Bhavya Kovi

CC. No. 435/2009

IN THE COURT OF SPL.JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) :: NIZAMABAD.

Present : Ms.K.Bhavya, FAC:Spl.Judicial Magistrate of First Class, (Mobile), Nizamabad.

Wednesday, this the 19 th day of April, 2023

C.C. No. 435 of 2009

Between: K. Annapurna, W/o K. Satyapal Goud, Age about : 36 years, Occ: Tailor, R/o Flat No. A2, Sangamitra Arcade, Near Baswa Garden Function Hall, Vinayak nagar, Nizamabad.

...Complainant

AND

Mohd.Sadiq, S/o.Shaik Imam, Age: 48 years, Occ: Government Teacher, H.No. 10-9-13, Quilla Chourastha, Nizamabad (Working at Government Primary School, Urdu Medium, Autonagar, Nizamabad)

...Accused

This case has come up before me on this day for final hearing in the presence of Sri G. Tulasidas Learned counsel on behalf of the complainant and of Sri Mirza Nisar Ahmed Baig Nizami counsel for the accused and having stood over for consideration till this day, this court delivered the following:

//JUDGMENT//

01.This complaint is filed by the complainant against the accused under

Section 200 Cr.P.C for the offence punishable under Section 138 of

Negotiable Instrument Act (hereinafter referred to as N.I. ACT).

02.It is averred on behalf of complainant that out of prior acquaintance, the complainant lent a sum of Rs. 3,00,000/- to the accused for his personal family and legal necessities on 13-02-2005 at the request of accused. The accused promised to repay the said amount with interest at the rate of 24% per annum and after 5 days of receiving the amount i.e., on 18-02-2005, the accused entered into an agreement with the complainant and leased out the premises of the accused to the complainant and as per the said agreement the accused has to adjust the rents in the interest amount accused on the

CC. No. 435/2009

said amount and has to pay the balance amount of interest to the complainant. The complainant and his family members started living in the flat belongs to the accused situated near Baswa Garden Function Hall,

Vinayaknagar, Nizamabad since 18-02-2005. Accused has been adjusting the rents in the interest. Accused promised to repay the said amount on demand failed to pay the said amount and he instead of paying the amount issued a cheque bearing No. 023901, dated 12-09-2006 for Rs. 3,00,000/- drawn on Corporation Bank, Branch Nizamabad towards part of the said debt and assured that it will be honored on its presentation. But the cheque was dishonored as there were insufficient funds in the account of Accused.

When the same was brought to the notice of accused, instead of repaying the same, the accused with the help of his men threatened with dire consequences and tried to dispossess the complainant from the flat by unlawful means. Later legal notice was issued to the accused and despite that the accused did not repay the cheque amount. Hence the complainant was constrained to file the present complaint.

03.Upon the present complaint being filed and after taking cognizance of the offence under Section 138 of NI Act by the Addl. JFMC court,

Nizamabad, summoned the accused. At that stage the case was transferred from the Additional Judicial Magistrate of First Class, Nizamabad vide Dis.

No. 483, Dt. 24-01-2009 to this court and accordingly proceeded further and thereafter, substance of accusation under Section 251 Cr.P.C., read over and explained to the accused in his language to which the accused pleaded not guilty and claimed to be tried. Elaborate and sufficient opportunity was granted to both parties to lead evidence.

CC. No. 435/2009

04.The Complainant in support of her case examined herself as PW1 and got marked Ex.P1 to P6 documents and after the complainant’s evidence, the accused was examined as per legislative mandate of section 313 Cr.P.C.

All the incriminating material in the evidence of complainant was put to the accused and he was given sufficient opportunity to explain himself. He denied the incriminating material and initially filed chief affidavit of DW1, but the same was eschewed by my learned predecessor at the request of accused and despite ample chance the accused has not led defence evidence. Hence defence evidence is treated as nil.

05. Heard the rival submissions of both counsel and perused the material available on record.

06.The point for consideration is:

“Whether the Complainant is able to drive home the guilt of the

accused for the offence punishable under section 138 of N.I.Act ?”

POINT:

07.The complainant examined herself as PW1 and reiterated the contents of her complaint in her chief affidavit. In her cross-examination, PW1 deposed that she is an income tax assessee, but has not filed copy of income tax returns in this case. She admitted that they took the house of accused for rent prior to the transaction. PW1 further admitted that she does not have money lending license. PW1 further more admitted that the writings in cheque pertaining to her name and accused name are different.

08.Appreciation of evidence: Before appreciating the evidence on record, let relevant position of law be discussed first.

To prove the offence U/s.138 of N.I.Act requirements are:

(i) There is a legally enforceable debt and the drawer of the cheque issued the cheque to satisfy part or whole of the legally enforceable debt.

CC. No. 435/2009

(ii) The cheque so issued has been returned due to insufficiency of funds

(iii) The drawer of the cheque failed to repay the cheque amount with in statutory period even after receipt of statutory notice issued to him with in stipulated period.

09.The first and foremost ingredient to be proved by complainant is existence of legally enforceable debt and that the cheque was issued for discharge of the said debt. Here the accused is only disputing with the hand writings on the cheque but he did not deny his signature on the cheque.

Once the signature of accused on Ex.P1 is not denied by him, it is proved by complainant without any further proof and the presumptions u/s.118 and 139

N.I. Act can be drawn in favour of him that Ex.P2 was drawn for consideration and issued to discharge the legally enforceable debt under

Ex.P1. So, the onus shifts to the accused.

10.The second ingredient is that the cheque in question/Ex.P2 must be dishonored. On perusal of Ex.P4/cheque return memo, it clearly indicates that cheque was returned as funds were insufficient in the account of accused.

11.The third ingredient is that thedrawer of the cheque failed to repay the cheque amount with in statutory period even after receipt of statutory notice issued to him with in stipulated period. On perusal of the Exhibits P5, P6 it clearly indicates that the statutory notice was served on the accused.

12.The contention of accused is that, the writings of name of accused and name of complainant are different and Hence the promissory note (Ex.P1) is fabricated and his blank cheque given to one Rajeshwar is misused by complainant. Section 20 of Negotiable Instrument Act, 1881, states that

CC. No. 435/2009

when a person signs and delivers blank cheque to another, he thereby

gives prima-facie authority to holder thereof to make or complete it for

any amount specified therein and not exceeding the amount covered

by stamp. After combined reading of Sections 20 and 138 of Negotiable

Instrument Act, it appears that, to make out an offence in question against the accused, the necessary ingredient is that the cheque should be drawn on the account of the drawer and it is immaterial whether the contents therein are in whose handwriting and the drawer of a cheque can issue blank cheque to other person and by his act he gives an authority to concern person to fill up it contents. It enables the holder of the cheque to fill up the incomplete cheque.

13.Further the complainant relied on ruling of Hon’ble High Court of

Andhra Pradesh in Bonala Raju V. Sarupuru Sreenivasulu reported in 2006 (1) ALD 745 wherein, it was observed that – “Promissory note is not a compulsory attestable document and so non-examination of attesting witness and scribe is not fatal.” It is further observed that “to prove plea of forgery or fabrication burden lies on defendant.” Hence the plea of fabrication is not tenable. Further the complainant relied on ruling of Hon’ble

Apex court in Oriental Bank of Commerce V. Prabodh Kumar Tiwari reported in 2022 SCC Online 1089, wherein it was observed that – “ for such a determination, the fact that the details in cheque have been filled up or not by the drawer, but by some other would be immaterial.”

14.Another plea taken by the counsel for the accused is that the cheque amount is unaccounted money and was not shown in her income tax returns and so she did not file the same before this court. The Hon’ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujaratreported inAIR 2019 SC

CC. No. 435/2009

1876observed that – “Assuming that cheque transaction of lending of

amount is absent and income-tax returns also do not reflect such

amount, that at the best would hold the assessee or lender liable for

action under the Income-tax laws.”In view of aforementioned decision, it is clear that mentioning or non-mentioning of transaction of lending of amount in Income Tax Returns, makes no difference in the instant case dealing with N.I. Act as the Income Tax Act does not render debt unenforceable or precludes lender from recovering same and hence the contention of the counsel for accused, pales into insignificance.

15.The accused further contends that the judgments passed on civil side cannot be considered by criminal court. To prove his contention, the accused relied on rulings of Hon’ble Apex Court in : (I) Kishan Singh (dead)

Through LRs. V. Gurpal Singh and Ors. reported in (2010) 8 SCC 775, (ii)

Vishnu Dutt Sharma V. Daya Sapra reported in (2009) 13 SCC 729, (iii)

Iqbal Singh Marwah & Ors. V. Meenakshi Marwah and Ors. reported in (2005) 15 SCC 290. There is no dispute with regard to preposition of law laid down in the said decisions relied by the counsel for accused. But, the counsel for complainant contends that as per Ex.P7, it shows that in the said civil proceedings the accused did not take the plea of fabrication and as per

Section 33 of Indian Evidence Act, Ex.P7 though not binding in criminal trial is relevant and he filed Ex.P7 i.e., Judgment and decree in O.S.No. 78/2007,

dated 19-12-2012 of Hon'ble Sr. Civil Judge Court, Nizamabad as a

supporting evidence. Hence, no finding will be given solely on the basis of

Ex.P7.

CC. No. 435/2009

16.The crux of the entire arguments and citations relied by the accused counsel is that Ex.P1 was forged and fabricated and the complainant has filed this case fraudulently by misusing the cheque given by accused to

Rajeshwar. But to prove the same, the accused did not examine the said

Rajeshwar or took any steps to prove his contention. This court gave ample chance for the accused to lead evidence, but the accused did not show any interest to adduce evidence and the defence evidence was accordingly closed.

17.The counsel for complainant relied on the following rulings:

(i) T.Vasantha Kumar V. Vijaya Kumari reported in (2015) 8 SCC 378, wherein it was held that – “Once the accused has admitted the issuance of cheque, as well as signature on it, the presumption under

Section 139, would be attracted”

(ii) Rangappa V. Mohan reported in (2010) 11 SCC 441, wherein it was observed that – “the presumption mandated by section 139 of the Act does indeed include the existence of legally enforceable debt or liability.”

(iii) Hiten P.Dalal V. Badrinath Banerjee reported in (2001)6 SCC 16, wherein it was observed that – “ For the offence under Section 138 of the

Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of the cheque by accused is admitted or proved by the complainant and therefore burden is shifted to accused to prove otherwise. The presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of legally enforceable debt or liability etc. A presumption is not itself evidence but only makes a prima facie case for a

CC. No. 435/2009

party for whose benefit it exists. Presumptions both under Section 118 and 139 are rebuttable in nature.”

(iv) K.N. Beena V. Muniyappan reported in AIR 2001 SC 2895, wherein it was observed that – “Thus in complainant under Section 138, the court has to presume that the cheque has been issued for a debt or liability .

This presumption is rebuttable. However, the burden of proving that the cheque had not been issued for a debt or liability is on accused.”

(v) Triyambak S. Hegde V. Sripad reported in (2022) 1 SCC 742, wherein it was observed that – “if the signature on cheque is admitted, presumption under Section 139 of N.I. Act that the cheque was issued for discharging legally enforceable debt will be raised.”

18.Hence, the law is well settled that when once the execution of the cheque is proved, Section 139 of N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. However, the said presumption is rebuttable presumption and the onus is on the accused to raise the probable defence. For rebuttal of the presumptions of law, mere existence of doubts in the case of the complainant is not sufficient and the doubts have to be reasonable in nature. The above discussed facts do not render the defence of the accused as plausible and on the other hand the case of complainant and presumption raised therein have remained intact and hence are entitled to be believed. To conclude, all the mandatory requirements as postulated under Section 138 of NI Act are found to be proved on behalf of the complainant. In view of the entire discussion and the facts and circumstances of the present case, this court is of the considered opinion that the case of complainant has been proved beyond reasonable doubt.

CC. No. 435/2009

19.In the result, accused is found guilty for the offence punishable under

Section 138 of Negotiable Instruments Act and accordingly the accused is convicted for the same under Section 255(2) Cr.P.C.

Typed to dictation by my typist and pronounced by me in open Court, on this the 19 th day of April, 2023

FAC: SPL. JUDL.MAGISTRATE OF FIRST CLASS,

(MOBILE), NIZAMABAD.

CC. No. 435/2009

Quantum of Sentence:

20.The accused is heard on quantum of sentence and is questioned with regard to the quantum of sentence to be imposed on him. He pleaded mercy stating that he has many old age related ailments like piles, lungs problem, heart problem, eye problem, dental problem. Taking into account the facts and circumstances of the case and plea of accused, though I do not consider that accused is entitled for the benevolent provisions of Probation of offenders Act, a lenient view is warranted because of other attending circumstances. Hence accused is sentenced to suffer simple imprisonment for a period of 04 (Four) months and to pay compensation to the complainant under Section 357 Cr.P.C. for a sum of Rs. 3,00,000/-(Rupees

Three lakhs only) which is equivalent to the cheque amount/Ex.P2 along with interest @ 6% from the date of filing the case till date of judgment within a period of one month from today failing which the accused shall undergo a simple imprisonment for a period of one month more. Since no property is seized in this case there is no order as to case property.

21.The Accused is informed about the forum of appeal and time limit for preferring appeal. He is also apprised of his right to free legal aid in appeal through legal services authority. He reported he has means to engage counsel. Office is hereby directed to furnish a copy of the judgment to the accused forthwith free of cost and to receive the acknowledgment of same from him.

Typed to dictation by my typist and pronounced by me in open Court, on this the 25 th day of April, 2023.

FAC: SPL. JUDL.MAGISTRATE OF FIRST CLASS,

(MOBILE), NIZAMABAD

CC. No. 435/2009

//APPENDIX OF EVIDENCE //

WITNESSES EXAMINED

For Complainant: For Accused:

PW1 : K. Annapurna --Nil--

DOCUMENTS MARKED

For Complainant:

Ex.P1 : Promissory note, dated 13-02-2005, Rs. 3,00,00/-

Ex.P2 : cheque bearing No. 023901, dt: 12-09-2006

Ex.P3 : Cheque return memo dt: 13-09-2006 given by Sindicate Bank, Nizamabad

Ex.P4 : Cheque return memo issued by Corporation Bank, Nizamabad,

Dated: 13-09-2006 issued to accused

Ex.P5 : Copy of the legal notice, dated 09-10-2006

Ex.P6 : Postal acknowledgment

Ex.P7 : Judgment an decree in O.S.No. 78/2007, dat: 19-12-2012 of

Hon'ble Sr. Civil Judge Court, Nizamabad.

For Accused: --Nil--

FAC: SPL. JUDL.MAGISTRATE OF FIRST CLASS,

(MOBILE), NIZAMABAD

CC. No 113 of 2016 Pg. No. 1 of 9

IN THE COURT OF SPL.JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) NIZAMABAD.

PRESENT: Ms.K.Bhavya, Spl.Judicial Magistrate of First Class, (Mobile) Nizamabad.

Dated this the 03 nd day of August, 2022

C.C. No. 113 of 2016

Between: The State:Sub-Inspector of Police, P.S. Women, Nizamabad

....Complainant

A N D

1.Mushkari SaiChand, S/o. Mohandas, Age: 34 years.

2.Mushkari Anjali devi, W/o. Mohandas, Age:55 years

3.Mushkari Mohandas, S/o. Satyanarayana, Age: 64 years

4.Mushkari Madhavilatha, D/o. Mohandas, Age: 34 years

5.D. Manju latha, S/o. Venkataramana, Age: 38 years

All the accused are residents of Priyadarshini Nagar, Near Puloji Baba Temple, Nirmal, Adilabad(D)

...Accused No.1 to 5

(Case against A4 is split-up and renumbered as CC.No. 1142/2022)

This case has come up before me on 29.07.2022 for final hearing in the presence of Learned Assistant Public Prosecutor on behalf of prosecution and of Sri M.Kiran Kumar, counsel for the accused and having stood over for consideration till this day, this court delivered the following:

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

01.The Sub-Inspector of Police, PS Women, Nizamabad, filed a charge sheet in Crime No. 32 of 2014 against A1 to A5 for the Offence punishable under section 498-A of Indian Penal Code and Section 3, 4 and 6 of Dowry

Prohibition Act.

02.The Prosecution case succinctly is that, a report was lodged by

PW1/M.Aruna, defacto-complainant and victim herein alleging that all the accused- her husband and in-laws harassed her and subjected her to cruelty for want of additional dowry and despite repeated counselings the accused did not change their ways. Later all the accused harassed her as she delivered a baby girl, beat her, threatened her of dire consequences and necked out her from their house. So she along with her parents and caste

CC. No 113 of 2016 Pg. No. 2 of 9

elders viz., L.Ashok and D.Gangaram went to the house of accused and the

A1 to A5 has not allowed them into their house. Having no other go, she lodged a report with police.

03.Cognizance was taken for the offence punishable under section 498-A of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act by the I Additional

Judicial Magistrate of First class, Nizamabad against A1 to A5. Copies of

documents are furnished to the accused under Section 207 Cr.P.C.

04. Accused A1 to A5 were examined under Sections 239 Cr.P.C and charge was framed for the offence punishable under section 498-A of Indian

Penal Code and Section 3, 4 and 6 of Dowry Prohibition Act and was read over and explained to them for which they denied the same, pleaded not guilty and claimed to be tried. Later this case was transferred this court and proceeded further.

05.To bring home the charges against the accused, the prosecution examined PWs1 to 5 and got marked Exs.P1 to P3. After completion of evidences on the side of the prosecution, Since A4 failed to appear before this court NBW was issued against A4. In-order to expedite trial case against

A4 was split up and re-numbered as CC. No. 1142 of 2022.Later A1 to A3,

A5 were examined under Section 313 of Cr.P.C. They pleaded total denial and reported no defense evidence and the defence is accordingly closed.

06.Heard arguments on both sides.

07.Now the point for consideration is:

“Whether the prosecution has proved its case against the accused beyond all reasonable doubt?”

POINT:

11.PW1/M.Aruna who is the victim and defacto-complainant has deposed that her marriage was performed with A1 on 13-11-2010 and she stayed happily for 2 months and later A1 quarreled with her for want of additional

CC. No 113 of 2016 Pg. No. 3 of 9

dowry of Rs. 10Lakhs for construction of his house at Nirmal. PW1 further deposed that they did not give the amount since they already paid dowry of

Rs.4,51,000/-, 10 Tulas gold, Rs.1,50,000/- worth furniture and later A1 started harassing to give additional dowry of Rs.1,00,000/- but they did not give 1lakh to A1. PW1 further deposed that on 24-06-2012 she gave birth to a baby girl and in the month of may, 2013 A1 promised her that he will look after her so she compromised the matter in DVC case by believing his promise and they stayed happily for 2 months.

PW1 further more deposed that later A1 started asking her for

additional dowry and also he is not looking after her and their child, so she

came back to her parents’ house. PW1 further more deposed that after 2 to 3 months of said incident she called A1 but he did not take her call and later she along with PW2 to 4, LW3/G.Ramadevi went to nirmal to the house of her in-laws to settle the matter amicably. But her in-laws has not accepted her proposal. PW1 further more deposed that later A1 abused her father and her father also scolded the accused and verbal altercation took place between both the families and the accused necked out her and PW2 to 4,

LW3/G.Ramadevi. PW1 also deposed that after 4 months she called A1 and requested him to set up a separate family as A2 is against her since she gave birth to a girl child and A1 asked her to convince A2 to permit him to setup a separate family. So she called A2 and requested her but A2 said that she will not permit them to set up a separate family and she will not allow her to stay in her house. PW1 also deposed that thereafter they again sent a person namely Shekhar to her in-laws house for settlement but her in-laws did not accept the proposal . PW1 further more deposed that in the year 2014 she lodged a report in women police station and police examined her and recorded her statement

12.PW2/G.Oddenna deposed that in the year 2010 he has performed the marriage of his elder daughter/PW1 with A1 and they sayed happily for two months at Nirmal and at the time of marriage he presented dowry of

Rs.4,51,000/-, 10 Tulas gold, Furniture worth Rs. 1,50,000/-. PW2 further deposed that later A1 and PW1 used to quarrel for petty issues and on knowing the same PW5 has brought PW1 to his house and informed him

CC. No 113 of 2016 Pg. No. 4 of 9

about the same and he went to Nirmal and brought PW1 to his house in

Nizamabad. PW2 further deposed that after one week of the said incident he went to the house of A1 along with Caste elders PW3, PW5 and one

Gangaram, Shankar, Somesh, Rajeswar, Gangadhar to request them to take

PW1 into the company of A1 but they refused to do so. PW2 further more deposed that at that time PW1 was pregnant and A1 filed a divorce case against her and he tried many times to settle the matter but A1 did not heed to their words. But after 1 year of filing divorce case though A1 compromised the matter with PW1 but did not take PW1 to his company and so the waited for 3 months and lodged a report in women PS, Nizamabad and police has conducted counseling and in the counseling A2 stated that they can continue with the case but they do not want PW1 to re-join the company of A1.

PW2 further more deposed that in the counseling A1 accepted to take

PW1 back to his company but requested some time to do so and thereafter they came outside the police station and A1’s junior paternal uncle has pushed his son Aravind and a altercation took place before the police station and A3 fell down and sustained severe injuries and was shifted to hospital.

PW2 further more deposed that on the same day PS II-Town has lodged a report against him and his son and his son also filed a counter case against

A1, A3 and in the case registered against him he admitted his guilt and paid fine. PW2 furthermore deposed that thereafter in the counseling by court A1 took PW1 back to his company for 66days and again petty issues cropped up between PW1 and A1 so they brought PW1 to their house in Nizamabad.

PW2 further stated that at about 2years back, the brother-in-law of A1 came to his in-laws house to settle the matter amicably but they asked him to bring

A1 to settle the matter. PW2 furthermore deposed that neither A1 turned up nor his brother-in-law. PW2 also deposed that at about 14 months back some elders from Bhainsa came to his friends house to settle the issue by taking 22 lakhs but they refused and having no other go they continued with the case.

13.PW3/L.Ashok deposed that PW1 was married to A1 at about 15years back and PW2 informed him that petty issues cropped up between PW1 and

A1. At about 8 to 9 years ago on the request of his friend/PW2 they went to

CC. No 113 of 2016 Pg. No. 5 of 9

Nirmal to the house of accused to send PW1 back to the company of A1 along with their child but A1 refused to take PW1 to his company and at the time of visit the brother-in-law of PW1 was also present and they replied that they will continue with the case. PW3 further deposed that so they returned back to Nizamabad with PW1 and her child and thereafter police referred the matter for counseling. PW3 also deposed that police neither examined him nor recorded his statement.

14.PW4/B.Y.Swamy who is the investigating officer in this case deposed on the lines of charge sheet.

15.PW5/D.Raja Gangaram deposed that at about 12 years ago PW1 was married to A1 and after two months of marriage some disputes arose between PW1 and the accused and they counseled the PW1 and the accused and pacified the matter. PW5 further deposed that during the counseling A1 abused them in filthy language and after the counseling PW1 and A1 stayed in Nirmal and PW1 got pregnant at that time ans as PW1 was pregnant she shifted to Nizamabad. PW5 furthermore deposed that when

PW1 came to Nizamabad to she filed a case against A1 to A5 and at that time she called A1 to visit her but A1 did not turn up. PW5 furthermore deposed that even after her delivery PW1 called A1 for cradle ceremony and after 15 months both PW1 and A1 settled the matter amicably upon which

PW1 joined the company of A1 and after that they have lived happily for 2 months and again he sent PW1 to Nizamabad. PW5 furthermore stated that he came to know through LW3/G. Ramadevi that A1 started harassing PW1 again and on that information he called one elder from each side and requested A1 to take PW1 to nirmal.

PW5 also stated that he informed about the disputes between PW1 and A1 to one Ramana who is brother-in-law of the A1 and requested him to settle the matter upon which he replied that if the case is withdrawn against the accused they will take her back. PW5 also deposed that police neither examined him nor recorded his statement and he came to know about the harassment from sister/LW3 and brother-in-law/PW2.

CC. No 113 of 2016 Pg. No. 6 of 9

16. As seen from the evidence on record, it is seen that PWs 1 to 3, 5 who are the interested witnesses in this case they did not utter a single word in their evidence that A2 to A5 harassed PW1. The Hon’ble Apex court has observed in K. Subba Rao v. The State of Telangana that- “The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.

17.Coming to the allegations against A1, PW1 deposed that A1 harassed her for additional dowry but nowhere in the evidence of PW2 i.e., father of

PW1 or the other witnesses they deposed that A1 harassed PW1 for dowry.

PW1 stated that A1 Moreover the version of one witness completely differs from the other. If at all the accused harasses PW1 for additional dowry definitely her father/PW2 would depose the same before this court. PW3 and

PW5 deposed that police neither examined them nor record their statement.

18. PW1 to PW3, PW4 are the interested witness in this case though PW1 deposed that the accused used to harass her, but she could not state specific overt acts of each accused as to how they used to harass PW1. It is a well settled law that “ the evidence of interested witness should be subjected to careful scrutiny and accepted with caution”.

19.The learned counsel for the accused vehemently argued that on bare perusal of evidence available on record, it nowhere suggests that prosecution was able to prove beyond reasonable doubt that cruelty, if any was meted out by PW1 by the accused, as defined under Section 498-A

IPC.

20.Here in the case on hand the evidence of PW1, who is interested witness and other witnesses do not inspire confidence of this court owing to the discrepancies and contradictions in their evidences. Also this court cannot rely on the evidence of PW4 who is investigating officer without any independent corroborative evidence. The discrepancies in the evidence coupled with lapses in investigation further adds to the doubt with regard to the genuinity of evidences of Prosecution Witnesses.

CC. No 113 of 2016 Pg. No. 7 of 9

21.Looking from any angle, I find that the prosecution has ultimately failed to prove its case beyond reasonable doubt and therefore, the inevitable conclusion is that the case of prosecution is sans-merit and this court is of the view that the accused be exonerated from the allegation leveled against them.

22.In the result, the A1, A2, A3 and A5 are found not guilty for the offence punishable under section 498-A of Indian Penal Code and Section 3, 4 and 6 of Dowry Prohibition Act and accordingly they are acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall stand canceled after expiry of appeal time. Since split-up case is pending there is no order as to property.

Typed by me personally and pronounced by me in open Court, on this the 03 rd day of August, 2022.

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE) NIZAMABAD.

CC. No 113 of 2016 Pg. No. 8 of 9

:: APPENDIX OF EVIDENCE ::

WITNESSES EXAMINED

For Prosecution: For Accused:

PW1: M.Aruna/Defacto-complainant --Nil-- PW2: G.Odenna/Witness PW3: L.Ashok/Witness PW4: B.Y.Swamy/Investigating officer PW5: D.Raja Gangaram/Witness

DOCUMENTS MARKED

For Prosecution: For Accused:

Ex.P1: Police Report --Nil-- Ex.P2: First Information Report Ex.P3: Wedding Card of PW1 and A1

MATERIAL OBJECTS MARKED

--Nil--

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE), NIZAMABAD.

CC. No 113 of 2016 Pg. No. 9 of 9

IN THE COURT OF SPL. JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) :: NIZAMABAD.

C.C. No. 113 of 2016

1Name of Complainant:: The State: rep by Sub-Inspector of Police, III- Town Police Station, Nizamabad. 2Names of Accused:: 1. Mushkari SaiChand, S/o. Mohandas, Age: 34 years.

2. Mushkari Anjali devi, W/o. Mohandas, Age:55 years.

3. Mushkari Mohandas, S/o. Satya Narayana, Age: 64 years.

4. Mushkari Madhavilatha, D/o. Mohan das, Age: 34 years.

5. D. Manju latha, S/o. Venkataramana, Age: 38 years. All accused are residents of Priyadarshini Nagar, Nirmal, Adilabad(D) (Case against A4 is split-up and renumbered as CC.No. 1142/2022) 3Nature of Offence:: Under section 498-A of I.P.C and Section 3, 4 and 6 of D.P Act 4Finding:: Not guilty 5Sentence :: Acquitted 6Date of Occurrence of offence:: Prior to 18-04-2014 7Date of Complaint:: 18-04-2014 08Date of Commencement of trail:: 07-03-2022 09Date of Closure of trial:: 08-07-2022 10Date of Sentence or Order:: 03-08-2022 11Explanation of delay:: On 20-06-2014 cognizance was taken by IAJFCM court and copies were furnished to the accused. On 09-09-2016 accused were examined under section 239Cr.P.C and charges were framed against the accused and later the case was transferred to this court . From 07-03- 2022 to 08-07-2022 trial was conducted and after closure of prosecution evidence the case against A4 is split-up and on 29-07-2022 A1 to A3, A5 were examined under section 313Cr.P.C and heard arguments. Later on 03-08-2022 judgment was pronounced. Hence the delay.

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE) NIZAMABAD

To The Hon’ble I-Addl. District & Sessions Judge, Nizamabad

CC.No. 976/2009 Pg.No: 1 of 9

IN THE COURT OF SPL.JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) :: NIZAMABAD.

Present : Ms.K.Bhavya, FAC:Spl.Judicial Magistrate of First Class, (Mobile), Nizamabad.

Wednesday, this the 19 th day of April, 2023

C.C. No. 976 of 2009

Between: K. Annapurna, W/o K. Satyapal Goud, Aged about: 36 years, Occ: Tailor, R/o Flat No. A2, Sangamitra Arcade, Near Baswa Garden Function Hall, Vinayaknagar, Nizamabad.

....Complainant

A N D

1.Mohd Sadiq, S/o Shaik Imam, Age about: 48 years, Occ: Government Teacher, H.No. 10-9-13, Quilla Chourastha, Nizamabad. (Working at Government Primary School, Urdu Medium, Autonagar, Nizamabad)

2.Govind Naik, the Manager, Corporation Bank, C/o M. Narayan Reddy Complex, Near Mudhiraj Sangam, Khaleelwadi,

3.Padmanabha Bhatt, The Asst. General Manager, Corporation Bank, M.G. Road, Secunderabad.

4.Prakash, Photographer, C/o Corporation Bank, C/o M. Narayan Reddy Complex, Near Mudhiraj Sangam, Khaleelwadi, Nizamabad.

....Accused No.1 to 4

(The case against accused no. 3 and 4 was withdrawn by the

complainant vide Crl.M.P. No. 1233 of 2017)

This case has come up before me today for final hearing in the presence of Sri G.Tulasi Das, Counsel for complainant on behalf of prosecution and of Sri Mirza Nisar Ahmed Baig Nizami, counsel for the accused No.1 and Sri K. Maruthi, counsel for the accused No. 2 and having stood over for consideration till this day, this court delivered the following:

//JUDGMENT//

01.This complaint is filed by the complainant under section 200 of

Criminal Procedure Code for the offence punishable under Sections 290, 323, 352, 504, 506 of Indian Penal Code against A1 to A4.

02.The Case of complainant succinctly is that:

The complainant is tenant of accused no. 1 as she took his Flat No.

A2, Sangamithra Arcade, Vinayak Nagar, Nizamabad on rent from accused

CC.No. 976/2009 Pg.No: 2 of 9

no. 1 and out of prior acquaintance, she lent a sum of Rs. 3,00,000/- to the accused no. 1 with an interest @24 % per annum and he executed a promissory note acknowledging the same. The complainant is paying rents regularly by adjusting the interest amount accrued on the said loan. On repeated requests by the complainant to repay the loan amount, the accused no. 1 issued a cheque bearing no. 023901 dated 12-09-2006 in favour of the complainant, which was dishonored as there were insufficient funds in the account of accused no. 1. As such she filed a criminal case for cheque dishonor and also filed a suit for recovery of money against the accused no. 1 and got his property attached. The complainant also filed a suit for perpetual Injunction vide OS. No. 504/2006 as the accused no. 1 is trying to dispossess her from the rented premises by force. It is also averred that, while the things stood so, the accused no. 1 with the help of staff of accused no. 2 have been threatening the complainant and her family members and A1 to A3 have been sending some unsocial elements and other men to their flat to evict the complainant and her family members. So the complainant got issued a legal notice to A1 and A2. Later, on 26-12-2007 all the accused went to the house of complainant abused, assaulted the complainant and her family members and caused minor injuries and also threatened them that they would evict them by force and also damage their reputation in the society. Further on 16-01-2008 A1 and A2 along with their men went to the house of complainant, caused physical and mental agony and also took their photographs with the help of A4. Hence the complaint.

03.Cognizance was taken for the offence punishable under Sections 290, 323, 352, 504, 506 of Indian Penal Code against A1 to A4 by the Additional

Judicial Magistrate of First class, Nizamabad.

CC.No. 976/2009 Pg.No: 3 of 9

04.At this stage the case was transferred from the I Additional Judicial

Magistrate of First Class, Nizamabad vide Proceedings of Hon’ble Chief

Judicial Magistrate vide Dis. No. 483, Dt. 24-1-2009 to this court and

accordingly proceeded further.

05. Later the matter was inadvertently posted for complainant evidence and the evidence of PWs 1 to 3 are recorded and Later the complaint against accused no. 3 and 4 was withdrawn by the complainant vide Crl.M.P

No. 1233 of 2017. At this case it was observed by my learned predecessor that the complainant evidence was recorded even before the accused were examined under Section 251 Cr.P.C. Hence A1 and A2 were examined under Section 251 Cr.P.C for the offence punishable under Sections 290, 323, 352, 504 and 506 of I.P.C., and the substance of accusation was read over and explained to them for which they denied the same, pleaded not guilty and claimed to be tried. Hence the matter is posted for complainant evidence.

06.At this stage the counsel for complainant filed a memo praying to consider the evidence of PWs 1 to 3 which was recorded prior. Hence the memo is recorded considering the request of complainant and the matter was posted for 313 Cr.P.C examination.

07.After the closure of prosecution evidence, accused were examined under Section 313 Cr.P.C. by explaining the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They denied the same and the accused no. 2 reported no defence evidence on his behalf and accused no. 1 despite ample opportunity has not led any defence evidence and the defence is accordingly closed.

CC.No. 976/2009 Pg.No: 4 of 9

08. Heard arguments on both sides. Perused the written arguments filed by accused no. 1.

09.The point for consideration is:

“Whether the complainant has proved her case against the accused beyond all reasonable doubt?”

POINT:

10.The evidence of PW1/K.Annapurna is that she filed case against

Sadik, Govind Naik, Padmanab Butt and Prakash as on 26-12-2007, they came to her house situated at Baswa Gardens, Nizamabad and they were affixing some papers to her house and she question them regarding the same, to which they abused her in filthy language, trespassed into her house, created disturbance in her house and beat her with hands. The total incident took place for 2 to 3 hours and at the time of alleged incident her husband viz., Satyapal and also one gaphoor are present and then she along with her husband went to IV- Town police station, Nizamabad and police advised her that the matter is of civil nature and advised her to approach concerned court. So, on the next day so also on 12-01-2008, she got issued legal notice to accused through her counsel. On 16-01-2008 again the said four persons came to their house by alleging that she has sent legal notices to them, abused her in filthy language, beat her and demanded her vacate the house. After one month of alleged incident, she lodged a private complaint.

In her cross-examination by counsel for accused no. 1, PW1 admitted that she has not filed the names of unsocial elements and other men in her private complaint. She further deposed that he did not get treated in any hospital as the injuries were minor. In her cross-examination by counsel for accused no. 2, PW1 admitted that, she came to know that the said flat was

CC.No. 976/2009 Pg.No: 5 of 9

sold by Bank authorities as per provisions of SARFACI Act by publishing in news paper. She further deposed that she does not know whether bank officials filed a suit against A1 vide OS. No. 13/2016 to recover remaining amount due under loan.

11. The evidence of PW2/Satyapal Goud who is the husband of PW1 is that in the year 2006 PW1 gave Rs. 3,00,000/- as hand loan to accused no.

1 for purchase of flat situated at Sangamithra Apartment near Baswa

Gardens. Despite frequent demands, accused no. 1 did not repay the amount and they finally caught him at subashnagar, and accused no. 1 issued a cheque after one week of advancement of amount and after 15days, he executed promissory note. They lodged a civil case for recovery of money and the said case ended in their favor and they also filed a criminal case for cheque dishonor against accused no. 1. On 26-12-2007, in the afternoon hours, accused no 1 to 4 came to their house, abused him and

PW1. Accused no. 2 pushed him and they also took photographs of the flat and on 16-01-2008 PW1 reported the matter to police but police did not examine them, so they filed a private complaint through their advocate.

In his cross-examination by counsel for accused no. 1 and accused no. 2 he denied most of the suggestions put to him and in the cross- examination by the counsel for accused no. 1, he deposed that he came to know on 26-12-2007 that the said flat was sold away by bank officials under

SARFAESI Act.

12.The evidence of PW3/I.Kishan is that he knew PW1 and PW2 from 16- 01-2008 onwards and on the said date he went to the house of his friend viz., K.Anand situated at 5th floor in apartment situated near Baswa Gardens.

He heard some dispute was going on in First floor as such he went there

CC.No. 976/2009 Pg.No: 6 of 9

and found accused no. 1 and 2 along with two other persons quarreling with

PW1 and PW2 and demanded them to vacate the flat and further they pushed and abused PW1 and PW2 and abused them in filthy language.

Then PW3 intervened and enquired them as to why they are quarreling and they replied that the issue was related to money. So PW3 advised the accused not to quarrel and settle the matter amicably, but the accused did not heed to his words. Thereafter he along with PW1, PW2 went to police station and PW1 lodged a report and thereafter he left that place.

In his cross-examination he denied most of the suggestions put to him by counsel for accused. PW3 deposed that he came to court at the request of PW2 to give evidence. He further deposed that PW2 did not inform him that if wrong evidence is given before court, perjury proceedings will be initiated. PW3 further admitted that on 26-12-2007, he did not visit flat no.

A2, Sangamithra Apartment.

Appreciation of evidence:

13.In the instant case, the evidence of one witness differs with the other.

As per the evidence of PW1, she went to police station, to lodge report on 26-12-2007 whereas the evidence of PW2 is that on 16-01-2008, they went to police station to lodge a report. As per PW1, the accused assaulted her on two occasions i.e., on 26-12-2007 and on 16-01-2008, but PW2 deposed only about the alleged assault on 26-12-2007. Moreover PW1 and PW2 did not depose about the presence of PW3 at the time of offence in their evidence. Moreover as per version of PW3 he accompanied PW1 and PW2 to police station, which is different from the version of other witness.

CC.No. 976/2009 Pg.No: 7 of 9

14.To the utter surprise of this court, PW2 who is husband of PW1 and who according to the complainant’s case is eye-witness to the abuse against his wife has deposed much about the cheque dishonor case than the instant case filed for abuse and threatening against them. More over my learned predecessor has recorded the demeanor of PW2 and recorded that witness is avoiding to answer the questions put to him by counsel for accused no. 1.

which raises suspicion in the mind of this court.

15.It is also not the case of complainant, that accused no. 1 and accused no. 2 are related to each other or that they have prior acquaintance. Hence, there is no reason to believe that Bank officials who admittedly has civil dispute against accused no. 1 and sold away his flat would help him in evicting the complainant. No convincing evidence was placed before this court to believe that A2, who is a Bank official, would put his job and reputation at stake, to help accused no. 1 who is no way related to him, to evict his tenants.

16.It is an admitted fact that there are previous civil and criminal disputes between complainant and accused no. 1. Hence the contention of counsel

for Accused that the allegations are totally false and cooked up and false

case was foisted against the accused cannot be brushed aside. It is a well settled principle of law that “Enmity is a double-edged sword. It can be a

ground for assault and also it can be a ground for false implication.”

17.Except oral evidence of PW1 to PW3, there is no evidence on record to show that the accused abused the complainant and her husband, threatened them and beat them. The discrepancies and contradictions in the

CC.No. 976/2009 Pg.No: 8 of 9

evidence further adds to the doubt with regard to the genuinity of evidences of Complainant Witnesses.

18. In view of my foregoing discussion, absolutely there is no sufficient evidence against the Accused to connect them with the allegations leveled against them and the complainant failed to prove the case beyond all reasonable doubt. Thus, the Accused are entitled for benefit of doubt and acquittal.

19.In the result, A1 and A2 are found not guilty for the offence punishable under Sections 290, 323, 352, 504 and 506 of Indian Penal Code and accordingly they are acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall stand canceled after expiry of appeal time under section 437-A of Cr.P.C. Since no property is produced before this court there is no order as to case property.

Typed to dictation by typist and pronounced by me in open Court, on this the 19 th day of April, 2023

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

:: APPENDIX OF EVIDENCE ::

WITNESSES EXAMINED

For Prosecution: For Accused:

PW1: K.Annapurna ---Nil--

PW2: Satyapal Goud

PW3:Indalwai Kishan

DOCUMENTS MARKED.

For Prosecution: For Accused:

Ex.P1 : Private Complaint ---Nil--

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

CC.No. 976/2009 Pg.No: 9 of 9

IN THE COURT OF SPL. JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) , NIZAMABAD.

C.C. No. 976 of 2009

01Name of Complainant::K. Annapurna, W/o K. Satyapal Goud, Aged about: 36 years, R/o Flat No.A2 Sangamitra Arcade, Near Baswa Garden Function Hall, Vinayaknagar, Nizamabad.

02Names of Accused::1. Mohd Sadiq, S/o Shaik Imam, Age about: 48 years, H.No. 10-9-13, Quilla Chourastha, Nizamabad.

2. Govind Naik, the Manager, Corporation Bank, C/o M. Narayan Reddy Complex, Near Mudhiraj Sangam, Khaleelwadi,

3. Padmanabha Bhatt, The Asst. General Manager, Corporation Bank, M.G. Road, Secunderabad.

4. Prakash, Photographer, C/o Corporation Bank, C/o M. Narayan Reddy Complex, Near Mudhiraj Sangam, Khaleelwadi, Nizamabad. (The case against accused no. 3 &4 was withdrawn by the complainant vide

Crl.M.P. No. 1233 of 2017)

03Nature of Offence ::under Sections 290, 323, 352, 504 and 506 of I.P.C., 04Finding:: Not guilty 05Sentence ::Acquitted 06Date of Occurrence of offence::From 11-10-2006 till 16-01-2006 07Date of Complaint::29-03-2008 08Date of Commencement of trial::31-01-2017 09Date of Closure of trial::06-05-2022 10Date of Sentence or Order::19-04-2023 11Explanation of delay:: –

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

To The Hon’ble I-Addl. District & Sessions Judge, Nizamabad

CC.No. 55/2017 Pg.No: 1 of 7

IN THE COURT OF SPL.JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) :: NIZAMABAD.

Present : Ms.K.Bhavya, FAC:Spl.Judicial Magistrate of First Class, (Mobile), Nizamabad.

Thursday, this the 27 th day of April, 2023

C.C.No. 55 of 2017

Between: The State Sub-Inspector of Police, Rural Police Station, Nizamabad.

....Complainant

A N D Mamindla Ashok, S/o Bal Lingam, Age: 43 years, Caste: Vysya, Occ: SBH Employee, R/o H.No. 1-1-370/36, Sai Krupa Nagar, Nizamabad.

....Accused

This case has come up before me today for final hearing in the presence of Learned Assistant Public Prosecutor on behalf of prosecution and of Sri Avula Narayana, counsel for the accused and having stood over for consideration till this day, this court delivered the following:

//JUDGMENT//

01.The Sub-Inspector of Police, Rural Police Station, Nizamabad filed a charge sheet in Crime No. 181 of 2012 against the accused for the offence punishable under section 420, 406 of Indian Penal Code.

02.The Prosecution Case succinctly is that:

On 09-06-2012 at 20:30 hrs, the defacto Complainant/Ganta

Prabhakar Rao lodged a report stating that he is DLPO retired employee. In the month of September, 2009 a person by name Ashok i.e., accused came to him and stated that he is working as a cashier at SBH and stated that he would give amount on due by pledging the gold at 12% per annum and has pawn broker license. He further stated that he is a MD of chit fund (Sangahvi

Chit Fund) and would issue amount of chit in the month he needed. In need of money the complainant brought the gold of his relatives and his wife in total of 60 tulas and took Rs. 9,28,0000/- on different dates and issued 15 cheques (Dena Bank) as guarantee and 8 blank promissory note with the sign of the complainant and his wife and children. He didn't issue any receipt for the gold loan. Further the complainant took 2 chits of Rs. 5 lakhs and accused said he would issue first chit in 3 months and the second in 6th

CC.No. 55/2017 Pg.No: 2 of 7

month. The complainant paid 8 months of chits with 2 lakhs of commission in the said chit fund company he paid Rs. 1,40,000/- towards the interest of loan. The accused as per his agreement has not issued chit amount and used for himself and gave the amount to interest and stated that he would sell the pledged gold articles. On 10-12-2011 he paid Rs. 10 lakhs to accused forcibly and the accused didn't issue any calculations. Further he didn't return his 15 blank cheques and 8 blank promissory signed by his wife and children nor he returned his amount. The complainant stated that due to his ill-heath he went to the hospital and neglected the same. It is further stated that the complainant got Rs. 1,53,000/- reimbursement from the Govt.

where he saved the same in Dena Bank on 17-05-2012. On coming to know about the same, Ashok forged the cheque and wrote name of his assistant

Mallesh and withdrew Rs. 1,50,000 from the bank on 19-05-2012 without the notice of the complainant. He came to know about this incident when he enquired the Bank authorities. Upon which the complainant reported the same to DIG of Police where the accused came to him and pleaded him not to file a police case against him and would return his amount, cheques and promissory notes. On 09-06-2012 in the noon hours Ashok telephoned him and stated that he would not return his amount, cheques and promissory notes and he can do what ever he want. The defacto complainant further stated that he has threat from the accused. Hence the charge-sheet.

03.Cognizance was taken for the offence punishable under section 420, 406 of Indian Penal Code against the accused by the II Additional Judicial

Magistrate of First class, Nizamabad.

04.Copies of documents are furnished to the accused as contemplated under section 207 Cr.P.C. and the accused is examined under Section 239

Cr.P.C and charge framed for the offence punishable under section 420, 406

I.P.C., was read over and explained to him for which he denied the same, pleaded not guilty and claimed to be tried.

05.At this stage the case was transferred from the II Additional Judicial

Magistrate of First Class, Nizamabad vide Proceedings of Hon’ble Chief

CC.No. 55/2017 Pg.No: 3 of 7

Judicial Magistrate vide Dis. No. 3602, Dt. 10-07-2017 to this court and

accordingly proceeded further.

06.The prosecution in support of its case examined PW1 to PW4 and got marked EXs. P1 to P10.

07.After the closure of prosecution evidence the accused is examined under Section 313 Cr.P.C. by explaining the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, he denied the same and the accused has not led any defence evidence but got marked Ex.D1 and Ex.D2.

08. Heard arguments on both sides.

09.The point for consideration is: “Whether the prosecution has proved its case against the accused beyond all reasonable doubt?”

POINT:

10.The evidence of PW1/G.Prabhaker Rao is that accused apart from his banking employment was running a chit fund business in the name of

Sangavi Chit funds at Nizamabad. PW1 has obtained loan of Rs. 9,28,000/- in 8 installments from the month of November, 2009 from accused and is agreed to pay an amount of Rs. 27,000/- per month towards interest. Before obtaining the loan from the accused, PW1 gave 60 thulas of gold, 8 blank promissory note signed by himself, his wife and his daughter and 16 blank cheques of Denna Bank of his account with his signature to the accused.

After obtaining the loan PW1 paid interest for 2 month and after that PW1 expressed his inability to pay such huge amount per month as interest. The accused advised him to join in 2 chits worth Rs. 5,00,000/-, so, PW1 joined 2 chits in December, 2009 in the name of his wife G. Sathyavathi. Later, the accused promised him to give one chit amount in auction in 3rd month and another chit in 6th month from the date of joining in the chits. He paid chit installments for both the chits and also interest for his loan till 7th month of the chits, but the accused has not paid any amount as promised but obtained the signature of PW1 on all relevant documents and auctioned one of the chit in the 3rd month of the chit itself. After that PW1 stopped the payment of the chit installments for both the chits and stopped the payment

CC.No. 55/2017 Pg.No: 4 of 7

of the interest of the loan. Then the accused started harassing PW1 for payment of the loan amount. Then PW1 approached Gokul chit finance and arranged Rs. 10,00,000/- to the accused. But the accused did not pass any receipt to the said amount and on enquiry about the blank promissory notes and blank cheques which were given to accused at the time of obtaining loan, accused stated that he would return them by evening. But the accused did not return the same on one pretext or the other. Mean while PW1 got heart problem and took treatment and received reimbursement of medical bill of Rs. 1,53,000/- from his department. After 19-05-2012 PW1 issued a cheque of Rs. 1,50,000/- to Gokul Chit funds and when the cheque was presented in bank the bank authorities informed PW1 that the amount was already withdrawn. Upon his enquiry he came to know that the said amount was withdrawn through one Mallesh/LW3, who was the employee of accused. On enquiry about the said withdrawal, the accused answered that

PW1 still has to pay the amount towards his loan and also for the interest and said the whatever he wanted to do. So, he reported the matter to the police.

11.PW2/M.Abbaiah and PW3/A.Mallesh who are alleged to be witnesses in this case resiled from their statement and turned hostile to the case of prosecution. In the cross-examination by learned APP nothing much is elicited about the complicity of accused in the said offence.

PW4/M.Somanadham who is the investigation officer in this case deposed on the lines of charge-sheet.

12.Now coming to the documentary evidence relied by the prosecution

ExP1 is the police report, Ex.P2 is Attested copy of Cheque in the name of

A.Mallesh for an amount of Rs. 1,50,000/-, Ex.P3 is Attested copy of ID Card of Election commission, Ex.P4 is Bank Statement of PW1 of Dena Bank from 20-03-2012 to 31-3-2013, Ex.P5 is reciept issued by Gokul Chit

Finance, Ex.P6 is Chit Receipts (14 in Nos) of sanghavi chits private limited and Ex.P7 is Savings Bank Passbook of PW1 of Dena Bank, Ex.P8 is 161

CrPC Statement of PW2, Ex.P9 is 161 CrPC Statement of PW3, Ex.P10 is

FIR. Even by marking this documents the prosecution could not prove the involvement of accused in this case.

CC.No. 55/2017 Pg.No: 5 of 7

13.In this case, except the oral self serving evidence of PW1 there is no material available on record to prove the offences against the accused. It is admitted fact that PW1 did not file any report regarding cheques and promissory notes. It is further admitted that in the receipts i.e., Ex.P6 signature of accused is not found. It is admitted fact that there are 20 cases pending against the accused. Further the discrepancy in the evidence of

PW1 is marked as Ex.D1. Hence the evidence of PW1 is unreliable. PW2 and PW3 turned hostile to the case of prosecution. It is not safe to rely upon the evidence of PW4, who is Investigating officer in this case without any corroborating evidence. Moreover PW4 admitted in his cross-examination that he has not recovered any blank cheques, promissory notes and partnership deed from the possession of accused. The discrepancies in the evidences of prosecution witness coupled with lapses in investigation further adds to the doubt with regard to the genuinity of prosecution evidence.

14.In the case on hand the evidence of prosecution witness is feeble and there is no material on record to show that the accused has committed the offences with which he is charged. Thus, absolutely there is no sufficient evidence against the accused to connect him with the allegations leveled against him and the prosecution failed to prove the case beyond all reasonable doubt. Thus, the accused is entitled to benefit of doubt and acquittal.

15.In the result, Accused is found not guilty for the offence punishable under Section 420, 406 of Indian Penal Code and accordingly he is acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall stand canceled after expiry of appeal time under section 437-A of Cr.P.C. Since no property is seized, there is no order as to property.

Typed by me personally and pronounced by me in open Court, on this the 27 th day of April, 2023

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

CC.No. 55/2017 Pg.No: 6 of 7

:: APPENDIX OF EVIDENCE ::

WITNESSES EXAMINED

For Prosecution: For Accused:

PW1: G. Prabhaker Rao/Witness, --Nil-- PW2: Matta Abbaiah/Witness, PW3: A. Mallesh/Panch witness PW4: M. Somanadham/ Investigation Officer

DOCUMENTS MARKED

For Prosecution: Ex.P1: Police Report, Ex.P2: Attested copy of Cheque by branch manager Dena Bank. Ex.P3: Attested copy of I.D. card i.e., Election Commission of India Ex.P4: Bank Statement of PW1 of Dena Bank from 20-3-2012 to 31-3-2013 Ex.P5: Receipt issued by GokulChit Finance Ex.P6: Chit receipts (14 in No) of Sanghavi Chit Fund Pvt. Ltd. Ex.P7: Saving Bank pass Book of PW1 of Dena Bank Ex.P8: Section 161 Cr.P.C Statement of PW2 Ex.P9: Section 161 Cr.P.C Statement of PW3 Ex.P10:First Information Report.

For Accused:

Ex.D1: Marked portion in 161 Cr.P.C statement of PW1 Ex.D2: Judgment copy in CC. No. 223 of 2013

MATERIAL OBJECTS MARKED:

For Prosecution: For Accused:

- NIL-

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

CC.No. 55/2017 Pg.No: 7 of 7

IN THE COURT OF SPL. JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) , NIZAMABAD.

C.C.No.55 of 2017

01Name of Complainant:: The State: Sub-Inspector of Police, Rural Police Station, Nizamabad.

02Names of Accused:: Mamindla Ashok, S/o Bal Lingam, Age: 43 years, Caste: Vysya, Occ: SBH Employee, R/o H.No. 1-1- 370/36, Sai Krupa Nagar, Nizamabad.

:: Under Section 420, 406 of IPC 03Nature of Offence :: Not guilty 04Finding :: Acquitted 05Sentence :: Prior to 09-06-2012 06Date of Occurrence of offence :: 09-06-2012 07Date of Police Report :: 27-02-2017 08Date of Commencement of trial 09Date of Closure of trial:: 25-04-2023 10Date of Sentence or Order:: 27-04-2023 11Explanation of delay:: -

FAC: Spl. Judicial Magistrate of First Class, (Mobile) , Nizamabad.

To The Hon’ble I-Addl. District & Sessions Judge, Nizamabad.

CC. No 192 of 2017 Pg. No. 1 of 7

IN THE COURT OF SPL.JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) NIZAMABAD.

PRESENT: Ms.K.Bhavya, Spl.Judicial Magistrate of First Class, (Mobile) Nizamabad.

Dated this the 04 th day of August, 2022

C.C. No. 192 of 2017

Between: The State:Sub-Inspector of Police, Rural P.S. , Nizamabad

....Complainant

A N D

1.P.Ashok Kumar, S/o. Narasaiah, Age: 54 years, R/o. Venkateswar Colony, Armoor

2.P.Radha, W/o. P.Ashok Kumar, Age: 43 years, R/o. Venkateswar Colony, Armoor

...Accused No.1 , 2

This case has come up before me today for final hearing in the presence of Learned Assistant Public Prosecutor on behalf of prosecution and of Sri M.SayaReddy, counsel for the accused and having stood over for consideration till this day, this court delivered the following:

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

01.The Sub-Inspector of Police, Rural PS, Nizamabad, filed a charge sheet in Crime No. 90 of 2016 against A1, A2 for the Offence punishable under section 494, 498-A, 506, 120(B) r/w 34 of Indian Penal Code.

02.The Prosecution case succinctly is that, a report was lodged by

PW1/P.VaraLakshmi, Defacto-complainant and victim herein alleging that she is the legally wedded wife of the A1 and they are blessed with two sons.

They lived happily for 10years and after that A1 was addicted to vices and failed to take care of PW1 and their sons and later she got to know that A1 married A2 illegally without her consent and later on 17.01.2016 at 07:00pm

A1 came to the house of PW1 and threatened her of dire consequences and so, she lodged a report with police.

03.Cognizance was taken for the offence punishable 494, 498-A, 506, read with 120(B) of Indian Penal Code against A1, A2 by the II AJMFC,

Nizamabad. Later this case was transferred to II Addl. JMFC court and later

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to this court and proceeded further. Copies of documents are furnished to the accused under Section 207 Cr.P.C.

04. Accused A1, A2 were examined under Sections 239 Cr.P.C and charge was framed for the offence punishable under section 494, 498-A, 506 of Indian Penal Code against A1 and under section 494 read with 120(B) of Indian Penal Code against A2 was read over and explained to them for which they denied the same, pleaded not guilty and claimed to be tried.

05.To bring home the charges against the accused, the prosecution examined PWs1 to 4 and got marked Ex.P1. After completion of evidences on the side of the prosecution, A1, A2 were examined under Section 313 of

Cr.P.C. They pleaded total denial and reported no defense evidence and the defence is accordingly closed.

06.Heard arguments on both sides.

07.Now the point for consideration is:

“Whether the prosecution has proved its case against the accused beyond all reasonable doubt?”

POINT:

11.PW1/P.Varalaxmi who is the victim and defacto-complainant has deposed that her marriage was performed with A1 at about 35 years back and at the time of marriage her parents gave dowry of Rs.5 lakhs, 10 Tulas gold and half acre land at korutla village. Later in the year 1987, as A1 failed to take care of her and their child/Susheel counseling was held by caste elders in which A1 agreed to take her to Nizamabad and subsequently he took her to Nizamabad. PW1 further deposed that A1 left her in nizamabad and went to Makloor and she stayed with her relatives and in the year 1989 he got selected for SGT teacher post and A1 asked her to resign the job but she did not resign the job and went to Makloor to stay with him by applying one month leave. PW1 furthermore deposed that after two days A1 stopped

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coming to house and so she shifted to Nizamabad and in the year 1991, A1 filed divorce petition but she did not contest the divorce case. PW1 furthermore deposed that in the year 2016 she filed a private complaint as

A1 stopped coming to her house and she came to know that A1 was staying with A2 in Armoor and A1 agreed to pay 50% of his salary and subsequently he paid Rs 4,000/- monthly for 8years and thereafter paid Rs. 9,000/- monthly for a period of 1 year and police examined her and recorded her statement.

12.PW2/P.Susheel deposed that when he was studying 2nd class his father quarreled with his mother and left the house and thereafter his maternal uncle tried to compromise the matter and one day when he was in 6th class the matter was compromised and they went to live with their father.

PW2 further deposed that later disputes again arose between his parents and his mother/PW1 joined him in hostel so that his education does not get disturbed and when he was studying in 9th standard A1 left home and there after he got to know that A1 married A2. Thereafter his maternal uncle tried to settle the matter and A1 agreed to pay half of his salary every month and also promised to pay half of the retirement benefits but A1 paid only Rs.

4000/- per month from 2003 to 2014.

PW2 also deposed that in the meantime he used to visit A1 and request him to pay promised amount as Rs.4,000/- was not sufficient to meet their educational expenses, but he refused and on one day as his mother was unable to bear their expenses he went to the house of A1 to stay with him but A1 did not allow him inside the house and made him wait outside. PW2 also deposed that thereafter LW2 and his maternal uncle assured him that they will take care of him and in the year 2014 his maternal uncle passed away. So, again he went to A1’s house and requested him to pay the promised amount but he refused to do so. So they filed a complaint and police examined him and recorded his statement

13.PW3/S.Srinivas deposed that the children of PW1 and A1 used to come to him and request him to advise A1 to pay college fees and he used to handover the cheques issued by A1 to PW1 as maintenance. PW3 further

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deposed that A1 paid the marriage expenses of both sons and A1 sold his 2 shops and gave the amount to PW1 and after that children of PW1 and A1 did not approach him as they were settled. PW3 also deposed that police examined him and recorded his statement.

14.PW4/Jagadeesh who is the investigating officer in this case deposed on the lines of charge sheet.

15.On bare perusal of the evidences of PW1 and PW2 who are the interested witnesses in this case, succinctly their evidence is that A1 married

A2 in the life time of legally wedded wife/PW1 and failed to maintain them.

But the version of the PW1 and PW2 is quite different from the version in the complaint and their 161 Cr.P.C statements. Moreover it is admitted fact that there is no proof either documentary or oral to show that A1 married A2. At the most they stated that A1 left them and failed to maintain them. But PW1 admitted in her cross-examination that A1 registered his house bearing No.

1-1-28/2 at Metpally in her name and also paid an amount of Rs. 1,35,000/- and further admitted that he bore the expenses of their sons’ marriage and also paid amounts for their sons’ education. PW3 the independent witness also deposed that A1 used to pay maintenance to PW1 through him and he bore the educational and marriage expenses of his sons. Moreover the version of one witness completely differs from the other.

16.PW1, PW2 are the interested witness in this case. It is a well settled law that “the evidence of interested witness should be subjected to careful scrutiny and accepted with caution”. Moreover it is a settled principle that “ He who alleges a fact has a burden of proving it and a mere allegation is not evidence” . In the case at hand except allegations no evidence was adduced to prove the charges against the accused.

17.The learned counsel for the accused vehemently argued that on bare perusal of evidence available on record, it nowhere suggests that prosecution was able to prove beyond reasonable doubt that cruelty, if any was meted out by PW1 by the accused, as defined under Section 498-A

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IPC. He further argued that so also no evidence was adduced by prosecution to show that A1 married A2

18.Here in the case on hand the evidence of PW1 and PW2, who are interested witness do not inspire confidence of this court owing to the discrepancies and contradictions in their evidences. Also this court cannot rely on the evidence of PW4 who is investigating officer without any independent corroborative evidence. The discrepancies in the evidence coupled with lapses in investigation further adds to the doubt with regard to the genuinity of evidences of Prosecution Witnesses.

19.Looking from any angle, I find that the prosecution has ultimately failed to prove its case beyond reasonable doubt and therefore, the inevitable conclusion is that the case of prosecution is sans-merit and this court is of the view that the accused be exonerated from the allegation leveled against them.

22.In the result, A1, A2 are found not guilty for the offence punishable under section 494, 498-A, 506 of Indian Penal Code against A1 and under section 494 read with 120(B) of Indian Penal Code against A2 and accordingly they are acquitted under section 248(1) Cr.P.C. The bail bonds of the accused shall stand canceled after expiry of appeal time. Since no property is produced before this court there is no order as to property.

Typed by me personally and pronounced by me in open Court, on this the 04 rd day of August, 2022.

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE) NIZAMABAD.

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:: APPENDIX OF EVIDENCE ::

WITNESSES EXAMINED

For Prosecution: For Accused:

PW1: P.Varalaxmi/Defacto-complainant --Nil-- PW2: P.Susheel/Witness PW3: S.Srinivas/Witness PW4: I.Jagadeesh/Investigating officer

DOCUMENTS MARKED

For Prosecution: For Accused:

Ex.P1: First Information Report --Nil--

MATERIAL OBJECTS MARKED

--Nil--

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE), NIZAMABAD.

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IN THE COURT OF SPL. JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) :: NIZAMABAD.

C.C. No. 192 of 2017

1Name of Complainant:: The State: rep by Sub-Inspector of Police, Rural Police Station, Nizamabad. 2Names of Accused:: 1. P.Ashok Kumar, S/o. Narasaiah, Age: 54 years, R/o. Venkateswar Colony, Armoor

2. P.Radha, W/o. P.Ashok Kumar, Age: 43 years, R/o. Venkateswar Colony, Armoor 3Nature of Offence:: Under section 494, 498-A, 506 of Indian Penal Code against A1 and under section 494 read with 120(B) of Indian Penal Code against A2 4Finding:: Not guilty 5Sentence :: Acquitted 6Date of Occurrence of offence:: Prior to 04-03-2016 7Date of Complaint:: 04-03-2016 08Date of Commencement of trail:: 15-12-2021 09Date of Closure of trial:: 29-07-2022 10Date of Sentence or Order:: 04-08-2022 11Explanation of delay:: On 20-06-2014 cognizance was taken by IAJFCM court and and later the case was transferred to this court. Later copies were furnished to the accused. On 05-03-2019 accused were examined under section 239Cr.P.C and charges were framed against the accused . From 15-12-2021 to 29-07- 2022 trial was conducted and after closure of prosecution evidence on 02-08-2022, A1, A2 were examined under section 313Cr.P.C and heard arguments. Later on 04-08-2022 judgment was pronounced. Hence the delay.

SPL. JUDICIAL MAGISTRATE OF FIRST CLASS,

(MOBILE) NIZAMABAD

To The Hon’ble I-Addl. District & Sessions Judge, Nizamabad