Sri. Ch.Raja Gopal Rao

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri CH. Raja Gopala Rao, B.A., LL.M., I Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 24th day of April, 2013

CC.382 of 2006

Between: Employees State Insurance Corporation, 5-9-23, Hill fort Road, Adarshnagar, Hyderabad rep. by Insurance Inspector Sri N. Chandra Sekhar. …Complainant

And

1.Ravi Kanth Industries, B-1, Co-op, Industrial Estate, Balanagar, Hyderabad 037, rep. by its Managing Partner, K. Bharatveer(A-1) 2.K. Bharatveer, S/o. Seethjayai Gupta, Managing Partner, M/s. Ravi Kanth Industries, R/o. 5-9-22/44, Adarshnagar, Hyderabad-500 063(A-2) …Accused.

This is a case coming before me for final hearing in the presence of ESI Corporation, Counsel for the petitioner and M/s. Devender Kumar, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E NT

1.Shorn of details, the complaint allegations are, that A1 is the partnership firm by name M/s. Ravikanth Industries, A2 is its Managing

Partner and the person in charge and responsible for the conduct and fitness of the said firm and the company was brought under the coverage of

ESI Act and was allotted code No.52.T.11/14/52-01150.

2.It is further averred that, the accused is liable to pay ESI contribution and in discharge of the said liability he issued cheque bearing

No.315812, dt. 20-7-2003 for Rs.9,051/- (Rs. Nine thousand fifty one only) drawn on Canara Bank, SSI Branch, Hyderabad. When the complainant presented the said cheque it was returned with remarks “Funds Insufficient” vide cheque return memo dt. 23-7-2003 from SBI, Hyderabad Main branch.

Thereupon, the complainant got issued a legal notice dt. 31-7-2003.

2

Despite, the receipt of the said notice, the A1 and A2 failed to pay the cheque amount within the stipulated period, thereby they have committed an offence punishable U/s.138 of Negotiable Instruments Act.

3.The case was taken on file U/s.138 of NI Act against A1 and A2.

4.On appearance of the accused copies U/s.207 Cr.P.C. furnished to him.

5.A1 and A2 are examined U/s.251 Cr.P.C. for the offence

U/s.138 of NI Act, they denied the offence, pleaded not guilty and claimed to be tried.

6.At the time of trial, the complainant has examined PW.1 and got exhibited the Exs.P1 to P8.

7.After closure of the complainant's evidence, accused were examined U/s.313 Cr.P.C. The accused denied the incriminating material appeared against them in the evidence of prosecution witness.

8.Now the point for determination is “Whether the prosecution proved its case against the accused for the offence alleged beyond all reasonable doubt?”

9.It is pertinent to note, that once, the execution of the cheque in question was admitted, the presumption under section 139 of NI Act would arise that it is supported by consideration, such a presumption is rebuttable. The accused can prove the non-existence of consideration by raising a probable defence. He can discharge his initial onus of proof that the existence of consideration was improbable or doubtful or the same was illegal and he discharged the cheque amount in question on a mere tilting probability in his favour.

3

10.It is axiomatic, that the burden on the accused to prove any fact can be discharged either through defence evidence or even through complainant or his witnesses evidence by showing a preponderance of probability.

11.It is settled law, that the burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case is in his favour is case on the complainant, when he given such evidence as will support a prima facie case, the onus shifts on to the accused to adduce rebutting evidence to meet the case made out by the complainant. As the case continues to develop, the onus may shift back again to the complainant vide:

1.AIR 1949 Privy Council page 278 in Kumbha Lakshmanna Vs. Tangirala Venkateshwarlu.

2.AIR 1996 Supreme Court Page 3356 in K.P.O. Moideen Kutti Hajee Vs. Pappu Manjoorn.

3.AIR 1999 Supreme Court Page 1008 in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal.

12.Applying the above ratio to the facts of the present case, now I shall examine the intrinsic and probative value of evidence adduced by the accused, how far to what extent, he discharged evidentiary burden by the test of preponderance of probabilities.

13.The probability story propounded by the accused to discharge his evidentiary burden vis-a-vis to dispel the presumption engrafted U/s.139 of NI Act is that he paid the entire amount and the same fact admitted by the PW.1 during the course of cross-examination. Therefore, no criminal liability cast against him.

14.It is well settled law, that to dispel the presumption embodied under section 139 of NI Act, the accused need not entertain in the witness box and examined other witnesses in support of his defence. The onus upon 4 the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent when the innocence of the accused which may reasonable true even though it is not positively proved to be true the accused would be entitled to acquittal. A.I.R. 2008 S.C. 13215 in Krishna Janardhan Bhat Vs.

Dattatreya G. Hegde, Para 23.

15.To crown it all, PW.1 admits during the course of the cross- examination that the accused paid the entire amount under Ex.P3 cheque in question. This admitted fact emanating from the cross-examination of PW.1 certainly dent the case of the complainant. The ESI contribution has been deposited by way of cash by A1 and A2, it can be taken that the statutory obligation or liability cast upon them, under the Employee State Insurance

Act has been complied with and hence, in view of the peculiar facts and circumstances, it can be taken that the matter in relation to which the cheque had been issued, had been settled between the parties.

16.It is no doubt true, that the accused is infact discharged the liability by paying the entire cheque amount and the said fact stands thus vouched from the cross-examination of PW.1. I am of the considered opinion that in the facts and circumstances of the case no useful purpose would be served to convict the accused, since the debt in question is already discharged.

17.In the result, A1 and A2 are found not guilty for the offence

U/Sec.138 of Negotiable Instruments Act and accordingly they are acquitted u/Sec.255(1) Cr.P.C. The bail bonds of the accused, if any, shall stand cancelled after expiry of six months.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the Open Court on this the 24th day of April, 2013.

I ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW.1 N. Chandra Sekhar, Complainant Nil

EXHIBITS MARKED

PROSECUTIONDEFENCE

Ex.P1 Resolution of ESI Corporation Nil Ex.P2 Authorisation letter Ex.P3 Cheque No. 315812, dt. 20-7-2003 Ex.P4 Cheque return memo of the accused bank Ex.P5 Cheque return memo of the complainant bank Ex.P6 Notice dt. 30-5-2001 Ex.P7 Postal Acknowledgment of register post Ex.P8 Statutory notice MOs MARKED Nil

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

HYDRABAD

RL*

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri CH. Raja Gopala Rao, B.A., LL.M., I Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 24th day of April, 2013

CC.2171 2006

Between: Employees State Insurance Corporation, 5-9-23, Hill fort Road, Adarshnagar, Hyderabad rep. by Insurance Inspector Sri N. Chandra Sekhar. …Complainant

And

1.Ravi Kanth Industries, B-1, Co-op, Industrial Estate, Balanagar, Hyderabad 037, rep. by its Managing Partner, K. Bharatveer(A-1) 2.K. Bharatveer, S/o. Sethaiah Gupta, Managing Partner, M/s. Ravi Kanth Industries, R/o. 5-9-22/44, Adarshnagar, Hyderabad-500 063(A-2) …Accused.

This is a case coming before me for final hearing in the presence of ESI Corporation, Counsel for the petitioner and M/s. Devender Kumar, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E NT

1.Shorn of details, the complaint allegations are, that A1 is the partnership firm by name M/s. Ravikanth Industries, A2 is its Managing

Partner and the person in charge and responsible for the conduct and fitness of the said firm and the company was brought under the coverage of

ESI Act and was allotted code No.52-1150-90.

2.It is further averred that, the accused is liable to pay ESI contribution and in discharge of the said liability he issued cheque bearing

No.484203, dt. 10-2-2000 for Rs.10,000/- (Rs. Ten thousand only) drawn on

Vasavi Cooperative Urban Bank Ltd., Begumbazar, Hyderabad. When the complainant presented the said cheque it was returned with remarks “Insufficient Funds” vide cheque return memo dt. 12-2-2000 from SBI, 2

Hyderabad Main branch. Thereupon, the complainant got issued a legal notice dt. 31-7-2003. Despite, the receipt of the said notice, the A1 and A2 failed to pay the cheque amount within the stipulated period, thereby they have committed an offence punishable U/s.138 of Negotiable Instruments

Act.

3.The case was taken on file U/s.138 of NI Act against A1 and A2.

4.On appearance of the accused copies U/s.207 Cr.P.C. furnished to him.

5.A1 and A2 are examined U/s.251 Cr.P.C. for the offence

U/s.138 of NI Act, they denied the offence, pleaded not guilty and claimed to be tried.

6.At the time of trial, the complainant has examined PW.1 and got exhibited the Exs.P1 to P8.

7.After closure of the complainant's evidence, accused were examined U/s.313 Cr.P.C. The accused denied the incriminating material appeared against them in the evidence of prosecution witness.

8.Now the point for determination is “Whether the prosecution proved its case against the accused for the offence alleged beyond all reasonable doubt?”

9.It is pertinent to note, that once, the execution of the cheque in question was admitted, the presumption under section 139 of NI Act would arise that it is supported by consideration, such a presumption is rebuttable. The accused can prove the non-existence of consideration by raising a probable defence. He can discharge his initial onus of proof that the existence of consideration was improbable or doubtful or the same was illegal and he discharged the cheque amount in question on a mere tilting probability in his favour.

3

10.It is axiomatic, that the burden on the accused to prove any fact can be discharged either through defence evidence or even through complainant or his witnesses evidence by showing a preponderance of probability.

11.It is settled law, that the burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case is in his favour is case on the complainant, when he given such evidence as will support a prima facie case, the onus shifts on to the accused to adduce rebutting evidence to meet the case made out by the complainant. As the case continues to develop, the onus may shift back again to the complainant vide:

1.AIR 1949 Privy Council page 278 in Kumbha Lakshmanna Vs. Tangirala Venkateshwarlu.

2.AIR 1996 Supreme Court Page 3356 in K.P.O. Moideen Kutti Hajee Vs. Pappu Manjoorn.

3.AIR 1999 Supreme Court Page 1008 in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal.

12.Applying the above ratio to the facts of the present case, now I shall examine the intrinsic and probative value of evidence adduced by the accused, how far to what extent, he discharged evidentiary burden by the test of preponderance of probabilities.

13.The probability story propounded by the accused to discharge his evidentiary burden vis-a-vis to dispel the presumption engrafted U/s.139 of NI Act is that he paid the entire amount and the same fact admitted by the PW.1 during the course of cross-examination. Therefore, no criminal liability cast against him.

14.It is well settled law, that to dispel the presumption embodied under section 139 of NI Act, the accused need not entertain in the witness box and examined other witnesses in support of his defence. The onus upon 4 the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent when the innocence of the accused which may reasonable true even though it is not positively proved to be true the accused would be entitled to acquittal. A.I.R. 2008 S.C. 13215 in Krishna Janardhan Bhat Vs.

Dattatreya G. Hegde, Para 23.

15.To crown it all, PW.1 admits during the course of the cross- examination that the accused paid the entire amount under Ex.P3 cheque in question. This admitted fact emanating from the cross-examination of PW.1 certainly dent the case of the complainant. The ESI contribution has been deposited by way of cash by A1 and A2, it can be taken that the statutory obligation or liability cast upon them, under the Employee State Insurance

Act has been complied with and hence, in view of the peculiar facts and circumstances, it can be taken that the matter in relation to which the cheque had been issued, had been settled between the parties.

16.It is no doubt true, that the accused is infact discharged the liability by paying the entire cheque amount and the said fact stands thus vouched from the cross-examination of PW.1. I am of the considered opinion that in the facts and circumstances of the case no useful purpose would be served to convict the accused, since the debt in question is already discharged.

17.In the result, A1 and A2 are found not guilty for the offence

U/Sec.138 of Negotiable Instruments Act and accordingly they are acquitted u/Sec.255(1) Cr.P.C. The bail bonds of the accused, if any, shall stand cancelled after expiry of six months.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the Open Court on this the 24th day of April, 2013.

I ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW.1 N. Chandra Sekhar, Complainant Nil

EXHIBITS MARKED

PROSECUTIONDEFENCE

Ex.P1 Resolution of ESI Corporation Nil Ex.P2 Authorisation letter Ex.P3 Cheque No. 484203, dt. 10-2-2000 Ex.P4 Cheque return memo of the accused bank Ex.P5 Cheque return memo of the complainant bank Ex.P6 Legal Notice dt. 30-5-2001 Ex.P7 Acknowledgment Ex.P8 Return of Statutory notice MOs MARKED Nil

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

HYDRABAD

RL*

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri CH. Raja Gopala Rao, B.A., LL.M., I Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 24th day of April, 2013

CC.4192 of 2006

Between: Employees State Insurance Corporation, 5-9-23, Hill fort Road, Adarshnagar, Hyderabad rep. by Insurance Inspector Sri N. Chandra Sekhar. …Complainant

And

1.Ravi Kanth Industries, B-1, Co-op, Industrial Estate, Balanagar, Hyderabad 037, rep. by its Partner, K. Bharatveer(A-1) 2.K. Bharatveer, Ravi Kanth Industries, B-1, Co-op, Industrial Estate, Balanagar, Hyderabad(A-2) …Accused.

This is a case coming before me for final hearing in the presence of ESI Corporation, Counsel for the petitioner and M/s. Devender Kumar, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E NT

1.Shorn of details, the complaint allegations are, that A1 is the partnership firm by name M/s. Ravikanth Industries, A2 is its Managing

Partner and the person in charge and responsible for the conduct and fitness of the said firm and the company was brought under the coverage of

ESI Act and was allotted code No.52.T.11/14/52-1150-90.

2.It is further averred that, the accused is liable to pay ESI contribution and in discharge of the said liability he issued cheque bearing

No.315834, dt. 10-11-2003 for Rs.10,600/- (Rs. Ten thousand six hundered only) drawn on Canara Bank, Hyderabad. When the complainant presented the said cheque it was returned with remarks “Funds Insufficient” vide cheque return memo dt. 23-7-2003 from SBI, Hyderabad Main branch.

2

Thereupon, the complainant got issued a legal notice dt. 31-7-2003.

Despite, the receipt of the said notice, the A1 and A2 failed to pay the cheque amount within the stipulated period, thereby they have committed an offence punishable U/s.138 of Negotiable Instruments Act.

3.The case was taken on file U/s.138 of NI Act against A1 and A2.

4.On appearance of the accused copies U/s.207 Cr.P.C. furnished to him.

5.A1 and A2 are examined U/s.251 Cr.P.C. for the offence

U/s.138 of NI Act, they denied the offence, pleaded not guilty and claimed to be tried.

6.At the time of trial, the complainant has examined PW.1 and got exhibited the Exs.P1 to P8.

7.After closure of the complainant's evidence, accused were examined U/s.313 Cr.P.C. The accused denied the incriminating material appeared against them in the evidence of prosecution witness.

8.Now the point for determination is “Whether the prosecution proved its case against the accused for the offence alleged beyond all reasonable doubt?”

9.It is pertinent to note, that once, the execution of the cheque in question was admitted, the presumption under section 139 of NI Act would arise that it is supported by consideration, such a presumption is rebuttable. The accused can prove the non-existence of consideration by raising a probable defence. He can discharge his initial onus of proof that the existence of consideration was improbable or doubtful or the same was illegal and he discharged the cheque amount in question on a mere tilting probability in his favour.

3

10.It is axiomatic, that the burden on the accused to prove any fact can be discharged either through defence evidence or even through complainant or his witnesses evidence by showing a preponderance of probability.

11.It is settled law, that the burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case is in his favour is case on the complainant, when he given such evidence as will support a prima facie case, the onus shifts on to the accused to adduce rebutting evidence to meet the case made out by the complainant. As the case continues to develop, the onus may shift back again to the complainant vide:

1.AIR 1949 Privy Council page 278 in Kumbha Lakshmanna Vs. Tangirala Venkateshwarlu.

2.AIR 1996 Supreme Court Page 3356 in K.P.O. Moideen Kutti Hajee Vs. Pappu Manjoorn.

3.AIR 1999 Supreme Court Page 1008 in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal.

12.Applying the above ratio to the facts of the present case, now I shall examine the intrinsic and probative value of evidence adduced by the accused, how far to what extent, he discharged evidentiary burden by the test of preponderance of probabilities.

13.The probability story propounded by the accused to discharge his evidentiary burden vis-a-vis to dispel the presumption engrafted U/s.139 of NI Act is that he paid the entire amount and the same fact admitted by the PW.1 during the course of cross-examination. Therefore, no criminal liability cast against him.

14.It is well settled law, that to dispel the presumption embodied under section 139 of NI Act, the accused need not entertain in the witness box and examined other witnesses in support of his defence. The onus upon 4 the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent when the innocence of the accused which may reasonable true even though it is not positively proved to be true the accused would be entitled to acquittal. A.I.R. 2008 S.C. 13215 in Krishna Janardhan Bhat Vs.

Dattatreya G. Hegde, Para 23.

15.To crown it all, PW.1 admits during the course of the cross- examination that the accused paid the entire amount under Ex.P3 cheque in question. This admitted fact emanating from the cross-examination of PW.1 certainly dent the case of the complainant. The ESI contribution has been deposited by way of cash by A1 and A2, it can be taken that the statutory obligation or liability cast upon them, under the Employee State Insurance

Act has been complied with and hence, in view of the peculiar facts and circumstances, it can be taken that the matter in relation to which the cheque had been issued, had been settled between the parties.

16.It is no doubt true, that the accused is infact discharged the liability by paying the entire cheque amount and the said fact stands thus vouched from the cross-examination of PW.1. I am of the considered opinion that in the facts and circumstances of the case no useful purpose would be served to convict the accused, since the debt in question is already discharged.

17.In the result, A1 and A2 are found not guilty for the offence

U/Sec.138 of Negotiable Instruments Act and accordingly they are acquitted u/Sec.255(1) Cr.P.C. The bail bonds of the accused, if any, shall stand cancelled after expiry of six months.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the Open Court on this the 24th day of April, 2013.

I ADDL. CHIEF METROPOLITAN MAGISTRATE,

HYDERABAD

5

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

PW.1 N. Chandra Sekhar, Complainant Nil

EXHIBITS MARKED

PROSECUTIONDEFENCE

Ex.P1 Authorisation letter Nil Ex.P2 Resolution of ESI Corporation Ex.P3 315834, dt. 10-11-2003 Ex.P4 Cheque return memo of the accused bank Ex.P5 Cheque return memo of the complainant bank Ex.P6 Legal Notice Ex.P7 Postal Acknowledgment Ex.P8 Postal Acknowledgment MOs MARKED Nil

I ADDL. CHIEF MEROPOLITAN MAGISTRATE,

HYDRABAD

RL*

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri CH. Raja Gopala Rao, B.A.,LL.M., I Addl. Chief Metropolitan Magistrate, Hyderabad.

Dated this the 23rd day of April, 2013

CC. 65 of 2012

Between: State of A.P. rep. by Proh. & Excise Sub Inspector, Dhoolpet Excise Station, Hyderabad.

…………..Complainant

And

Kishan Singh, S/o. Ramesh Singh, aged 35 years, R/o.H.No.19-4-362/2, Chirag Ali Nagar, Kishan Bagh, Hyderabad. …………….Accused

This case is coming before me for final hearing in the presence of learned APP for the prosecution and Sri Aavula Prabhakar Reddy, counsel

for the accused and after having stood over for consideration till this day,

the court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Prohibition and Excise Sub-

Inspector, Dhoolpet Excise Station has laid charge sheet against the accused of the offence punishable U/s.7(A) r/w 8(e) of A.P. Prohibition Act, 1995 with the following allegations.

On 30-9-2010 on receiving credible information about illegal possession and sale of ID Liquor at an open place, near house bearing

No.19-4-362/2, Chirag Ali Nagar, Kishanbagh, Hyderabad, Mr. K. Nagaiah, the Excise Sub-Inspector (PW.1) along with staff and panch witnesses viz.,

Prakashgir and T. Uday Singh(LW.1, LW.2) proceeded to the said place and found the accused in possession of a plastic bag and on seeing the officer and staff, the accused tried to escape but was caught. On opening the said bag, they found 215 ID liquor sachets of 100 ml each meant for sale purpose. On interrogation, the accused revealed that he is engaged by one

Omprakash for sale of ID liquor. PW.1 drew the samples and seized the remaining contraband under a cover of panchanama. PW.1 handed over the 2 case along with contraband and accused to PW.2 for further investigation on the point of jurisdiction. Basing on the report of PW.1 registered a case in

Cr.No.1297/10-11. Later, the accused was arrested and remanded to judicial custody. After completing the investigation, it was established that accused is liable for punishment. Hence, the charge.

2.The above case was taken cognizance for the offence punishable

U/s.7(A) r/w 8(e) of A.P. Prohibition Act, 1995 against the accused. On his appearance, he was furnished with copy of charge sheet and its enclosures as required U/s.207 Cr.P.C.

3.The accused was examined U/s.239 Cr.P.C. A charge U/s.7(A) r/w 8(e) of A.P. Prohibition Act, 1995 was framed, read over and explained to the accused, for which, he pleaded not guilty and claimed to be tried.

4.On behalf of prosecution, PW.1 and PW.2 were examined, and

Exs.P1 to P4 were marked.

5.After closure of the prosecution evidence, the accused was examined U/s.313 Cr.P.C. explaining the incriminating evidence adduced by the prosecution. He denied the incriminating circumstances and he did not chose to adduce any oral or documentary evidence.

6.Heard both sides and perused relevant record.

7.Now the point for consideration is “whether the prosecution is able to drive home the guilt of the accused for the aforesaid charge beyond all reasonable doubt?”

POINT:

8.As per prosecution, on 30-9-2010 at 7.45 AM at an open place, near house bearing No.19-4-362/2, Chirag Ali Nagar, Kishanbagh,

Hyderabad, PW.1 found the accused in possession of ID liquor sachets and that he recovered the 215 sachets of ID liquor in the presence of panch 3 witnesses viz., Prakashgir and T. Uday Singh (LW.1, LW.2) under Ex.P1.

The contention of the accused is that he did not commit any offence and the case is foisted against him.

9. PW.1 deposed that on 30-9-2010 at about 7.45 AM at an open place, near house bearing No.19-4-362/2, Chirag Ali Nagar, Kishanbagh,

Hyderabad he found the accused in possession of two plastic bags containing 215 sachets of ID liquor and that he recovered sachets of ID liquor in the presence of panch witnesses under Ex.P1. He did not choose to take the assistance of the locality people as panch witnesses. He did not choose to examine the neighbours of the scene of offence. He denied a suggestion that nothing has been recovered from the possession of the accused and the case is foisted against him.

10.PW.2 is Prohibition and Excise Sub-Inspector, who simply registered a case and filed charge sheet, on receipt of chemical analysis report. He is not the person who arrested the accused and recovered ID liquor in the presence of panch witnesses.

11.Learned Advocate for the accused argued that prosecution failed to examine the independent panch witnesses to prove the alleged recovery of

ID liquor and non-examination of independent panch witnesses is fatal to the case of the prosecution.

12.Admittedly, prosecution failed to examine the independent panch witnesses (LWs.1 and 2). Learned APP given up their evidence. No proper explanation was offered by the prosecution for non-examination of independent panch witnesses. In the absence of the evidence of independent panch witnesses, on the sole evidence of PW.1, it is not safe to convict the accused for the alleged recovery of ID liquor and that there is an inordinate 4 delay of (9) days in sending the samples for chemical analysis which is fatal to the case of the prosecution.

13.In the circumstances of the case and for the above reasons, a benefit of doubt will be given to the accused and the accused is liable to be acquitted.

14.In the result, the accused is found not guilty for the offence under

Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995 and accordingly he is acquitted under Section 248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after the expiry of six months.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the Open Court on this the 23rd day of April, 2013.

I ADDL. CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :For Defence: PW.1 - Mr. K. Nagaiah, P&E Sub-InspectorNil Detected the case PW.2 - Mr. M.G. Prasad, P&E Sub-Inspector/ Investigating Officer

EXHIBITS MARKED

For Prosecution : For Defence:

Ex.P.1PanchanamaNil Ex.P.2Crime and Occurrence Report Ex.P.3 Chemical Analysis Report Ex.P.4List of seized property

MOs. Marked: Nil

I ADDL. CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL* 5

1

IN THE COURT OF I ADDL. CHIEF METROPOLITAN MAGISTRATE :

HYDERABAD

Present : Sri CH. Raja Gopala Rao, B.A., LL.M., I Addl.Chief Metropolitan Magistrate Hyderabad.

Dated this the 23rd day of April, 2013

CC. 55 of 2013

Between: State of A.P. rep. by Proh. & Excise Sub Inspector, Dhoolpet Excise Station, Hyderabad.

…………..Complainant

And

Shailender Singh, S/o. Babulal Singh, age 35 years, R/o. H.No.14-8-419, Devi Nagar, Jummerath Bazaar, Dhoolpet, Hyderabad. …………….Accused This case is coming before me for final hearing in the presence of learned APP for the prosecution and Sri Gulab Singh, counsel for the accused and after having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Prohibition and Excise Sub- Inspector, Dhoolpet Excise Station has laid charge sheet against the accused of the offence punishable U/s.7(A) r/w 8(e) of A.P. Prohibition Act, 1995 with the following allegations:

On 28-10-2012 on credible information about illegal possession and sale of ID liquor at an open place, near Darga, Devi Nagar, Jummerath

Bazar, Dhoolpet, Hyderabad, Srinivasulu, the Excise Sub-Inspector (PW.1) along with staff and panch witnesses viz., Baburao and Mirza Khalid Baig (LWs.1 and 2) proceeded to the said place and found the accused in possession of a plastic bag. On seeing the officer and staff, the accused tried to escape but was caught. On opening the said bag, they found 450 sachets of ID liquor of 100 ml each meant for sale purpose. Thereupon, PW.1 drew samples and recovered the remaining ID liquor under cover of Panchanama.

He seized the contraband under a cover of panchanama in the presence of panch witnesses and, basing on panchanama, PW.1 registered a case in

Cr.No.1082/2012-13 U/s.7(A) r/w 8(e) of A.P.Prohibition Act and investigated into. The said Prohibition and Excise Sub Inspector, Dhoolpet (PW.1) sent one of the samples to the Chemical Examiner, Prohibition Excise

Laboratory, Hyderabad for analysis and report. The remaining property was deposited before Deputy Commissioner, Prohibition and Excise, Hyderabad 2 for confiscation. Later, a report was received from the Chemical Examiner stating that sample is illicitly distilled liquor unfit for potable purpose.

Hence, the charge.

3.The above case was taken cognizance for the offence punishable

U/s.7(A) r/w 8(e) of A.P. Prohibition Act against the accused. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C have been furnished to him. When examined under Section 239

Cr.P.C. he denied the allegations. Charge under section 7(A) r/w 8(e) of

A.P.Prohibition Act has been framed, read over and explained to him. He pleaded not guilty.

4.On behalf of the prosecution, PW.1 has been examined and

Ex.P.1 to Ex.P4 were marked to prove the case against the accused.

5.On completion of evidence of prosecution, the accused has been examined under section 313 Cr.P.C. Accused denied the incriminating material appearing against him in the evidence of the prosecution witnesses.

He did not chose to examine any defence witnesses.

6.Now the point for determination is “Whether the prosecution proved its case against the accused for the offence charged beyond reasonable doubt?”

POINT:

7.According to prosecution that on 28-10-2012 at 7.15 PM at an open place, near Darga, Devi Nagar, Jummerath Bazar, Dhoolpet,

Hyderabad LW.3-the Prohibition and Excise Sub-Inspector, seized 450 sachets of ID liquor from the possession of the accused in the presence of

Baburao and Mirza Khalid Baig (LWs.1 and 2), the panch witnesses.

9. PW.1 deposed that on 28-10-2012 he found the accused in possession of a plastic bag containing 450 sachets of ID liquor at an open place, near Darga, Devi Nagar, Jummerath Bazar, Dhoolpet, Hyderabad and that he seized the same in the presence of panch witnesses under Ex.P1. He 3 did not choose to take the assistance of the locality people as panch witnesses. He did not choose to examine the neighbours of the scene of offence. He denied a suggestion that nothing has been recovered from the possession of the accused and the case is foisted against him.

10.Learned Advocate for the argued that prosecution failed to examine the independent panch witnesses to prove the alleged recovery of ID liquor and non-examination of independent panch witnesses is fatal to the case of the prosecution.

11.Admittedly, prosecution failed to examine the independent panch witnesses (LWs.1 and 2). Learned APP given up their evidence. No proper explanation was offered by the prosecution for non-examination of independent panch witnesses. In the absence of the evidence of independent panch witnesses, on the sole evidence of PW.1, it is not safe to convict the accused for the alleged recovery of ID liquor and that there is an inordinate delay of (12) days in sending the sample to the chemical analysis which is fatal to the case of the prosecution.

12.In the circumstances of the case and for the above reasons, a benefit of doubt will be given to the accused and the accused is liable to be acquitted.

13.In the result, the accused is found not guilty for the offence u/Sec.7(A) r/w 8(e) of A.P.Prohibition Act and accordingly he is acquitted u/Sec.248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after expiry of six months.

Typed to my dictation by the Personal Assistant, corrected,

pronounced by me in the open court on this the 23rd day of April, 2013.

I ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

4

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION :FOR DEFENCE: PW.1 Srinivasulu, P&E SINil

EXHIBITS MARKED

FOR PROSECUTION : FOR DEFENCE : Ex.P1 PanchanamaNil Ex.P2 COR EX.P3 Chemical Analysis Report Ex.P4 List of seized property

MOs MARKED Nil

I ADDL.CHIEF METROPOLITAN MAGISTRATE

HYDERABAD

RL*