed of G.Ramasubbaiah at Mypadu, A-1 to A-4, who are waiting to take revenge, with a common intention to do away with Lw2, attacked Gamapala Penchalaiah/LW-1 and Gampala Veda Narayana/LW-2 with iron rods indiscriminately saying 'CHAMPANDI RAA NAA KODUKULANU' and inflicted severe bleeding injuries.

(iii) Among them, A-1, who was armed with iron rod dealt a blow on the back of the head of Gampala Veda Narayana/LW-2 and caused injury, A-2 attacked Gampala

Veda Narayana/LW-2 with iron rod and dealt a blow over his head and caused bleeding injury. A-3 armed with iron rod attacked Gampala Veda Narayana/LW-2 and dealt a blow on the right eye brow and caused injury. A-4 attacked Gamapala Veda 5

Narayana/LW-2 with a iron rod and assaulted him over left shoulder and waist. When

Gamapala Penchalaiah/LW-1 went to the rescue of Gampala Veda Narayana/LW-2 he was also attacked by the accused. A-1 assaulted Gampala Penchalaiah/LW-1 over his head at back and caused injury. A-2 dealt a blow on the left ear, A-3 and A-4 assaulted Gampala Penchalaiah/LW-1 over his thighs and caused injuries. On hearing the cries of Gampala Penchalaiah/LW-1 and Gampala Veda Narayana/LW-2,

Pallikonda Vijaya Kumar/LW-3, Gampala Janardhana Rao/LW-4, Pallikonda Bharath

Kumar/LW-5, Sangam Suresh/LW-6, Gampala Rajeswari/LW-7, Gampala Venkata

Krishnaiah/LW-8 and Makkana Srinivasulu/LW-9 gathered there and on seeing them

A-1 to A-4 fled away from the spot.

(iv) Basing on the statement of Gampala Penchalaiah/LW-1 a case in crime

No.51/2010 under Section 307 read with 34 IPC was registered by Sub Inspector of police/LW-20. During the course of investigation, Sub Inspector of Police/PW-20 visited scene of offence, prepared observation report in the presence of mediators, got photographed the scene of offence, seized crime weapons in the presence of mediators and recorded the statements of witnesses.

(v) On 15.04.2010 at 7.30 a.m., Sub Inspector of Police/LW-20 arrested A-1 to

A-4 at Mypadu bus stop and scribed their confessional statements in the presence of mediators. After completion of investigation, Sub Inspector of Police/LW-21 filed charge sheet.

4.After filing of charge sheet, case was taken on file for the offences punishable under Sections 307, 324, 326 read with 34 IPC and learned Magistrate registered the case as P.R.C.No.59/2010. After numbering the case, copies of documents were furnished to them as contemplated u/s 207 Cr.P.C., and committed the case to the

Court of Sessions, since the offence under Section 307 IPC is exclusively trilable by the court of Sessions as per provisions of section 209 Cr.P.C.

5.On receipt of case records, the District and Session Court numbered the case as SC No.174/2012 and made over to the I Addl. Asst. Sessions Juge, Nellore for disposal according to law. In turn said court framed charges u/s 326, 324 and 307 6

IPC against A1 to A4 and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6.To prove the case of prosecution, Pw1 to Pw19 were examined and Ex.P1 to

Ex.P23, Mo.1 to Mo.8 were marked. Defence reported no evidence.

7.After careful evaluation of available evidence on record, trial court convicted the accused as mentioned supra. Aggrieved by said conviction and sentence imposed by trial court, present criminal appeal is filed with following grounds;

(i) Lower court believed sole testimony of PW-1 and PW-2 which is full of omissions, improvements and conflicting statements. Lower court failed to appreciate contradictions in the evidence of PW-1, PW-2, PW-10 and PW-11. Lower court erred in believing the evidence of PW-1 and PW-2, which is self contradictory in nature and no document is corroborated to the effect of involvement of appellants herein. Hence, prayed for setting aside the conviction and sentence imposed by trial court.

8.Heard both sides. Now the point for determination is whether prosecution is able to establish the guilt of accused as mentioned supra beyond reasonable doubt?

Whether the conviction and sentence imposed by trial court is sustainable or not?

9.Admitted facts in present case are that, Pw1 is father of Pw2 and Pw10. Pw11 is wife of Pw1 and mother of Pw2 and Pw10. A1 and A2 got lands adjacent to the lands of Pw1's family and there are ridge disputes between them. It is also a fact that, criminal cases are pending in between both sides due to disputes between sides. Hence according to prosecution, this incident occurred. So also there is no dispute that criminal cases were registered against Pw1, Pw2 and Pw10 by some other persons also. On the date of incident at about 3-00 am while Pw2 was going to bus-stand to get vegetables from Nellore and his father Pw1 was following him from behind at a distance and when Pw2 reached the cattle shed of Gampala

Ramasubbaiah, accused along with others came there by raising cries to kill them by armed with rods and attacked Pw2 first and when Pw1 tried to interfere, they also attacked Pw1 indiscriminately, due to which they received injuries and fell down.

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Pw2 became unconscious and hence accused thought that, they died and hence left the scene.

10.Pw1 and Pw2 are eye witnesses and injured. According to Pw1 who is complainant, while his son Pw2 was going in front of him to go to bus-stand to get vegetables from Nellore at about 3-00 am from his village, A1 to A4 along with others attacked Pw1 and Pw2 indiscriminately with iron rods and caused grevious injuries. First they attacked Pw2 and at that time Pw1 who was following him from a distance of about 50 feet approximately, reached there and tried to protect Pw2 and he also received injuries. Regarding manner of attack as to who beat where and with what object, both in complaint and evidence there is corroboration. It is also in evidence of injured that, Pw2 fell unconscious and then accused left the scene.

Though in grounds of appeal it is mentioned that, there is no corroboration, it is not correct for the reason that the blows as stated by Pw1 and Pw2 corroborated with the injuries received by them as mentioned in wound certificate and also in evidence and complaint / Ex.P1 and Pw2.

11.Learned advocate for accused argued that, in this case the doctor who issued wound certificates is not examined and hence wound certificate are not proved. But when we look at prosecution version, Pw2 was unconscious after receiving injuries and hence he was shifted to Vijaya Hospital, Chennai though he was shifted from

Government Hospital, Nellore to Narayana Hospital, Nellore at first instance. To prove the treatment of Pw2, the anesthetist from Vijaya Hospital, Chennai is examined as Pw17. His evidence is of much relevance for the reason that, Pw2 underwent surgery while he was monitoring Pw2 under anaesthesia. According to

Pw17, due to head injury and injury to left leg of Pw2, he was found drowsy when he was admitted in their hospital on 10-04-2010. CT scan and X-ray revealed fracture of skull bon on left and there was also a fracture of left leg near ankle region. During his cross examination it is elicited that he was present when Pw2 underwent survery to head on12-04-2010 and surgery to left leg on 15-04-2010 and both injuries are grevious in nature. Pw2 was discharged from Vijaya hospital on 26-04-2010 amd 8

Ex.P16 is discharge summary. As per the information given by Pw2, he was assaulted by some known persons. Though it is contended that said doctor has no post graduation either in Orthopedics or Neuro, it will not have any impact in the evidence of prosecution, since without anaesthesia said surgeries are not possible and in fact, he is competent to speak about the condition of patient at the time of any type of surgeries. Hence though the doctor who issued wound certificates is not examined, prosecution has proved injuries beyond reasonable doubt over Pw2 and so also serious condition of Pw2. In this case the reason given by learned APP for not examining the doctor is that, due to ill health of the doctor, as he was not able to move, he was not examined.

12.Regarding gravity of injuries, Ex.P1 is also reflecting. Due to serious nature of injuries, Pw1 and Pw2 were shifted to Nellore Govt. Hospital in 108 ambulance. Since

Pw2 was not in consicouous and not able to speak, Pw1 lodged complaint under

Ex.P1 and the same was recorded by ASI at hospital/ Pw14 Nellore. Incident occurred at about 3-00 am and information from hospital was sent to police at about 4-45 am on 10-04-2010 and police station is at a distance of 10 Km from scene of offence. ASI recorded the statement by 6-00 am as per his evidence, as he received hospital intimation at about 5-15 am and then he forwarded the statement to Indukurpet police station for registration. FIR was registered at 9-00 am on the same day by

Indukurpet police and hence delay is properly explained in registering crime.

13.Learned advocate for accused relied on judgments between Nallapati Sivaiah

Vs. SDPO, Guntur, AP reported in (2007) 15 SCC 465 wherein it was held that when a dying declaration was recorded, non examination of doctor who was present at the time of recording both dying declarations is fatal to case of prosecution though it is not that doctor must be examined to prove dying declaration in said facts of the case which are completely different from this case. In Santru Somi Reddy Vs. State of AP reported in 2009(1) ALT (Crl) 379 (DB)(AP) it was held that, when medical officer who conducted PME is not examined and prosecution has failed to prove another officer who is acquainted with signature of the officer, PME was considered not proved by 9 mere marking the document under section 294 Cr.P.C. Same is also reiterated in

Kota Peda Nagesh Vs. State of AP reported in 1999 Crl.L.J. 2051, and argued that as held in said judgments, wound certificates in present case cannot be considered proved and they cannot be relied to convict the accused is not considered for the reasons as discussed above and since in evidence there is corroboration.

14.According to prosecution, P3 to Pw9 are circumstantial witnesses and eye witnesses, but they turned hostile. Pw10 and Pw11 are brother and mother of Pw2 and on receiving information about the incident, immediately, they rushed to scene of offence. In fact Pw10 stated in his cross examination that the accused bore a grudge against them as they were enlarged on bail in a criminal case registered in

Cr.36/2010 registered against them by accused. And the same is also not denied.

15.Pw12 is also a circumstantial witness and according to him, he received a phone call at 03-30 am from one Sangam Uma Maheswari stating that Pw1 and Pw2 fell down at cattle shed of one Gampala Ramasubbaiah with bleeding injuries and immediately, he went there and found them with bleeding injuries and Pw2 was in an unconscious stage with head injury. Pw10 and Pw11 also came there by then. This witness turned hostile. But this chief evidence itself is sufficient to corroborate regarding injuries and unconscious stage of Pw2 and so also presence of Pw10 and

Pw11 immediately after the incident and so als place of incident. During cross examination of Pw1, it is elicited that there were no cattle in the cattle shed of

Gamapala Ramasubbiah.

16.Pw13 is the witness for arrest of accused and he also supported seizure of three iron rods used for commission of offence. During his cross examination he denied that he is deposing false to help prosecution as he was convicted in a case regsitered against him at the instance of one Mahabood Basha who is close to accused. Pw15 is a photographer and he has taken photographs of the scene and place of incident is corroborated.

17.Pw16 is the retired ASI of Indukurpet police station and he examined and recorded the statements of Pw2, Pw10 and Pw11. However he has not mentioned 10 date as to when he examined Pw2. Pw18 is one of the investigation offices who on receipt of hospital intimation and statement of Pw1 registered FIR. As he received information that Pw1 and Pw2 were shifted to Narayana Hospial, Nellore, he went there and recorded the statements of Pw1, Pw3 and Pw5 and seized clothes of injured under panchanama. He visited scene of offence, seized one iron rod at the scene, got photographed the scene, scene observation report was prepared, drew rough sketch, examined and recorded the statements of Pw4, Pw6 to Pw9. He also arrested accused in the presence of Pw12 and Pw13 and basing on their confession three iron rods were seized. During his cross examination it is elicited that, Pw1 did not state that Pw2 fell unconscious and some other persons apart from A1 to A4 shouted 'chanpandira nakodukunu' and went away. But when we look at 161 Cr.P.C.

statement of Pw1 and evidence coupled with complaint, said facts are very much mentioned.

18.Pw19 is the IO who took up investigation from Pw18 and he received wound certificate and sent case property to RFSL. After receipt of reports, he filed charge sheet. During his cross examination, it is elicited that there were previous disputes between both sides and accused also filed a complaint in crime no.39/2010 and present crime is 51/2010. Therefore, it is clear that within few days after accused got registered a crime against complainant party, this crime was regisitered. So motive behind this offence is previous disputes and already Pw10 deposed that since, they were enlarged on bail in the crime got registered by accused, this crime was registered is relevant to accept, since the same is not denied.

19.Learned advocate for accused argued that in this case there is delay in receiving of FIR to court, as it reached on 11-04-2010 at 08-00 pm as per endorsement on the FIR. However except this delay in reaching court, there is no other defect in prosecution version. He also relied on a judgment between Ganga

Singh Vs. State of Madhya Pradesh reported in (2013) 7 Scc 278 wherein it was held that, when there is defective investigation, benefit of doubt should be given to the accused. But in this case there is no defective investigation and it is only a latch on 11 the part of prosecution in sending FIR promptly to court, which cannot form basis for giving benefit of doubt to accused when otherwise evidence is convinsing.

20.Learned advocate for accused relied on a judgments between Toran Singh Vs.

State of Madhya Pradesh reported in 2002 (2) ALT (Crl) 181 (SC) wherein it was held that when conviction is based on evidence of sole eye witness and there are material contradictions and ommissions, benefit of doubt is to be given to the accused.

However, said principle is not applicable in this case, as both injured coupled with circumstantial witnesses corroborated in all material aspects. Both Pw1 and Pw2 also gave a detailed narration about manner of beating i.e., who beat, on which part and with what weapon / object. Therefore, the judgment between Raju @

Balachandran and others Vs. State of Tamil Nadu reported in (2012) 12 SCC 701 wherein it was held that while appreciating evidence of interested, enemical and related witnesses, careful scrutiny was needed is settled principle of law is of no relevance to facts of present case.

21.As discussed in detail above, in this case there is enemity between both sides and the same is elicited during cross examination. It is also elicited that there are several cases against Pw1, Pw2 and Pw10 and were got registered by others also. It is suggested that some others with whom there is enemity committed this offence, but the same was denied. In addition inspite of cross examining both Pw1 and Pw2,

Pw10 and Pw11, Pw12 nothing could be elicited regarding place, time, manner of incident or identity of accused. Though being sole eye witnesses, Pw1 and Pw2 stated that some others also came along with A1 to A4, since in this case identity of

A1 to A4 is not disputed by injured, it is concluded that prosecution has proved the offence beyond reasonable doubt. There is no defective investigation in present case and prosecution has properly explained its case and proved it. Mere latches in investigation cannot be a ground to disbelieve prosecution, when otherwise it is inspiring confidence of the court concerned. Therefore, there are no grounds to interfere with the findings of lower court. Hence, with the discussion made above, this appeal is dismissed.

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22.In the result, the appeal preferred by the appellants/A-1 to A-4 against the conviction and sentence in S.C.No.174/2012 dated 30.11.2016 on the file of I

Additional Assistant Sessions Judge, Nellore is hereby confirmed by dismissing this

appeal.

The trial court is hereby directed to issue N.B.W against appellants for execution of NBW to undergo remaining part of sentence. Office is directed to send the case bundle to I Additional Assistant Sessions Judge, Nellore forthwith.

Typed on my direct dictation, corrected and pronounnced by me in open Court on this the 3rd day of December 2018.

Sd/- B.Sunita

IV Additional District & Sessions Judge,

(FAC) V Additional District & Sessions Judge,

Nellore.

APPENDIX OF EVIDENCE

NIL

Sd/- B.Sunita

IV Additional District & Sessions Judge,

(FAC) V Additional District & Sessions Judge,

Nellore.

//True Copy//

Sd/- B.Sunita

IV Additional District & Sessions Judge,

(FAC) V Additional District & Sessions Judge,

Nellore.

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IN THE COURT OF THE V ADDL. DISTRICT & SESSIONS JUDGE:

NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE) Monday, this the 3rd day of December 2018

Present: Smt. B.SUNITA IV Additional District & Sessions Judge, (FAC) V Additional District & Sessions Judge, Nellore.

CRIMINAL APPEAL No.177/2015

1.Criminal Appeal No.:-Criminal Appeal No.177 of 2015

2.From which court the appeal:- Judicial Magistrate of First Class, preferredSpecial Mobile Court, Nellore.

3.Number of the case in that court :-C.C.No.128 of 2014

4.Number of the Appeal:-C.A.No.177/2015

5.Name and Description of the:-M.Venkatarami Reddy Appellant/Accusedson of Venkata Subbaiah, aged about 49 years, Teacher, presently residing at Flat No.203, MC Homes Apartments, Saraswathi Nagar, Nellore.

6.Name and Description of the:-Tummala Venkata Subbaiah Naidu, Respondent/Complainantson of T.V.Narasaiah, aged about 36 years, residing at D.No.25-2-354, Journalist Colony, Nellore-1

7.The sentence and law under:-In the result, the accused is found which it was imposed in Lowerguilty for the offence under Section Court138 of NI Act and accordingly he is convicted under Section 255 (2) Cr.P.C.

Accused is sentenced to undergo a simple imprisonment for a period of 1 year and to pay compensation of Rs.20,00,000/- under Section 357 (3) Cr.P.C., which is equal to the cheque amount and in default of payment of compensation, he shall furtherundergoasimple imprisonment for a period of three months. The said compensation imposed under Section 357 (3) Cr.P.C., is to be given to the complainant after expiry of appeal time.

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8.Whether confirmed / modified /:-In the result, appeal is allowed by reverted and, if modified, thesetting aside the conviction and modificationsentence recorded in Calendar Case No.128/2014 on the file of Judicial

Magistrate of First Class, Special Mobile

Court, Nellore dated 29.05.2015; consequently appellant/accused is found not guilty for the offence punishable under Section 138 read with 142 of Negotiable Instruments Act and he is acquitted under Section 255 (1) Cr.P.C. Bail bonds of accused and his sureties shall stand cancelled after expiry of six months. Compensation if any paid by the appellant before the trial court while suspending the sentence at Appellate court shall be refunded to him after expiry of appeal time as per new amended N.I.Act.

9.Date of Presentation:-09-06-2015

10.Date of filing:-09-06-2015

11.Date of notices issued by the Court:-09-06-2015 to appear 12Date of bail bond if the Appellants:-29.05.2015 has been let out on bail

13.Date of respondent ordered to:-05.08.2015 appear

14.Date of hearing:-23.11.2018

15.Date of order:-03.12.2018

16.Name of the appellant counsel:- Sri G.Sreedhar Reddy Advocate, Nellore.

17.Name of the respondent counsel:-Sri Malireddy.S, Advocate, Nellore

Sd/- B.Sunita

IV Additional District & Sessions Judge, (FAC) V Additional District & Sessions Judge, Nellore.

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IN THE COURT OF THE V ADDL. DISTRICT & SESSIONS JUDGE:

NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE) Monday, this the 3rd day of December 2018

Present: Smt. B.SUNITA IV Additional District & Sessions Judge, (FAC) V Additional District & Sessions Judge, Nellore.

CRIMINAL APPEAL No.177/2015

M.Venkatarami Reddy son of Venkata Subbaiah, aged about 49 years, Teacher, presently residing at Flat No.203, MC Homes Apartments, Saraswathi Nagar, Nellore.…. Appellant/Accused

Vs.

Tummala Venkata Subbaiah Naidu, son of T.V.Narasaiah, aged about 36 years, residing at D.No.25-2-354, Journalist Colony, Nellore-1…. Respondent/Complainant

This appeal coming on 23.11.2018 for final hearing before me in the presence of Sri G.Sreedhar Reddy, Advocate for appellant,

Malireddy.S advocate for respondent and upon hearing both sides, this court stood over for consideration till this day and this court delivered the following:-

J U D G M E N T

1.Memorandum of Criminal appeal is filed under section 374 (3)Cr.P.C. against the conviction and sentence imposed in

C.C.No.128/2014 on 29-05-2015 on the file of Judicial Magistrate of 1st

Class, Special Mobile Court, Nellore wherein appellant was convicted 4 and sentenced for the offence punishable under Section 138 of NI Act and accordingly he was convicted under Section 255 (2) Cr.P.C.

Accused was sentenced to undergo a simple imprisonment for a period of 1 year and also to pay compensation of Rs.20,00,000/- under

Section 357 (3) Cr.P.C., which is equal to the cheque amount and in default of payment of compensation, he shall further undergo simple imprisonment for a period of three months. Said compensation imposed under Section 357 (3) Cr.P.C., is to be given to the complainant after expiry of appeal time.

2.Brief case of complainant as per his private complaint filed under section 190 Cr.P.C. against the accused for the offence u/s 138 and 142 of NI Act is that, accused issued a cheque bearing No.408269 drawn on

Indian Bank, Nellore Branch on 18.07.2011 for Rs.20,00,000/- in his favour for discharge of debt due to him. Complainant presented said cheque with his banker namely Axis Bank for enchashment on 18.07.2011, but said cheque was returned dishonoured with an endorsement of ‘BALANCE IN THE ACCOUNT INSUFFICIENT AT THE TIME

OF DEBT’. Complainant received said information on the same day itself.

(i) Complainant issued a legal notice to accused on 19.07.2011, but accused evaded to receive said notice. Thus, accused committed offences punishable under Section 138 and 142 of Negotiable

Instruments Act. Hence, the complaint.

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3.After recording of sworn statement of complainant, case was numbered as C.C.No.653/2011 on the file of learned V Additional

Judicial Magistrate of First Class, Nellore and summons were issued to

the accused. Later as per the proceedings of Honourable Principal

District and Sessions Judge, Nellore in Dis No.674 dated 26.06.2014, the case was transferred to this court and renumbered as

C.C.No.128/2014. On appearance of accused, copies of documents were furnished to him as required u/s 207 Cr.P.C. The accusation for the offence under Section 138 of Negotiable Instruments Act was explained to the accused in Telugu u/s 251 Cr.P.C. for which he pleaded not guilty and claimed to be tried.

4.To prove their respective contentions, on behalf of complainant,

PW-1 and PW-2 were examined and Ex.P-1 to Ex.P-7 were marked. On behalf of accused, DW-1 to DW-3 were examined and Ex.B-1 to Ex.B-7 were marked.

5.After careful evaluation of available evidence on record, trial court convicted and sentenced the accused as mentioned supra.

Aggrieved by said conviction and sentence, present appeal is filed with following grounds;

(i) Lower court failed to consider variance in respect of averments stated in the complaint, statutory notice to that of evidence affidavit and evidence deposed during cross-examination of the complainant which are quite contradictory and supplimentary instead of corroborating each other and in view of improvements by the 6 complainant that the amount lent under Ex.P-1 was prior to 18.07.2011 i.e., a sum of Rs.20,00,000/- was given towards hand loan to the accused. Whereas in his cross-examination complainant stated that he lent Rs.20,00,000/- to M/s.Vijaya Constructions a registered firm which is marked as Ex.P-5. Lower court failed to observe the distinction between hand loan to the accused and loan to a registered partnership firm i.e., M/s.Vijaya Constructions and convicted the appellant. Lower court failed to distinguish fundemental principle of taking congnizance of the complaint under Section 138 and 141 of N.I.Act.

Cognizance of the complaint under Section 138 and 141 is related to the offence committed by the companies and firm and where as cognizance under Section 138 and 142 (a) of N.I.Act is in respect of the offence committed by the individuals and convicted the accused.

Lower court dismissed two applications Crl.M.P.No.2065/2013 and another similar application in Crl.M.P.No.251/2015 filed by the appellant/accused under the Section 45 of Indian Evidence Act for the comparison of signatures after examining DW-3 for comparison of Ex.P- 1, Ex.B-6 and Ex.B-7 with the specimen handwriting of the complainant is again dismissed on 16.04.2015 on a simple ground that it is an unnecessary exercise for the court for comparison of specimens and the same would not serve any purpose. Thus, lower court took two different stands in Crl.M.P.No.2065/2013 and Crl.M.P.No.251/2015, which caused great prejudice to the accused to prove that the complainant is a borrower from the accused and not a lender.

7

Finally, prayed for setting aside the conviction and sentence imposed by trial court.

6.Heard both sides. Learned advocate for appellant filed written arguments along with judgments for reference. Now the point for determination is whether complainant is able to establish the guilt of accused as mentioned supra beyond reasonable doubt?

7.Private complaint was filed u/s 190 Cr.P.C. for the offence punishable u/s 138 and 142 of NI Act by the complainant contending that, the accused issued a cheque bearing no.408269 drawn on Indian

Bank, Nellore Branch on 18-07-2011 for an amount of Rs.20,00,000/- in his favour for debt due to him under Ex.P1. When he presented said cheque with his Axis Bank for encashment on the same day i.e., 18-07- 2011, it was returned with an indorsement ' balance in the account insufficient at the time of debit' under Ex.P2. Therefore he got issued a legal notice under Ex.P3 on 19-07-2011 to the accused and inturn it was returned unserved under ExP4. During cross-examination of accused it is elicited that, the accused is residing in said address and therefore, though the notice was not served on the accused, no prejudice is caused to the case of complainant as it was addressed to correct address of the accused.

8.In this case, there is no averment in complaint or in sworn statement of complainant for what purpose said cheque was issued by the accused. To get convicted the accused under NI Act, proof of legally enforceable debt is to be proved. There is no averment as to 8 when and how much amount accused borrowed from complainant in complaint or in sworn affidavit. But when it comes to filing of proof affidavit of Pw1, it is mentioned that the accused who is working as a

Government teacher is also doing contract works under the name and style of 'Vijaya Constructions' and he borrowed Rs.20,00,000/- as hand loan from him on 18-06-2011 and promised to pay the amount after one month, but, he did not repay the amount and on repeated demands, he issued Ex.P1 cheque. Nobody will lend such huge amount for business purpose as hand loan without any paper. Further complainant gave said amount for Vijaya Constructions and not on individual capacity as per his evidence.

9.To show that the accused is Managing Partner of said M/s

Vijaya Constructions, Ex.P5 which is certified copy of registration certificate showing the name of accused and his wife is filed and during cross-examination of Dw1, he also admitted it. Though Pw1 deposed that he generally will have Rs.20 lakhs to Rs.30 lakhs in his S/B account, there is no proof. In addition said bank account statement of

Pw1 which is marked as Ex.P6 also reveals that the complainant closed his bank account on 16-04-2010. Money transaction between Pw1 and accused took place in 2011. Pw1 also deposed in his cross- examination that on 18-06-2011, there was Rs.20,00,000/- in his account which is not believable as his account was already closed.

Though he also stated that some other persons who were due to him 9 some amount, gave said amount to him and he will also examine them as witnesses, he did not choose to examine them.

10.When Pw1 also deposed that, he lent amount to Vijaya

Constructions for doing business, no legal notice was issued to said

Vijaya Constructions and so also said Vijaya Constructions is not shown as a party / accused in complaint. Accused is arrayed in his individual capacity. Complainant also admitted that both accused and his wife are partners of the firm. In addition, one Mettukur Venkataramareddy is also one of the partners. Therefore, not showing them as accused is also a latch on the part of complainant.

11.Pw1 is an income tax assesse, but no income tax details are available, though he stated that he is ready to file them. Learned advocate for accused relied on a judgment between Sanjay Mishra Vs.

Ms. Kanishka Kapoor @ Nikki and another reported in 2009 Crl.L.J.3777 wherein it was held by Hon'ble Bombay High Court that the presumption of legally enforceable debt u/s 138 of NI Act can be rebutted on failure of the complainant to disclose the amount in his income tax returns or books. Since in present case no such documentary evidence is coming, complainant has failed to prove by both averring in pleadings of complaint as well by mentioning in his sworn statement.

12.Pw1 also admitted that, he filed cases against others under

Ex.B1 to Ex.B3 for recovery of amount. He further admitted that he filed three NI Act cases including this and out of three cases and he 10 took promissory notes from two of them and the reason for not obtaining promissory note in this case is not explained. Accused used to come to his shop very often, but Pw1 is not able to give his shop number. Pw1 does not have any rental agreement, electricity bills and he does not know his shop number. But according to Pw1, accused came to his shop and issued Ex.A1 at 06-30 am. Nobody was present when Ex.A1 was issued to him. And so also no one was present when he gave amount. He denied that he is doing centring work. Though he stated that he got license to do money lending business, he did not file the same into court. He also deposed that he is doing trading business for which there is no proof.

13.Though it is stated by complainant that, the accused filled all columns of Ex.P1 on his own with pen, during evidence of bank official who is examined as Pw2, he deposed that there is a difference of ink in between singnature and writing on Ex.P1. At this juncture the judgment between C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 wherein out Hon'ble Apex Court discussed about consequences of difference of ink on the instrument when defence has taken a different version. In present according to accused, complainant misused the cheque given by accused and in lower court inspite of filing Crl.M.P.s to send admitted hand writing of complaint to expert, said petitions were dismissed. Therefore, non sending of cheque in dispute to expert is also fatal to the case of complainant.

When accused denied his hand writing on Ex.P1 and as there is no 11 pleading of legally enforceable debt in complaint, complainant ought to have taken steps to send Ex.P1 to expert for opnion along with admitted signatures and returned cheque marked as Ex.B6 that was given to Dw3 and available in case bundle in addition to Ex.P1.

14.Case of accused is that, he was indebted a sum of Rs.80,000/- to one K.Jaya Prakash as he did centering work to his house at Kaluvai.

Therefore, he requested the complainant to handed over two signed cheques on 18-07-2011 with cheques bearing no.408268 and 408269 drawn on Indian Bank, Nellore for Rs.40,000/- each to clear off the debt asking complainant to fill them and hand over to one K.Jaua Prakash.

But instead complainant gave one cheque for Rs.80,000/- to said

Prakash with cheque bering no.408268 and kept another with him and filed this false case. Therefore on coming to know said cheating, he also gave a report to police and the same was registered as FIR 173/2011 for the offences punishable u/s 406 and 420 IPC as shown in

Ex.B5. However, we have no evidence as to what happened to said case.

15.Surprisingly accused also filed original cheque bearing no.408268 that he contended to have given to one Prakash and marked as Ex.B6. He contended that said Prakash was given amount of Rs.75,000/- as mentioned in Ex.B7 by complainant at his insance and hence said cheque was returned by him and inturn complainant handed over returned cheque and the paper on which he acknowledged receipt of amount by Jaya Prakash to accused. During 12 cross examination of Dw3 who is said Jaya Prakash, it is elicited that, he knows complainant as well as accused for the past 15 years. He used to borrow water tanks, millers etc. from complainant on lease.

16.Dw3 supported version of accused even in cross-examination regarding debt by accused and also issuing of cheque. In both chief and cross-examination, Dw3 deposed that, accused informed him that he was sending two cheques on 18-07-2011 through the complainant to clear the debt in two instalments. Complainant also came with two cheques and he filled in one cheque for Rs.80,000/- at his request and retained another cheque with him. Since on 29-08-2011, complainant paid Rs.75,000/-, he signed on Ex.B7 and returned the cheque given to him. During his further cross-examination, he also admitted that he gave evidence in CC No.573/2012 on the file of V ADM Court, Nellore as

Pw2 and Pw1 was also present at that time. He deposed in that crime that, he does not know about the transaction between complainant and accused herein. It is also elicited that 'it is true that really if Pw1 issued a cheque for an amount of Rs.80,000/- he would have presented the cheque before the bank and there is no necessity to him to give said cheque to accused.' He does not know whether CC No.573/2012 ended in acquittal. During re-examination it is elicited that Ex.B6 was given as a security for pronote that the accused will pay said amount after receiving said amount and he returned Ex.B6 to complainant. In re-cross-examination the same is denied as he has not stated said fact earlier.

13

17.During cross-examination of Dw1 it is elicited that, summons, police complaint show same address as mentioned in legal notice marked as Ex.P3. Ex.P1 belongs to the current account of M/s Vijaya

Constructions and he is first partner of the firm. He admitted signature on Ex.P1, but not writing. Though accused deposed that he retired from said firm, there is no proof. He also admitted in criminal case that he has financial dealings with complainant. On his behalf, if anyone who is indebted to him comes, his wife also issues cheques in his absence as she is a house wife. He also admitted that since he knew how much amount is due to said Prakash/Dw3, he can fill the amount and give to his wife and can ask her to give to Dw3. He also did not handover said cheque under Ex.B6 to police. Ex.B7 does not contain that the amount or cheque was returned to accused. He did not file said exhibit in criminal case in crime no.173/2011. Though Dw2 another independent witness is examined in support of transaction under Ex.B7, his evidence is not inspiring confidence of this court and hence it is not of any use to the case on either side.

18.Therefore, as seen from rival contentions, signature on Ex.P1 was admitted by the accused. When he can fill it and give it to his wife as his debtors used to collect dues from his wife, he ought to have done the same in this case also, which he has failed to do. Further

Dw3 in his cross-examination admitted that he has not stated said facts in another criminal case. So also Dw1 has not furnished said facts to police in criminal case filed by him against the complainant.

14

19.But since Pw1 admitted that he issued said amount to M/S

Vijaya Constructions to which accused and his wife along with one

Mettukur Venkataramareddy are partners, not showing them as accused in this complaint is fatal to case of complainant. Even Ex.P1 cheque was also issued on behalf of said firm as per available evidence. Said cheque book was maintained by the firm. There is no evidence to show as to who has cheque drawing authority on behalf of said firm. At this juncture the judgment between Aneeta Hada Vs.

Godfather Travels and Tours Pvt.Ltd., reported in (2012) 5 SCC 661 wherein our Hon'ble Apex Court held that, mandatory requirement is the company must be arrayed as an accused and without it the complaint is not maintainable. Same is reiterated by our Hon'ble High

Court in VB Home Care Industries, Secunderrabad rep. By its partner

Dr.Ashok Kumar Kedia Vs. Kisan Babu Industries, Srikakulam District,

AP rep.by its Proprietor, Bondalam Venugopala Rao and another reported in 2018(1) ALT (Crl) 294 (AP) wherrein it was held by our

Hon'ble High Court that when a cheque was issued on behalf of a

complay, notice to company is mandatory. At this juncture the facts mentioned in judgment between Jugesh Sehgal Vs. Shamsher Singh

Gogo reported in (2009) 14 SCC 683, wherein it was held that all ingredients of section 138 are to be satisfied to bring the accused found guilty. Further when cheque that was issued was not maintained by the accused on his name, it also is one of the ground for quashing the complaint is apt to facts of present case is also relevant.

15

20.Therefore, with the discussion made above, in addition to not giving details of as to when accused became indebeted to complainant in complaint as well as sworn affidavit itself is a draw back to the case of complainant. Though the defense taken by the accused is also not believed by this court due to non-believing of evidence of defense, complainant cannot claim advantage unless he proved his case. This complaint is lacking not only details about legally enforceable debt, but also not impleaded proper and necessary parties as accused and so also no notice was served on all necessary parties and hence complaint is dismissed and accused is given benefit of doubt and acquitted.

21.In the result, appeal is allowed by setting aside the conviction and sentence recorded in Calendar Case No.128/2014 on the file of

Judicial Magistrate of First Class, Special Mobile Court, Nellore dated

29.05.2015; consequently appellant/accused is found not guilty for the offence punishable under Section 138 read with 142 of Negotiable Instruments Act and he is acquitted under Section 255 (1) Cr.P.C. Bail bonds of accused and his sureties shall stand cancelled after expiry of six months. Compensation if any paid by the appellant before the trial court while suspending the sentence at Appellate court shall be refunded to him after expiry of appeal time as per new amended N.I.Act. Typed on my direct dictation corrected and pronounced by me in the open Court on this the 3rd day of December 2018.

Sd/- B.Sunita

IV ADDL. DISTRICT & SESSIONS JUDGE

(FAC) V Additional District & Sessions

Judge,

NELLORE.

16

APPENDIX OF EVIDENCE

NIL

Sd/- B.Sunita

IV ADDL. DISTRICT & SESSIONS JUDGE

(FAC) V Additional District & Sessions

Judge,

NELLORE.

// True Copy //

Sd/- B.Sunita

IV ADDL. DISTRICT & SESSIONS JUDGE

(FAC) V Additional District & Sessions

Judge,

NELLORE.

1

IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE: NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE) Dated this the 1st day of April 2019 Present: Smt. B.SUNITA IV Additional District & Sessions Judge, Nellore.

CRIMINAL APPEAL No.312/2017

1.Criminal Appeal No.:-Criminal Appeal No.312 of 2017

2.From which court the appeal preferred:-Judicial Magistrate of First Class, Special Mobile Court, Nellore

3.Number of the case in that court:-C.C.No.512 of 2016

4.Number of the Appeal:-C.A.No.312/2017

5.Name and Description of the :-Alakunta Vijay son of A.Balaramaiah, Appellant/Accused Hindu, aged 35 years, Male, Business, C/o.Cakes for u Bakery, Santhapet, Nellore.

6.Name and Description of the :-Kunchala Sailaja wife of Sreenivasulu, Respondent/Complainant Hindu, aged 34 years, Female, housewife, R/o.D.No.10/590, Sanjeevarayuni Street, Santhapet, Nellore.

7.The sentence and law under which it :-In the result, accused is found guilty for the offence punishable under Section 138 of Negotiable was imposed in Lower Court Instruments Act, 1881 and he is convicted under Section 255 (2) Cr.P.C. Accused is sentenced to undergo simple imprisonment for a period of 9 months for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. Further, the accused shall pay an amount of Rs.3,00,000/- being the cheque amount to the complainant towards compensation under Section 357 (3) Cr.P.C., within two months from today; in default of payment of compensation to undergo simple imprisonment for a period of three months.

8.Whether confirmed / modified / :-In the result, the Criminal Appeal preferred by appellant/accused is hereby dismissed by confirming reverted and, if modified, the the conviction and sentence passed by the trial court in modification C.C.No.512/2016 dated 28.08.2017 on the file of

Judicial Magistrate of First Class, Special Mobile Court,

Nellore. Default clause for non-payment of compensation is hereby set aside. Accordingly only default clause is modified.

9.Date of Presentation:-18.09.2017

10.Date of filing:-20.09.2017

11.Date of notices issued by the Court to :-20.09.2017 appear 12Date of bail bond if the Appellants has :-28.08.2017 been let out on bail

13.Date of respondent ordered to appear:-23.10.2017

14.Date of hearing:-26.03.2019

15.Date of order:-01-04-2019

16.Name of the appellant counsel:-Sri Malireddy.S Advocate, Nellore.

17.Name of the respondent counsel:-Sri Kunisetty Sridhar Advocate, Nellore

Sd/- B.Sunita

IV Additional District & Sessions Judge, Nellore.

2

IN THE COURT OF THE IV ADDL. DISTRICT & SESSIONS JUDGE: NELLORE

(COURT OF SESSIONS: NELLORE DIVISION: NELLORE) Dated this the 1st day of April 2019

Present: Smt. B.SUNITA IV Additional District & Sessions Judge, Nellore.

CRIMINAL APPEAL No.312/2017

Alakunta Vijay son of A.Balaramaiah, Hindu, aged 35 years, Male, Business, C/o.Cakes for u Bakery, Santhapet, Nellore.…. Appellant/Accused

Vs.

Kunchala Sailaja wife of Sreenivasulu, Hindu, aged 34 years, Female, housewife, R/o.D.No.10/590, Sanjeevarayuni Street, Santhapet, Nellore. …. Respondent/Complainant

This appeal coming on 21.12.2018 for final hearing before me in the presence of Sri Malireddy.S, advocate for the appellant and of Sri Kunisetty Sridhar, Advocate for respondent and upon hearing, this court stood over for consideration till this day and this court delivered the following:-

J U D G M E N T

1.Memorandum of Criminal appeal is filed under section 374 (3) Cr.P.C. against the conviction and sentence imposed in C.C.No.512/2016 on 28.08.2017 on the file of Judicial

Magistrate of First Class, Special Mobile Court, Nellore wherein appellant was convicted for

the offence punishable under Section 138 of Negotiable Instruments Act, 1881 and sentenced to undergo simple imprisonment for a period of 9 months for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. Further, the accused shall pay an amount of Rs.3,00,000/- being the cheque amount to the complainant towards compensation under Section 357 (3) Cr.P.C., within two months from the date of judgment and in default of payment of compensation to undergo simple imprisonment for a period of three months.

3

2.Parties are arrayed as they were referred before the trial court for convenience sake.

3.Brief case of complainant as per his private complaint filed under section 190 Cr.P.C., against the accused for the offence u/s 138 and 142 of NI Act is that, the accused borrowed a sum of Rs.2,50,000/- from him on 25.09.2013 for his necessities and executed promissory note in his favour, agreeing to repay the same with interest at 24% per annum. But inspite of repeated demands, accused did not pay any amount due under promissory note.

However, on 28.05.2016, accused issued a cheque bearing No.129643 drawn on State Bank of India, Chinna Bazar Branch, Nellore towards part payment due under said promissory note. When he presented said cheque in Andhra Bank, Main Branch, Nellore for collection, said cheque was dishonoured on the ground of “Funds Insufficient” along with memo dated 31.05.2016. On 26.6.2016 complainant got issued a legal notice to accused demanding him to repay cheque amount, but failed to discharge the amount. Hence, present complainant is filed.

4.After recording sworn statement of complainant, case was numbered as

C.C.No.512/2016. On appearance of accused, copies of documents were furnished to him as required u/s 207 Cr.P.C. The accusation levelled against him for the offence punishable under Section 138 of Negotiable Instruments Act was explained to him in Telugu u/s 251

Cr.P.C. for which he pleaded not guilty and claimed to be tried.

5.To prove their respective contentions, on behalf of complainant, she herself is examined as Pw-1 and attestor of Ex.P-6 is examined as PW-2 and Ex.P-1 to Ex.P-7 were marked. On behalf of accused, A.Bharath Kumar, who is Branch Manager, State Bank of

India was examined and Ex.D-1 marked.

6.After careful evaluation of available evidence on record, trial court convicted and sentenced the accused as mentioned supra. Aggrieved by said conviction and sentence, present appeal is filed on behalf of the accused with following grounds;

(i) Lower Court did not consider the capacity of respondent, as she is a house wife.

Lower Court ought to have considered the handwriting and signatures of respondent and appellant, as appellant has not given any cheque. In the evidence of DW-1, he stated that the signatures of appellant are mentioned in Telugu in the opening account form and the 4 same was scanned by bank systems. He further admitted that at the time of filing up of opening account form application, applicant took the help of bank officials for filling application form. Lower court did not consider the admissions elicited during cross- examination of complainant. Hence, sought for allowing the appeal by setting-aside the conviction and sentence passed by trial court.

7.Heard both sides. Learned advocate for respondent filed written arguments for reference.

8.Now the point for determination is whether the conviction recorded by trail court for the offence punishable u/s 138 of Negotiable Instruments Act is sustainable or not ?

9.Case of complainant is that, the accused borrowed a sum of Rs.2,50,000/- from him on 25.09.2013 for his necessities and executed promissory note under Ex.P-6 in his favour agreeing to repay the same with interest at 24% per annum. Thereafter inspite of repeated demands, on 28.05.2016, accused issued a cheque bearing No.129643 drawn on State Bank of India, Chinna Bazar Branch, Nellore marked as Ex.P1 towards part payment due under said promissory note under Ex.P-6. When he presented said cheque in Andhra Bank, Main

Branch, Nellore for collection, it was dishonoured on the ground of “Funds Insufficient” along with memo dated 31.05.2016 under Ex.P-2. On 26.6.2016 complainant got issued a legal notice marked as Ex.P3 to accused calling upon him to repay cheque amount, but he failed to discharge the amount. Hence he is constrained to file this complaint.

10.Per contra learned advocate for accused argued that, in this case respondent is sister-in-law of one Srilatha and said Srilatha and husband of complainant and father-in-law of complainant trespassed into his bakery shop, abused him in filthy language and forcibly took five blank promissory notes and five blank cheques. There were some house property disputes between accused as well as sister-in-law of complainant for which also there is no documentary proof. Complainant has no capacity to lend amount. Even as seen from complaint, source of income of complainant is not mentioned. During Pw1 cross- examination it is elicited that, complainant is a house wife. But she voluntarily deposed that she is doing sari business for which there is no documentary proof. Even otherwise as seen from cheque, it is signed in English. Accused had no habit of signing in English and since he 5 signed in English in capital letters, nobody will sign in capital letters. Hence, prayed for setting aside the judgment of trial court.

11.A perusal of record filed on behalf of the complainant shows that, she also filed Ex.P- 6 promissory note and also examined one of its attestor as Pw2. According to PW-2, wife of accused is also one of the attestors in said promissory note. He supported case of

Complainant in toto. However, when it is stated that wife of accused is also one of the attestors, for the reasons best known to accused, he did not choose to examine her on his behalf to prove his contention of forgery. So also her signing is also not denied. Therefore, as seen from rival contentions, it is clear that, the accused borrowed amount by executing promissory note under Ex.P-6 and therefore, he got issued cheque to complainant for discharging part debt.

12.To show that accused is having habit of signing in English capital letters, complainant also produced certified copy of sale deed dated 7.5.2012 marked as Ex.P7 and it also shows that the accused signed in English with capital letters. Similarly, accused also produced evidence of Bank Official as Dw1 and marked his account opening form as Ex.D1. They also reveal that the accused has the habit of signing in English. But as contended by the accused, there is a difference in letter 'J' in both bank opening form and also on the cheque.

But according to Dw1 also, both signatures belong to same person. A perusal of English signature on Ex.P7 also go to show that accused has signed in English and over all the signatures in English appears similar. Best person to give opinion will be expert, whose evidence is not available.

13. Accused took several steps to drag the dispute by filing Criminal Miscellaneous

Petitions and also represented before this court that, he wanted to file revision before

Honourable High Court for getting some relief, but he failed get any such relief as

contended by him. Therefore, it is clear that only to drag on the dispute he filed petitions one after another. In fact accused also failed to issue any notice or lodge any complaint for loss of his 5 cheques and 5 promissory notes. There is no supporting evidence in this regard. In addition accused did not enter witness box to be cross examined to prove his defense. Why he kept so many cheques and promissory notes in his bakery shop is also not 6 explained. What happened to other cheques and promissory notes is also not explained.

When no action is taken by accused for loss of cheques and promissory notes, it is concluded that the defense taken by the accused is not bonafidie.

14.In this case, accused examined DW-1, who is Bank Manager and through him marked

Ex.D-1 attested copy of opening account form of accused. It shows that accused signed in

English as well as in Telugu. According to DW-1/Branch Manager signing in capital letters cannot accepted as per bank norms and hence they made accused to sign in Telugu. If really, accused does not know English, he would not have signed in English in the year 2012 in Ex.P-7 and so also in his Ex.D1-bank opening form. Accused did not make any effort to prove that the signature on Ex.P-1 does not belong to him, especially when complainant has proved that the accused also has the habit of signing in English. There is no evidence to show that accused tried to send Ex.P-1 cheque as well as Ex.P-6 promissory note to expert opinion. When once complainant has proved that accused also has the habit of signing in

English with capital letters by filing Ex.P-7 to corroborate with Ex.P-1 and Ex.P-6, it is concluded that the accused signed on all the documents on which complainant relied.

15.Another contention raised by the accused is that, notice was not served on him and hence non-serving of mandatory notice goes against the case of complainant. But there is no dispute that accused is not residing in said house. When notice is sent to correct address, it is deemed served though as per acknowledgment one Basha received said notice as per Ex.P-4. Therefore, it is concluded that, since notice was sent to correct address of the accused, it is deemed that he received said notice and therefore mandatory notice was issued by the complainant.

16.At this juncture this court would like to rely on a judgment of our Hon'ble Apex Court between CC Alvai Haji Vs. Palapetty Muhammed reported in 2007 AIR (SCW) 3578 wherein it was held that 'section 114 of the Evidence Act enables the Court to presume existence of any fact in the common course of events. Under section 27 of General Clauses

Act, one can presume service of notice effected when it is sent to correct address by registered post. This judgment aptly suit to facts of present set of facts.

17.Therefore, as seen from rival contentions coupled with the evidence adduced on 7 behalf of accused and complaint, it clearly go to show that since accused did not make any complaint to police about loss of 5 promissory notes and 5 cheques or non sending of disputed documents to expert for opinion adversely affects the case of accused. As mandatory notice was issued to correct address of accused under E.P-3 coupled with Ex.P-4 served postal acknowledgement and Ex.P-5 India Post on-line copy of tracking, proves the case of complainant. When promissory note under Ex.P6 and passing of consideration under promissory notes is proved by examining Pw2, it is concluded that the cheque under

Ex.P1 was issued for discharging legally enforceable debt due under promissory note.

Therefore, accused is found guilty. This court finds no reason to interfere with the findings of trial court and hence the same is confirmed by dismissing this appeal.

18.In the result, the Criminal Appeal preferred by appellant/accused is hereby dismissed by confirming the conviction and sentence passed by the trial court in C.C.No.512/2016

dated 28.08.2017 on the file of Judicial Magistrate of First Class, Special Mobile Court,

Nellore. Default clause for non-payment of compensation is hereby set aside. Accordingly only default clause is modified.

Dictated to the steno, transcribed by him corrected and pronounced by me in open

Court on this the 1st day of April 2019.

Sd/- B.Sunita

IV Additional District & Sessions Judge, Nellore.

APPENDIX OF EVIDENCE

NIL

Sd/- B.Sunita

IV A.D.J

// True Copy //

Sd/- B.Sunita

IV Additional District & Sessions Judge, Nellore.

1

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE::NELLORE

Dated this the 27th day of March 2019 Present:- Smt. B.Sunita, IV Additional District Judge, Nellore.

A.S.No.103/2017

1. M.N.Prakash Singh, son of Babu Singh, Hindu, 57 years, Business, residing at Ranganayakulapet, Nellore City.

2. Pachipulusu Venkateswarlu, son of Malakondaiah, aged about 59 years, resident of D.No.12/806, Kamsali Street, Santhapet,

Nellore City. ... Appellants/Defendants

Vs.

Machavolu Gopala Krishna Murthy, son of Ramaiah Sastry, aged about 76 years, Residing at D.No.27/2/1436, Balaji Nagar,

Nellore City.... Respondent/Plaintiff

Appeal against the decree and judgment in O.S.No.256 of 2015 on the file of III

Additional Junior Civil Judge, Nellore dated 13.07.2017

Machavolu Gopala Krishna Murthy... Plaintiff

Vs.

1. M.N.Prakash Singh

2. Pachipulusu Venkateswarlu ... Defendants

This appeal coming on this day of 19.03.2019 for final hearing before me in the presence of Smt.Ch.Lakshmi, Advocate for appellants and of Sri V.Sankara Narayana, advocate for respondent and upon hearing, this Court stood over consideration till this day and this court delivered the following:-

J U D G M E N T

1.Memorandum of Civil Appeal is filed U/O XLI Rule 1 CPC against the judgment and decree passed in O.S.No.256 of 2015 on the file of III Additional

Junior Civil Judge, Nellore dated 13.07.2017.

2.Parties are arrayed as they were referred before the trial court;

3.Breif averments of plaint are that:-

(i) Plaintiff purchased plaint schedule property from 1. Sannapureddy Vijaya

Kumara Reddy, Shaik Kareem Mohiddin, Somana Sudhakar Reddy, Katam Krishnaiah and Rapuru Pullaiah with G.P.Agent Pitti Chenchu Ramaiah under a Registreed Sale 2

Deed bearing document No.3981/1992 of S.R.O., Nellore dated 25.07.1992 by paying sale consideration of Rs.13,400/- and obtained possession. Since then he has been in possession and enjoyment of the property.

(i) Plaint schedule property is a vacant house site and hence, he got constructed a compound wall about six months back. Defendants along with their men tried to encroach into his property and when he questioned, the defendants threatened him that they are having right over the plaint schedule property. Hence, he filed present suit for grant of permanent injunction.

4.First defendant filed written statement and the same was adopted by 2nd defendant. 1st defendant denied allegations made in plaint and contended that 1st defendant purchased plots Nos.117, 118 and 119 admeasuring an extent of 33 1/3 ankanams each totalling about 110 ankanams comprised in Survey numbers 80/2C and 80/3 situated in Padarupalli area, Nellore Mandal under separate registered sale deeds. Since the date of purchase, 1st defendant is in exclusive possession and enjoyment of the property . After purchasing three plots about 5 years back, 1st defendant raised a small parpet wall around total extent of 100 ankanams and was in possession.

(i) Subsequently 1st defendant sold plot No.119 to 2nd defendant under a

Registered SaleDeed bearing No.3537/2015 dated 21.05.2015 for a total sale consideration of Rs.10,67,000/- and possession was also deliverd. There is no cause of action to file this suit. Hence, prayed for dismissal of the suit with costs.

5.Basing on the pleadings, following issues were settled for trial by trial court:-

1.Whether plaintiff is entitled for permanent injunction as prayed for?

2.To what relief?

6.To prove their respective contensions, on behalf of plaintiff, he himself was examined as PW-1 and Ch.Venkata Ashok Kumar was examined as Pw-2. Ex.A-1 was marked. On behalf of defendants No.1 and 2 were examined as DW-1 and Dw-2 3 and marked as Ex.B-1 to Ex.B-3.

7.After careful evaluation of available evidence on record, trail court decreed the suit. Aggrieved by said decree, defendants filed present appeal with following grounds;

(i) Trial court onserved that as per Ex.A-1, suit schedule property mentioned in Ex.A-1 is 33 1/3 ankanams of site in Survey No.80/2C, 80/3 in plot No.119 was purchased by the plaintiff on 25.07.1992. Therefore, subsequent registration if any in respect of suit schedule property under Ex.A-1 will not bind prior purchaser. Trial court erroneously observed that, Ex.B-1 to Ex.B-3 were registered subsequent to the registration of document under Ex.A-1. It failed to consider admission of PW-1 that, the defendants constructed a compound wall for three plots and he pleaded ignorance that, the defendants constructed the same in 2010 is totally erroneous.

Basing on the admission of PW-1 itself that the defendants constructed a compound wall for three plots, Trial court ought to have come to conclusion that the defendants are in possession and enjoyment of suit property and dismissed the suit. Trial court failed to note that in a suit for bare injunction, possession of suit property alone is paramount and not title. Hence prayed for setting aside the decree and judgment of the trial court.

8.Now the point for determination is, whether the judgment and decree of trial court is sustainable or not? Main issue for consideration is whether plaintiff is entitled for grant of permanent injunction as prayed for or not?

9.Case of plaintiff is that, he purchased suit schedule property under

Registered Sale Deed dated 25.7.1992 marked as Ex.A-1 and since then he has been in possession and enjoyment of said property. Recently, while he was trying to construct compound wall, defendants encroached into his property and they also threatened him that, they would disposess him from suit schedule property.

Therefore, he filed this suit for grant of permanent injunction.

10.Per contra learned advocate for 1st defendant argued that, 1st defendant 4 purchased suit schedule property under Registered Sale Deed marked as Ex.B-2 on 13.12.2010 and since then he has been in possession and enjoyment of the same. He also filed Ex.B-1 link document dated 15.06.2001 to show that his vendor purchased said property. Since 1st defendant is title holder and as he has been in possession and enjoyment of the property from the date of his purchase, he sold it to 2nd defendant under Ex.B-3 on 21.05.2015 for valid consideration and delivered possession. Therefore, 2nd defendant has valid title and possession over suit schedule property. 2nd defendant also contended that, he is a bonafide purchaser from 1st defendant under Ex.B-3. Since the date of his purchase, he has been in possession and enjoyment of the property.

11.As seen from rival contentions on both sides, vendor of 1st defendant under

Ex.B-1 and vendor of plainitff under Ex.A-1 are same persons. Sale deed under

Ex.A-1 belongs to 1992, where as Ex.B-1 pertains to the year 2001. Original title of vendor of plaintiff as well as vendor's vendor of 1st defendant is not in dispute. It is also admitted during cross-examination of PW-1 that defendants constructed compound wall for their plots. According to 1st defendant, he purchaed plots 117, 118 and 119 and present dispute plot is in respect of plot no.119. PW-1 further stated that defendants tried to occupy his site and when he tried to obstruct them, defendants beat him. Defendants also threatened him with dire consequence after he tried to obstruct them. Therefore, he filed this suit.

12.In support of the contention of plaintiff, he also examined PW-2, who is third party to suit. In his cross-examination he admitted that, he along with plaintiff went to suit schedule property as plaintiff requested him in the yaer 2014 at the time of construction of compound wall and subsequently in the month of March 2015, defendant tried to encroach into suit scheudle property and hence he supported the version of plaintiff.

13.During cross-examination of DW-1 it is elicited that, he does not know basing on which document plaintiff filed this suit. Further in this case defendant No.1 has 5 not averred source of his title both in his written statement as well in his evidence affidavit. He only stated that he purchased suit schedule property under document

No.15185/2010 on 13.12.2010 from one Muddunuru Ujvala. Where as he filed Ex.B- 1 to show source of title of his vendor. Since his vendor has no valid title as already his vendor’s vendor sold property to plaintiff, 1st defendant ought to have examined his vendor’s vendor as well as his vendor's vendors to prove their bonafides regarding purchase of his vendor and that she had valid title. Further, it is not denied during cross-examination of Pw1 or Pw2 that the vendor of Pw1 has no valid title to transfer the property to Pw1. So also the document i.e, Ex.A1 is not denied.

14. During cross-examinatioon of DW-1, it is also elicited that, he does not know how plaintiff acquired the property. Though both defendants deposed that, they verified encumberance certificates before purchasing property in dispute, they did not file any encumbrance certificates to prove their bonafidies that, after verifying encumbrance certificate, they purchaed suit schedule property under Ex.B2 and

Ex.B3. It is not the case that of defendants that, the plaintiff is claimng title under any un-registered document. When defendants did not deny title deed of plaintiff either in their written statement or in evidence affidavit, it stands on a better footing than that of Ex.B1 to Ex.B3, since it is prior in date. At this juncture, this court would like to rely on a judgment between Binjamuri Rajagopalachari and others Vs. State of Andhra Pradesh represented by Principal Secretary, Revenue

Department, Hyderabad and others reported in 2016 (1) ALT 550 (FB) – wherein our

Hon’ble High Court held that mere act of registration could not transfer right which

the vendor does not posses. Even otherwise, if really defendants No.1 and 2 have verified relevant documents like Encumbrance Certificates before purchase of suit schedule, purchase of plainitff would definitely have been reflected in Encumbrance

Certificates, as plaintiff purchased property in the year 1992 itself, i.e., much prior to purchase of property by thevendor of 1st defendant.

6

15.DW-1 in his cross-examination also admitted that, he did not either deny or admit the document Ex.A1 on which plaintiff relied to prove his title and possession and till today property is a vacant site. Therefore, this admission of defendant No.1 go to show that, property is still vacant and since Ex.B-2 and Ex.B-3 do not reflect construction of compound wall and the same was elicited during his cross-examination of DW-2, it is clear that 1st defendant and 2nd defendant have not constructed any compound wall around suit schedule property. If any compound wall existed as stated by 1st defendant, it would have been reflected in Ex.B-3 atleast when 2nd defendant purchased the property, but it is not so.

16.First defendant also did not mention about constructing of compound wall for 3 plots either in his written statment. D1 also did not mention said fact in his written statement and so also in Ex.B-3 sale deed under which 2nd defendant is claiming title. Any amount of evidence without pleadings is of no value in civil suits.

Similarly during cross-examination of DW-1 it is elcited that, he also does not know how plaintiff purchased property and also document filed by plaintiff in this suit.

This conduct of defendants go to show that, they do not want to verify genuineness of the documents on which plaintiff filed this suit. Though he stated that he obtained encumbrance certificate before purchasing property, he also did not make any effort to mark Encumbrance Certificate obtained by him. 2nd defendant also has not filed any document to show that he has been in possession and enjoyment of suit schedule property and as admittedly property is vacant site and as valid title is possessed by plaintiff as disccused above, the principle that valid title follows possession is considered. At this juncture this court would like to rely on a judgment between Anathula Sudhakar Vs. P.Buchi Reddi (died) by Lrs., and others reported in

AIR 2008 Sc 2033 it was held by our Hon'ble Apex Court that when the vacant site is not physically possessed, used or enjoyed, the person who establishes possession against the person who is not able to establish his title is considered for injunction.

Since defendant failed to prove his valid title, the suit is decreed. Therefore, it is 7 concluded that, the plaintiff has valid right, title and possession over the suit property and therefore he is entitled for grant of permanent injunction. Therefore, the findings of lower court are confirmed.

17.In the result, appeal is dismissed with costs by confirming the decree and judgment passed in O.S.No.256 of 2015 on the file of III Additional Junior Civil

Judge, Nellore dated 13.07.2017.

Dictated to the steno, transcribed by him, corrected and pronounced by me in

open Court on this the 27th day of March 2019.

Sd/- B.Sunita

IV Additional District Judge, Nellore.

Appendix of evidence Nil

Sd/- B.Sunita

IV A.D.J

8

IN THE COURT OF THE IV ADDITIONAL DISTRICT JUDGE::NELLORE

Dated this the 27th day of March 2019 Present:- Smt. B.Sunita, IV Additional District Judge, Nellore.

A.S.No.103/2017

1. M.N.Prakash Singh, son of Babu Singh, Hindu, 57 years, Business, residing at Ranganayakulapet, Nellore City.

2. Pachipulusu Venkateswarlu, son of Malakondaiah, aged about 59 years, resident of D.No.12/806, Kamsali Street, Santhapet,

Nellore City. ... Appellants/Defendants

Vs.

Machavolu Gopala Krishna Murthy, son of Ramaiah Sastry, aged about 76 years, Residing at D.No.27/2/1436, Balaji Nagar,

Nellore City.... Respondent/Plaintiff

Appeal against the decree and judgment in O.S.No.256 of 2015 on the file of III

Additional Junior Civil Judge, Nellore dated 13.07.2017

Machavolu Gopala Krishna Murthy... Plaintiff

Vs.

1. M.N.Prakash Singh

2. Pachipulusu Venkateswarlu ... Defendants

This appeal filed by the appellants/defendants under Order 41 rule 1 of C.P.C., gainst the decree and judgment in O.S.No.256 of 2015 on the file of III

Additional Junior Civil Judge, Nellore dated 13.07.2017 to set-aside above said

decree and judgment and consequently dismiss the suit.

Appeal presented on 24.08.2017

Value of the appeal: Rs.10,000/- and court fee of Rs.786/- is paid under Section 49 of A.P.C.F., and S.V.Act (As valued in lower court)

This appeal coming up for final disposal before me in the presence of Smt.Ch.Lakshmi, Advocate for appellanta and of Sri V.Sankara Narayana, advocate

for respondent and THIS COURT DOTH ORDER AND DECREE;

(i) that appeal is dismissed by confirming the decree and judgment passed in O.S.No.256 of 2015 on the file of III Additional Junior Civil Judge, Nellore dated 13.07.2017;

(ii) that the appellants to pay to the respondent a sum of Rs. Nil (costs 9 memo not filed) and bear their own costs of Rs.Nil (costs memo not filed).

Given under my hand and the seal of the court on this the 27th March 2019.

Sd/- B.Sunita

IV Additional District Judge, Nellore.

MEMO OF COSTS

Costs memon not filed by either party

Sd/- B.Sunita

IV Additional District Judge, Nellore.

// True Copy //

Sd/-XXXXXXXXXXXXXXXxx

Superintendent,

IV Additional District Judge Court,

Nellore

1

IN THE COURT OF SPECIAL JUDGE FOR THE TRIAL OF OFFENCES UNDER THE

S.Cs AND S.Ts (POA) ACT, -CUM-V ADDITIONAL DISTRICT & SESSIONS

JUDGE-CUM::NELLORE:: SRI POTTI SRIRAMULU NELLORE DISTRICT.

Present: Smt.B.SUNITA,

IV ADDITIONAL DISTRICT & SESSIONS JUDGE,

(FAC) Special Judge for TRIAL OF OFFENCES UNDER THE S.Cs AND S.Ts (POA) ACT-CUM-V ADDITIONAL DISTRICT & SESSIONS JUDGE::NELLORE.

NELLORE.

Tuesday, this the 4th day of December 2018

SESSIONS CASE No.32 of 2018

State represented by Sub Divisional Name of the Complainant:Police Officer, Nellore Town Sub Division, SPS Nellore District.

1. Kannam Venkata Krishnaiah alias Bujji,son of Sri Hari Naidu, 49 years, Kamma, 2nd lane, Babuji Nagar, Kavali.

2. Kannam Radha, wife of Venkata Krishnaiah, 43 years, Name of the accused:: Kamma, 2nd lane, Babuji Nagar, Kavali.

Alleged Accused:- Kannam Amulya, daughter of Venkata Krishnaiah, 20 years, Kamma, 2nd lane, Babuji Nagar, Kavali.

Charges:352 read with 34 IPC against A-1 and A- 2 in furtherance of common intention assaults by using criminal force, 290 read with 34 IPC in furtherance of common intention committed public nuisance against A-1 and A-2, 323 read with 34 IPC in furtherance of common intention voluntarily caused hurt against A-1 and A-2, 506 read with 34 IPC in furtherance of common intention committed criminal intimidation against A-1 and A-2, 427 read with 34 IPC in furtherance of common intention committed mischief causing damage to property and and Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, 2015 against A-1 and A-2 2

Plea of the accused hereinNot guilty

In the result, accused/A-1 and A-2 are found not guilty for the charged offences punishable under Sections u/s 352 read with 34 IPC, 290 read with 34 IPC, 323 Finding of the Judge: read with 34 IPC, 506 read with 34 IPC, 427 read with 34 IPC and Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, 2015 and they are acquitted under Section 232 Cr.P.C. In the result, accused/A-1 and A-2 are found not guilty for the charged offences punishable under Sections u/s 352 read with 34 IPC, 290 read with 34 IPC, 323 read with 34 IPC, 506 read with 34 IPC, 427 read with 34 IPC and Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, Sentence of order:- 2015 and they are acquitted under Section 232 Cr.P.C. Bail bonds of accused shall stand cancelled six months after pronouncing this judgment as per provisions of section 437-A Cr.P.C. Marked and unmarked property if any shall be destroy after appeal time is over.

Additional Public Prosecutor,

Nellore Prosecution conducted by:

Sri G.Rajagopal Reddy,

Defence conducted by:Advocate for Accused,

Nellore.

J U D G M E N T

1.State Sub Divisional Police Officer, Nellore Town Sub Division, SPS

Nellore District filed a charge sheet against the accused in Cr.No.279/2016 of Nellore Town Sub Division, SPS Nellore District for the offences punishable u/s 352, 290, 323, 506, 427 read with 34 IPC and Section 3 (1)

(r) (s) of S.Cs and S.Ts (POA), Act 1989 of V Town Police Station, Nellore.

2.Brief case of prosecution as per charge sheet is that, 3

(i)Thalapaneni Rajesh Kumar/LW-2 and Kannam Venkata

Krishnaiah/A-1 are family friends and business partners. A-1 agreed to purchase flat No.302 in Park Stone Apartment, constructed at Indira Nagar,

Kondayapalem, Nellore on condition to decorate with latest facilities and that he would pay all the expenses and get registered. On that Thalapaneni

Rajesh Kumar/LW-2 constructed said flat with all facilities and spent an amount of Rs.15,00,000/- as additional expenses. A-1 agreed for the same and got registered the same on the agreement that he is indebted said

Rs.15,00,000/-. But A-1 did not repay the same and in that connection a civil suit is pending between Thalapaneni Rajesh Kumar/LW-2 and A-1.

(ii) On 22.06.2016 at about 1-00 p.m., when Thalapaneni Rajesh

Kumar/LW-2 went to Chennai and while Sadepalli Pratima/LW-1, who is the wife of Rajesh Kumar/LW-2 was talking with Ponnapoola Ashok Kumar/LW-3,

Ponnapoola Sasisri/LW-4, Sadepalli Prasad/LW-5, Kota Radha Krishna

Murthy/LW-6 in her flat, Manne Kesavaiah/LW-7 came to them and informed that the accused and others broke open the lock of said flat No.302. Then

Sadepalli Pratima/LW-1 went there along with Ponnapoola Ashok Kumar/LW- 3 through lift and Ponnapoola Sasisri/LW-4, Sadepalli Prasad/LW-5, Kota

Radha Krishna Murthy/LW-6 and Manne Kesavaiah/LW-7 follwed them through steps. When Sadepalli Pratima/LW-1 questioned A-1 as to why he broke open the lock in the absence of Thalapaneni Rajesh Kumar/LW-2 and asked him to talk to Lw2 and as said issue is pending in the court. Then A-1 pushed down Sadepalli Pratima/LW-1 on to the ground, A-2 beat her with hands and legs and both of them abused Sadepalli Pratima/LW-1 by raising her caste name and threatened her with dire consequences. A-3 was standing near the lift. Then Ponnapoola Ashok Kumar /LW-3 and 4

Ponnapoola Sasisri/ LW-4, Sadepalli Prasad /LW-5, Kota Radha Krishna

Murthy /LW-6 intervened and A-1, A-2 and A-3 went away. Accordingly complaint was lodged.

(iii) Basing on the report of Sadepalli Pratima/LW-1, Sub Inspector of

Police registered a case in crime No.279/2016 under Section 352, 290, 323, 506, 427 read with 34 IPC and Section 3 (1) (r) (s) of S.C and S.T (POA), Act 2015. Sub Divisional Police Officer, Nellore Town, who received authorization from the Superintendent of Police, SPSR Nellore District vide

C.No.152/C3-AL/2016 dated 23.06.2016, took up investigation, recorded the statements of witnesses, visited the scene of offence and prepared rough sketch of the scene of offence. On 21.07.2016 Sub Divisional Police

Officer/LW-10 arrested A1 and sent him for judicial custody. Honourable

High Court directed the Investiation Officer to complete investigation without arresting A-2 and file final report vide Crl.M.P.No.12704/2016.

During the course of investigation, prima-facie case was made out against

A-1 and A-2 only. After completion of investigation, Sub Divisional Police

Officer filed charge sheet on 30.11.2016.

3.Learned Magistrate in its docket order dated 18.09.2017 mentioned that charge sheet is not yet filed. Hence, the presence of accused is not required at the stage and they are directed to appear before the court after receipt of summons without committing under P.R.C. On 27.10.2017 petition was filed by Sub Divisional Police Officer before the court stating that there was no willful negligence on the part of complainant in not filing the charge sheet within 60 days and prayed to issue S.C.Number.

4.On receipt of case records, case was taken on file after numbering as

S.C. No. 32/2018, copies of documents were furnished to the accused as 5 required u/s 207 Cr.P.C. Charges u/s 352 read with 34 IPC, 290 read with 34

IPC, 323 read with 34 IPC, 506 read with 34 IPC and 427 read with 34 IPC and Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, 2015 against A-1 and

A-2 were framed. The charges were read over and explained to them in

Telugu for which they pleaded not guilty and claimed to be tried.

5.To prove the case of prosecution, Pw1 to Pw4 are examined and Ex.P1 to Ex.P11 marked. Defence adduced no evidence.

6.Now the point for determination is whether prosecution is able to establish the guilt of accused for the charges framed against them as mentioned supra beyond reasonable doubt or not?

7.Case of prosecution is that, A1 and Pw2 are friends and business partners. A1 agreed to purchase flat no.302 in Park Stone Apartment at Indira

Nagar, Nellore on condition to decorate with latest facilities. Hence Pw2 made ready with all facilities by spending an amount of Rs.15,00,000/- and A1 agreed to get it registered and became indebted for said amount to Pw2. Therefore civil is filed and pending between them. On 22-05-2016 at about 01-00 pm when Pw2 was at Chennai and Pw1 was talking with Pw3 to Pw4 and others in her flat, accused came along with others and broke open the lock of flat no.302 and hence

Pw1 went and questioned about the acts of accused as civil suit is also pending.

Accused grew wild and beat her with hands and legs and scolded her in filthy language by using her caste name and threatened with dire consequences.

8.But when learned Addl.PP examined complainant and her husband as Pw1 and Pw2, they did not support case of prosecution. In fact they stated that due to civil disputes, when they went to police station, police obtained their signatures and that they do not know the contents of complaint. In fact in this case all prosecution witnesses who are eye witnesses and examined as Pw1 to Pw4 did not support prosecution.

9.Since none of the prosecution witnesses supported case of complainant and 6 so also complainant did not support contents of complaint , learned Addl.PP declared them hostile and cross examined them. Inspite of cross examining them, nothing in support of prosecution version is elicited from Pw1 to Pw4. Hence, learned Addl.PP has given up evidence of rest of the witnesses as no purpose would serve by examining them.

10.As there is no incriminating material to put to the accused to be cross examined by him, examination of accused u/s 313 Cr.P.C. is given up. Since there is no incriminating material against the accused, benefit of doubt is given to the accused and he is acquitted.

11.In the result, accused/A-1 and A-2 are found not guilty for the charged offences punishable under Sections u/s 352 read with 34 IPC, 290 read with 34

IPC, 323 read with 34 IPC, 506 read with 34 IPC, 427 read with 34 IPC and

Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, 2015 and they are acquitted under Section 232 Cr.P.C. Bail bonds of accused shall stand cancelled six months after pronouncing this judgment as per provisions of section 437-A Cr.P.C. Marked and unmarked property if any shall be destroy after appeal time is over.

Typed on my direct dictation, corrected and pronounced by me in open Court on this the 4th day of December 2018.

Sd/- B.Sunita

IV Additional District & Sessions Judge, (FAC) Special Judge for TRIAL OF OFFENCES UNDER THE S.Cs AND S.Ts (POA) ACT-CUM-V

ADDITIONAL DISTRICT & SESSIONS JUDGE::NELLORE.

NELLORE.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution:- PW-1/Sadepalli Prathima PW-2/Thalapaneni Rajesh Kumar PW-3/Ponnapoola Ashok Kumar PW-4/Ponnapoola Sasisri For defence:Nil 7

DOCUMENTS MARKED

For prosecution:- Ex.P-1/Signature in complaint Ex.P-2 to Ex.P-5/161 Cr.P.C., statements of PW-1 to PW-4 Ex.P-6/Original First Information Report in crime No.279/2016 Ex.P-7/Rough sketch Ex.P-8/Report of PW-1 Ex.P-9/Authorization proceedings of S.P.S.R., Nellore District Ex.P-10/Caste Certificate of accused Ex.P-11/Caste certificate of PW-1 For defence:-Nil Material Objects marked:-Nil

Sd/- B.Sunita

IV Additional District & Sessions Judge, (FAC) Special Judge for TRIAL OF OFFENCES UNDER THE S.Cs AND S.Ts (POA) ACT-CUM-V

ADDITIONAL DISTRICT & SESSIONS JUDGE::NELLORE.

NELLORE.

8

IN THE COURT OF SPECIAL JUDGE FOR THE TRIAL OF OFFENCES UNDER THE

S.Cs AND S.Ts (POA) ACT, -CUM-V ADDITIONAL DISTRICT & SESSIONS

JUDGE-CUM::NELLORE:: SRI POTTI SRIRAMULU NELLORE DISTRICT.

Present: Smt.B.SUNITA,

IV ADDITIONAL DISTRICT & SESSIONS JUDGE,

(FAC) Special Judge for TRIAL OF OFFENCES UNDER THE S.Cs AND S.Ts (POA) ACT-CUM-V ADDITIONAL DISTRICT & SESSIONS JUDGE::NELLORE.

NELLORE.

SESSIONS CASE No.32 of 2018

1Name of the Complainant:State represented by Sub Divisional Police Officer, Nellore Town Sub Division, SPS Nellore District.

2Name of the accused:1. Kannam Venkata Krishnaiah alias Bujji, son of Sri Hari Naidu, 49 years, Kamma, 2nd lane, Babuji Nagar, Kavali.

2. Kannam Radha, wife of Venkata Krishnaiah, 43 years, Kamma, 2nd lane, Babuji Nagar, Kavali.

Alleged Accused:- Kannam Amulya, daughter of Venkata Krishnaiah, 20 years, Kamma, 2nd lane, Babuji Nagar, Kavali.

3Date of offence:22.06.2016 4Place of offence:Park Stone Apartment, Indira Nagar, Kondayapale, Nellore.

5Date of complaint:23.06.2016 6Date of apprehension of:A-1 arrested on 21.07.2016, accused 7Whether the accused is in:01-08-2016 A-1 released on bail. A-2 jail or bailget direction from the Honourable High Court that complete the investigation without arresting A-2 and file final report.

8Date of commencement of:19.11.2018 trial 9Date of close of trial:27.11.2018 9 1Date of sentence or:04-12-2018 0Judgment

EXPLANATION FOR DELAY IN SESSIONS COURT

After receipt of the record on 28-03-2018 on 9.4.2018 issued summons to accused and posted to 14.05.2018. On 7.6.2018 A-1 and A-2 present and Sri G.R.G.R., filed memo of appearance. On 25.10.2018, charges under Sections 352 read with 34 IPC against A-1 and A-2 in furtherance of common intention assaults by using criminal force, 290 read with 34 IPC in furtherance of common intention committed public nuisance against A-1 and A-2, 323 read with 34 IPC in furtherance of common intention voluntarily caused hurt against A-1 and A-2, 506 read with 34 IPC in furtherance of common intention committed criminal intimidation against A-1 and A-2, 427 read with 34 IPC in furtherance of common intention committed mischief causing damage to property were framed. Trial schedule was given from 19.11.2018. PW-1 to PW-4 were examined and Ex.P-1 to Ex.P-11 were marked. On 27.11.2018, Crl.M.P.No.909/2018 was filed under Section 294 Cr.P.C., by Additional Public Prosecutor and basing on it Ex.P-6 to Ex.P-11 were marked and Prosecution evidence reported closed. Posted for judgment on 4.12.208. On 4.12.2018 judgment was

pronounced by acquitting the accused under Section 235 (1) Cr.P.C.

Result:- In the result, accused/A-1 and A-2 are found not guilty for the charged offences punishable under Sections u/s 352 read with 34 IPC, 290 read with 34 IPC, 323 read with 34 IPC, 506 read with 34 IPC, 427 read with 34 IPC and Section 3 (1) ( r ) (s) of S.Cs and S.Ts (POA) Act, 2015 and they are acquitted under Section 232 Cr.P.C.

Sd/- B.Sunita

IV Additional District & Sessions Judge, (FAC) Special Judge for TRIAL OF OFFENCES UNDER THE S.Cs AND S.Ts (POA) ACT-CUM-V

ADDITIONAL DISTRICT & SESSIONS JUDGE::NELLORE.

NELLORE.