Sri B Suresh

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Calendar Case No.21 of 2017

IN THE COURT OF THE SESSIONS JUDGE :: HYDERABAD

Dated this the 31st day of July, 2024

Present: Sri B.Suresh,

Sessions Judge,

Hyderabad.

CALENDAR CASE NO. 21 OF 2017

Crime Number & Police Station315 of 2015 of PS WCO-A Division, CCS, DD, Hyderabad.

Name and description of theA1 – E.K.Susheel Kumar @ Susil AccusedKumar S/o. Madhavan Nair, R/o. Gokulam, Kalpetta(P.O), Kalpetta

Name and description of theThe State through Inspector of ComplainantPolice, P.S. (WCO)A- Division CCS, DD, Hyderabad.

Prosecution conducted bySri P.Durgaji, Incharge Public Prosecutor

Accused defended bySri S.Nagesh Reddy, Counsel for the Accused no.1.

Offence Chargedu/Sec.420 and 406 IPC r/w 34 IPC and Section 5 of TSPDFEA, 1999.

Plea of the accusedNot Guilty

Finding of the Court The Accused no.1 is found guilty of the charge under sections 420,406 IPC and section 5 of TSPDFE Act .

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ResultIn the result, Accused no.1 is sentenced to undergo RI for a period of three years for the offence under section 406 IPC and the accused is further sentenced to undergo RI for a period of five years for the offence under section 420 IPC and to pay a fine of Rs. 5,000/- and in default of payment of fine simple imprisonment for a period of one month, further, the accused is sentenced to undergo RI for a period of five years for the offence under Section 5 of TS Protection of Depositors of Financial Establishments Act and to pay a fine of Rs.5,000/- and in default of payment of fine simple imprisonment for a period of one month. Total fine amount of Rs.10,000/- (rupees ten thousand only). All the sentences shall run concurrently.

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

1.The Asst. Commissioner of Police, WCO-A, Division, CCS, DD,

Hyderabad, has laid a charge sheet against A1 to A4 showing A2 to A4 as absconding for the offences under Sections 406, 420 read with 34

IPC and Section 5 of T.S.Protection of Depositors of Financial

Establishments Act in Cr.No.315/2015.

2.The case of the prosecution is that A1 is the Managing

Director, A2 to A4 are the Directors of M/s Kalpetta Janakshema Maruthi

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Calendar Case No.21 of 2017

Chits (Andhra Pradesh) Private Limited, induced the PW1 and other victims to join in their company chits for Rs.1 lakh, Rs.2 lakhs and Rs.5 lakhs, as such the victims joined in the chits and paid subscriptions , later the accused failed to collect the subscription amounts from PW1 and when PW1 visited their office situated at Dr.No.5-4-8, Mitta

Chambers, 1st floor, J.N.Road, Abid Road, Hyderabad found that the said office is closed, as such the accused cheated about 75 persons to the tune of Rs.71,68,000/- under the guise of chit fund subscriptions and absconded without paying the chit amounts. Basing on the complaint of PW1, a case in Cr.No.315/2015 under sections 420, 406 IPC has been registered. As per the evidence, PW19 added section 5 of TSPDFE Act, 1999, thereby the accused/A1 to A4 committed offence punishable under sections 420, 406 read with 34 IPC and section 5 of TSPDFE Act.

3.The case was taken on file by this Court for the offence under Sections 406, 420 read with 34 IPC, section 5 of TSPDFE Act against A1 to A4 showing A2 to A4 as absconding.

4.That on appearance of A1 in this Court, on consideration of the material and upon hearing for the prosecution as well as the accused, charge under sections 420, 406 IPC, section 5 of TSPDFE Act were framed, read over and explained to him in his vernacular language. The accused pleaded not guilty and claimed to be tried.

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5.The prosecution to prove the guilt of the accused, examined

PWs 1 to P19 and got marked Exs.P1 to P27.

6.The accused was examined under section 313 Cr.P.C., by explaining the incriminating circumstances that are appearing against him in the evidence of the prosecution witnesses, the accused denied the evidence of the prosecution witnesses and reported no evidence on his behalf but got marked Ex.D1 on his behalf during cross-examination of prosecution witnesses.

7.Now, the point for consideration is “whether the prosecution has proved the charge under sections 420, 406 IPC, section 5 of TSPDFE

Act against the accused beyond reasonable doubt?”

POINT:-

8.It is the case of the prosecution herein that on the complaint of PW1, they registered a case in Cr.No.315/2015 for the offence under sections 420, 406 IPC and got issued the FIR which Ex.P24 and upon the investigation it was revealed that A1 to A4 under the name of

M/s.Kalpetta Janakshema Maruthi Chits Private Limited, running a chit fund in various states like Kerala, Karnataka, Andhra Pradesh and

Tamilnadu and they i.e, A1 to A4 being the Directors with a malafide intention cheated their customers and misappropriated lakhs of rupees of their customers and purchased the properties at various places in

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Calendar Case No.21 of 2017

Kerala, Karnataka and Tamilnadu and also spent the amounts lavishly by A1 to A4 and that A1 purchased the vehicles i.e, 1) Audi car KL-12H- 4545, 2) Polo car, 3) Tata Sumo, 4) Innova seven seater and 5) Hero

Honda Motorcycle.

9.To establish the guilt of the accused herein, the prosecution examined PW1 to PW19 and relied upon Exs.P1 to P27. Whereas PW1,

PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW10, PW11 and PW12 are the subscribers in the said chit fund company whereas PW9 is the Senior

Manager of Federal Bank who previously worked at Kukatpally branch i.e, from 2015 to 2018 and furnished about the details of Kalpetta

Janakshema Maruthi Chits Private Limited. PW13 is the person who deposed about his uncle property being obtained on lease for running the said chit fund company, PW14 who is also employee of the Federal

Bank furnished about Kalpetta Janakshema Maruthi Chits Private

Limited bank account of the person at Abids Branch during April 2014- 2017. Likewise PW15 is the Senior Manager who furnished bank account of the chit fund company ECIL Branch. Whereas PW16 and

PW17 are the mediators for the observation of the scene of offence panchanama and PW18 is the employee who worked in the said chit fund company who speak about the chit fund company. PW19 is the investigating officer.

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10.The evidence of PW1 is that he joined in the accused chit fund company in a chit of Rs.1 lakh and to be paid at Rs.5,000/- per month for 20 months and it belongs to Susheel Kumar i.e, A1 and they used to give receipts on payment of the chit amount and enter into the passbook and Ex.P1 is the said passbook and though it is marked to subject to objection but what is the objection on behalf of the accused is not being submitted and on perusal of the said passbook it discloses that it is the original passbook and in the month of December,2015 when he went to the chit fund company it was locked then he went and lodged Ex.P2 complaint and many victims were present and he paid amount to the tune of Rs.47,500/- including commission and he categorically deposed that the chit fund company belongs to the accused by name Susheel Kumar and the other subscribers of the chit also deposed on the same lines as that of PW1 about their joining in the chit fund company of the accused herein and having been paid to the maximum extent or lifting of the chit and for receiving the prize money he got issued the cheque which was dishonoured.

11.Likewise PW2 also deposed about that he joined in the chits of the accused company and relied upon Ex.P3 to P6 whereas Ex.P3 is the passbook, Ex.P4 is cheque deposit slip, Ex.P5 is the cheque return memo and Ex.P6 is the cheque for an amount of Rs.4,75,000/-. He also

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Calendar Case No.21 of 2017 deposed that when he used to pay the amount they used to issue receipts by entering into the passbook.

12.PW3 and PW4 also deposed on the same lines of PW1 and

PW2 and their passbooks are Exs.P7 and P8.

13.PW5 is another subscriber who deposed on the same lines of

PW1 to PW4 about joining in the chit and about closure of the said chit fund and not receiving his subscription money.

14.PW6 is another subscriber and his passbook is Ex.P9 and

PW7 is also one of the subscriber. PW8 is another subscriber who also deposed that he can identify the accused herein and he deposed that

Susheel Kumar is the Managing Director and he used to be present in the office at times. So, even through the evidence of PW8 it discloses the identity of A1. PW10 is another subscriber and his passbook and receipts are Exs.P11 and P12. PW11 is another subscriber and he also deposed on the same lines of other subscribers and he deposed that he paid the total amount of the chit and they got issued the cheque and it was dishonoured, Exs.P13 to P15 are the passbooks of his chits with receipts and ex.P16 is the cheque for Rs.94,000/- and Ex.P17 is the cheque in the name of his sister Padma in whose name he subscriber one of the chit. Ex.P12 is another subscriber also deposed on the same lines of other subscribers and his passbook is Ex.P18. So, on careful

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Calendar Case No.21 of 2017 perusal of the evidence of PW1 to PW8 and PW10 to PW12 who are subscribers of the accused chit fund company i.e, A1 to A4 whereas this case is now being run only against A1 as A2 to A4 are absconded which also establishes through Ex.P1 to P9 and P11 to P18.

15.PW13 is the person on behalf of the owner of the flat has deposed that his uncle by name M.Prakash is the owner of the flat Mitta

Chamber, flat no.101, Abids. As he is no more, in the year 2015,

Kalpetta Janakshema Maruthi Chits Private Limited was being run in the said flat by name Susheel Kumar, Pradeep, Sunil and others. They have taken the premises in the year 2013 on monthly rent of Rs.45,000/-.

They have run the chit fund company for about 2 ½ years but in the year 2014, CCS Police called him and stated that they have deceived the amount of the depositors and that the depositors made a complaint and the premises was closed and sealed and the police seized all the records of the chit fund company and he deposed that he can identify the accused by name Susheel Kumar and one Srinivas was the Manager of the chit fund which is used in the premises, though he was cross- examined nothing was elicited in the cross-examination to disbelieve his evidence.

16.Whereas the said Srinivas is examined as PW18. He deposed that previously he worked in Kalpetta Janakshema Maruthi

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Calendar Case No.21 of 2017

Chits Private Limited at Mitta Chambers, Abids, and he joined in the said company in the year 2014 and worked up to 2015 and the company was closed. The owner of the company is the accused E.K.Susheel

Kumar, MD and Pushparaj, Pradeep Kumar and Sunil Kumar are the

Directors. The accused i.e, Susheel Kumar, Pushparajan and Sunil

Kumar interviewed him and selected him. He was joined as a bill collector for collecting the amounts for the chits. He used to collect the chit amounts from the customers. Apart from him, there were 4 or 5 persons being appointed. He along with other two persons used to collect the amounts in the presence of MD and Directors and he also used to come to the customers to collecting the chit amounts. He further deposed that in the year 2015 there was a force from the customers that he used to collect the amounts to repay the earlier chits of the successful bidders, but one of the Director i.e, Pushparajan used to convince the customers stating that the company is in loss but the customers used to come to the office for their chit amounts for lapse of 6 months period and then they lodged the complaint and that the MD and Directors were absconded. Though he was cross-examined in length but nothing is elicited from his cross-examination to disbelieve his contention except the fact that he denied the fact he was being promoted as Manager which is marked as Ex.D1 and that was being

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Calendar Case No.21 of 2017 found in his statement. So, that is only a negligible contradiction and weightage cannot be given to the said contradiction as the evidence of

PW18 read with the evidence of PW9 disclose the fact that the accused herein along with other accused obtained the premises of PW13’s uncle and he was present and used to look after the said premises for running of the chit fund company and PW18 evidence disclose the fact that he used to collect the subscription of chit amounts from the customers.

17.Whereas the evidence of PW9 is that he worked as senior manager in Federal Bank at Kukatpally branch during 2015 to 2018. He deposed that the police approached them to furnish the particulars of the current account standing in the name of Kalpetta Janakshema

Maruthi Chits Private Limited and he deposed that the main branch is in

Kerala and the branch offices in the city in various places of Hyderabad.

He verified the KYC documents of the said company. He also verified the Directors and then accounts and one Susheel Kumar, AV Sunil

Kumar, Pushparajan and Pradeep Kumar are the Directors of the company and he has given a letter on his letter head and Ex.P10 is the letter along with the account details of the said company. It is marked subject to objection as it is signed on a Xerox and section 65-B of

Evidence Act certificate is not filed but it was observed that he verified

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Calendar Case No.21 of 2017 the Directors accounts from the bank and copies from the bank accounts does not require any attestations or section 65B certification for marking of the said documents and whereas the accused did not rely upon any citation unless and until it is the original document that section 65B certificate cannot be marked. But it discloses that the

Managing Directors and the Directors of the chit found company are the accused herein and others A2 to A4 and their accounts were maintained in the said bank in various places being established to prove his evidence. Though he was cross-examined except the suggestion that the documents are being fabricated for the sake of this case nothing is elicited in his cross-examination, hence the evidence of PW9 can safely relied upon with regard to the accounts of the accused chit fund company and Directors of the said chit found company.

18.PW14 is the Vice President of the Federal Bank wherein the account of the accused chit fund company was present. He deposed that previously he worked as Chief Manager and Branch head of Federal

Bank, Abids Branch from April,2014 to May,2017. On the requisition from the police requesting to furnish the bank accounts of Kalpetta

Janakshema Maruthi Chits Private Limited, chit accounts bearing nos.11240200020518 and 11240200019486, accordingly he issued attested copy of the accounts and KYC documents and he freezed the

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Calendar Case No.21 of 2017 said accounts. Ex.P19 is the requisition and whereas Ex.P20 and P21 are the account opening forms along with other documents which are signed by him and he too deposed that one Susheel Kumar, Sunil

Kumar, Pushparajan and Pradeep Kumar used to opeate the said accounts who are none other than the accused herein . Though he was cross-examined at length but nothing is elicited in his cross-examination to disbelieve his contention. So, the evidence of PW14 also discloses the fact that the accused had the office in Abids and had an account in the said place which is being operated by the accused herein.

19.PW15 who is the another bank Manager at ECIL Branch, who worked in the said branch from 2014-2018 deposed that on the request of the CCS police he gave the account statement of account no.16020200001923 and 1832 which stands in the name of Kalpetta

Janakshema Maruthi Chits Private Limited operated by Susheel Kumar,

Sunil Kumar, Pushparajan and Pradeep Kumar. His statements along with KYC are marked as Exs.P22 and P23. Though he is also being cross-examined nothing is being cross-examined to disbelieve his contention. So, the evidence of PW9, PW14 and PW15 discloses the fact that the accounts of accused chit fund company were having various accounts at various branches of the bank being operated by the accused herein.

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Calendar Case No.21 of 2017

20.PW16 and PW17 who are the mediators for the observation and seizure of the documents and registers, passbooks under the cover of panchanama from Mitta Chambers at Abids, but they failed to support the prosecution and they deposed that they do not know anything about the facts of the case and conducting of the scene observation panchanama and seizure of documents. They were declared hostile and cross-examined but nothing is elicited in their cross-examined to establish that in their presence the police conducted the scene observation panchanama and seized the documents, hence

PW16 and PW17 failed to support the prosecution in establishing the fact that the chit fund company was being run in Mitta Chambers but the owner of the said premises i.e, PW13 read with the evidence of

PW18 who worked in the said chit fund deposed the said ffact of the accused running the chit fund company in the said premises.

21.PW10 is the investigating officer herein. He deposed about the investigation conducted by him and got issuing of FIR, Ex.P24, conducting of the scene of offence panchanama, Ex.P25 and upon investigation he got filed memo on 28.7.2017 adding the section of law 34 IPC and section 5 of TSPDFE Act and the said memo is Ex.P26 and he has addressed a letter to the Registrar of Companies, Hyderabad requesting to furnish registered documents of the Kalpetta Janakshema

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Maruthi Chits Private Limited and they furnished the same and Ex.P27 is the said letter dt:5.102016 of the Asst. Registrar of the companies along with documents which discloses the fact that the accused herein by carrying the chit fund company in the name of Kalpetta Janakshema

Maruthi Chits Private Limited and failed to repay the money to the subscribers of the chit and cheated them.

22.In the cross-examination of PW19 it is stated that PW1 did not refer about any documents in Ex.P2 and no enclosures were affixed to Ex.P2. It is observed that PW1 is one of the subscribers of the chit and there is no likelihood of he having a connection with other subscribers as from various works of life, various people would be subscribing for the chit and collecting the entire information of those subscribers is not at all possible, hence the contention of the accused that he did not furnish any enquiries to Ex.P2 does not vitiate the case of the prosecution herein. It was put to PW19 that as the FIR issued against the Directors of the company, the said company has to be made as an accused and then against the Directors. But he deposed that he referred in the charge sheet about G.O.Ms.No.44, dt:24.3.2017. He further deposed that prior to the date of G.O, investigation has been completed in this case. Though the investigation has been completed but not the trial has commenced till that date, the said G.O. can be

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Calendar Case No.21 of 2017 relied upon and it is with regard to the GO that prior to the GO, the DCP alone was empowered to investigate under TSPDFE Act, to which the witness adds that DCP was empowered to file the charge sheet and he further deposes that he has conducted the investigation as the offence was only under section 406 and 420 IPC but not under section 5 of

TSPDFE Act. So as the earlier, the offence was only under section 406 and 420 IPC and after the investigation the section of law i.e, 5 of

TSPDFE Act is added and his investigation is in proper lines. Further, in the cross-examination of PW19 he deposed that Ex.P1, P3, P7, P8, P9,

P11, P12, P13, P14, P15 and P17 does not bear the signatures of

Kalpetta Janakshema Maruthi Chits Private Limited. It is observed that he was one of the Directors and they were operating at various places like Kerala, Karnataka, Tamilnadu and Andhra Pradesh and they got employed various persons to be working in various chit fund offices as such there is no likelihood of signatures of the Directors being present on all the documents pertaining to the chit fund company or payment receipts. So, hence the contention of the accused that it does not contain the signatures will disprove the guilt of the accused.

23.PW19 in his cross-examination deposed that he did not verify and get confirm as to the genuineness of Ex.P1, P3, P7 to P9, P11 to P15 and P19 but the evidence of the subscribers establishes the fact

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Calendar Case No.21 of 2017 that they being the subscribers of the chit company and non receipt of the prize money. He further deposed that the signatures of issuing authority in Ex.P1, P3, P7 to P9, P11 to P15 and P18 appears to be different and he did not examine the signatures of the said persons as the signatures on the passbook is different, it cannot be stated that the said books does not belongs to the accused company and not being issued by the said company as there is every likelihood whenever subscribers come to the office who are present there as it is deposed by PW17 that apart from him several other persons are being appointed they might be receiving the amount and issuing the acknowledgments, hence mere difference in the signatures on those documents does not take away the case of the prosecution herein.

24.So, the evidence of PW1 to PW19, Exs.P1 to P27 establishes the fact that the accused herein i.e, A1 along with other accused/A2 to

A4 have established the chit fund company under the name and style of

Kalpetta Janakshema Maruthi Chits Private Limited, having establishes their offices at Kerala, Karanataka, Tamilnadu and Andhra Pradesh and also opened several branches in the city and collected huge amounts from the subscribers of the chits and failed to pay the prized money to them and acquiring of properties by the accused and leading a lavish life establishes the fact that they had dishonest intention to deceive

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Calendar Case No.21 of 2017 the public in the name of chits.

25.The learned counsel for the accused herein in the written arguments relied upon a decision reported in 2022 Live Law (SC) 701 between MNG Bharateesh Reddy Vs. Ramesh Ranganathan and another wherein it was held that “ a breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment.”

26.Mere defrauding of payment of prize money to the subscribers of the chit itself discloses that the mensrea of the accused in cheating the public and dishonest intention in misappropriating the amounts both attracting the offences under sections 420, 406 IPC and having collected such deposits clearly attract the offence under section 5 of TSPDFE Act. So, the present citation with regard to the breach of contractual terms in this case the very plight of the subscribers is that they would be promised to pay the chit amount at the time of auction and at the time of end of the last chit under those who become a successful bidder for the chits and failing to comply such payment would amount to breach of contractual terms, as such it attracts the offence under section alleged against the accused herein.

27.In his written statement, the learned counsel for the accused further relied upon a decision reported between Hridaya Ranjan Prasad

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Verma Vs. State of Bihar wherein in the first place he may be induced fraudulently or dishonestly to deliver any property to any person.” In this case, by promising the deliver the prized money and failing to do so would only amounting to inducement fraudulently or dishonestly to deliver the property in the firm subscribing of the chit. So, the principle laid down in the above said citation attracts the offence committed by the accused herein.

28.The learned counsel for the accused further in his written arguments contended that PW19 in his cross-examination admitted that he has not done investigation under section 5 of TSPDFE Act and registration of the FIR is only under sections 420 and 406 IPC.

29.Even if for argument sake the contention of the petitioners that section 5 of TSPDFE Act is not being attracted, the offences under sections 406 and 420 IPC would apply to the accused herein and it is the allegation that the accused/A1 along with other accused have collected huge amounts. At this stage it is appropriate to refer a decision between AIR 2024 Supreme Court 1600 between Srikant

Upadhyay and others Vs. State of Bihar and another wherein it was held that “while called upon to exercise the said power, the court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of

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Calendar Case No.21 of 2017 justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence.”

30.It is observed during the course of investigation that on gathering material it may lead to direction of other offences and adding of the same while filing of the charge sheet. In this case also the offence under section 5 of the Act has been added during the course of investigation as such section 5 of the Act has been added, hence mere investigation under sections 420 and 406 IPC and later on adding section 5 of the Act will not vitiate the case of the prosecution herein as contended by the learned counsel for the accused. Hence, the accused herein failed to rebut the evidence of the prosecution as per the charge alleged against him. Hence, the accused is found guilty for the offence under sections 420 and 406 IPC and section of the 5 of TSPDFE Act.

31.In the result, the accused/A1 is found guilty of the charge under Sections 420, 406 IPC and Section 5 of TS Protection of

Depositors of Financial Establishments Act and is convicted under

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

Dictated by me, transcribed by the Stenographer, corrected and

pronounced by me in the open Court, on this the 31 st day of July, 2024.

Sd/-

SESSIONS JUDGE

HYDERABAD.

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Calendar Case No.21 of 2017

Dated:26.11.2025

32.When questioned about the quantum of sentence, the accused/A1 herein stated that he had a wife and only daughter aged 20 years and they are living in a rented house and he sustained loss in the business and now his age is 58 years and pleaded to take a lenient view.

33.Taking into consideration the plea of the accused herein, as the charge alleged against the accused is grave in nature and taking into consideration the facts of the case, I am of the opinion that a lenient view cannot be taken while imposing sentence.

34.Hence, the accused/A1 is sentenced to undergo RI for a period of three years for the offence under section 406 IPC and the accused is further senteced to undergo RI for a period of five years for the offence under section 420 IPC and to pay a fine of Rs. 5,000/- and in default of payment of fine simple imprisonment for a period of one month, further, the accused is sentenced to undergo RI for a period of five years for the offence under Section 5 of TS Protection of Depositors of Financial Establishments Act and to pay a fine of Rs.5,000/- and in default of payment of fine simple imprisonment for a period of one month. Total fine amount of Rs.10,000/- (rupees ten thousand only). All the sentences shall run concurrently.

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35.The period of remand already undergone by the accused/A1 i.e., from 14.07.2016 to 04.08.2016, from 27.08.2019 to 28.08.2019, and from 14.11.2025 toto till dateis set off under section 428 Cr.P.C. He is informed about his right of appeal and that he can seek legal aid if he has no sufficient means. The bail bonds of the accused if any shall be in force for a period of six months as per section 437( A ) of CrPC.

Dictated to the Stenographer Gr-I, transcribed by him,

corrected and pronounced by me in the open Court, on this the 26 th day of November, 2025.

Sd/-

SESSIONS JUDGE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION:- PW.1 - Chowkath Vidya Kumar PW.2 - A. Raj Kumar PW.3 - Khaja Moinuddin Khan PW.4 - J. Yamini Devi PW.5 - Ashish Kumar PW.6 – B.Ganesh PW.7 – Sarathi Naidu PW.8 – Kamineni Padma PW.9 – Denny Tharu Aravind PW.10 – M.Saritha PW.11 – E.Naresh Raj PW.12 – Leelamma Mathai PW.13 – Ashwin Margam PW.14 – K.Aravind PW.15 – Aji Chacko PW.16 – A.Narsingh Rao

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PW.17 – C.Dharmesh PW.18 – K.Srinivas PW.19 – K.Ram Kumar

WITNESSES EXAMINED FOR DEFENCE:- Nil

EXHIBITS MARKED FOR PROSECUTION:- Ex.P.1 - The Passbook with receipts Ex.P.2 - Complaint Ex.P.3 - The passbook along with receipts. Ex.P.4 - The Cheque Deposit slip Ex.P.5 - The Cheque return memo Ex.P.6 - The cheque for an amount of Rs 4,75,000/- Ex.P.7 - One passbook Ex.P8 - The passbook with receipts(marked subject to objection) Ex.P9 - The passbook along with the receipts(marked subject to objection) Ex.P10 – (four pages)The letter along with account details of the said company(marked subject to objection) Ex.P11 – The passbook receipts (marked subject to objection) Ex.P12 - The passbook receipts (marked subject to objection) Ex.P13 – The passbook with receipts Ex.P14 - The passbook with receipts Ex.P15 - The passbook with receipts Ex.P16 – The cheque for Rs.94,000/- in the name of Swapna Ex.P17 – The cheque issued for the 3 months chit amount of Rs.35,500/- in the name of R.Santosh Kumar (Ex.P13 to Ex.P17 are marked subject to objection) Ex.P18 – The passbook issued by the chit fund company(marked to subject to objection) Ex.P19 – Requisition from the police Ex.P20 – Account opening form along with documents Ex.P21 – Account opening form along with documents Ex.P22 – Thestatements along with KYC and account opening documents Ex.P23 - Thestatements along with KYC and account opening documents Ex.P24 – The FIR Ex.P25 – Scene of offence panchanama Ex.P26 – Section added memo

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Ex.P27 – The letter dated 05.10.2016 of the Assistant Registrar of Companies along with documents.

EXHIBITS MARKED FOR DEFENCE:-

1.Ex.D1 – 161 Cr.P.C statement of PW18.

MATERIAL OBJECTS MARKED:- Nil

Sd/-

SESSIONS JUDGE

HYDERABAD

Fair Judgment in Crl.A.409/2018 1/13 Dt : 04-04-2022.

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

Dated this the 4th day of April, 2022

PRESENT : SRI B.SURESH

I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

CRIMINAL APPEAL NO.409/2018

From what court this appeal is XIV Spl. Magistrate, Hyderabad preferred Number of the case in that CourtC.C No.589/2015

Number of the AppealC.A.No.409/2018 Name and description of the 1. M/s.Aluminium India A Partnership Appellant/Accused Nos.1 to 3firm having its Business H.No. 4-3-41, Hill Street, Secunderabad – 500 003, Rep.by its Partners Sri Niranjan Vyas and Suresh Vyas.

2. Niranjan Vyas S/o. Late Chiranji Vyas, Partner of M/s.Aluminium India, H.No.4-3-41, Hill Street, Secunderabad – 500 003.

3. Suresh Vyas S/o. Late Chiranji vyas, Parter of M/s. Aluminium India, H.No.4-3-41, Hill Street, Secunderabad – 500 003.

Name and description of the B.Prakash Reddy, S/o B.Ramakrishna Respondent /ComplainantReddy, Aged : 63 years, Occ : Business, R/O. H.No.1-3-34/1/A, Madhuvan Enclave, Habsiguda, Street No.4, Hyderabad. The sentence and law under which In the result, A1 to A3 are found conviction was imposed in the lowerguilty for the offence under Section court138 of N.I, Act and are convicted under Section 255 (2) of Cr.P.C. A2 and A3 representing A1 firm to undergo R.I. for a period of one year each and to pay fine amount of Rs. 15,00,000/- (Rupees Fifteen Lakhs only) and in default to undergo S.I. for a period of six months each for the offence under Section 138 of N.I. Act. Out of the fine imposed it is ordered to pay compensation of Rs. 14,85,000/- (Rupees Fourteen Lakhs Eighty Five Thousand only) the cheque amount is of Rs.12,00,000/- with interest @ 9% per annum would come to about Rs.14,85,000/- under Section 357 (1) (b) of Cr.P.C. to the complainant.

Fair Judgment in Crl.A.409/2018 2/13 Dt : 04-04-2022.

Whether confirmed, modified or In the result, the appeal fails and is reversed if modified, the dismissed, confirming the judgment of modifications conviction,sentence,fineand compensation dated 06.04.2018 of the learnedXIVSpecialMagistrate, Hyderabad in CC.No.589/2015. The Appellant/Accused No.2 and 3 partners representing A-1 firm shall suffer the sentence, fine as imposed by the trial court, and upheld in this appeal. Since appellants/ accused No.2 and 3 are not in attendance, learned trial court shall issue NBW and secure their presence for execution of sentence.

DATE OF OR ON WHICH

Filing: 30.04.2018

Presentation: 03.05.2018

Notice issued by Court to appear: 04.05.2018

Bail bond if appellant is let out on bail: ---

Appellant ordered to appear: 06.07.2018

Hearing: 01-04-2022

Judgment: 04-04-2022

This appeal is coming on for hearing before me and upon perusing the petition of appeal and the record of evidence and proceedings and upon duly considering the same after hearing of Sri Mohd Muzaferullah Khan, Counsel for the Appellants/Accused Nos.1 to 3 and Sri G.Ashok Reddy counsel for the Respondent/Complainant delivered the following :

: J U D G M E N T :

1. Appellants/accused Nos.2 and 3 for an offence U/Sec.138 of

Negotiable Instruments Act, 1881 filed this appeal U/Sec.374 (3) (a) Cr.P.C.

Seeking to set aside the judgment dated 06-04-2018 of learned XIV Special

Magistrate at Hyderabad in CC.No.589/2015 and prays to acquit them for

the said offence.

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2. The respondent herein was the complainant on whose private complaint appellants/A-3 and A-4 were convicted and were sentenced to undergo rigorous imprisonment for a period of one year each and to pay fine of Rs.15,00,000/-, and in default to undergo Simple Imprisonment for a period of (6) months each for the offence U/sec.138 of NI Act. Out of fine imposed it is ordered to pay compensation of Rs.14,85,500/- (the cheque amount os Rs.12 lakhs with interest @9% per annum would come to about

Rs.14,85,000/-) U/sec.357 (1)(b) of Cr.P.C. to the complainant Mr.B.Pakash

Reddy.

3.The appellant preferred this appeal obeying the judgment of the trial court and one of my learned predecessors in office passed the orders that the default sentence of imprisonment was suspended and they were allowed on bail and bail continued till now.

4.For the sake of convenience, appellants are referred as accused and the respondent is referred as complainant as they were arrayed in the trial court. The Negotiable Instruments Act, 1881 will be herein after referred as

NI Act for the sake of brevity.

5. GROUND OF APPEAL:

(i) It is submitted that the trial court has grossly erred in convicting the appellants/accused which is illegal, improper, unjust and contrary to law and weight of record.

(ii) It is submitted that the trial court erroneously passed the judgment without considering the facts that the subject cheque was issued by a deceased person and presented after death of authorized signatory that too

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after receipt of reply notice dated 14-8-2015, which received by complainant on 17-8-2015 and on the same day the complainant presented the cheque with a malafide intention by scribing the date on the subject cheque.

(iii) It is submitted that the trial court failed to observe the evidence and documents of defence and the A-1 is represented by A-2 and A-3 along with

Baiju Vyas approached the complainant for a hand loan amount of Rs.12 lakhs. The accused Nos.2 and 3 never issued the cheque.

(iv) It is submitted that the trial court ought to have considered the fact that though there was no legally enforceable debt payable by the accused to the complainant, taking undue advantage of having possession of cheque, which was issued by deceased Baiju Vyas, this complaint is filed, as such the conviction is liable to be set aside.

(v) It is submitted that the trial court failed to observe that there was a different handwriting on the cheque, amount, words and figures which are totally different. The complainant had mentioned the date on the cheque after receipt of the reply letter dated 14-8-2015 on 17-8-2015 from the accused No.3 and presented the cheque and it came for clearance on 18-8- 2015 and returned on 18-08-2015.

(vi) It is submitted that the trial court erred in holding that the accused failed to rebut the presumption U/sec.139 of NI Act with cogent and probable and convincing evidence.

(vii) It is submitted that the trial court failed to observe that the accused addressed a letter to the bank after death of authorized signatory to remove the signature of deceased person from the system and records, this itself proves the Bonafide on the part of accused herein.

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(viii) It is submitted that the trial court without considering the fact that the complainant did not file any such proofs that all the accused along with

Mr.Baiju Vyas had approached the complainant and nowhere in the complaint or in chief affidavit of complainant has mentioned about the place and time when all the accused approached him for alleged loan.

Erroneously came to a conclusion and passed the impugned judgment and is liable to be set aside.

6. It is prayed this court to allow the appeal by setting aside the judgment dated 6-4-2018 passed in CC No.589 of 2015 by the learned XIV

Special Magistrate, Hyderabad and to acquit the accused and pass such other order or orders as deems fit and proper, in the interest of justice.

7. Learned counsel for the respondent/complainant submits that all the ingredients of Sec.138 of NI Act were established before trial court and the impugned judgment is right on facts and law.

8. The learned counsel on both sides submitted their oral arguments and the learned counsel for the appellants has submitted case laws.

9.Now the point for consideration is :

“ Whether the judgment of conviction, sentence and compensation

dated 06-04-2018 passed by the learned XIV Special Magistrate,

Hyderabad in CC No.589/2015 is contrary to law and whether required any interference by this court?

POINT:

10. The first and foremost contention of the appellants is that so far as the firm or any company or corporate body is concerned a person who has incharge were responsible to the company shall be deemed to be guilty of the offence for the offence U/sec.138 of NI Act. For which he relied upon

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(1) 1997 (1) ALT (Crl.) 371 (A.P), in between M/s.Swastik Coaters

Pvt Ltd., vs.M/s.Deepak Brothers and another.

(2) 1997 (1) ALT (Crl.) 696 (A.P) in between M/s.Satish & Co., vs.

M/s.S.R.Traders and others.

(3) Gunmala Sales (P) Ltd. Vs. Anu Mehta in Crl.Appeal No.2242-49 of 2014 and Gunmala Sales (P) Ltd. Vs.Navkar Promoters Private Limited in

Crl.Appeal No.2228/2014 with Nos.2229-65 of 2014 dated 17-10-2014.

(4) (2019) I Supreme Court Cases (Crl) 568 (2008) 14 Supreme

Court Cases, 202 in between Ashoke Mal Bafna vs.Upper India Steel

Manufacturing and Engineering Company Ltd.

In this case the appellants/accused is not a company registered under the Companies Act but it is a Partnership Firm. Whereas the company is a juristic person but whereas the Partnership Firm is not a juristic person is only compendium of its partners. Even the registration of the firm would not make it a distinct legal entity like a company. The principle laid in Patel

Uveshbhai Mohmadsalim vs. State of Gujarat in

R/Cr.MA/32718/2016 dated 30-07-2021 is that “what is discernible from a conspectus of the authorities referred to above is that a partnership firm, unlike a company registered under the Indian Companies Act, is not a distinct legal entity or a juristic person, but is only a compendium of its partners. Even the registration of a firm would not make it a distinct legal entity like a company. The partners of a firm are co-owners of the proprietary firm, unlike the shareholders in a company who are not co-owners of the property of the company.” So as per the principle laid down in the above said citation, a complaint can be filed for the offence

U/sec.138 of Negotiable Instrument Act, not only against the partnership

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firm on whose basis the cheque was issued but also an issue of individual partner or person who at the time of the commission of the offence was in charge of the firms or the firm are responsible to it for conducting of its business. So, in this case also the complainant herein got filed the complaint against the partnership firm and other two partners who are responsible for conducting of the business of the partnership firm i.e. the accused Nos.2 and 3, which is evidenced by Ex.P-4 which is a letter addressed by the accused No.2 to the complainant, wherein he stated that as it Mr.Baiju Vyas and one Mr.Chiranji Vyas who were the partners to looking after the partnership firm have expired, now he is started day to day activities of the firm and requires some time to look into the issue of the complainant. So, it disclosed that after the death of the partners he is looking after and carrying on the business of the partnership firm. He is also examined as Dw-1 and he deposed as follows” I am one of the partner’s in the accused No.1 firm from the date of inception.” He further deposed that “ after the death of Baiju Vyas my share in A-1’s firm is 31%. Witness adds to say that his father on 6-8-2015 and then onwards my share increased to 34%. Prior to the death of Baiju Vyas my share was 31%. Baiju Vyas during his life time had 30% of share.”

11.He further deposed as follows” Baiju Vyas was the authorized signatory for A-1 firm till the date of his death. So, this evidence of Dw-1 establishes the fact that A-1 is a partnership firm, A-2 and A-3 are the partners and the deceased Baiju Vyas was the authorized signatory of the said partnership firm prior to the death and Ex.P-5 cheque issued by A-1’s i.e. firm name and signed by the authorized signatory of Baiju Vyas. So, as the cheque was issued by the partnership firm, and the said firm continued even after the death of the some of the partners of the said firm. So, the

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cheque which was got issued on behalf of the partnership firm stands good.

So, the contention of the appellants that it is being a company and as the authorized signatory/Director of the company has not signed, the company will not hold good, such contention is not sustainable as A-1 firm is not a company, as such the citations relied upon by the appellants herein are not applicable to the present facts of this case as A-1 is not a company.

12.In the light of the evidence of Pws-1 and 2 and Exs.P-1 to P11 and

Ex.X-1, the complainant herein could establish advancing the loan to the A- 1 firm in proof of receiving the said amount, the accused also paid interest for the borrowed amount for certain period by deducting TDS and thereafter failed to pay the interest nor the principle amount. AS such, the complainant got addressed a letter to the accused dated 22-07-2017 which is Ex.P-3 to make the payment. The contention of the appellants is that they asked him not to present the cheque issued at the time of obtaining loan ie. principle amount and further promised to pay the interest separately. But, thereafter got issued Ex.P-4 which is dated 14-08-2015. So, there is a gap about 22 days and they did not deny the liability in Ex.P-4.

So, accordingly the cheque was presented and the same was dishonored, notice was issued to the accused calling upon them to make payment but the same was not complied by the accused. As such, he got filed the complaint. Though on behalf of the accused Dw-1 was got examined and relied upon Exs.D-1 to D-11, they failed to establish that there was no legally enforceable debt and that Ex.P-5 was not issued for a legally enforceable debt.

13.The contention of the appellant is that without informing to the

Accused Nos.2 and 3, about the presentation of cheque and the date was

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not scribed by the authorized signatory of Late Baiju Vyas. As such, the complainant has misutilized the cheque which was in his possession.

14.Further in support of the contention the complainant here with regard to legal presumption in favour of the complainant under Section 139 of NI Act a citation reported in 2010-11 Hon’ble Supreme Court in criminal Appeal 230- 231 of 2019 in between Bir Singh V Mukesh Kumar “ “A meaningful reading of the provisions of the Negotiable Instruments

Act including, in particular, Sections 20, 87 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or discharge or a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.” “If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars.

This itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.” “Even a blank cheque leaf, voluntarily singed and handed over by the accused which is towards some payment, would attract presumption under

Section 139 of the Negotiable Instrument Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”

So in the light of the principal laid down in the above said citation when a person who signs a cheque and make it over to the payee remains liable unless he adduce the evidence to rebut the presumption that the cheque has been issued for payment of debt or in discharge of liability. In

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this case also the accused herein failed to rebut the presumption with regard to debt towards the complainant herein.

15. Whatever may be the reason for dishonour of the cheque like funds insufficient, payment stopped etc or any other reason would amount to the offence under Section NI Act for which in a decision reported in 2012-13

Supreme Court cases Laxmi Dyechem V State of Gujarat and others

The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magam Case that the expression amount of money is insufficient appearing in Section 138 of the Act is a genus and dishonour for reasons such as “ account closed”, payment stopped, refereed to the drawer are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishnour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “ signature do not match” or that the image is not found” which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act”.

So whatever may the reason the cheque is being dishonored comes under

Section 138 of NI Act.

16.In a decision reported in Rangappa vs Sri Mohan on 7 th May,

2020 Supreme Court of India in Criminal Appeal No.1020 of 2010

wherein it is held as follows “Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable

Instruments Act has to be raised by the Court in favour of the complainant.

Fair Judgment in Crl.A.409/2018 11/13 Dt : 04-04-2022.

The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the

High Court recorded a finding of conviction.

17.So, the scribe of the cheque or the reason for the signature not being tallied are all falls under the category of dishonore of cheque only. The accused cannot deny the liability on the said grounds. The accused herein contended that they did not give instructions to the complainant to present the cheque but according to the complainant he contend that he was instructed to present the cheque for the amount borrowed by them and would pay the interest separately. So, according to the complainant it was only presented for Rs.12 lakhs. If at all the contention stated by the accused is not true, the complainant would have calculated the interest up

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to date along with principle amount calculated in total and could have been drawn the cheque and presented the cheque. So, the presentation of the cheque are not only a sum of Rs.12 lakhs would only goes to show that there was instructions from the accused to present the cheque on receiving the notice or in his given reply to the notice i.e. Exs.P-3 and P-4 to the complainant.

18.So, the complainant could establish that there was a legally enforceable debt in favour of the complainant against the accused. As such, the contention of the accused in the grounds of appeal is that the complainant failed to establish the ingredients of Sec.138 of NI Act is not sustainable.

19.So, viewing from any angle the appellants herein failed to establish any of the grounds alleged in the grounds of appeal and on perusal of the judgment of the trial court it has dealt in all the aspects in detailed and the appellants herein specifically did not pin pointing the error committed by the trial court in appreciating the facts except contended the same.

20. So, viewing from any angle the appellant failed to substantiate any of the grounds raised in the grounds of appeal and failed to rebut the presumption in favour of the complainant and on perusal of the judgment of the trial court it is observed that each and every point has been elaborately discussed by the trial court by considering the evidence let in by both parties and the citations relied upon by the trial court it came to the rational conclusion. Even in the grounds of appeal the appellants specifically did not pin pointing that the Judgment of the trial court is contrary to law and fact and it is illegal and improbable and against the

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probabilities of the case. As such, there is no necessity to interfere in the judgment of the trial court. The point is answered accordingly.

21. In the result, this appeal fails and is dismissed, confirming the judgment of conviction, sentence, fine and compensation dated 06-04-2018 of the learned XIV Special Magistrate, Hyderabad in CC.No.589/ 2015. The appellants/ accused Nos.2 and 3 partners representing A-1 firm shall suffer the sentence and fine as imposed by the trial court, and upheld in this appeal. Since appellants/ accused Nos.2 and 3 are not in attendance, learned trial court shall issue NBW and secure their presence for execution of sentence.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in the open court on this the 4th day of April, 2022.

I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD.

Fair Judgment in Crl.A.244/2018 1/12 Dt : 07-04-2022.

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

Dated this the 7th day of April, 2022

PRESENT : SRI B.SURESH

I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

CRIMINAL APPEAL NO.244/2018

From which court this appeal is II Addl Chief Metropolitan Magistrate, preferred Hyderabad

Number of the case in that CourtC.C No.850/1998

Number of the AppealCrl.A.No.244/2018 Name and description of the The State of Telangana through the Sub- Appellant/ComplainantInspector of police, PS Sultan Bazar, Hyderabad

Name and description of the 1. G.K.Ashok Naidu @ Ashok S/o Late Respondent/Accused G.K.Naidu, Age 42 years, Occ: Business.

2. Smt. G.K.Jalaja W/o G.K.Naidu, Age 35 years. Both R/o : 301, Classic Square, Padma Rao Nagar, Secunderabad.

The sentence and law under which In the result, the accused Nos.1 and 2 conviction was imposed in the are found not guilty for the offences lower court U/Sec.406 and 420 r/w 34 of IPC. Accordingly they are acquitted Under Section 248(1) Cr.P.C. for the offences U/Sec.406 and 420 r/w 34 of IPC and they are set at liberty.

Whether confirmed, modified or In the result, this appeal fails and is reversed if modified, the modifications dismissed, confirming the judgment of acquittal for the offence U/sec.406 and 420 r/w 34 of IPC dated 25-01-2017 of the learned II Addl. Chief Metropolitan

Magistrate, Hyderabad in CC.No.850 of

1998. The bail bonds of the Respondents/ accused Nos.1 and 2 shall be in force for a period of six months.

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DATE OF OR ON WHICH

Filing: 04.09.2017

Presentation: 22.03.2018

Notice issued by Court to appear: 24.03.2018

Bail bond if appellant is let out on bail: ---

Appellant ordered to appear: 03.05.2018

Hearing: 25-03-2022

Judgment: 07-04-2022

This appeal is coming on for hearing before me and upon perusing the petition of appeal and the record of evidence and proceedings and upon duly considering the same after hearing of Sri K. Durgaji, Addl. Public Prosecutor for the appellant/complainant and Smt.G.Anitha, counsel for the Respondents/Accused Nos.1 and 2 delivered the following :

: J U D G M E N T :

1. The appellant/State through Sultan Bazar PS, Hyderabad represented by Public Prosecutor, MSJ, Court, Hyderabad for the offence U/Secs.406 and 420 r/w.34 of Indian Penal Code 1860 filed this appeal U/Sec.378 (1)

(a) of Cr.P.C. Seeking to set aside the judgment dated 25-01-2017 of learned II Addl.Chief Metropolitan Magistrate, Hydeabad and prays to convict the respondent/accused Nos.1 and 2 for the said offences.

2. The respondents herein were the accused on whose investigation and final report, the respondent/accused Nos.1 and 2 were acquitted.

3. The appellant/state preferred this appeal obeying the judgment of the trial court .

4. For the sake of convenience, appellant is referred as state/ prosecution and the respondent/accused Nos.1 and 2 referred as accused as they were arrayed in the trial court. The Indian Penal Code 1860 will be herein after referred as IPC for the sake of brevity.

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5. GROUND OF APPEAL:

(i) It is submitted that the judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

(ii) It is submitted that the judgment of the trial court is based on only presumptions, surmises and conjectures, which are not relevant to the circumstances of the case.

(iii) It is submitted that the trial judge erred in not appreciating that Pws- 1 to 4 evidence corroborated the contents of the report. The accused No.2, claiming to be an Advocate, had cross-examined the witnesses in person. A bare perusal of the cross-examination of Pws1 to 3, shows that there is absolutely no cross-examination that they (accused) did not remove the stock of the shop on the night of 18-6-1994. Hence, in the absence of cross- examination on the aspect, the said fact is deemed to have been admitted.

(iv) It is submitted that the trial court utterly failed to appreciate the admission made by the accused.

(v) It is submitted that the trial court ought to have observed that Late

Lw-1, handed over the management of the family business of G.K.Naidu

Watch Company to the accused No.1 but they shifted the stock, without knowledge of even Lw-1, forcing her to lodge the present complaint.

(vi) It is submitted that the trial court failed to appreciate that it is the specific case of the witnesses that the accused took a sum of Rs.2 lakhs from the landlord to vacate the premises in prime locality, this was also supported by the deposition of Pw-4 that the landlord informed him about the payment made to the accused to vacate the premises. This fact stood admitted for lack of cross-examination on this aspect including lack of even a suggestion.

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(vii) It is submitted that the trial court failed to observe that the plea of the premises being in dilapidated condition was not supported by any evidence. On the other hand, during the cross-examination of Pw-2, it was elicited by the defence that the landlord of the mulgi had let it out to the other immediately upon being vacated by the accused. This fact having been brought out in cross-examination, the said plea of dilapidated condition should be treated to be false. In view of the admission by the defence. The non-examination of the landlord does not effect the case.

(ix)It is submitted that the learned trial court erred in considering the grounds that were never raised by the defence, while acquitting the accused.

6. It is prayed this court to allow the appeal by setting aside the judgment dated 25-01-2017 passed in CC No.850 of 2012 by the learned II

Addl.Chief Metropolitan Magistrate, Hyderabad for the offence U/sec.406 and 420 r/w.34 of IPC and to convict the accused in the interest of justice.

7. Learned counsel for the respondents/accused submits that all the ingredients of Sec.406 and 420 r/w.34 of IPC were not established before trial court and the impugned judgment is right on facts and law.

8. The learned counsel on both sides submitted their oral arguments.

9.Now the point for consideration is :

“ Whether the judgment of acquittal dated 25-01-2017 passed by the learned II Addl.Chief Metropolitan Magistrate, Hyderabad in CC.No.850/1998 is contrary to law or anything is requires to interfere by this court?

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POINT:

10.The contention of the appellant/state is that the trial court erred in appreciating the evidence of Pws-1 to 4 as it corroborated the contents of the report. There is absolutely no cross-examination that they (accused) did not remove the stock of the shop on the night of 18-06-1994. Hence, in the absence of cross-examination on this aspect, the said fact is deemed to have been admitted.

11. The accused No.1 is none other than the elder brother of Pws-1 to 3 and the accused No.2 is wife of accused No.1. The accused No.1 with the connivance of the accused No.2 on the inducement of Lw-5/B.Bala Kishan with regard to payment of goodwill of Rs.5 lakhs, they vacated the shop and handed over to Lw-5/B.Bala Kishan.

12.Actually, the case of the prosecution is that the father of Pws-1 to 3 and the accused No.1 was the person who was running a watch repairing shop in the premises bearing D.No.4-4-225, Sultanbazaar, Hyderabad. On the death of father of Pws-1 to 3 and the accused No.1 in the year 1991, the mother of Pws-1 to 3 and the accused No.1 i.e. wife of the deceased Lw- 1/G.K.Rajya Lakshmi, entrusted the said business to be run by the accused

No.1 along with Pws-1 to 3. On one fine day, the accused No.1 during midnight vacated the said premises and handed over to Lw-5/B.Bala Kishan, on the inducementmade by Lw-5/B.Bala Kishan to pay a goodwill of Rs.5 lakhs. As such, Lw-1/G.K.Rajya Lakshmi i.e. the mother of Pws-1 to 3 and the accused No.1 lodged the complaint for the offence U/sec.405 and 420 r/w.34 of IPC.

13.It is observed that by the time trial took place in this case, unfortunately Lw-1/G.K.Rajya Lakshmi died, as such the prosecution was

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unable to examine Lw-1/G.K.Rajya Lakshmi i.e. the person who lodged the complaint.

14. Pw-1 who is one of the brother of the accused No.1 he deposed as follows: “ our father expired in 1991. Lw-1/G.K.Rajya Lakshmi handed over the management of the shop to the accused No.1. All of us used to assit accused No.1 in the watch business”. So, this evidence of Pw-1 establishes that after the expiry of the father of Pws-1 to 3 and the accused No.1, the shop was handed over to the accused No.1. But it is not deposed by him that it was handed over to Pws-1 to 3 along with accused No.1. As each and every person equally liable for the running of business. But he categorically deposed that it was entrusted to the accused No.1 and Pws-1 to 3 used to assist him in the business. So, this evidence disclosed that it was the accused No.1 who was running the business and Pws-1 to 3 just assisting him only. Pw-1 further deposed that he was working in Union

Carbide, Moulali, Hyderabad. This evidence of Pw-1 also disclosed that he was not full time businessman or running the business along with the accused No.1 but whenever he find a time he might be assist accused No.1 in running the shop.

15.Pw-2 was another brother of accused No.1, he deposed as follows” out father expired in 1991. Thereafter, the accused No.1 looking after the said business”. So, even according to Pw-2 it was the accused No.1 who was looking after the entire business. The contention of the prosecution is that on the inducement of Lw-5/B.Bala Kishan to pay a goodwill of Rs.5 lakhs by Lw-5/B.Bala Kishan to the accused No.1, he vacated the shop and handed over the same to Lw-5/B.Bala Kishan. But when coming to the evidence of Pw-2, he deposed as follows” I have not filed any proof to show

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that the owner of the mulgi i.e. Lw-5/B.Bala Kishan a good will of Rs.25 lakhs given to the accused No.1”. Whether it is Rs.5 lakhs or Rs.25 lakhs but there is no evidence let in on behalf of prosecution to show the payment of goodwill by Lw-5/B.Bala Kishan to the accused No.1 as whatever may be the reason, the prosecution herein did not examine Lw- 5/B.Bala Kishan in this case.

16.Pw-3 who is another brother of the accused No.1, he deposed as follows” our father expired in the year 1991. Thereafter, the accused No.1 look after the said business.” So, Pws-1 to 3 in one voice deposed that it was the accused No.1 who was looking after the business after the death of their father. Whereas, Pw-3 in his cross-examination deposed as follows” the accused No.1 used to do the above business along with our late father”.

So, as he was also carrying on the said business along with his father, after his demise he was the person who was looking after the entire business.

There is no evidence from Pws-1 to 3 that they were also assisting their father or the accused No.1 during the life time of their father in the said business. But, on careful perusal of the evidence of Pws-1 to 3 it establishes that the business was entrusted to the accused No.1 as even prior to the death of their father it was accused No.1 who was carrying on the business along with his father and after the death of his father he continued the said business. So, there was no evidence to show such entrustment of the business by either Lw-1/G.K.Rajya Lakshmi or Pws-1 to 3 after the demise of their father.

17. Whereas, Pw-1 in his evidence deposed as follows” on 18-06-1994 night we closed the shop and went home and it was Saturday. On 20-06-1994 Lw-3/G.K.Raju came to open the shop and found white paint to

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the shutter of the shop and the mulgi was found empty. On enquiry I came to know that on the midnight of 18-6-1994 the accused No.1 came to the shop and took away all the articles lying in the shop. Whereas, Pw-2 deposed as follows” on the night of 18-6-1994 the accused No.1 was vacated the shop and absconding. On the next day we came to open the shop and found nothing in the shop”. Pw-3 deposed as follows” on the midnight of 18-6-1994, the accused No.1 vacated the shop and absconding.

On 20-06-1994 we came to open the shop and found nothing in the shop”.

So, this evidence of Pws-1 to 3 establishes that they did not witnessed the accused No.1 or the accused No.1 along with the accused No.2 came to the shop and vacated the same in the midnight of 18-6-1994. Even they did not depose as to how they came to know that the accused No.1 vacated the shop on the midnight of 18-6-1994.

(ii) So, the prosecution herein did not examine any independent witnesses who witnessed that the accused Nos.1 and 2 vacated the shop on the midnight of 18-6-1994. Even according to Pws-1 to 3 they came to know that the shop was vacated on 20-06-1994. Whereas, the investigating officer i.e. Pw-4 herein deposed as follows” the mulgi situated to Andhra

Bank, Sultan Bazaar, as it is seen that it is a very busy locality and when the accused No.1 was vacating the shop in the midnight no person witnessed such incident appears to be somewhat unbelievable. He further deposed as follows” the alleged incident took place on the nigh of 18-06-1994, we did not receive any information regarding vacating the mulgi till receipt of Ex.P-1 on 22-06-1994. So, the incident happened on 18-6-1994 and according to Pws-1 to 3, they came to know on 20-06-1994 but the complaint was lodged on 22-06-1994. Whereas, Pw-1 deposed as follows” on the same day the complaint was given to the police i.e. on

Fair Judgment in Crl.A.244/2018 9/12 Dt : 07-04-2022.

20-06-1994”. But it is not corroborated to the evidence of Pw-4. According to him the complaint was lodged on 22-06-1994.

(iii)Even on perusal of Ex.P-2 the First Information Report the information received at the police station on 22-06-1994 at 14:10 hours. So, there was a delay in lodging the complaint, which is also not being satisfactorily explained by the prosecution. It appears that there are disputes between the accused No.1 on one side and Pws-1 to 3 along with their mother another side with regard to the properties after the death of the elder of the family i.e. the father of Pws-1 to 3 and the husband of Lw-1/G.K.Rajya

Lakshmi, which promoted to lodge this complaint, as to the evidence of Pw- 4 he deposed as follows” the mulgi was in dilapidation condition, so, he was vacated the said mulgi. But the grounds of appeal it is held that in the cross-examination of Pw-2 it was elicited by the defence that the landlord of the mulgi had let out it to others immediately upon being vacated by the accused, as such, the plea of dilapidated condition of the shop should be treated as false one. It is observed that the investigating officer is an independent witness, so being a police officer he deposed that the shop was in dilapidated condition”. When coming to the evidence of Pw-2 he deposed as follows” the owner of the mulgi let out the same to others immediately”. But the prosecution herein failed to examine any witness to establish as to whom the said mulgi was immediately handover. Even the evidence of Pw-2 does not establish to whom the said mulgi was let out and what was the rent, for which it was let out to support their contention.

(iv)Whereas, in the evidence of Pw-1 he deposed as follows” On 20-06-1994 Lw-1/G.K.Rajya Lakshmi came to open the shop and found white paint to the shutter of the shop and the mulgi was found empty”. He

Fair Judgment in Crl.A.244/2018 10/12 Dt : 07-04-2022.

did not deposed that it was let out to another party immediately after it was being vacated by the accused No.1. Had it been true, at least Pws-1 to 3 in one of them would have deposed the name of the person to whom the mulgi was immediately let out. So, there is every possibility of the accused

No.1 vacating the shop might be due to dilapidated condition as stated by

Pw-1 but there is no truth in the contention of the prosecution as stated in the grounds of appeal that it was immediately let out to another person.

Had it been true they could have investigated as it to whom it was let out and they ought to have cited the said person as witness in this case.

18. According to the prosecution i.e. Ex.P-1 complaint furniture, articles, wrist watches and spare parts all worth of Rs.12 lakhs were missing from the shop. If at all the accused No.1 had greedy intention of making money could have also sold away the entire articles present in the shop. But the evidence of Pw-1 states that he took the interim custody of the property seized by the police and all the articles are damaged and he was unable to produce the same before the court. So, the articles which were from the vacated premises had been seized by the prosecution. So, the accused No.1 did not make money by selling away the said property. So, that itself establishes that there was no intention on the part of the accused No.1 with an intention to make money he vacated the premises without knowledge of Lw-1/G.K.Rajya Lakshmi and Pws-1 to 3. It is seen from

Ex.P-1 that the husband of Lw-1/G.K.Rajya Lakshmi i.e. the father of Pws-1 to 3 was carrying on the business in the said mulgi since 1942. So, by the time of 1994 as stated by Pws-4 i.e., investigating officer it might have been in dilapidated condition and the furniture would have been also in dilapidated condition or became old, so, he might have vacated the shop. It is not established that there was a criminal breach of trust on the part of

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accused No.1 or cheating on the part of accused No.1 and nothing has been deposed by Pws-1 to 3 with regard to the role of the accused No.2 that is she inducing the accused No.1 to commit this offence, no where Pws-1 to 3 deposed about the accused No.2.

19. The contention of the prosecution in the grounds of appeal is that when there is no suggestion made in the cross-examination of a witness on vital point it amounts to an admission. So, as in the cross-examination of

Pws-1 to 3 there was no suggestion as to the accused No.1 and the accused

No.2 did not vacate the premises it is deemed to be that they have committed this offence. But there was a suggestion in the cross- examination of Pws-1 to 3 that the accused Nos.1 and 2 are innocent and they did not commit any offence. That itself establishes the contention of the defence i.e. the accused that they did not commit any offence. So, the burden lies on the prosecution to establish the same. But on the other hand the accused herein relied upon a decision report in Sakariya S/o Mithoo

vs. State of Madhy Pradesh, 1991 (10) MPLJ 878 dated 16-3-1989,

wherein it is held as follows “the relevant section, regarding admission, is

Section 17 and Section 18 of the Evidence Act, Section 18 of the Evidence

Act deals with admission by party to proceeding or his agent. Whether a suggestion thrown by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestions put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross-examination as

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has been erroneously done by the learned judge of the trial court in the instant case. The proof of guilty, required of the prosecution does not depend on the suggestion thrown to a witness”.

20. So, in view of the principle laid down in the above said citation the suggestion given in the cross-examination are no evidence at all against the accused and on the basis of such suggestion no inference can be drawn against the accused that he admitted the fact suggested in the cross- examination.

21. On careful perusal of the judgment of the trial court it is observed that each and every point has been elaborately discussed by the trial court by considering the evidence let in by the parties it came to the rational conclusion. As such, there is no necessity to interfere in the judgment of the trial court. The point is answered accordingly.

22. In the result, this appeal fails and is dismissed, confirming the judgment of acquittal for the offence U/sec.406 and 420 r/w 34 of IPC

dated 25-01-2017 of the learned II Addl.Chief Metropolitan Magistrate,

Hyderabad in CC.No.850/1998. The bail bonds of the Respondents/accused

Nos.1 and 2 shall be in force for a period of six months.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in the open court on this the 07th day of April, 2022.

I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD.

Fair Judgment in SC.No.410/2017 1 Dt : 08-04-2022.

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE, HYDERABAD.

Dated this the 08th day of April, 2022

PRESENT : SRI B.SURESH,

I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

SESSIONS CASE NO.410/2017

Crime Number and Police Crime No.146/2016 of PS Sultan Bazar, StationHyderabad. Name and description of the Alakunta Sailu S/o Late A.Yellaiah, Aged accused persons49 years, Occ: Business R/o H.No.45-49, Upperguda, Moula-Ali, Malkajgiri, RR District N/o Joginathgutta, Jogipet, Medak District. Name and description of the The State represented by the Inspector of complainantPolice, PS Sultanbazar, Hyderabad. Prosecution conducted bySri K. Durgaji, Additional Public Prosecutor. Defence conducted bySri Rakesh Pathak, counsel for Accused Offences chargedunder Section 8(c) r/w 20(b)(ii)(C) of NDPS Act 1985. Plea of the accusedPleaded not guilty. Finding of the CourtFound not guilty. RESULTIn the result the accused is found not guilty for the offence punishable under Section 8 (c ) r/w 20(b) (ii) (C) of NDPS Act and he is acquitted under Section 235(1) of Cr.P.C for the said offence. The accused shall be set at liberty forthwith, if he is not required in any other case. The bail bonds of the accused, if any shall be in force for a period of six months. The case property i.e., MO-1 to MO-5 shall be destroyed after expiry of appeal time. Ex.P3 photographs of the car through which the car was marked and the said car shall be put to auction and the amount received shall be confiscated to state.

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

1.The Inspector of Police P.S. Sultan Bazar, Hyderabad filed charge sheet against the accused in Cr.No.146/2016 for the offence under Section 8 (c)r/w 20(b) (ii) (C) of NDPS Act-1985.

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2.The brief averments of the charge sheet as per Inspector of Police

P.S. Sultan Bazar, Hyderabad are that on 06-07-2016 at 1430 hrs

LW-9/B.Balraj, Sub Inspector of Police P.S. Sultan Bazar, Hyderabad received a report from PW-4 wherein he stated that on 06-07-2016 at 10.45.am when he was present in Police Station he received an credible information that a person was transporting ganja in a Wagon-R Car Bearing No.MH-03Z-8869 and he is available infront of Laxminarasimha Swamy Temple, Near Santoshi

Matha Temple, Esamiya Bazar, Sultan Bazar, Hyderabad, then PW-4 informed the same to his superior Officer in writing and he along with his staff i.e.,

PW-3, LW-6 to LW-8 rushed to the spot at 1130 hrs and found a person in a car with two bags of ganja under suspicious circumstances and on seeing them he tried to conceal his presences, but they apprehend him and on enquiry he disclosed his identity as accused herein and further stated that he was procuring the ganja from Vizag and transporting to Hyderabad for selling, then PW-4 drafted a letter requesting the MRO Nampally to depute two Government Officers to act as mediators and secured the presence of

PW-2 and LW-3, then PW-4 informed the accused whether to be search

before the Gazetted Officer or Magistrate, then the accused expressed

his willingness to be search before the Gazetted Officer, then he secured the presence of PW-1 to act as Gazetted Officer and in the presence of mediators and Gazetted Officer, PW-4 recorded the confession and seizure panchanama of the accused and seized two gunny bags containing ganaj i.e., one bag they found 19.600 kgs and another bag 21.400 kgs of ganja in total 41.00 kgs of ganja and also obtained the samples of the said ganja from each bag and also pasted panch chits and also seized the car and came back to the Police Station and lodged a report before LW-9. LW-9 registered the said report as a case in Cr.No.146/2016 for the offence punishable under

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Section 8(c)r/w 20(b) (ii) (C) of NDPS Act-1985 and then handed over the CD file to PW-4 for further investigation. On 06-07-2016 PW-4 affected the arrest of the accused and sent him to the Court for remand, thereafter he referred the seized objects to the FSL for analysis and received the analysis report opinion that the seized material is ganja.

3.Thereafter PW-4 obtained Police Custody of A1 and tried to locate A2, but he could not found him and all efforts went in vain. Thereafter A1 reveled that he purchased the said car used in this case from a broker of Mumbai, but he did not get it transfered in his name. PW-4 made all efforts to ascertain the address of the owner of the said vehicle, but he could not traced out the owner.

4.So through the investigation it establishes the fact that the accused herein has committed an offence punishable under Section 8 (c) r/w 20 (b)(ii) (C) of NDPS Act.

5.Hence the charge.

6. Now the point for consideration in this matter is whether the

accused herein was found in possession of 41.00 kgs of ganja, as

such whether the prosecution herein could bring home the guilty of

the accused for the offence punishable under Section 8(c) r/w 20(b)

(ii) (C) of NDPS Act beyond all reasonable doubt?

7.PW-1 who is a person acted as a Gazetted Officer in this case with re- gard to confession and seizure panchanama, where as PW-2 who is the medi- ator for the confession and seizure panchanama, PW-3 who assisted PW-4/

Investigation Officer who conducted ride and also with regard to confession

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and seizure panchanma, where as PW-4 who is the complainant as well as the Investigation Officer in this case.

8. Where as evidence of PW-4 is that on 06-07-2016 he received an infor- mation with regard to presence of ganja in a car, situated infront of Laxminarasimha Swamy Temple, Near Santoshi Matha Temple,

Esamiya Bazar, Sultan Bazar, Hyderabad, then he noted down the said infor- mation and informed the same to his superior officer through a letter which is Ex.P4. Then he along with his staff proceeded to the spot, he found one person sitting in a car and on seeing them he tried to escape but he appre- hend him and on searching the car they found ganja and on enquiry he dis- close his identity as accused herein and also stated that the ganja was present in the car, then he secured the presence of two mediators i.e., PW-2 and LW-3, where as evidence of PW-2 is that on his presence and in the pres- ence of PW-1/ Gazetted Officer, PW-4 conducted panchanma and seized the contraband from the possession of the accused. Further evidence of PW-4 is that he got issued notice to the accused informing about his right to be searched before Gazetted Officer or Magistrate, the said notice is Ex.P5. The accused expressed his willingness to be search before the Gazetted Officer, then he secured the presence of PW-1 who is a Gazetted Officer, where as

PW-1 deposed that he received a letter from PW-4 which is Ex.P1 to act as

Gazetted Officer for the search and seizure of ganja from the accused, on receiving the said letter he reached the spot at situated of Laxminarasimha

Swamy Temple, Near Santoshi Matha Temple, Esamiya Bazar, Sultan Bazar,

Hyderabad wherein he found PW-4 and his staff, mediators and the accused and in his presence PW-4 seized ganja from the possession of the accused under the cover of seizure panchanma i.e., 19.6 kgs of ganja from one bag and 21.6 kgs of ganja from another bag total 41.00 kgs of ganja and PW-4

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also obtained the samples from the seized ganja and also seized the Wagon-

R car. Ex.P2 is the confession and seizure panchnama. MO-1 is the ganja of one bag containing 19.5 kgs, MO-2 is the ganja of another bag containing 21.3 kgs , MO-3 two samples returned from FSL. Ex.P3 is the photo of the car, after completion of the investigation PW-4 along with his staff went to the Police Station, where as further evidence of PW-4 is that on his return to the Police Station along with accused and the seized property he submitted a report to LW-9, basing on the said report LW-9 registered a case in Cr.No.

146/2016 for the offence under Section 8(c)r/w20(b)(ii)(C ) of NDPS Act 1985 and issued FIR which is Ex.P6 and the report is Ex.P7. Thereafter he again took the CD file from LW-9 thereafter he got examined PW-1, PW-3, LW-6 to

LW-8 and recorded their statements. Thereafter affected the arrest of the ac- cused and sent him to the court for remand and then refereed the samples to the FSL and he also sent the detail report to Assistant Commissioner of

Police, Sultan Bazar, Division, Hyderabad which is Ex.P8 and he received

FSL report which is Ex.P9, he deposited the property in the Court and after completion of the investigation he filed charge sheet. PW-3 is a person who assisted, PW-4 in conducting raid and seizure of the property from the possession of the accused and present through out proceedings.

8.The sum and substance of PW-1 to PW-4 is that on the information received by the PW-4 i.e.,person in possession of ganja he raided the said place along with PW-3 caught hold the accused being in possession of ganja, he secured the presence of mediator i.e., PW-2 and also Gazetted Officer i.e.,

PW-1 and seized the ganja from the possession of the accused which was 41.00 kgs.

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9.PW-4 in his evidence i.e., in his cross examination he stated that he reached the scene of offence at 11.30.am, but where as PW-1 who is the

Gazetted Officer herein he deposed that he received a letter from PW-4 at 11.45.am. So there is in-consistence in the evidence of PW-1 and PW-4 as it is not imposing confidence to believe there version as after reaching the scene of offence at 11.30.am observing the accused, apprehend him and on enquiry with the accused herein and after coming to know about the presence of ganja then, drafted a letter to the MRO Nampally and sent it through PW-3 and thereafter drafted a letter to PW-1 and sent the said letter to PW-1 all happened within 15 minutes. PW-1 in his evidence deposed that

Ex.P1 i.e., letter which he received from PW-4 it is mentioned that he received an information at 9.30.am but according to PW-4 he reached the scene of offence at 11.30.am. PW-4 deposed as follows “ I reached the scene of offence i.e., Esamiya Bazar at 11.30.am and I left the scene of offence at 2.20.pm”. PW-2 who is the mediator for the confession and seizure panchanama he deposed that he reached the spot at around 12.00 noon and stayed at the spot for about 20 to 30 minutes but according to PW-4 the time taken to complete the proceedings is from 11.30.am to 2.20.pm about three hours, even if he reached the scene of offence at 12.30.pm his stay there for about 20 to 30 minutes much prior to completing the proceedings, he left the place of panchanama. So it appears that he was not present through out the proceedings of confession and seizure panchanama conducted or else he did not attend the proceedings at all, but he went to the Police Station and affixed his signature on the documents.

Where as PW-1 in his evidence deposed that it took him two hours to conclude panchanama. So even taking into consideration his evidence PW-2 was not present throughout the proceedings as he stated that he stayed at the spot only for 20 to 30 minutes. So he was not present throughout the

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proceedings of confession and seizure panchanama. PW-3 who is person who assisted PW-4 through out the proceedings he deposed that they came back to the Police Station at 12.00 noon, after completion of the entire panchanama and proceedings. But the evidence of PW-2 is that his MRO gave him instructions at 12.00 noon to go to PW-4 to act as mediator. So there is in-consistencein the evidence of PW-1 to PW-4 with regard to confession and seizure panchanama proceedings.

10.PW-4 in his cross examination deposed as follows “ It is true that I did not sent any constable along with report to register the case before conducting the seizure of ganja.” He further deposes as follow” The panch witnesses, Gazetted Officer and myself signed on the panch slips at the scene of offence” “ On the panch chit the crime number of the offence mentioned.” So if at all there was no complaint being lodged even prior to the seizure of the ganja, then securing the crime number and mention the same on the panch chits it discloses that there was no fair investigation, as if there is no alleged of complaint how the crime number happened to be mentioned on the panch chits is not explained by the prosecution herein. It creates a doubt in the minds of the court with regard to the conducting of the proceedings of confession and seizure panchanama.

11.The evidence of PW-4 he deposed as follows” It is true that in Ex.P1 in the second para, last lines it is mentioned that a person was detained at 11.00. hrs along with one plastic bag containing ganja. As per the cross examination of PW-4 it discloses that he reached the spot at 11.30.am and mentioned the fact of finding a person at 11.00.am along with plastic bag of ganja discloses that there was no fair investigation in this case and there is inconsistency with regard to total proceedings in the evidence of PW-1 to

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PW-4. Moreover this evidence of PW-1 it discloses that they found a person with one plastic bag, but according to Prosecution in this case they seized two bags one bag containing 19.6 kgs of ganja and another bag containing 21.4 kgs of ganja and there is no explanation by the Prosecution as to which fact is true and correct. There is total inconsistency with regard to timings of conducting proceedings and completing the proceedings as per PW-1 to

PW-3 and PW-4.

12.PW-4 in his evidence deposed that the date of offence is on 06-07-2016 and the contraband was sent to FSL on 15-07-2016 and there is delay of nine days in sending the samples to FSL and he did not stated any reasons for delay in sending the samples to FLS and in whose custody the contraband was present during the said period.

The learned counsel for the accused herein relied upon

Mohanlal ...Appellant

V/s

State of Punjab ...Respondent

“Samples must be dispatched to the laboratory within 72 hours of seizure to avoid any legal objection”.

“ The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.”

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14.So in view of the principal laid down in the above said citation if the property is sent in delay to the FSL there should be proper explanation, if not it draws adverse presumption against the prosecution i.e., possession of contraband of the accused cannot be said to have been establish.

15. So on careful perusal of the evidence of PW-1 to PW-4 and Ex.P1 to

Ex.P9 and MO-1 to MO-5 there is no incriminating evidence appearing against the accused to establish the guilty of the accused for the charge alleged against him. Hence the accused is entitled for benefit of doubt.

16.In the result the accused is found not guilty for the offence punishable under Section 8 (c ) r/w 20(b) (ii) (C) of NDPS Act and he is acquitted under

Section 235(1) of Cr.P.C for the said offence. The accused shall be set at liberty forthwith, if he is not required in any other case. The bail bonds of the accused, if any shall be in force for a period of six months. The case property i.e., MO-1 to MO-5 shall be destroyed after expiry of appeal time. Ex.P3 photographs of the car through which the car was marked and the said car shall be put to auction and the amount received shall be confiscated to state.

Dictated to Stenographer transcribed by him corrected and pronounced by

me in the open court on this is the 8th day of April, 2022.

I ADDL METROPOLITAN SESSIONS JUDGE

HYDERABAD

APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION :

PW1 – P.Sathaiah the then Inspector of police who acted as gazetted officer. PW2 – V.Kistaiah, Panch for confession cum seizure panchanama of accused. PW3 – N.Praveen Naik, PC, who assisted in apprehension of accused. PW4 – P.Shiva Shankar Rao, Inspector of Police, investigating officer.

Fair Judgment in SC.No.410/2017 10 Dt : 08-04-2022.

DEFENCE : NIL.

NO. OF EXHIBITS MARKED ON BEHALF OF PROSECUTION : Ex.P1 - Letter addressed to PW1. Ex.P2 - Confession cum Seizure panchanama of Accused. Ex.P3 - Two positive photographs of Wagon-R Car B.No.MH 03 Z 8869. Ex.P4 - Intimation letter. Ex.P5 - Notice U/sec.50 of NDPS Act. Ex.P6 - FIR. Ex.P7 - Report. Ex.P8 - Intimation letter to the Higher Authorities U/Sec.57 of NDPS Act. Ex.P9 - FSL report.

DEFENCE : NIL.

NO. OF MATERIAL OBJECTS MARKED :

MO.1 – Ganja bag weighing 19.5 Kgs. MO.2 – Ganja bag weighing 21.3 Kgs. MO.3 – Two unspent samples returned from FSL. MO.4 – Sample ganja marked as S2. MO.5 – Sample ganja marked as S4.

I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Fair Judgment in Crl.A.859/2018 1/11 Dt : 13-04-2022.

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

Dated this the 13th day of April, 2022

PRESENT : SRI B.SURESH

I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

CRIMINAL APPEAL NO.859/2018

From which court this appeal is XV Addl. Judge Cum XIX Addl. Chief preferred Metropolitan Magistrate, Secunderabad

Number of the case in that CourtC.C No.1036/2016

Number of the AppealCrl.A.No.859/2018 Name and description of the Mirza Nizam Fareed Baig, Occ: Appellant/Accused BusinessR/oH.No.16-3-993/G/1, Officers Colony, Paltan, Malakpet, Hyderabad.

Name and description of the The Axis Bank Ltd., Having its office Respondent /Complainantat 5-4-124, 3rd floor, Modi Aquare, R.P Road, Secunderabad Rep. By its Authorized Signatory M.Yeshwanth Rao S/o M.Srinivas Rao, Aged 25 years, Occ: Service, R/o Hyderabad.

The sentence and law under which In the result, accused is found guilty conviction was imposed in the lowerfor the offence under Section 138 of courtN.I, Act and accordingly he is convicted under Section 255 (2) of Cr.P.C. Accused is sentenced to undergo Rigorous Imprisonment for a period of Six months and pay fine of Rs.65,05,000/-, in default of payment of fine, he shall undergo Simple Imprisonment for a period of one month. Out of fine amount of Rs.65,05,000/-, Rs.65,00,000/- shall be paid to the complainant towards compensation U/Sec.357(1)(b) Cr.P.C after expiry of appeal time. There is no remand period to give set off under section 428 of Cr.P.C.

Whether confirmed, modified or In the result, this criminal appeal is reversed if modified, the modifications allowed setting aside the judgment of guilt, conviction of sentence, fine and compensation imposed by XV Addl.

Judge cum XIX ACMM, Secundeabad

on 9-8-2018 in CC.No.1036/2016.

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The appellant/accused is found not guilty for the offence U/sec 138 of NI

Act and accordingly he is acquitted and his bail bonds if any shall be in force for a period of six months. The fine amount if any paid by the appellant/accused in the trial court shall be refunded to him after expiry of appeal time.

DATE OF OR ON WHICH

Filing: 29.08.2018

Presentation: 30.08.2018

Notice issued by Court to appear: 31.08.2018

Bail bond if appellant is let out on bail: ---

Appellant ordered to appear: 19.10.2018

Hearing: 04-04-2022

Judgment: 13-04-2022

This appeal is coming on for hearing before me and upon perusing the petition of appeal and the record of evidence and proceedings and upon duly considering the same after hearing of Sri Safdar Mirza, Counsel for the Appellant/Accused and Sri R.Srinivas Rao & Sri C.V.Srinath, counsels for the Respondent/Complainant delivered the following :

: J U D G M E N T :

1.The appellant/convict for an offence U/Sec. 138 of Negotiable

Instruments Act, 1881 filed this appeal U/Sec.374 (3) (a) Cr.P.C. Seeking to set aside the judgment dated 09-08-2018 of learned XV Addl.Judge cum XIX

Addl.Chief Metropolitan Magistrate, Secunderaad in CC.No.1036/2016 and prays to acquit him for the said offence.

2. The respondent herein was the complainant on whose private complaint appellant was convicted and was sentenced undergo rigorous

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imprisonment for a period of Six months and also to pay fine of

Rs.65,05,000/- (Rupees Sixty Five Lakhs Five Thousands Only) Out of fine amount Rs65,00,000/- (Rupees Six Five Lakhs Only) payable by the accused to the complainant towards compensation U/sec.357(1)(b) of

Cr.P.C. after expiry of appeal time.

3.The convict preferred this appeal obeying the judgment of the trial court and one of my learned predecessors in office passed the orders that the default sentence of imprisonment was suspended and he was allowed on bail and bail continued till now.

4.For the sake of convenience, appellant is referred as accused and the respondent is referred as complainant as they were arrayed in the trial court. The Negotiable Instruments Act, 1881 will be herein after referred as NI Act for the sake of brevity.

5. GROUND OF APPEAL:

(i) It is submitted that the findings given by the trial court that once the signature on the cheque has been admitted, the presumption under section 139 of NI Act is applicable is not correct. On the other hand, the trial court has also not taken into consideration that the initial burden lies on the complainant to show/prove that the accused has issued a cheque towards legally enforceable debt, then only the said presumption under section 139 of NI Act is applicable and the accused needs to rebut the said presumption.

(ii) It is submitted that the findings given by the trial court that no particulars of the blank cheque has been provided to the respondent bank

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by the accused for the sanction of the loan and that except giving the suggestion the accused did not furnish the particulars is incorrect in as much as the guilt of the accused, has to be established by the complainant.

(iii) It is submitted that the trial court in para 20 of the judgment held as follows” In view of the judgment of the Hon’ble Apex Court, the citation relied by the accused is not helpful to him. Thus, in view of the principles enunciated in the above citation, if the cheque is issued by the accused for the loan of Azeem Mohmood Munawar which is come within the purview of

Section 138. The cheque should have been issued by the accused/drawer in discharge of debt or liability either of his own or for discharge of another man’s debt or liability. Hence, the cheque issued by the accused for discharge of loan of Azeem Mohmood Munawar is come within the purview of section 138.

Therefore, the said finding is only based on the assumptions and presumptions.

(iv) It is submitted that the trial court has not taken into consideration that there is absolutely no documentary or oral evidence to establish that the accused has issued a cheque for debt of Mir Azeem Mohmood

Munawar.

(v) It is submitted that findings given by the trial court has non issuance of the reply in para 5 also amounts to admission is not correct.

(vi) It is submitted that non issuance of the reply does not amounts to admission of the contents of the notice as has been held way back in the year, AIR 1966 (SC) Page..

(vii) It is submitted that findings given by the trial court that if the cheque

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is not presented in the account of the accused it would direct him to produce his account statement is not correct. It is for the complainant to establish that the cheque has been presented in his bank account.

(viii) It is submitted that findings given by the trial court that Ex.P-3 cheque has not been presented is absolutely incorrect and a perverse finding on the said aspect.

(ix)It is submitted that findings arrived at by the trial court is totally incorrect and based on assumptions and presumptions.

6. It is prayed this court to allow the appeal by setting aside the judgment dated 9-8-2018 passed in CC No.1036 of 2016 by the learned XV

Addl.Judge- cum – XIX Addl.Chief Metropolitan Magistrate, Secunderabad and to acquit the accused.

7. Learned counsel for the respondent/complainant submits that all the ingredients of Sec.138 of NI Act were established before trial court and the impugned judgment is right on facts and law and filed written arguments.

8. The learned counsel on both sides submitted their oral arguments. The learned counsel for the appellant has submitted written arguments with case laws.

9.Now the point for consideration is :

“ Whether the judgment of conviction, sentence and compensation

dated 9-8-2018 passed by the learned XV Addl.Judge- cum – XIX

Addl.Chief Metropolitan Magistrate, Secunderabad in CC 1036/2018 is contrary to law and whether required any interference by this

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court?

POINT:

10. The contentions of the complainant is that one Mr.Azeem Mohamood

Munawar availed home loan from the complainant bank. Towards discharge of the liability of Mr.Azeem Mohamood Munawar, the accused herein had issued a cheque for a sum of Rs.65 lakhs drawn on Oriental Bank of

Commerce, Malakpet branch, Hyderabad. The complainant presented the said cheque through its banker i.e. Axis Bank Limited, R.P.Road,

Secunderbad and the same was returned with an endorsement of “Funds

Insufficient” vide cheque return memo dated 19-02-2016. Then the complainant got issued a legal notice dated 01-03-2016 to the accused herein to make payment, the said notice was received by the accused on 04-03-2016 but he failed to comply the said notice. As such, he got filed the complaint.

11. On careful perusal of the entire contents of the complaint herein it establishes the fact that the accused herein is not the person who obtained housing loan it was Mr.Azeem Mohamood Munawar who availed the loan from the complainant bank. But what is the relationship between the said person Mr.Azeem Mohamood Munawar and the accused is not being stated in the complaint. Whey the accused herein on behalf of Mr.Azeem

Mohamood Munawar got issued the cheque to the complainant bank is also not being mentioned in the complaint.

12. Coming to the Chief Affidavit of Pw-1 he contended that Mr.Azeem

Mohamood Munawar alienated the property which was mortgaged to the complainant, to the accused , since the accused had taken the mortgage d

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property, towards partial repayment of the home loan availed by Mr.Azeem

Mohamood Munawar, the accused got issued the cheque in favaour of the complainant. On perusal of the documents filed by the complainant herein

Ex.P-1:Certified copy of Special Power of Attorney dated 17-11-2015.

Ex.P-2 is Certified copy of Special Power of Attorney dated 19-9-2015,

Ex.P-3 Cheque No.019340 daetd 8-2-2016 for Rs.65 lakhs, Ex.P-4 Cheque return memo dated 19-2-2016. Ex.P-5 is Office copy of the legal notice

dated 01-03-2016 Ex.P-6 is Postal receipt. Ex.P-7 Postal Acknowledgment,

Ex.P-8 Loan Application, Ex.P-9, Agreement dated 26-5-2016, Ex.P-10

Sanction letter, Ex.P-11,Copy of Board Resolution dated 28-7-2014, Ex.P-12

Certified copy of agreement of sale cum GPA, Ex.P-13: Encumbrance

Certificate Ex.P-14. Foreclosure letter and Ex.P-15 copy of statement of account. So, Exs.P1 to P15 does not contain the Sale Deed executed between Mr.Azeem Mohamood Munawar and the accused herein. In the cross-examination of Pw-1 he deposed as follows” there is no specific document in my possession to show that the accused owe amount to the complainant bank at any point of time”. So, this evidence of Pw-1 establishes the fact that the accused is not due any amount to the complainant. He further deposed as follows” in the complaint it is not mentioned that the accused had purchased the property from Mr.Azeem

Mohamood Munawar”. He further deposed as follows” I have not filed the document under which the accused has purchased the property”. So, this evidence of Pw-1 also establishes the fact that they failed to establish that the accused got purchased the property from Mr.Azeem Mohamood

Munawar”.

13. Pw-1 further deposed as follows” I have not filed any document to

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show that the accused handed over the Ex.P-3 cheque to the complainant in the year 2016”. So, this evidence of Pw-1 also disclosed that there is no document to show that the accused handed over the cheque to the complainant. He further deposed as follows” It is true that the complainant maintains the inward and outward registers”. It is true that no inward number given to the cheque by the complainant.” So, there is no document to show that how the cheque of the accused came into the hands of the complainant.

14.Pw-1 further deposed as follows” I have not filed any document to show that we have presented Ex.P-3 for encashment”. The learned counsel

for the accused herein relied upon 2005(1) ALD Crl.634 wherein it is held

as follows” to attract provisions of Section 138 of Act, cheque shall be presented with bank on which it is drawn as mandated by section 72 of Act – cheques not presented at Bank on which they were drawn -there is no valid presentation of cheques in accordance with provisions of Section 72 of

Act – Petitioner/accused cannot be held criminally liable – Criminal petition allowed – complaint quashed.”

So, in view of the principle laid down in the above said citation when the cheque is not presented as admitted by the complainant no criminal liability can be fastened against the accused.

15.Pw-1 in his evidence deposed as follows” (Q). I suggest you that Ex.P- 12 only agreement of sale is not complete sale”. (A) Ex.P-12 is agreement cum sale with GPA with possession”. But the learned counsel for the accused herein relied upon SCC 656 2012 (1) In the case of “Suraj Lamps” wherein the Hon’ble High court held that “Immovable property can be transferred/conveyed only by deed of conveyance (sale deed) duly stamped

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and registered as required by law – explaining the nature and scope of an agreement for sale, power of attorney and living will, held GPA sales or

SA/GPA/living will transfers neither convey and title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Section 53-A.”

So, unless and until the property is conveyed through a proper registered sale deed, the sale is not concluded. So, there is no document filed by the complainant to show that Mr.Azeem Mohamood Munawar sold the property to the accused as per the Ex.P-12 and as it is not sale deed.

Moreover, the document is not filed with total pages, that are missing pages have the document cannot be relied upon.

16.The contention of the complainant is that on behalf of Mr.Azeem

Mohamood Munawar, the accused herein got issued the cheque to the complainant. So, as on the date of issuing of the said cheque, the said

Mr.Azeem Mohamood Munawar has not discharged from the liability of loan account of Mr.Azeem Mohamood Munawar. So, if at all the cheque was given by the accused on behalf of Mr.Azeem Mohamood Munawar, the complainant ought have to fastened the liability against both the persons, if at all the accused got issued the cheque on behalf of Mr.Azeem

Mohamood Munawar in this case. But he did not implede the said Mr.Azeem

Mohamood Munawar in this case. It was for his liability the cheque was dishonoured as even according to the entire evidence of Pw-1, the accused is nowhere responsible or due any amount to the complainant nor the said

Mr.Azeem Mohamood Munawar was discharged from the liability i.e.

repayment of the loan amount to the complainant bank. If that is the case, the liability of the said Mr.Azeem Mohamood Munawar also exists with the

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complainant. Pw-1 in his evidence deposed as follow “ we did not implede

Mr.Azeem Mohamood Munawar in this case”. He further deposed as follows” we did not issue any notice to the original borrower i.e. Mr.Azeem

Mohamood Munawar intimating the dishonour of the cheque”. If at all the contention of the complainant with the accused herein got issued the cheque on behalf of the Mr.Azeem Mohamood Munawar for the liability of

Mr.Azeem Mohamood Munawar. If at all that cheque was being dishonored as it was the liability of the Mr.Azeem Mohamood Munawar alleged to be discharged he could have also been got issued the notice informing the fact that the dishonor of the cheque. But they did not do so.

17.At last but not the least Pw-1 deposed as follows” there is no document filed by me to show that the accused gave the cheque to the complainant bank.” So, in the light of the above discussion there is no legally enforceable debt between the accused and the complainant and even according to the complainant there is no document filed by them to show that the accused gave the cheque to the complainant bank i.e. on behalf of the accused. So, the complainant herein failed to establish any legally enforceable debt between the complainant and the accused herein.

As such, the accused has no liability of any legally enforceable debt against the complainant, as such he cannot be fastened for the offence U/sec.138 of NI Act. Even on perusal of the written arguments of both parties, the respondent failed to establish that the accused has got legally enforceable debt against the complainant. Whereas, the appellant could establish that he do not have any legally enforceable debt against the respondent/complainant in the light of the above discussion. The trial court has erred in finding guilty of the accused based on the evidence on record,

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as such, there is necessity to interfere in the judgment of the trial court by set aside the judgment of the trial court and this appeal is allowed. The point is answered accordingly.

18. In the result, this criminal appeal is allowed setting aside the judgment of guilt, conviction of sentence, fine and compensation imposed by XV Addl. Judge cum XIX ACMM, Secundeabad on 9-8-2018 in

CC.No.1036/2016. The appellant/accused is found not guilty for the offence

U/sec 138 of NI Act and accordingly he is acquitted and his bail bonds if any shall be in force for a period of six months. The fine amount if any paid by the appellant/accused in the trial court shall be refunded to him after expiry of appeal time.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in the open court on this the 13th day of April, 2022.

I ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD.